Sunday, March 13, 2011

Misadventures of the Supreme Court in Aruna Shanbaug v. Union of India

I have co-authored this post with Mrinal Satish, JSD Candidate at Yale Law School.

The Supreme Court’s decision this week in Aruna Shanbaug v. Union of India raises important questions about the meaning of life, death and their relationship to law and to state power. Unfortunately the judgment in the case not only fails to grapple adequately with these issues, but also betrays faulty legal reasoning and an utter disregard for the law and the legal process. It gives short shrift to important constitutional issues, and is more concerned with foreign precedents than with Indian statutes, case law, rights and process. In doing so, it gets it all terribly wrong.

The case revolves around Aruna Shanbaug, a 60 years old woman who was violently raped in 1973. She sustained severe injuries resulting in brain damage, because of which she has been in a permanent vegetative state for the past 37 years. Ms. Shanbaug is being taken care of by the staff of the KEM Hospital in Mumbai, where she was herself a nurse at the time of the attack. In 2009, a petition was filed before the Supreme Court by Ms. Pinki Virani as Ms. Shanbaug’s next friend. She sought a direction to the KEM Hospital to stop feeding Ms. Shanbaug and to let her die peacefully instead of prolonging her life. Thus the question before the Court was whether Indian law permits passive euthanasia for a person in a permanent vegetative state.

A. The Virtues of being Pedantic
The case was filed as a petition under Article 32. Upfront the Court clarified that the petition did not make out any violation of a fundamental right; and that therefore a petition under Article 32 was misconceived. However, “in view of the importance of the issues involved” the Court decided to “go deeper into the merits of the case.” Was the Court right in disregarding issues of its own jurisdiction? Or are questions of jurisdiction merely fodder for pedantic quibbling amongst lawyers? We believe that there are virtues to being pedantic in such matters. The court is after all a wing of the state, and as such a wielder of public power. Law is one instrument of keeping a check on public power and of ensuring accountability in its exercise. The system of rule of law cannot exist in bits and pieces. It either stands together or falls. If the Court can pick and chose when and where it wants to follow the law and when it is dispensable, we will move from a system of rule of law to the rule of judges. It is a sad fact that this episode is not a one-off instance of the Court deciding that if the law is inconvenient (as opposed to unconstitutional) it can disregard the law for the purposes of its own decision-making. As Pratap Bhanu Mehta has argued, the Court has increasingly taken to acting because it can, and not because it has the legal authority to do so.

It is also not as if declining jurisdiction in the case would have left the petitioner without recourse. As the Court itself pointed out, High Courts have power under Article 226 to deal with the matter. Declining jurisdiction in favour of the Bombay High Court would also have provided for greater deliberation on the issue by engaging at least two levels of the judiciary, and many more heads and voices.

B. Taking Rights Lightly
The focus on procedure is important also because process itself is often the site for substantive violations of rights. This case itself serves as an example. In one segment of the judgment, the court discussed its appointment of a group of doctors to examine Ms. Shanbaug’s condition. Along with their report the doctors submitted a CD which contained a video showing Ms. Shanbaug’s condition. The Court screened the CD before the entire courtroom “so that all present in court could see the condition of Aruna Shanbaug.” We don’t know if the CD covered Ms. Shanbaug’s full medical examination (hopefully not) but even without it, the public screening of a video detailing the physical and mental condition of a patient lying in her hospital bed in a permanent vegetative state, is surely a violation of her privacy and dignity rights. This did not even occur to the Court, and in this, the judicial process treated Ms. Shanbaug as an inanimate object of study and pity, rather than a rights bearing citizen entitled to respect and dignity.

Taking rights out of the picture is also evident in the very framework of the judgment. The decision is based on the following (il)logical sequence:

1. If passive euthanasia is not expressly prohibited by law, it is permitted.
2. Passive euthanasia is an omission.
3. Omissions are not criminalized.
4. Therefore passive euthanasia is not criminalized.
5. Therefore passive euthanasia is permitted.

Let us examine each of these claims. Reading the judgment it appears that the Court started out from the premise that if passive euthanasia is not expressly prohibited by law, it is to be permitted. However, Article 21 already provides for a broad prohibition against the taking of life except according to procedure established by law (and here the court agreed that Ms. Shanbaug is still alive in the legal sense). Therefore, with Art. 21 as the guiding principle, the starting premise rightly ought to have been – if the taking of life is not expressly permitted by procedure established by law, it is to be prohibited. This would have shifted the focus to examining whether in Indian law there is any law that permits the taking of life in such circumstances, rather than examining whether there is a prohibition to the effect. [Should the law permit the taking of life in such circumstances- that’s a different question entirely, and we would argue that in matters of life and death and the control of the state thereon, it should be for the legislature to decide.]

The Court however did not engage with the right to life at all, except to point out that in Gian Kaur v. State of Punjab [(1996) 2 SCC 648] it had held that the right to life does not include the right to die. It completely failed to consider the relevance of the substantive protection of the right to life for the case at hand. This is symptomatic of the disregard for law flowing through the entire judgment. There was hardly any discussion of Indian law beyond the brief mention of the Gian Kaur case, and Section 309 of the Indian Penal Code (IPC), which criminalizes attempts to commit suicide. The court relied heavily on foreign precedents instead, and that is why its other premises fail.

C. What’s Law Got To Do With It?
Even with the Court’s starting position that passive euthanasia is permitted unless expressly prohibited, the Court did not investigate Indian law to examine whether there exists such a permission. The decision was based on the erroneous major premise that omissions are not criminalized under Indian law. The Court stated, referring to the distinction between active and passive euthanasia that:

An important idea behind this distinction is that in passive euthanasia, the doctors are not actively killing anyone; they are simply not saving him. While we usually applaud someone who saves another person’s life, we do not normally condemn someone for failing to do so. If one rushes into a burning building and carries someone out to safety, he will probably be called a hero. But, if someone sees a burning building and people screaming for help, and he stands on the sidelines – whether out of fear for his own safety, or the belief that an inexperienced and ill-equipped person like himself would only get in the way of the professional firefighters, or whatever – if one does nothing, few would judge him for his action. One would surely not be prosecuted for homicide (Atleast, not unless one started the fire in the first place)...[T]here can be no debate about passive euthanasia: You cannot prosecute someone for failing to save a life. Even if you think it would be good for people to do X, you cannot make it illegal for people to not do X, or everyone in the country who did not do X today would have to be arrested. Some persons are of the view that the distinction is not valid. They give the example of the old joke about
the child who says to his teacher, “Do you think it’s right to punish someone for something that he didn’t do?” “Why of course not,” the teacher replies. “Good,” the child says, “because I didn’t do my homework.” In fact we have many laws that penalize people for what they did not do. A person cannot simply decide not to pay his income taxes, or not bother to send his/her children to school (where the law requires sending them), or not to obey a policeman’s order to put down one’s gun.

Thus, according to the Court since omissions are not crimes, and since passive euthanasia is an omission, there is no criminal prohibition against it. Is that understanding correct in law?

The classic definition of a crime requires an act (actus reus) and a corresponding mental element (mens rea). Whether an act includes an omission has always been a tricky question. A.P.Simester and G.R.Sullivan in their book “Criminal Law” point out how omissions in general are not criminalized. They highlight exceptions to the rule, which include:

• Specific Statutory and common law offences. Eg: Omission to file tax returns
• When the accused and the victim have a special relationship. Eg: Parent-child.
• Duties imposed on persons assuming a particular responsibility. Eg; Doctor-Patient

Hence, in common law, a doctor will be liable for at least some omissions that cause harm to the patient. In the decision of the House of Lords in Airedale v. Bland, the Law Lords held that omissions do not constitute the requisite actus reus for homicide. In Aruna Shanbaug, the Court accepted this as true of the Indian position as well, without examining the IPC.

Section 32 of the IPC (to which the Supreme Court did not refer) states: “In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done, extend to illegal omissions.” Thus, an illegal omission can be the requisite actus reus for a crime. Does that extend to homicide? Section 300 of the Penal Code defines murder as an act (and by virtue of Section 32, an omission) which is done with the intention of causing death. It is pertinent to note that Exception 5 to Section 300 of the Code states that if a person causes the death of another with that person’s consent the resultant crime will still be culpable homicide not amounting to murder. Consequently, a doctor can be held liable for culpable homicide not amounting to murder, even if he/she caused death with the patient’s consent. The Code thus expressly criminalizes both active and passive euthanasia even if done with the patient’s consent.

What then about a person in a persistent vegetative state, and therefore incapable of consenting? It is useful to refer to Section 92 of the Indian Penal Code to understand the legislative mandate. This section, in dealing with the necessity defence, says that a person can do an act which benefits another, if that other person is not in a position to consent to the act. The section in its proviso, clearly says this does not extend to causing death or doing any act which is likely to cause death of that person. Applying this section to the present context, the Penal Code provides that if a patient is not in a position to give consent, a doctor can do anything that benefits the patient, short of actions that cause death or are likely to cause death.

Returning to omissions, it is important to remember that Section 32 refers to illegal omissions. What does “illegal” mean? Section 43 of the Indian Penal Code defines the term to mean “…everything which is an offence, or which is prohibited by law, or which furnishes ground for a civil action.” It can possibly be argued that since withdrawing life support to a person in a persistent vegetative state has not been made an offence, or expressly prohibited by law (though as we have shown, that might not be the case because of Section 92), the only question that remains is whether the person or his/her “next friend” would have a ground for civil action against the doctors. This would depend on the duty of care that the doctor owes towards the patient. It could be argued that if the doctor believes that it is in the patient’s “best interests” to stop treatment or withdraw life-support, s/he might be satisfying the duty of care required. However, this is a gray area, one on which there is no clarity in Indian law. It is hence possible to argue that withdrawing life support from a person in a persistent vegetative state is not an “illegal omission.” It was open to the Court to take this interpretation. The problem with the Aruna Shanbaug decision is that it did not discuss any of these provisions. It assumed that under the Indian Penal Code, omissions cannot constitute the actus reus for murder, or for any other crime. It blindly relied on Airedale to come to this conclusion. Was this reliance justified?

In Airedale, the House of Lords held that a doctor may withdraw care from a patient in a persistent vegetative state, with judicial approval. It is very important to note (which the Court did not) that in English law, the terms “murder” or “manslaughter” are defined not in a legislation but through case law. Hence, the House of Lords in Airedale had the power to state that under the English law of homicide, a positive act is required to constitute the actus reus. By virtue of Section 32, IPC, it was not open for the Indian Supreme Court to follow suit.

Airedale also suffers in being an ill-reasoned judgment where the Law Lords took leaps of logic which defy explanation. It is no surprise that Airedale is a much criticized case (See for instance: J.M. Finnis, Bland: Crossing the Rubicon? 109 L.Q. Rev. 329 (1993); John Keown, Restoring Moral and Intellectual Shape to the Law after Bland, 113 L.Q. Rev. 482 (1997); Alexander Mc Call Smith, Euthanasia: The Strengths of the Middle Ground, 7 Med.L.Rev 194(1999)). More importantly, to arrive at its conclusions, Airedale relied on prior judgments of the House of Lords, based on English common law. These do not apply in the Indian context, since there are express Indian laws covering the field.

For example, in Airedale the Law Lords based their judgment primarily on whether a doctor’s act/omission will be illegal if s/he acts in the “best interests” of the patient. To do so, they relied on a previous decision of theirs in In Re F (1991). In that case, the Law Lords had held that providing treatment to an unconscious or mentally incompetent individual, without that person’s consent would not amount to assault or battery if it was in the patient’s “best interests” to do so. They used the principle of necessity to come to that conclusion. In Airedale, they extended this principle to ceasing treatment to a patient in a persistent vegetative state. However, this logic does not apply in the Indian context, since as we have argued earlier, unlike in the United Kingdom, the principle of necessity is codified in Section 92 of the Indian Penal Code, and it does not extend to causing death. Therefore in the Indian context the logic of In Re F cannot extend to the circumstances under consideration in Aruna Shanbaug.

Thus, the Supreme Court in Aruna Shanbaug blindly relied on Airedale v. Bland, quoting extensively from the judgment and relying almost entirely on it, without considering that the law stated there is contrary to the Indian position. It also did not deal with the Indian statutory position at all to support its decision. Thus it engaged not in judicial borrowing, but in judicial imitation.

D: Legislating from the Bench
The judgment ended with the Court adopting the Vishaka strategy of legislating on the issue till the legislature decides to deal with the matter. This strategy has become well entrenched in Indian law, but there is need for questioning it. By stepping into the shoes of the legislature in this manner, the court gives itself plenary legislative powers (as opposed to incidental powers of legislation that are a concomitant of adjudication) that does not appear to have much basis in constitutional theory or in law. By turning to the judiciary for legislative intervention instead of the legislature, this procedure not only creates democratic deficiencies but also weakens the entire structure of the democratic State. In this case itself, the Court requested a team of doctors to not only examine Ms. Shanbaug, but also give the court their views on euthanasia. The only other person that the Court heard, apart from the parties to the case, was the Court appointed amicus. The courtroom space privileges certain voices over others, and judges get to pick and choose whom they want to hear. It is not as if these dynamics are not present in the legislative process. The problem is that these dynamics are wired into the very structure of the court process. Are we then not better of trying to reinvigorate the legislative process rather than using courts as substitutes thereof?

10 comments:

Gautam Bhatia said...

I'm slightly confused about how Art. 21 enters the frame - isn't the life and liberty guaranteed by Art. 21 enforceable against the State? Consequently, is Art. 21 relevant to discussing the legality of passive euthanasia carried out by, say, doctors in a private hospital?

A student said...

With all due respect, I regret to differ from the reasoning of the learned writer, on the following points:

1) The author in this article states that the court had relied upon Foreign precedents and has neglected Indian Laws. This statement according to me is improper.

1.1 Firstly The court has taken in account the Indian laws, and the intention part stated by the court is correct, as for e.g A Hangman hangs a person convicted of murder, is the hangman liable, no he is not, in the same way if a doctor has taken prior permission of the court then he can commit passive euthanasia, he is not liable for murder or abetment to suicide, there is no question at all for omission.

1.2 Secondly, the court has laid guidelines and thus these guidelines and thus these are law under Art 141, and thus has not only in these guidelines laid law but also procedure, this seems to fulfill both the requirement as was held in Manika Gandhi Case.

1.3 Thirdly, saying that the court only relied on Foreign precedents is wrong the court took care of the Indian law and explained Indian law then took foreign law into consideration, and I find no where that the foreign law cannot be taken as a precedent. The court has many a times has taken foreign precedents, Just for example the Doctrine of Pith and Substance, In Indian constitution it is no where written, but still taken by the court, now if it is said that it is ignorance of Indian law it will be completely wrong.

1.4 The Statement coated by the Court about the omission or act, is just to clear the nature of intention involved. The doctor never wants to commit euthanasia but still he has to, to avoid the living dead person. Moreover ,the court has allowed only passive euthanasia after the procedure established by the court is followed.

1.5 The court has taken reference of foreign law, because the Indian law was immature on this point.The Gaur case, was not on euthanasia, so the court has not laid something contrary, but has laid a new concept of law which is a welcome change in Indian law.

2) I think I need not to give any more justification as I have in a hurry covered in my 1st point. But yes I am in the favor of author on the point of Privacy, the open telecast of the video recording was a wrong act of the court.

3) I would also like to add, that the Court has not decided it by a constitutional bench which is a requirement under Art 145 of the Indian constitution read with Supreme Court rules, as this matter was of very great importance.

4) But I differ form the author on one point that the court has taken rights lightly, as the court in the present case has made it more strict as compared to different countries such as America or nether land.

Yours Sincerely
Mr Unknown.

Tarunabh Khaitan said...

i am not quite sure of my substantive views on this matter, and i am instinctively sceptical of some of the right-wing critiques of the house of lords case you cite.

but what your post does highlight is that justice katju's famous espousal of judicial restraint is as unprincipled and opportunistic as justice scalia's. those who live in glass houses etc.

A student said...

I agree with Gautam Point, but If we read M.C Metha case, where the court held that the nature of the right is to seen, and the court held that even private party can also vioalte fundamental rights.

But your point is valid if we take into consideration the Pradeep Biswas case.

But the court has laid guideline, if the Private Hospital violates then it will be violating the guidelines and not Article 21.

Moreover, a another question raises, that if the guidelines are violative of Fundamental Rights can judiciary be held as a part of State.

Gautam, please do reply, I am also puzzled with ocean of doubts

Aparna Chandra said...

Thanks for the comments.
Gautam: Actually, as you know Article 21 reads "No person shall be deprived of his life or personal liberty except according to procedure established by law." This is wider than just a prohibition on State action, and has been held to cover "private" doctor-patient relationships by the Court in the context of the right to health. But my point was this: The State (and the Court) is bound by Article 21 to ensure that no one in deprived of their life, except as mentioned. If therefore Aruna is to be deprived of her life, the court should show how her case is either not covered by the substantive protection of the right, or that its deprivation is permitted by procedure establsihed by law. The court does neither.
Tarunabh: I agree that much of the criticism of the Airedale judgment has come from right wing commentators, and that many of them are opposed to the notion of euthanasia itself. However,I believe Airedale (and Aruna Shanbaug) have problems with legal reasoning which have nothing to do with the substantive merits of the outcome- which, for what it is worth, I personally endorse. And I agree, J. Katju's approach in this case is in stark contrast to his opinions in Aravalli Golf Club and Jeet Bhist to name a few. Which just goes to show that notions of activism and restrain are influenced more by ideology than methodology!

mrinalsatish said...

@ Mr. Unknown: In response to your comments :
1.1 : Our argument is that IPC can be read to actually prohibit euthanasia and that the Court should not be giving permission for it in the first place.
1.2: Since we are questioning the very correctness of the guidelines, the fact that they might be considered as law under Art. 141 is not of concern for us.
1.3: We are not saying that foreign precedents should not be considered by courts. Our argument is that in this case, there was an improper reliance on Airedale, because the position taken there is contrary to Indian statutory law. The Court does not discuss this.
1.4: You might want to consider the distinction between motive and intention.
1.5: Same as 1.3

Sunil said...

@ Authors I have a question "If a old man suffering from an ailment prolonged enough but unable to bear more the burden of hefty medical treatment. His sons are monetarily very well enough to pay for it but are unwilling, Wife of that old man wants him to live, can his sons or state be compelled to pay that much for his treatment or being granted passive euthanasia(removal of life aid)".

A student said...

Dear Mrinal Satish,

In my view as to the difference between act and omission is improper, now I do understand you views and appreciate your ideas.

The point pointed by you is correct but still I feel that this judgement is a new curve taken by justice katju but he has made a fault differentiating ommision and act.

I apologize if due to my comments your valuable time was was wasted.

Yours Sincerely

Mr. Unknown.

naz said...

i do have a query to aparna. you mentioned that for aruna to be deprived of her right to her right to life, it is necessary to show her case is not covered by her substantive right to life.
my question is two fold. if a person in terminal illness wishes to die, would that be a good enough ground to deprive him of his substantive right to life as the right to self determination is the most valued right outweighing any compelling state interest.
my second question is with regard to a person who is not able to consent. then would it be right to bring in the right to live with human dignity to argue that his substantive right to life can be deprived.

if any of these questions is answered in the affirmative, what would be the necessity of bringing in the penal provisions? as clearly no statute could be ultra virs the constitution.

in a way i argue that gian kaur has in fact legalized euthanasia. as it very explicitly mentions that a person is allowed premature extinction of life when the process of natural death has already commenced.

your views on this would be welcome.

Amit Bhandari said...

It is high time that India came up with a law on Euthanasia and not depend on varying interpretations of judiciary in the absence of a law whenever a petition seeking euthanasia is filed in court.
Right to life is a constitutional legal provision, but we have something that law-makers looks up to while framing a law and that is Humanity.
Is it humane to let somebody lie in a persistent vegetative state when he had willed his death instead, when alive and conscious? When it is the State instrumentality that has caused a person to be in permanent vegetative state, then what is state’s liability?
Should not State provide medical care to a person in permanent vegetative state, when such person cannot afford medical care on his own?
These are a few open questions till we have a law to answer them.