DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
2015-16

FINAL DRAFT
Criminal Law 2
TITLE OF PROJECTCase Commentary on:
Aruna Ramchandra Shanbaug v. union of India and ors.

Submitted To:

Submitted By:

Dr. K.A. Pandey

NIDA FATIMA

Asstt. Professor (LAW)

ROLL NO-78

Dr. RMLNLU

4th SEMESTER

TITLEAruna Ramchandra Shanbaug v. Union of India & ORS.

CITATION
2011 4 SCC 524

PARTIES:
ARUNA RAMCHANDRA SHANBAUG Petitioner(s) VERSUS UNION OF INDIA & ORS.
Respondent(s)

COURT NAME:
SUPREME COURT OF INDIA

BENCH:
There were two judges in this bench.The case was heard by HON'BLE MARKANDEY KATJU
AND GYAN SUDHA MISRA, JJ.

DATE OF JUDGMENT:
This Writ Petition was called on for Judgment on 07/03/2011.

INTRODUCTION
The Constitution of India guarantees Right to Life to all its citizens. The constant, ever-lasting
debate on whether Right to Die can also be read into this provision still lingers in the air. On the

other hand, with more and more emphasis being laid on the informed consent of the patients in
the medical field, the concept of Euthanasia in India has received a mixed response.
The Honble Supreme Court of India, in the present matter, was approached under Article 32 of
the Indian Constitution to allow for the termination of the life of Aruna Ramchandra Shanbaug,
who was in a permanent vegetative state. The petition was filed by Ms. Pinki Virani, claiming to
be the next friend of the petitioner. The Court in earlier cases has clearly denied the right to die
and thus legally, there was no fundamental right violation that would enable the petitioner to
approach the court under Article 32. Nonetheless, the Supreme Court taking cognizance of the
gravity of the matter involved and the allied public interest in deciding about the legality of
euthanasia accepted the petition.

FACTS
The petitioner Aruna Ramachandra Shanbaug was a staff Nurse working in King Edward
Memorial Hospital, Parel, Mumbai. On the evening of 27th November, 1973 she was attacked by
a sweeper in the hospital who wrapped a dog chain around her neck and yanked her back with it.
He tried to rape her but finding that she was menstruating, he sodomized her. To immobilize her
during this act he twisted the chain around her neck. The next day on 28th November, 1973 at
7.45 a.m. a cleaner found her lying on the floor with blood all over in an unconscious condition.
It is alleged that due to strangulation by the dog chain the supply of oxygen to the brain stopped
and the brain got damaged.
The attack leaves Aruna blind, deaf, paralysed and in a vegetative state. Valmiki was charged
with attempted murder and for robbing Aruna's earrings, but not for rape. The police did not take
into account that she was sodomized. A trial court awarded Valmiki seven years imprisonment.
This was reduced to six years because he had already served a year in lock up.
1980 | Valmiki walks out of jail.
2009 |
'Aruna's Story' author moves the Supreme Court seeking Aruna's force-feeding to be stopped.
Apex court forms a medical team to examine Aruna. The committee submits a report that Aruna
Shanbaug "meets all the criteria for being in a permanent vegetative state". Rejects Virani's plea.
Justices issue guidelines allowing for the use of 'passive' euthanasia for terminally ill patients
through the withholding of treatment.

ISSUES RAISED
1. When a person is in a permanent vegetative state (PVS), should withholding or
withdrawal of life sustaining therapies be permissible or `not unlawful?
2. If the patient has previously expressed a wish not to have life-sustaining treatments in
case of futile care or a PVS, should his/ her wishes be respected when the situation
arises?
3. In case a person has not previously expressed such a wish, if his family or next of kin
makes a request to withhold or withdraw futile life-sustaining treatments, should their
wishes be respected?

LAWS IN QUESTION
Article 32, article 21 of Indian constitution

JUDGMENT:
The Honble Division Bench of the Supreme Court of India, comprising Justice Markandey
Katju and Justice Gyan Sudha Mishra, delivered this historic judgment on March 7, 2011. The
Court opined that based on the doctors report and the definition of brain death under the
Transplantation of Human Organs Act, 1994, Aruna was not brain dead. She could breathe
without a support machine, had feelings and produced necessary stimulus. Though she is in a
PVS, her condition was been stable. So, terminating her life was unjustified.
Further, the right to take decision on her behalf vested with the management and staff of KEM
Hospital and not Pinki Virani. The life saving technique was the mashed food, because of which
she was surviving. The removal of life saving technique in this case would have meant not
feeding her. The Indian law in no way advocated not giving food to a person. Removal of
ventilators and discontinuation of food could not be equated. Allowing of euthanasia to Aruna
would mean reversing the efforts taken by the nurses of KEM Hospital over the years.
Moreover, in furtherance of the parens patriae principle, the Court to prevent any misuse in the
vested the power to determine the termination of life of person in the High Court. Thus, the
Supreme Court allowed passive euthanasia in certain conditions, subject to the approval by the
High Court following the due procedure. When an application for passive euthanasia is filed the
Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who

should decide to grant approval or not. Before doing so the Bench should seek the opinion of a
committee of three reputed doctors to be nominated by the Bench after consulting such medical
authorities/medical practitioners as it may deem fit. Simultaneously with appointing the
committee of doctors, the High Court Bench shall also issue notice to the State and close
relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next
friend, and supply a copy of the report of the doctors committee to them as soon as it is
available. After hearing them, the High Court bench should give its verdict. The above procedure
should be followed all over India until Parliament makes legislation on this subject.
However, Aruna Shanbaug was denied euthanasia as the court opined that the matter was not fit
for the same. If at any time in the future, the staff of KEM hospital or the management felt a need
for the same, they could approach the High Court under the procedure prescribed.

RATIO DECIDENDI
The learned judges concluded the following:1
In our opinion, if we leave it solely to the patient's relatives or to the doctors or next friend to
decide whether to withdraw the life support of an incompetent person there is always a risk in
our country that this may be misused by some unscrupulous persons who wish to inherit or
otherwise grab the property of the patient. Considering the low ethical levels prevailing in our
society today and the rampant commercialization and corruption, we cannot rule out the
possibility that unscrupulous persons with the help of some unscrupulous doctors may fabricate
material to show that it is a terminal case with no chance of recovery.
In our opinion, while giving great weight to the wishes of the parents, spouse, or other close
relatives or next friend of the incompetent patient and also giving due weight to the opinion of
the attending doctors, we cannot leave it entirely to their discretion whether to discontinue the
life support or not. We agree with the decision of the Lord Keith in Airedale's case2 that the
approval of the High Court should be taken in this connection. This is in the interest of the
protection of the patient, protection of the doctors, relative and next friend, and for reassurance
of the patient's family as well as the public. This is also in consonance with the doctrine of
parens patriae which is a well known principle of law. DOCTRINE OF PARENS PATRIAE.

1 http://indiankanoon.org/doc/235821/
2

ANALYSIS AND COMMENT

To be able to adjudicate upon the aforementioned issues, the court explained as to what is
euthanasia. Euthanasia or mercy killing is of two types: active and passive. Active euthanasia
entails the use of lethal substances or forces to kill a person e.g. a lethal injection given to a
person with terminal cancer who is in terrible agony. Passive euthanasia entails withholding of
medical treatment for continuance of life, e.g. withholding of antibiotics where without giving it
a patient is likely to die, or removing the heart lung machine, from a patient in coma.
A further categorization of euthanasia is between voluntary euthanasia and non-voluntary
euthanasia. Voluntary euthanasia is where the consent is taken from the patient, whereas nonvoluntary euthanasia is where the consent is unavailable e.g. when the patient is in coma, or is
otherwise unable to give consent. While there is no legal difficulty in case of the former, the
latter poses several problems. The present case dealt with passive non-voluntray euthanasia.

RIGHT TO DIE
In the case of State of Maharashtra v. Maruty Shripati Dubal,3 the contention was that Section
309 of the Indian Penal Code was unconstitutional as it is violative of Article 19 and 21. It was
held in this case by the Bombay high court that right to life also includes right to die and
section 309 was struck down. The court clearly said in this case that right to die is not unnatural;
it is just uncommon and abnormal. In the case of P.Rathinam v. Union of India,4 it was held that
the scope of Article 21 includes the right to die. P. Rathinam held that Article 21 has also a
positive content and is not merely negative in its reach. In the case of Gian Kaur v. State of
Punjab,5 the validity of Section 306 of the IPC was in question, which penalised the abetment of
suicide. This case overruled P.Rathinam but the court opined that in the context of a terminally
ill patient or one in the PVS, the right to die is not termination of life prematurely but rather
accelerating the process of death which has already commenced. Further, it was also submitted
that the right to live with human dignity must also include a death with dignity and not one of
subsisting mental and physical agony.
3 Maruti Sripati Dubal v. State of Maharashtra (1987) Cr. L.J., 743

4 P. Rathinam v. State of U.O.I. and another AIR 1994 SC 1844

5 Smt. Gian Kaur v. State of Punjab AIR 1996 SC 1257, (all accessed from http://www.legalservicesindia.com/)

Reliance was placed on the landmark judgement of Airedale NHS Trust v. Bland,6 where for the
first time in the English history, the right to die was allowed through the withdrawal of life
support systems including food and water. This case placed the authority to decide whether a
case is fit or not for euthanasia in the hands of the Court. However, in the instant case, Aruna
could breathe by herself and did not need any external assistance to breath. Thus, she was not
granted the right to die.
I am satisfied with the judgment given in the present case. The judges have rightly held that the
staff of the KEM hospital has looked after her for 37 years, after she was abandoned by her
family and the Dean of the KEM Hospital (representing the staff of hospital) is an appropriate
surrogate. The honourable Judges of Supreme Court have delivered a balanced judgement in the
case of Aruna. It is very painful to see her in this state but she is not completely unconscious,
hence euthanasia at this stage would tantamount to murder. When medical team and her peers are
comfortable in taking care of her even after 37 years, let her meet natural death. The judges
deserve all praise and appreciation in considering passive euthanasia by fixing responsibility
over the respective High Court and the Medical Board without whose recommendation and
approval it cannot be carried out. This is to avoid gross misuse and abuse of power.

6 Airedale N.H.S. Trust v Bland [1993] A.C. 789, http://www.e-lawresources.co.uk/Airedale-NH-S--Trust-v-Bland.php