REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 115 OF 2009

Aruna Ramchandra Shanbaug ..      Petitioner

-versus-

Union of India and others .. Respondents

J U D G M E N T

Markandey Katju, J.

“Marte hain aarzoo mein marne ki Maut aati hai par nahin aati”

--  Mirza Ghalib

1. Heard Mr. Shekhar Naphade, learned senior counsel for the petitioner,  

learned Attorney General for India for the Union of India Mr. Vahanvati,  

Mr. T. R. Andhyarujina, learned Senior Counsel, whom we had appointed as  

amicus  curiae,  Mr.  Pallav  Sisodia,  learned  senior  counsel  for  the  Dean,  

KEM Hospital, Mumbai,  and Mr. Chinmay Khaldkar, learned counsel for  

the State of Maharashtra.     

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2. Euthanasia is one of the most perplexing issues which the courts and  

legislatures all over the world are facing today. This Court, in this case, is  

facing the same issue, and we feel like a ship in an uncharted sea, seeking  

some  guidance  by  the  light  thrown  by  the  legislations  and  judicial  

pronouncements of foreign countries, as well as the submissions of learned  

counsels before us.  The case before us is a writ petition under Article 32 of  

the  Constitution,  and  has  been  filed  on  behalf  of  the  petitioner  Aruna  

Ramachandra Shanbaug by one Ms. Pinki Virani of Mumbai, claiming to be  

a next friend.

3. It is stated in the writ petition that 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.  

It is alleged that the Neurologist in the Hospital found that she had plantars'  

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extensor,  which indicates damage to the cortex or some other part  of the  

brain. She also had brain stem contusion injury with associated cervical cord  

injury. It is alleged at page 11 of the petition that 36 years have expired since  

the incident and now Aruna Ramachandra Shanbaug is about 60 years of  

age. She is featherweight, and her brittle bones could break if her hand or leg  

are awkwardly caught, even accidentally, under her lighter body. She has  

stopped menstruating and her skin is now like papier mache' stretched over a  

skeleton. She is prone to bed sores. Her wrists are twisted inwards. Her teeth  

had decayed causing her immense pain. She can only be given mashed food,  

on which she survives. It is alleged that Aruna Ramachandra Shanbaug is in  

a persistent negetative state (p.v.s.) and virtually a dead person and has no  

state of awareness, and her brain is virtually dead. She can neither see, nor  

hear anything nor can she express herself or communicate, in any manner  

whatsoever. Mashed food is put in her mouth, she is not able to chew or  

taste any food. She is not even aware that food has been put in her mouth.  

She is not able to swallow any liquid food, which shows that the food goes  

down on its own and not because of any effort on her part. The process of  

digestion goes on in this way as the mashed food passes through her system.  

However,  Aruna  is  virtually  a  skeleton.  Her  excreta  and  the  urine  is  

discharged on the bed itself. Once in a while she is cleaned up but in a short  

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while again she goes back into the same sub-human condition.  Judged by  

any parameter, Aruna cannot be said to be a living person and it is only on  

account of mashed food which is put into her mouth that there is a facade of  

life which is totally devoid of any human element. It is alleged that there is  

not the slightest  possibility of any improvement in her condition and her  

body lies on the bed in the KEM Hospital, Mumbai like a dead animal, and  

this has been the position for the last 36 years. The prayer of the petitioner is  

that  the  respondents  be  directed  to  stop  feeding  Aruna,  and  let  her  die  

peacefully.  

4. We could have dismissed this petition on the short ground that under  

Article 32 of the Constitution of India (unlike Article 226) the petitioner has  

to  prove  violation  of  a  fundamental  right,  and  it  has  been  held  by  the  

Constitution  Bench  decision  of  this  Court  in  Gian Kaur  vs.   State  of  

Punjab, 1996(2) SCC 648 (vide paragraphs 22 and 23) that the right to life  

guaranteed by Article 21 of the Constitution does not include the right to die.  

Hence  the  petitioner  has  not  shown violation  of  any of  her  fundamental  

rights.   However,  in  view  of  the  importance  of  the  issues  involved  we  

decided to go deeper into the merits of the case.

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5. Notice  had  been  issued  by  this  Court  on  16.12.2009  to  all  the  

respondents in this petition.  A counter affidavit was earlier filed on behalf  

of the respondent nos.3 and 4, the Mumbai Municipal Corporation and the  

Dean, KEM Hospital by Dr. Amar Ramaji Pazare, Professor and Head in the  

said hospital, stating in paragraph 6 that Aruna accepts the food in normal  

course  and  responds  by  facial  expressions.  She  responds  to  commands  

intermittently by making sounds. She makes sounds when she has to pass  

stool and urine which the nursing staff identifies and attends to by leading  

her to the toilet. Thus, there was some variance between the allegations in  

the writ petition and the counter affidavit of Dr. Pazare.  

6. Since there was some variance in the allegation in the writ petition  

and the counter affidavit of Dr. Pazare, we, by our order dated 24 January,  

2011 appointed a team of three very distinguished doctors of Mumbai to  

examine Aruna Shanbaug thoroughly and submit a report about her physical  

and mental condition.  These three doctors were :

(1) Dr. J. V. Divatia, Professor and Head, Department of  Anesthesia, Critical Care and Pain at Tata Memorial  Hospital, Mumbai;

(2) Dr. Roop Gursahani, Consultant Neurologist at P.D. Hinduja, Mumbai; and   

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(3) Dr. Nilesh Shah, Professor and Head, Department of  Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital.

7. In pursuance of our order dated 24th January, 2011, the team of three  

doctors above mentioned examined Aruna Shanbuag in KEM Hospital and  

has submitted us the following report:

“ Report of Examination of Ms. Aruna Ramachandra Shanbaug  Jointly prepared and signed by  

1. Dr. J.V. Divatia  (Professor and Head, Department of Anesthesia, Critical Care  and Pain, at Tata Memorial Hospital, Mumbai)  

2. Dr. Roop Gursahani  (Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)  

3. Dr. Nilesh Shah  (Professor and Head, Department of Psychiatry at Lokmanya  Tilak Municipal Corporation Medical College and General  Hospital).  

I. Background  

As per the request of Hon. Justice Katju and Hon.  Justice Mishra of the Supreme Court of India, Ms. Aruna  Ramachandra  Shanbaug,  a  60-year-old  female  patient  was examined on 28th January 2011, morning and 3rd  February 2011, in the side-room of ward-4, of the K. E.  M. Hospital by the team of 3 doctors viz. Dr. J.V. Divatia  (Professor and Head, Department of Anesthesia, Critical  Care and Pain at Tata Memorial Hospital, Mumbai), Dr.  Roop Gursahani (Consultant Neurologist at P.D. Hinduja  Hospital,  Mumbai) and Dr. Nilesh Shah (Professor and  Head,  Department  of  Psychiatry  at  Lokmanya  Tilak  

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Municipal  Corporation  Medical  College  and  General  Hospital).  

This  committee  was  set  up  because  the  Court  found some variance between the allegations in the writ  petition  filed  by  Ms.  Pinki  Virani  on  behalf  of  Aruna  Ramchandras Shanbaug and the counter affidavit of Dr.  Pazare.  This  team  of  three  doctors  was  appointed  to  examine Aruna Ramachandra Shanbaug thoroughly and  give a report to the Court about her physical and mental  condition  

It was felt by the team of doctors appointed by the  Supreme  Court  that  longitudinal  case  history  and  observations  of  last  37  years  along  with  findings  of  examination will give a better, clear and comprehensive  picture of the patient’s condition.  

This report is based on:  

1. The longitudinal case history and observations  obtained from the Dean and the medical and nursing staff  of K. E. M. Hospital,  

2. Case records (including nursing records) since January  2010  

3.  Findings  of  the  physical,  neurological  and  mental  status examinations performed by the panel.  

4.  Investigations  performed  during  the  course  of  this  assessment  (Blood  tests,  CT  head,  Electroencephalogram)  

II. Medical history  

Medical  history  of  Ms.  Aruna  Ramachandra  Shanbaug was obtained from the Dean, the Principal of  the School of Nursing and the medical and nursing staff  of ward-4 who has been looking after her.  

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It was learnt from the persons mentioned above that  

1.  Ms.  Aruna Ramachandra  Shanbaug was admitted in  the hospital after she was assaulted and strangulated by a  sweeper of the hospital on November 27, 1973.  

2. Though she survived, she never fully recovered from  the trauma and brain damage resulting from the assault  and strangulation.  

3. Since last so many years she is in the same bed in the  side-room of ward-4.  

4.  The  hospital  staff  has  provided  her  an  excellent  nursing care since then which included feeding her  by  mouth,  bathing her and taking care of her toilet  needs.  The care was of such an exceptional nature that she has  not developed a single bed-sore or fracture in spite of her  bed-ridden state since 1973.  

5. According to the history from them, though she is not  very  much  aware  of  herself  and  her  surrounding,  she  somehow recognizes the presence of people around her  and expresses her like or dislike by making certain types  of  vocal  sounds  and  by  waving  her  hands  in  certain  manners. She appears to be happy and smiles when she  receives  her  favorite  food  items  like  fish  and  chicken  soup. She accepts feed which she likes but may spit out  food which she doesn’t like. She was able to take oral  feeds till  16th September 2010,  when she developed a  febrile  illness,  probably  malaria.  After  that,  her  oral  intake  reduced  and  a  feeding  tube  (Ryle’s  tube)  was  passed  into  her  stomach  via  her  nose.  Since  then  she  receives her major feeds by the Ryle’s tube, and is only  occasionally able to accept the oral liquids. Malaria has  taken a toll in her physical condition but she is gradually  recuperating from it.  

6. Occasionally, when there are many people in the room  she makes  vocal  sounds  indicating  distress.  She  calms  down when people move out of her room. She also seems  

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to enjoy the devotional songs and music which is played  in her room and it has calming effect on her.  

7. In an annual ritual, each and every batch of nursing  students  is  introduced  to  Ms.  Aruna  Ramachandra  Shanbaug, and is told that “She was one of us”; “She was  a very nice and efficient staff nurse but due to the mishap  she is in this bed-ridden state”.  

8.  The  entire  nursing  staff  member  and  other  staff  members have a very compassionate attitude towards Ms.  Aruna Ramachandra Shanbaug and they all very happily  and willingly take care of her. They all are very proud of  their achievement of taking such a good care of their bed- ridden colleague and feel very strongly that they want to  continue to take care of her in the same manner till she  succumbs  naturally.  They  do  not  feel  that  Ms.  Aruna  Ramachandra Shanbaug is living a painful and miserable  life.  

III. Examination  

IIIa. Physical examination  

She  was  conscious,  unable  to  co-operate  and  appeared to be unaware of her surroundings.  

Her body was lean and thin. She appeared neat and  clean and lay curled up in the bed with movements of the  left hand and made sounds, especially when many people  were present in the room.  

She was afebrile,  pulse rate was 80/min, regular,  and good volume. Her  blood pressure  recorded on the  nursing charts was normal. Respiratory rate was 15/min,  regular,  with  no  signs  of  respiratory  distress  or  breathlessness.  

There was no pallor, cyanosis, clubbing or icterus.  She was edentulous (no teeth).  

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Skin appeared to be generally in good condition,  there were no bed sores, bruises or evidence of old healed  bed  sores.  There  were  no  skin  signs  suggestive  of  nutritional deficiency or dehydration.  

Her wrists had developed severe contractures, and  were  fixed  in  acute  flexion.  Both  knees  had  also  developed contractures (right more than left).  

A  nasogastric  feeding  tube  (Ryle s  tube)  was  in‟   situ. She was wearing diapers.  

Abdominal,  respiratory  and  cardiovascular  examination was unremarkable.   

IIIb. Neurological Examination  

When examined she was conscious with eyes open  wakefulness  but  without  any  apparent  awareness  (see  Table 1 for detailed assessment of awareness). From the  above examination, she has evidence of intact auditory,  visual,  somatic  and  motor  primary  neural  pathways.  However  no  definitive  evidence  for  awareness  of  auditory, visual, somatic and motor stimuli was observed  during our examinations.  

There  was  no  coherent  response  to  verbal  commands or to calling her name. She did not turn her  head to the direction of sounds or voices. When roused  she  made  non-specific  unintelligible  sounds  (“uhhh,  ahhh”) loudly and continuously but was generally silent  when undisturbed.  

Menace  reflex  (blinking  in  response  to  hand  movements in front of eyes) was present in both eyes and  hemifields  but  brisker  and more consistent  on the  left.  Pupillary  reaction  was  normal  bilaterally.  Fundi  could  not be seen since she closed her eyes tightly when this  was  attempted.  At  rest  she  seemed  to  maintain  

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preferential  gaze  to  the  left  but  otherwise  gaze  was  random  and  undirected  (roving)  though  largely  conjugate. Facial movements were symmetric. Gag reflex  (movement  of  the  palate  in  response  to  insertion  of  a  tongue depressor in the throat) was present and she does  not pool saliva. She could swallow both teaspoonfuls of  water as well as a small quantity of mashed banana. She  licked though not very completely sugar smeared on her  lips, suggesting some tongue control.  

She  had  flexion  contractures  of  all  limbs  and  seemed to be incapable of turning in bed spontaneously.  There  was  what  appeared  to  be  minimal  voluntary  movement with the left upper limb (touching her wrist to  the  eye  for  instance,  perhaps  as  an  attempt  to  rub  it).  When examined/disturbed,  she seemed to curl  up even  further in her flexed foetal position. Sensory examination  was  not  possible  but  she  did  seem  to  find  passive  movement  painful  in  all  four  limbs  and  moaned  continuously  during  the  examination.  Deep  tendon  reflexes  were  difficult  to  elicit  elsewhere  but  were  present at the ankles. Plantars were withdrawal/extensor.  

Thus neurologically she appears to be in a state of  intact  consciousness  without  awareness  of  self/environment.  No  cognitive  or  communication  abilities could be discerned. Visual function if present is  severely limited. Motor function is grossly impaired with  quadriparesis.   

IIIc. Mental Status Examination  

1. Consciousness, General Appearance, Attitude and Behavior :  

Ms.  Aruna  Ramachandra  Shanbaug  was  resting  quietly in her bed, apparently listening to the devotional  music,  when  we  entered  the  room.  Though,  her  body  built is lean, she appeared to be well nourished and there  were no signs of malnourishment. She appeared neat and  clean. She has developed contractures at both the wrist  

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joints and knee joints and so lied curled up in the bed  with minimum restricted physical movements.  

She was conscious but appeared to be unaware of  herself and her surroundings. As soon as she realized the  presence of some people in her room, she started making  repetitive  vocal  sounds  and  moving  her  hands.  This  behavior subsided as we left the room. She did not have  any involuntary movements. She did not demonstrate any  catatonic, hostile or violent behavior.  

Her eyes were wide open and from her behavior it  appeared that  she could see  and hear  us,  as  when one  loudly called her name, she stopped making vocal sounds  and  hand  movements  for  a  while.  She  was  unable  to  maintain sustained eye-to eye contact but when the hand  was suddenly taken near her eyes, she was able to blink  well.  

When an attempt was made to feed her by mouth,  she accepted a spoonful of water, some sugar and mashed  banana.  She  also  licked  the  sugar  and  banana  paste  sticking  on  her  upper  lips  and  swallowed  it.  Thus,  at  times she could cooperate when fed.  

2. Mood and affect :  

It  was  difficult  to  assess  her  mood  as  she  was  unable  to  communicate  or  express  her  feelings.  She  appeared  to  calm  down  when  she  was  touched  or  caressed gently. She did not cry or laugh or expressed  any other emotions verbally or non-verbally during the  examination  period.  When  not  disturbed  and  observed  quietly from a distance, she did not appear to be in severe  pain or misery. Only when many people enter her room,  she appears to get a bit disturbed about it.  

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3. Speech and thoughts :  

She  could  make  repeated  vocal  sounds  but  she  could not  utter  or  repeat  any comprehensible  words or  follow and respond to any of the simple commands (such  as “show me your tongue”). The only way she expressed  herself  was  by  making  some  sounds.  She  appeared  to  have minimal language comprehension or expression.  

4. Perception :  

She  did  not  appear  to  be  having  any  perceptual  abnormality  like  hallucinations  or  illusions  from  her  behavior.  

5. Orientation, memory and intellectual capacity :  

Formal  assessment  of  orientation  in  time,  place  and  person,  memory  of  immediate,  recent  and  remote  events and her intellectual capacity could not be carried  out.  

6. Insight :  

As she does not appear to be fully aware of herself  and her surroundings, she is unlikely to have any insight  into her illness.   

IV. Reports of Investigations  

IVa. CT Scan Head (Plain)  

This  is  contaminated  by  movement  artefacts.  It  shows generalized prominence of supratentorial sulci and  ventricles  suggestive  of  generalized  cerebral  atrophy.  Brainstem and  cerebellum seem normal.  Ischemic  foci  are  seen  in  left  centrum semi-ovale  and right  external  capsule. In addition a small left parieto-occipital cortical  lesion is also seen and is probably ischemic.  

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IVb. EEG  

The  dominant  feature  is  a  moderately  rhythmic  alpha frequency at 8-10 Hz and 20-70 microvolts which  is  widely  distributed  and  is  equally  prominent  both  anteriorly  and  posteriorly.  It  is  not  responsive  to  eye- opening as seen on the video. Beta at 18-25 Hz is also  seen diffusely but more prominently anteriorly. No focal  or paroxysmal abnormalities were noted  

IVc. Blood  

Reports of the hemoglobin, white cell count, liver  function tests,  renal  function tests,  electrolytes,  thyroid  function, Vitamin B12 and 1,25 dihydroxy Vit D3 levels  are  unremarkable.  (Detailed  report  from KEM hospital  attached.)

V. Diagnostic impression  

1)  From  the  longitudinal  case  history  and  examination  it  appears  that  Ms.  Aruna  Ramachandra  Shanbaug has developed non-progressive but irreversible  brain damage secondary to hypoxic-ischemic brain injury  consistent with the known effects of strangulation. Most  authorities consider a period exceeding 4 weeks in this  condition,  especially  when  due  to  hypoxic-ischemic  injury as confirming irreversibility. In Ms. Aruna’s case,  this  period  has  been  as  long  as  37  years,  making  her  perhaps the longest survivor in this situation.  

2)  She meets  most  of  the  criteria  for  being in a  permanent  vegetative state (PVS).  PVS is defined as a  clinical  condition of unawareness (Table 1) of self and  environment in which the patient breathes spontaneously,  has a stable circulation and shows cycles of eye closure  and  opening  which  may  simulate  sleep  and  waking  (Table  2).  While  she  has  evidence  of  intact  auditory,  visual,  somatic and motor primary neural pathways, no  definitive  evidence  for  awareness  of  auditory,  visual,  

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somatic  and  motor  stimuli  was  observed  during  our  examinations.   

VI. Prognosis  

Her dementia has not progressed and has remained  stable for last many years and it is likely to remain same  over next many years. At present there is no treatment  available for the brain damage she has sustained.

VII. Appendix  VII a. Table 1. CLINICAL ASSESSMENT TO ESTABLISH UNAWARENESS  (Wade DT, Johnston C. British Med  Journal 1999; 319:841-844) DOMAIN  OBSERVED  

STIMULUS RESPONSE  

AUDITORY AWARENESS Sudden loud noise (clap) Startle present, ceases other movements  Meaningful noise (rattled steel tumbler and spoon, film songs  of 1970s)  

Non-specific head and body movements  

Spoken commands (“close your eyes”, “lift left hand “: in   English, Marathi and Konkani)  

Unable to obey commands. No specific or reproducible  response  

VISUAL AWARENESS Bright light to eyes Pupillary responses present  Large moving object in front of eyes (bright red torch rattle)  

Tracking movements: present but inconsistent and poorly  reproducible  

Visual threat (fingers suddenly moved toward eyes) Blinks, but more consistent on left than right  Written command (English, Marathi: close your eyes) No response  SOMATIC AWARENESS Painful stimuli to limbs (light prick with   

sharp end of tendon hammer)  Withdrawal, maximal in left upper limb  

Painful stimuli to face Distress but no co-ordinated response to remove stimulus  Routine sensory stimuli during care (changing position in bed  and feeding)  

Generalized non specific response presence but no coordinated  attempt to assist in process  

MOTOR OUTPUT Spontaneous Non-specific undirected activities. Goal  directed – lifting left hand to left side of  face, apparently to rub her left eye.  

Responsive Non-specific undirected without any goal directed activities.  

Conclusion:  From the above examination, she has evidence of intact auditory, visual, somatic  and motor primary neural pathways. However no definitive evidence for awareness  of  auditory,  visual,  somatic  and  motor  stimuli  was  observed  during  our  examinations.

VIIb. Table 2. Application of Criteria for Vegetative State  

(Bernat JL. Neurology clinical Practice 2010; 75 (suppl. 1):  S33-S38) Criteria  

Examination findings : whether she meets Criteria  (Yes /No / Probably)  

Unaware of self and environment Yes, Unaware  No interaction with others Yes, no interaction  

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No sustained, reproducible or purposeful voluntary  behavioural response to visual, auditory, tactile or  noxious stimuli  

Yes, no sustained, reproducible or purposeful  behavioural response, but :  1. Resisted examination of fundus  2. Licked sugar off lips  

No language comprehension or expression Yes, no comprehension  No blink to visual threat Blinks, but more consistent on left than right  Present sleep wake cycles Yes (according to nurses)  Preserved autonomic and hypothalamic function Yes  Preserved cranial nerve reflexes Yes  Bowel and bladder incontinence Yes  

VIII. References  1. Multi-Society Task Force on PVS. Medical aspects of the persistent vegetative state. N  Engl J Med 1994; 330: 1499-508  

2. Wade DT, Johnston C. The permanent vegetative state: practical guidance on diagnosis  and management. Brit Med J 1999; 319:841–4  

3. Giacino JT, Ashwal S, Childs N, et al. The minimally conscious state : Definition and  diagnostic criteria. Neurology 2002;58:349–353  

4. Bernat JL. Current controversies in states of chronic unconsciousness. Neurology  2010;75;S33”  

8. On 18th February, 2011, we then passed the following order :

“In the above case Dr. J.V. Divatia on 17.02.2011 handed  over  the  report  of  the  team of  three  doctors  whom we  had  appointed by our order dated 24th January, 2011. He has also  handed over a CD in this connection. Let the report as well as  the CD form part of the record.

On mentioning, the case has been adjourned to be listed  on 2nd March, 2011 at the request of learned Attorney General  of  India,  Mr.  T.R.  Andhyarujina,  learned  Senior  Advocate,  whom we have appointed as amicus curiae in the case as well  as  Mr.  Shekhar  Naphade,  learned  Senior  Advocate  for  the  petitioner.

We request the doctors whom we had appointed viz.,  Dr.  J.V. Divatia, Dr. Roop Gurshani and  Dr. Nilesh Shah to appear  before us on 2nd March, 2011 at 10.30 A.M. in the Court, since  

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it is quite possible that we may like to ask them questions about  the report which they have submitted, and in general about their  views in connection with euthanasia.

On perusal of the report of the committee of doctors to us  we have noted that there are many technical terms which have  been  used  therein  which  a  non-medical  man  would  find  it  difficult  to understand.  We, therefore,  request the doctors to  submit a supplementary report by the next date of hearing (by  e-mailing  copy of the same two days before the next date of  hearing) in which the meaning of these technical terms in the  report is also explained.

The Central Government is directed to arrange for the air  travel expenses of all the three doctors as well as their stay in a  suitable  accommodation  at  Delhi  and  also  to  provide  them  necessary conveyance and other facilities they require, so that  they can appear before us on 02.03.2011.

An honorarium may also be given to the doctors, if they  so  desire,  which may be  arranged  mutually  with  the  learned  Attorney General.

The Dean of King Edward Memorial Hospital as well as  Ms.  Pinky  Virani  (who  claims  to  be  the  next  friend  of  the  petitioner)  are  directed  to  intimate  the  brother(s)/sister(s)   or  other  close  relatives  of   the petitioner that the case will be  listed on 2nd March, 2011 in the Supreme Court and they can  put  forward  their  views  before  the  Court,  if  they  so  desire.  Learned counsel for the petitioner and the Registry of this Court  shall communicate a copy of this Order forthwith  to  the  Dean,  KEM Hospital.  The Dean, KEM Hospital is requested to file an  affidavit  stating  his  views  regarding  the  prayer  in  this  writ  petition, and also the condition of the petitioner.

Copy of this  Order  shall  be given forthwith to learned  Attorney  General  of  India,  Mr.  Shekhar  Naphade  and  Mr.  Andhyarujina, learned Senior Advocates.   

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Let the matter be listed as the first item on  2nd March,  2011”.

9. On 2.3.2011, the matter was listed again before us and we first saw  

the screening of the CD submitted by the team of doctors along with their  

report.  We had arranged for the screening of the CD in the Courtroom, so  

that all present in Court could see the condition of Aruna Shanbaug.  For  

doing so, we have relied on the precedent of the Nuremburg trials in which a  

screening was done in the Courtroom of some of the Nazi atrocities during  

the Second World War.  We have heard learned counsel for the parties in  

great detail.  The three doctors nominated by us are also present in Court.  

As  requested  by  us,  the  doctors  team submitted  a  supplementary  report  

before us which states :

Supplement To The Report Of The Medical Examination Of Aruna Ramchandra Shanbaug  Jointly prepared and signed by  

1. Dr. J.V. Divatia  (Professor and Head, Department of Anesthesia, Critical Care and Pain, at Tata Memorial  Hospital, Mumbai)  

2. Dr. Roop Gursahani  (Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)  

3. Dr. Nilesh Shah  (Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation  Medical College and General Hospital).  

Mumbai  February 26, 2011  

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INDEX  Introduction 3  Terminology 4  Glossary of Technical terms 7  Opinion 11 3  

Introduction  

This document is a supplement to the Report of Examination of Ms. Aruna Ramachandra  Shanbaug, dated February 14, 2011.  

On perusal  of the  report,  the  Hon.  Court  observed that  there  were many technical  terms  which a non-medical man would find it difficult to understand, and requested us to submit a  supplementary report  in which the meaning of these technical  terms in the report  is  also  explained.  

We have therefore prepared this Supplement to include a glossary of technical terms used in  the  earlier  Report,  and  also  to  clarify some of  the  terminology related  to  brain  damage.  Finally, we have given our opinion in the case of Aruna Shanbaug.  

Terminology  

The words coma, brain death and vegetative state are often used in common language to  describe severe brain damage. However, in medical terminology, these terms have specific  meaning and significance.  

Brain death  

A state of prolonged irreversible cessation of all brain activity, including lower brain stem  function with the complete absence of voluntary movements, responses to stimuli, brain stem  reflexes, and spontaneous respirations.  

Explanation:  This  is  the  most  severe  form of  brain  damage.  The  patient  is  unconscious,  completely  unresponsive,  has  no  reflex  activity  from  centres  in  the  brain,  and  has  no  breathing  efforts  on  his  own.  However  the  heart  is  beating.  This  patient  can  only  be  maintained alive by advanced life support (breathing machine or ventilator, drugs to maintain  blood pressure, etc). These patients can be legally declared dead (‘brain dead’) to allow their  organs to be taken for donation.  

Aruna Shanbaug is clearly not brain dead.  

Coma  

Patients  in  coma  have  complete  failure  of  the  arousal  system with  no  spontaneous  eye  opening and are unable to be awakened by application of vigorous sensory stimulation.  

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Explanation: These patients are unconscious. They cannot be awakened even by application  of  a  painful  stimulus.  They  have  normal  heart  beat  and  breathing,  and  do  not  require  advanced life support to preserve life.  

Aruna Shanbaug is clearly not in Coma.  

Vegetative State (VS)  

The complete absence of behavioral evidence for self or environmental awareness. There is  preserved capacity for spontaneous or stimulus-induced arousal, evidenced by sleep–wake  cycles. .i.e. patients are awake, but have no awareness.  

Explanation: Patients appear awake. They have normal heart beat and breathing, and do not  require  advanced  life  support  to  preserve  life.  They  cannot  produce  a  purposeful,  co- ordinated,  voluntary  response  in  a  sustained  manner,  although  they  may  have  primitive  reflexive responses to light,  sound, touch or pain.  They cannot understand, communicate,  speak, or have emotions. They are unaware of self and environment and have no interaction  with  others.  They  cannot  voluntarily  control  passing  of  urine  or  stools.  They  sleep  and  awaken. As the centres in the brain controlling the heart and breathing are intact, there is no  threat to life, and patients can survive for many years with expert nursing care. The following  behaviours may be seen in the vegetative state :  

Sleep-wake cycles with eyes closed, then open  

Patient breathes on her own  

Spontaneous blinking and roving eye movements  

Produce sounds but no words  

Brief, unsustained visual pursuit (following an object with her eyes)  

Grimacing to pain, changing facial expressions  

Yawning; chewing jaw movements  

Swallowing of her own spit  

Nonpurposeful limb movements; arching of back  

Reflex withdrawal from painful stimuli  

Brief movements of head or eyes toward sound or movement without apparent localization or  fixation  

Startles with a loud sound  

Almost all of these features consistent with the diagnosis of permanent vegetative state were  present during the medical examination of Aruna Shanbaug.  

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Minimally Conscious State  

Some patients with severe alteration in consciousness have neurologic findings that do not  meet  criteria  for  VS.  These  patients  demonstrate  some behavioral  evidence  of  conscious  awareness  but  remain  unable  to  reproduce  this  behavior  consistently.  This  condition  is  referred to here as  the minimally conscious state (MCS). MCS is distinguished from VS by  the partial preservation of conscious awareness.  

To  make  the  diagnosis  of  MCS,  limited  but  clearly  discernible  evidence  of  self  or  environmental awareness must be demonstrated on a reproducible or sustained basis by one  or more of the following behaviors:  

• Following simple commands.  • Gestural or verbal yes/no responses (regardless of accuracy).  • Intelligible sounds  • Purposeful behavior, including movements or emotional behaviors (smiling, crying) that  occur in relation to relevant environmental stimuli and are not due to reflexive activity. Some  examples of qualifying purposeful behavior include:  

– appropriate smiling or crying in response to the linguistic or visual content of emotional but  not to neutral topics or stimuli  

– vocalizations or gestures that occur in direct response to the linguistic content of questions  

– reaching for  objects  that  demonstrates  a  clear  relationship between object  location and  direction of reach  

– touching or holding objects in a manner that accommodates the size and shape of the object  

– pursuit eye movement or sustained fixation that occurs in direct response to moving or  salient stimuli  

None of the above behaviours suggestive of a Minimally Conscious State  were observed  during the examination of Aruna Shanbaug.   

GLOSSARY OF TECHNICAL TERMS USED IN THE MAIN REPORT  (In Alphabetical order) Term in text Meaning  Affect Feeling conveyed though expressions and  

behavior  Afebrile No fever  Auditory Related to hearing  Bedsore A painful wound on the body caused by  

having to lie in bed for a long time  Bilaterally On both sides (right and left)  Bruise An injury or mark where the skin has not  

been broken but is darker in colour, often as  

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a result of being hit by something  Catatonic Describes someone who is stiff and not  

moving or reacting, as if dead  Cerebral atrophy Shrinking of the globe (cortex) of the brain  Clubbing Bulging or prominence of the nailbed,  

making base of the nails look thick. This is  often due to longstanding infection inside the  lungs.  

Cognitive Related to ability to understand and process  information in the brain  

Conjugate Synchronised movement (of the eyeball)  Conscious Awake with eyes open. By itself the term  

conscious does not convey any information  about awareness of self and surroundings, or  the ability to understand, communicate, have  emotions, etc.  

Contractures Muscles or tendons that have become  shortened and taut over a period of time. This  causes deformity and restriction of  movements.  

CT Scan A specialized X-ray test where images of the  brain (or other part of the body) are obtained  in cross-section at different levels. This  allows clear visualization of different parts of  the brain  

Cyanosis Bluish discoloration of the nails, lips or skin.  It may be due to low levels of oxygen in the  blood  

Deep tendon reflexes Reflex response of the fleshy part of certain  muscles when its tendon is hit lightly with an  examination hammer  

Dementia Disorder in which there is a cognitive defect,  i.e. the patient is unable to understand and  process information in the brain  

Electroencephalography, (EEG) Recording of the electrical activity of the  brain  

Febrile illness Illness with fever  Fracture A crack or a break in bones  Fundi Plural of fundus. Fundus of the eye is the  

interior surface of the eye, opposite the lens.  It is examined with an instrument called the  ophthalmoscope  

Gag reflex Movement of the palate in response to  insertion of a tongue depressor in the throat  

Hallucinations Perception in the absence of stimuli. (e.g.  hearing voices which are not there or which  are inaudible to others)  

Hemifields Right or left part of the field of vision  

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Hypoxic Related to reduced oxygen levels in the  blood  

Icterus Yellowish discoloration of the skin and  eyeballs. This is commonly known as  jaundice, and may be caused by liver disease  

Illusions Misperception of stimuli (seeing a rope as a  snake)  

Immediate memory Memory of events which have occurred just  a few minutes ago  

Insight Person’s understanding of his or her own  illness  

Intellectual capacity Ability to solve problems. The ability to  learn, understand and make judgments or  have opinions that are based on reason  

Involuntary movements Automatic movements over which patient  has no control  

Ischemic Related to restriction or cutting off of the  blood flow to any part of the body  

Malnourishment Weak and in bad health because of having  too little food or too little of the types of  food necessary for good health  

Menace reflex Blinking in response to hand movements in  front of eyes  

Mood The way one feels at a particular time  Motor Related to movement  Movement artefacts Disturbance in the image seen in the CT scan  

due to patient movement  Oral feed Food given through mouth  Orientation Awareness about the time, place and person  Pallor Pale appearance of the skin. Usually this is  

due to a low red blood cell count or low  haemoglobin level in the blood.  

Passive movement Movement of a limb or part of the body done  by the doctor without any effort by the  patient  

Perception Sensory experiences (such as seeing, hearing  etc.)  

Perceptual abnormalities Abnormal sensory experiences, e.g, seeing  things that do not exist, hearing sounds when  there are none  

Plantars Reflex response of the toes when a sharp  painful stimulus is applied to the sole of the  foot. The normal response is curling  downwards of the toes.  

Plantars were withdrawal/extensor When a painful stimulus was applied to the  sole of the foot the toes spread out and there  was reflex movement of the leg (withdrawal)  or upward curling of the great toe and other  

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toes (extensor). This is an abnormal response  indicating damage in the pathway in the  brain or to the area in the brain controlling  function of the legs.  

Primary neural pathways Course of the nerves from a part of the body  to the area in the brain responsible for the  function of that part  

Pupillary reaction The pupillary light reflex controls the  diameter of the pupil, in response to the  intensity of light. Greater intensity light  causes the pupil to become smaller (allowing  less light in), whereas  

Opinion  

In our view, the issues in this case (and other similar cases) are:  

1.  In  a  person  who  is  in  a  permanent  vegetative  state  (PVS),  should  withholding  or  withdrawal  of  life  sustaining  therapies  (many authorities  would  include  placement  of  an  artificial feeding tube as a life sustaining intervention) 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?  

4. Aruna Shanbaug has been abandoned by her family and is being looked after for the last 37  years by the staff of KEM Hospital. Who should take decisions on her behalf?  

Questions such as these come up at times in the course of medical practice. We realize that  answers to these questions are difficult, and involve several ethical, legal and social issues.  Our opinion is based on medical facts and on the principles of medical ethics. We hope that  the Honourable Court will provide guidance and clarity in this matter.  

Two of the cardinal principles of medical ethics are Patient Autonomy and Beneficiance.  

1. Autonomy means the right to self-determination, where the informed patient has a right to  choose the manner of his treatment. To be autonomous the patient should be competent to  make decisions and choices. In the event that he is incompetent to make choices, his wishes  expressed in advance in the form of a Living Will, OR the wishes of surrogates acting on his  behalf ('substituted judgment') are to be respected.  

The surrogate is expected to represent what the patient may have decided had he / she been  competent, or to act in the patient’s best interest. It is expected that a surrogate acting in the  

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patient’s best interest follows a course of action because it is best for the patient, and is not  influenced by personal convictions, motives or other considerations.  

2. Beneficence is acting in what is (or judged to be) in patient's best interest. Acting in the  patient’s best interest means following a course of action that is best for the patient, and is not  influenced  by  personal  convictions,  motives  or  other  considerations.  In  some  cases,  the  doctor’s expanded goals may include allowing the natural dying process (neither hastening  nor  delaying  death,  but  ‘letting  nature  take  its  course’),  thus  avoiding  or  reducing  the  sufferings of the patient and his family, and providing emotional support. This is not to be  confused with euthanasia, which involves the doctor's deliberate and intentional act through  administering a lethal injection to end the life of the patient.  

In the present case under consideration  

1. We have no indication of Aruna Shanbaug’s views or wishes with respect to life-sustaining  treatments for a permanent vegetative state.  

2. Any decision regarding her treatment will have to be taken by a surrogate  

3. The staff of the KEM hospital have looked after her for 37 years, after she was abandoned  by her family.  We believe that  the  Dean of the KEM Hospital  (representing the staff  of  hospital) is an appropriate surrogate.  

4. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting  in the best interest of the patient, feel that life sustaining treatments should continue, their  decision should be respected.  

5. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting  in  the  best  interest  of  the  patient,  feel  that  withholding  or  withdrawing  life-sustaining  treatments is the appropriate course of action, they should be allowed to do so, and their  actions should not be considered unlawful.  

10.  To complete the narration of facts and before we come to the legal  

issues involved, we may mention that Dr. Sanjay Oak, Dean KEM Hospital  

Mumbai has issued a statement on 24.1.2011 opposing euthanasia for the  

petitioner :-

 “She means a lot to KEM hospital. She is on liquid diet  and loves listening to music. We have never subjected her to  intravenous  food  or  fed  her  via  a  tube.  All  these  years,  she  hasn’t had even one bedsore. When those looking after her do  

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not have a problem, I don’t understand why a third party who  has nothing to do with her [Pinky Virani who has moved the  apex court to seek euthanasia for Shanbaug] needs to worry,”  added  Dr  Oak,  who,  when  he  took  over  as  dean  of  KEM  hospital in 2008, visited her first to take her blessings. “I call on  her whenever I get time. I am there whenever she has dysentery  or any another problem. She is very much alive and we have  faith in the judiciary,” said Dr Oak.”

11. Dr. Sanjay Oak has subsequently filed an affidavit in this Court which  

states :

“a) Smt.  Aruna  Ramchandra  Shanbaug  has  been  admitted in a single room in Ward No.4 which is a ward of  general internal medicine patients and she has been there for  last 37 years.  She is looked after entirely by doctors, nurses  and para-medical  staff  of  KEM Hospital.   She has  been our  staff nurse and the unfortunate tragic incidence has happened  with her in KEM Hospital and I must put on record that the  entire medical, administrative, nursing and para-medical staff is  extremely attached to her and consider her as one of us.  Her  relatives and a gentleman (her fiancee) used to visit her in the  initial period of her illness but subsequently she has been left to  the care of KEM staff.  I visit her frequently and my last visit to  her was on 22nd February, 2011.  I give my observations as a  Clinician about Smt. Aruna Shanbaug as under :

b) It  would  be  incorrect  to  say  that  Smt.  Aruna  Shanbaug is an appropriate case for Coma.  It appears that for a  crucial, critical period her brain was deprived of Oxygen supply  and  this  has  resulted  in  her  present  state  similar  to  that  of  Cerebral Palsy in the newborn child.  It is a condition where  brain  looses  it’s  co-ordinatory,  sensory  as  well  as  motor  functions and this includes loss of speech and perception.  This  has resulted into a state which in a layman’s words  “Aruna  lives in her own world for last 37 years”.  She is lying in a  bed in a single room for 33 years.  She has not been able to  stand or walk, nor have we attempted to do that of late because  

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we fear that  she is  fragile and would break her  bones if  she  falls.  Her extremities and fingers have developed contractures  and  subsequent  to  non-use;  there  is  wasting  of  her  body  muscles.   Her  eyes  are  open  and  she  blinks  frequently;  however,  these  movements  are  not  pertaining  to  a  specific  purpose or as a response to a question.  At times she is quiet  and at times she shouts or shrieks.  However, I must say that her  shouts  and  shrieks  are  completely  oblivious  to  anybody’s  presence in her room.  It is not true that she shouts after seeing  a man.  I do not think Aruna can distinguish between a man and  a woman, nor can she even distinguish between ordinate and  inordinate  object.   We  play  devotional  songs  rendered  by  Sadguru Wamanrao Pai continuously in her room and she lies  down  on  her  bed  listening  to  them.   She  expresses  her  displeasure  by  grimaces  and  shouts  if  the  tape  recorder  is  switched off.  All these years she was never fed by tube and  whenever  a  nurse  used to  take  food to  her  lips,  she  used to  swallow it.   It  is  only  since  September  2010  she  developed  Malaria and her oral intake dropped.  In order to take care of  her  calorie  make  need,  nurses  cadre  resorted  to  naso-gastric  tube feed and now she is  used to NG feeding.   However,  if  small morsels are held near her lips, Aruna accepts them gladly.  It appears that she relishes fish and occasionally smiles when  she  is  given non-vegetarian  food.   However,  I  am honest  in  admitting that  her smiles  are not  purposeful  and it  would be  improper to interpret them as a signal of gratification.  I must  put on record that in the world history of medicine there would  not  be another  single case where such a person is  cared and  nurtured in bed for 33 long years and has not developed a single  bed sore.  This speaks of volumes of excellence of nursing care  that KEM Nursing staff has given to her.

c) This care is given not as a part of duty but as a part  of feeling of oneness.  With every new batch of entrants, the  student nurses are introduced to her and they are told that she  was one of us and she continues to be one of us and then they  whole-heartedly take care of Aruna.  In my opinion, this one is  finest  example  of  love,  professionalism,  dedication  and  commitment to one of our professional colleagues who is ailing  

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and cannot support herself.  Not once, in this long sojourn of 33  years, anybody has thought of putting an end to her so called  vegetative  existence.   There  have  been  several  Deans  and  Doctors of KEM Hospital who have cared her in succession.  Right from illustrious Dr. C.K. Deshpande in whose tenure the  incidence  happened  in  1973,  Dr.  G.B.  Parulkar,  Dr.  Smt.  Pragna M. Pai, Dr. R.J. Shirahatti,  Dr. Smt. N.A. Kshirsagar,  Dr. M.E. Yeolekar and now myself Dr. Sanjay N. Oak, all of us  have visited her room time and again and have cared for her  and seen her  through her  ups and downs.   The very idea of  withholding food or putting her to sleep by active medication  (mercy killing) is extremely difficult  for anybody working in  Seth GSMC & KEM Hospital to accept and I sincerely make a  plea to the Learned Counsel and Hon’ble Judges of Supreme  Court  of  India  that  this  should  not  be  allowed.   Aruna  has  probably crossed 60 years of life and would one day meet her  natural  end.   The  Doctors,  Nurses  and  staff  of  KEM,  are  determined to take care of  her  till  her  last  breath by natural  process.

d) I do not think it is proper on my part to make a  comment on the entire case.  However, as a clinical surgeon for  last 3 decades and as an administrator of the hospitals for last 7  years  and  as  a  student  of  legal  system  of  India  (as  I  hold  “Bachelor of Law” degree from Mumbai University), I feel that  entire society has not matured enough to accept the execution  of an Act of Euthanasia or Mercy Killing.  I fear that this may  get misused and our monitoring and deterring mechanisms may  fail to prevent those unfortunate incidences.  To me any mature  society is best judged by it’s capacity and commitment to take  care of it’s “invalid” ones.  They are the children of Lesser God  and in fact, developing nation as we are, we should move in a  positive manner of taking care of several unfortunate ones who  have deficiencies, disabilities and deformities.”         

12. The Hospital staff of KEM Hospital, Mumbai e.g. the doctors, sister-

in-charge  ward  no.  4  KEM  hospital  Lenny  Cornielo,  Assistant  Matron  

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Urmila  Chauhan  and others  have  also  issued  statements   that  they  were  

looking after Aruna Shanbaug and want her to live. “Aruna is the bond that  

unites  us”,  the  KEM  Hospital  staff  has  stated.   One  retired  nurse,  Tidi  

Makwana, who used to take care of Aruna while in service, has even offered  

to continue to take care of her without any salary and without charging any  

traveling expenses.   

13. We have referred to these statements  because it  is  evident  that  the  

KEM Hospital  staff  right from the Dean, including the present  Dean Dr.  

Sanjay Oak and down to the staff nurses and para-medical staff have been  

looking after Aruna for 38 years day and night.  What they have done is  

simply marvelous.  They feed Aruna, wash her, bathe her, cut her nails, and  

generally  take  care  of  her,  and  they  have  been  doing  this  not  on  a  few  

occasions but day and night, year after year.  The whole country must learn  

the meaning of dedication and sacrifice from the KEM hospital staff.  In 38  

years Aruna has not developed one bed sore.

14. It  is  thus  obvious  that  the  KEM  hospital  staff  has  developed  an  

emotional bonding and attachment to Aruna Shanbaug, and in a sense they  

are her real family today.  Ms. Pinki Virani who claims to be the next friend  

of Aruna Shanbaug and has filed this petition on her behalf is not a relative  

29

of Aruna Shanbaug nor can she claim to have such close emotional bonding  

with  her  as  the  KEM  hospital  staff.   Hence,  we  are  treating  the  KEM  

hospital  staff  as  the  next  friend  of  Aruna  Shanbaug  and  we  decline  to  

recognize Ms. Pinki Virani as her next friend.  No doubt Ms. Pinki Virani  

has written a book about Aruna Shanbaug and has visited her a few times,  

and we have great respect for her for the social causes she has espoused, but  

she cannot claim to have the extent of attachment or bonding with Aruna  

which the KEM hospital staff, which has been looking after her for years,  

claims to have.   

SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES

15. Mr. Shekhar Naphade, learned senior counsel for the petitioner has  

relied on the decision of this Court in Vikram Deo Singh Tomar vs. State  

of Bihar 1988 (Supp) SCC 734 (vide para 2) where it was observed by this  

Court :  

“We live in an age when this Court has demonstrated,  while  interpreting Article 21 of the Constitution, that every person is  entitled  to  a  quality  of  life  consistent  with  his  human  personality.   The  right  to  live  with  human  dignity  is  the  fundamental right of every Indian citizen”.

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16. He has also relied on the decision of this Court in  P. Rathinam vs.  

Union of India and another (1994) 3 SCC 394 in which a two-Judge bench  

of this Court quoted with approval a passage from an article by Dr. M. Indira  

and Dr. Alka Dhal in which it was mentioned :

“Life is not mere living but living in health.  Health is not the  absence of illness but a glowing vitality”.

17. The decision in Rathinam’s case (supra) was, however, overruled by  

a  Constitution  Bench  decision  of  this  Court  in  Gian Kaur vs. State  of  

Punjab (1996) 2 SCC 648.   

18. Mr. Naphade, however, has invited our attention to paras 24 & 25 of  

the aforesaid decision in which it was observed :

“(24) Protagonism of euthanasia on the view that existence in  persistent vegetative state (PVS) is not a benefit to the patient  of a terminal illness being unrelated to the principle of 'sanctity  of life' or the right to live with dignity' is of no assistance to  determine  the  scope  of  Article  21  for  deciding  whether  the  guarantee of right to life' therein includes the right to die'. The  right  to  life'  including  the  right  to  live  with  human  dignity  would mean the existence of such a right upto the end of natural  life. This also includes the right to a dignified life upto the point  of  death  including  a  dignified  procedure  of  death.  In  other  words, this may include the right of a dying man to also die  with dignity when his life is ebbing out. But the 'right to die'  with dignity at the end of life is not to be confused or equated  

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with the right to die' an unnatural death curtailing the natural  span of life.  

(25) A question may arise, in the context of a dying man, who  is, terminally ill or in a persistent vegetative state that he may  be permitted to terminate it by a premature extinction of his life  in those circumstances. This category of cases may fall within  the ambit of the 'right to die' with dignity as a part of right to  live with dignity, when death due to termination of natural life  is  certain and imminent and the process of natural  death has  commenced. These are not cases of extinguishing life but only  of accelerating conclusion of the process of natural death which  has  already  commenced.  The  debate  even  in  such  cases  to  permit physician assisted termination of life is inconclusive. It  is sufficient to reiterate that the argument to support the view of  permitting termination of life in such cases to reduce the period  of suffering during the process of certain natural death is not  available to interpret Article 21 to include therein the right to  curtail the natural span of life”.

He has particularly emphasized paragraph 25 of the said judgment in support  

of his submission that Aruna Shanbaug should be allowed to die.

19. We have carefully considered paragraphs 24 and 25 in Gian Kaur’s  

case (supra) and we are of the opinion that all that has been said therein is  

that the view in Rathinam’s case (supra) that the right to life includes the  

right to die is not correct.   We cannot construe Gian Kaur’s case (supra) to  

mean anything beyond that.  In fact, it has been specifically mentioned in  

paragraph 25 of the aforesaid decision that “the debate even in such cases to  

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permit  physician  assisted  termination of  life  is  inconclusive”.   Thus it  is  

obvious that no final view was expressed in the decision in  Gian Kaur’s  

case beyond what we have mentioned above.

20. Mr. Naphade, learned senior counsel submitted that Ms. Pinky Virani  

is  the  next  friend of  Aruna  as she  has  written  a  book on her  life  called  

‘Aruna’s story’ and has been following Aruna’s case from 1980 and has  

done whatever possible and within her means to help Aruna.  Mr. Naphade  

has also invited our attention to the report of the Law Commission of India,  

2006  on  ‘Medical  Treatment  to  Terminally  Ill  Patients’.   We  have  

perused the said report carefully.  

21. Learned  Attorney  General  appearing  for  the  Union  of  India  after  

inviting our attention to the relevant case law submitted as under :

(i) Aruna Ramchandra Shanbaug has the right to live in her present  state.

(ii) The state that Aruna Ramchandra Shanbaug is presently in does  not  justify  terminating  her  life  by  withdrawing  hydration/food/medical support.

(iii) The aforesaid acts or series of acts and/or such omissions will  be cruel, inhuman and intolerable.

(iv) Withdrawing/withholding of hydration/food/medical support to  a patient is unknown to Indian law and is contrary to law.

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(v) In case hydration or  food is  withdrawn/withheld  from Aruna  Ramchandra Shanbaug, the efforts which have been put in by  batches after batches of nurses of KEM Hospital for the last 37  years will be undermined.

(vi) Besides causing a deep sense of resentment in the nursing staff  as well as other well wishers of Aruna Ramchandra Shanbaug  in  KEM  Hospital  including  the  management,  such  acts/omissions  will  lead to  disheartenment in them and large  scale disillusionment.

(vii) In any event,  these acts/omissions cannot be permitted at the  instance of Ms. Pinky Virani who desires to be the next friend  of Aruna Ramchandra Shanbaug without any locus.  

Learned Attorney General stated that the report of the Law Commission of  

India on euthanasia has not been accepted by the Government of India.  He  

further submitted that Indian society is emotional and care-oriented.  We do  

not send our parents to old age homes, as it happens in the West.  He stated  

that there was a great danger in permitting euthanasia that the relatives of a  

person may conspire with doctors and get him killed to inherit his property.  

He further submitted that tomorrow there may be a cure to a medical state  

perceived as incurable today.  

22. Mr.  T.  R.  Andhyarujina,  learned  senior  counsel  whom  we  had  

appointed as Amicus Curiae, in his erudite submissions explained to us the  

law on the point.  He submitted that in general in common law it is the right  

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of  every  individual  to  have  the  control  of  his  own person  free  from all  

restraints or interferences of others.  Every human being of adult years and  

sound mind has a right to determine what shall be done with his own body.  

In the case of medical treatment, for example, a surgeon who performs an  

operation without the patient’s consent commits assault or battery.    

23. It  follows as a  corollary that  the  patient  possesses  the  right  not  to  

consent i.e. to refuse treatment. (In the United States this right is reinforced  

by a Constitutional right of privacy).  This is known as the principle of self-

determination or informed consent.

24. Mr. Andhyarujina submitted that the principle of self-determination  

applies when a patient of sound mind requires that life support should be  

discontinued.  The same principle applies where a patient’s consent has been  

expressed  at  an  earlier  date  before  he  became unconscious  or  otherwise  

incapable  of  communicating  it  as  by a  ‘living will’  or  by giving written  

authority to doctors in anticipation of his incompetent situation.

Mr.  Andhyarujina  differed  from the  view  of  the  learned  Attorney  

General  in  that  while  the  latter  opposed  even  passive  euthanasia,  Mr.  

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Andhyarujina was in favour of passive euthanasia provided the decision to  

discontinue life support was taken by responsible medical practitioners.

25. If the doctor acts on such consent there is no question of the patient  

committing suicide or of the doctor having aided or abetted him in doing so.  

It is simply that the patient, as he is entitled to do, declines to consent to  

treatment which might or would have the effect of prolonging his life and  

the  doctor  has  in  accordance with  his  duties  complied with  the  patient’s  

wishes.

26. The troublesome question is what happens when the patient is in no  

condition to be able to say whether or not he consents to discontinuance of  

the  treatment  and  has  also  given  no  prior  indication  of  his  wishes  with  

regard to it as in the case of Aruna.  In such a situation the patient being  

incompetent to express his self-determination the approach adopted in some  

of the American cases is  of “substituted judgment” or  the judgment of a  

surrogate.   This  involves  a  detailed  inquiry  into  the  patient’s  views  and  

preferences.  The surrogate decision maker has to gather from material facts  

as far as possible the decision which the incompetent patient would have  

made if he was competent.  However, such a test is not favoured in English  

law in relation to incompetent adults.

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27. Absent  any  indication  from a  patient  who  is  incompetent  the  test  

which is  adopted by Courts  is  what  is  in  the  best  interest  of  the  patient  

whose  life  is  artificially  prolonged  by  such  life  support.   This  is  not  a  

question whether it is in the best interest of the patient that he should die.  

The question is whether it is in the best interest of the patient that his life  

should be prolonged by the continuance of the life support treatment.  This  

opinion must be formed by a responsible and competent body of medical  

persons in charge of the patient.

28. The withdrawal of life support by the doctors is in law considered as  

an omission and not a positive step to terminate the life.  The latter would be  

euthanasia, a criminal offence under the present law in UK, USA and India.

29. In such a situation, generally the wishes of the patient’s immediate  

family will be given due weight, though their views cannot be determinative  

of the carrying on of treatment  as they cannot dictate  to responsible  and  

competent  doctors  what  is  in  the  best  interest  of  the  patient.   However,  

experience shows that  in  most  cases  the  opinions of  the  doctors  and the  

immediate relatives coincide.

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30. Whilst this Court has held that there is no right to die (suicide) under  

Article 21 of the Constitution and attempt to suicide is a crime vide Section  

309 IPC, the Court has held that the right to life includes the right to live  

with human dignity, and in the case of a dying person who is terminally ill  

or in a permanent vegetative state he may be permitted to terminate it by a  

premature extinction of his life in these circumstances and it is not a crime  

vide Gian Kaur’s case (supra).  

31. Mr.  Andhyarujina  submitted  that  the  decision  to  withdraw the  life  

support is taken in the best  interests of the patient by a body of medical  

persons.  It is not the function of the Court to evaluate the situation and form  

an opinion on its own.  In England for historical reasons the parens patriae  

jurisdiction  over   adult  mentally  incompetent  persons  was  abolished  by  

statute and the Court has no power now to give its consent.  In this situation,  

the Court only gives a declaration that the proposed omission by doctors is  

not unlawful.  

32. In U.K., the Mental Capacity Act, 2005 now makes provision relating  

to persons who lack capacity and to determine what is in their best interests  

and the power to make declaration by a special Court of Protection as to the  

lawfulness of any act done in relation to a patient.

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33. Mr.  Andhyarujina  submitted  that  the  withdrawal  of  nutrition  by  

stopping essential  food by means  of  nasogastric  tube is  not  the  same as  

unplugging a ventilator  which artificially  breathes  air  into the lungs of a  

patient  incapable  of  breathing  resulting  in  instant  death.   In  case  of  

discontinuance of artificial feeding the patient will as a result starve to death  

with all the sufferings and pain and distress associated with such starving.  

This is a very relevant consideration in a PVS patient like Aruna who is not  

totally unconscious and has sensory conditions of pain etc. unlike Antony  

Bland in Airedale vs.  Director MHD (1993) 2 WLR 316 who was totally  

unconscious.  Would the doctor be able to avoid such pain or distress by use  

of sedatives etc.?   In such a condition would it not be more appropriate to  

continue with the nasogastric feeding but not take any other active steps to  

combat any other illness which she may contract and which may lead to her  

death?

34. Mr.  Andhyarujina  further  submitted  that  in  a  situation  like  that  of  

Aruna,  it  is  also necessary to recognize the deep agony of nurses of  the  

hospital who have with deep care looked after her for over 37 years and who  

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may not appreciate the withdrawal of the life support.  It may be necessary  

that their views should be considered by the Court in some appropriate way.

35. Mr. Andhyarujina, in the course of his submission stated that some  

Courts in USA have observed that the view of a surrogate may be taken to  

be the view of the incompetent patient for deciding whether to withdraw the  

life support, though the House of Lords in Airedale’s case has not accepted  

this.  He submitted that relatives of Aruna do not seem to have cared for her  

and it is only the nursing staff  and medical attendants of KEM hospital who  

have looked after her for 37 years.  He has also submitted that though the  

humanistic intention of Ms. Pinky Virani cannot be doubted, it is the opinion  

of the attending doctors and nursing staff which is more relevant in this case  

as they have looked after her for so many years.

36. Mr.  Pallav  Shishodia,  learned  senior  counsel  for  the  Dean,  KEM  

hospital, Mumbai submitted that Ms. Pinky Virani has no locus standi  in the  

matter and it is only the KEM hospital staff which could have filed such a  

writ petition.  

37. We have also heard learned counsel for the State of Maharashtra, Mr.  

Chinmoy  Khaldkar  and  other  assisting  counsel  whose  names  have  been  

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mentioned in this judgment.  They have been of great assistance to us as we  

are  deciding  a  very  sensitive  and  delicate  issue  which  while  requiring  a  

humanistic approach, also requires great case and caution to prevent misuse.  

We were informed that not only the learned counsel who argued the case  

before us, but also the assistants (whose names have been mentioned in the  

judgment) have done research on the subject for several weeks, and indeed  

this has made our task easier in deciding this case.   They therefore deserve  

our compliment and thanks.

Legal Issues : Active and Passive Euthanasia

38. Coming now to  the  legal  issues in  this  case,  it  may  be noted that  

euthanasia 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.  

39. The general legal position all over the world seems to be that while  

active euthanasia is illegal unless there is legislation permitting it, passive  

41

euthanasia is legal even without legislation provided certain conditions and  

safeguards are maintained.  

40. 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  non  voluntary  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 the case of the  

former, the latter poses several problems, which we shall address.     

ACTIVE EUTHANASIA  

41. As already stated above active euthanasia is a crime all over the world  

except where permitted by legislation.   In India active euthanasia is illegal  

and a crime under section 302 or at least section 304 IPC.  Physician assisted  

suicide is a crime under section 306 IPC (abetment to suicide).  

42. Active euthanasia is taking specific steps to cause the patient's death,  

such  as  injecting  the  patient  with  some  lethal  substance,  e.g.  sodium  

pentothal which causes a person deep sleep in a few seconds, and the person  

instantaneously and painlessly dies in this deep sleep.

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43. A distinction is sometimes drawn between euthanasia and physician  

assisted  dying,  the  difference  being  in  who administers  the  lethal  

medication.  In euthanasia, a physician or third party administers it, while in  

physician assisted suicide it is the patient himself who does it, though on the  

advice of the doctor.  In many countries/States the latter is legal while the  

former is not.   

44. The difference between "active" and "passive" euthanasia is that in  

active  euthanasia,  something  is done to  end  the  patient's  life’  while  in  

passive  euthanasia,  something  is not  done that  would  have  preserved  the  

patient's life.   

45. 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 one 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  

43

one does nothing, few would judge him for his inaction. One would surely  

not be prosecuted for homicide. (At least, not unless one started the fire in  

the first place.)  

46. Thus, proponents of euthanasia say that while we can debate whether  

active  euthanasia  should  be  legal,  there  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.   

47.  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."   

48. 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.

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49. However, we are of the opinion that the distinction is valid, as has  

been  explained  in  some details  by  Lord  Goff  in  Airedale’s case  (infra)  

which we shall presently discuss.

LEGISLATION  IN  SOME  COUNTRIES  RELATING  TO  EUTHANASIA OR PHYSICIAN ASSISTED DEATH

50. Although in the present  case we are dealing with a case related to  

passive euthanasia, it would be of some interest to note the legislations in  

certain countries permitting active euthanasia.  These are given below.

Netherlands:

Euthanasia in the Netherlands is regulated by the "Termination of Life  

on Request and Assisted Suicide (Review Procedures) Act", 2002. It  

states  that  euthanasia  and  physician-assisted  suicide  are  not  

punishable  if  the  attending  physician  acts  in  accordance  with  the  

criteria of due care. These criteria concern the patient's request, the  

patient's  suffering  (unbearable  and  hopeless),  the  information  

provided  to  the  patient,  the  presence  of  reasonable  alternatives,  

consultation of another physician and the applied method of ending  

life.  To demonstrate their compliance, the Act requires physicians to  

report euthanasia to a review committee.

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The legal debate concerning euthanasia in the Netherlands took off  

with  the  "Postma  case"  in  1973,  concerning  a  physician  who  had  

facilitated the death of her mother following repeated explicit requests  

for  euthanasia.   While  the  physician  was  convicted,  the  court's  

judgment set out criteria when a doctor would not be required to keep  

a patient alive contrary to his will. This set of criteria was formalized  

in the course of a number of court cases during the 1980s.

Termination  of  Life  on  Request  and  Assisted  Suicide  (Review  

Procedures) Act took effect on April 1, 2002. It legalizes euthanasia  

and  physician  assisted  suicide  in  very  specific  cases,  under  very  

specific  circumstances.  The  law  was  proposed  by  Els  Borst,  the  

minister  of  Health.  The procedures  codified in the law had been a  

convention of the Dutch medical community for over twenty years.

The law allows a  medical  review board to  suspend prosecution  of  

doctors  who  performed  euthanasia  when  each  of  the  following  

conditions is fulfilled:

• the patient's suffering is unbearable with no prospect of improvement

• the patient's request for euthanasia must be voluntary and persist over  

time  (the  request  cannot  be  granted  when  under  the  influence  of  

others, psychological illness, or drugs)

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• the patient  must  be fully  aware of his/her  condition,  prospects  and  

options

• there must be consultation with at least one other independent doctor  

who needs to confirm the conditions mentioned above

• the death must be carried out in a medically appropriate fashion by the  

doctor or patient, in which case the doctor must be present

• the patient is at least 12 years old (patients between 12 and 16 years of  

age require the consent of their parents)

The  doctor  must  also  report  the  cause  of  death  to  the  municipal  

coroner in accordance with the relevant provisions of the Burial and  

Cremation Act. A regional review committee assesses whether a case  

of termination of life on request or assisted suicide complies with the  

due care criteria.  Depending on its findings, the case will either be  

closed or, if the conditions are not met, brought to the attention of the  

Public  Prosecutor.  Finally,  the  legislation  offers  an  explicit  

recognition of the validity of a written declaration of the will of the  

patient  regarding  euthanasia  (a  "euthanasia  directive").  Such  

declarations can be used when a patient  is  in a coma or otherwise  

unable to state if they wish to be euthanized.

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Euthanasia remains a criminal offense in cases not meeting the law's  

specific conditions, with the exception of several situations that are  

not  subject  to  the  restrictions  of  the  law  at  all,  because  they  are  

considered normal medical practice.  These are :

• stopping or not starting a medically useless (futile) treatment

• stopping or not starting a treatment at the patient's request

• speeding  up  death  as  a  side-effect  of  treatment  necessary  for  

alleviating serious suffering

Euthanasia of children under the age of 12 remains technically illegal;  

however,  Dr.  Eduard  Verhagen has  documented several  cases  and,  

together with colleagues and prosecutors, has developed a protocol to  

be  followed  in  those  cases.  Prosecutors  will  refrain  from pressing  

charges if this Groningen Protocol is followed.

Switzerland:

Switzerland has an unusual position on assisted suicide: it is legally  

permitted  and  can  be  performed  by  non-physicians.   However,  

euthanasia  is  illegal,  the  difference  between  assisted  suicide  and  

euthanasia being that while in the former the patient administers the  

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lethal injection  himself,  in the latter a doctor or some other person  

administers it.

Article 115 of the Swiss penal code, which came into effect in 1942  

(having been approved in 1937), considers assisting suicide a crime if,  

and only if, the motive is selfish.  The code does not give physicians a  

special  status in assisting suicide;  although, they are most likely to  

have  access  to  suitable  drugs.   Ethical  guidelines  have  cautioned  

physicians against prescribing deadly drugs.  

Switzerland seems to be the only country in which the law limits the  

circumstances  in  which  assisted  suicide  is  a  crime,  thereby  

decriminalising it in other cases, without requiring the involvement of  

a  physician.  Consequently,  non-physicians  have  participated  in  

assisted  suicide.   However,  legally,  active  euthanasia  e.g.  

administering a lethal injection by a doctor or some other person to a  

patient is illegal in Switzerland (unlike in Holland where it is legal  

under certain conditions).

The Swiss law is unique because (1) the recipient need not be a Swiss  

national,  and (2) a physician need not be involved.  Many persons  

from  other  countries,  especially  Germany,  go  to  Switzerland  to  

undergo euthanasia.  

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Belgium:

Belgium became the second country in Europe after Netherlands to  

legalize the practice of euthanasia in September 2002.

The  Belgian  law  sets  out  conditions  under  which  suicide  can  be  

practised without giving doctors a licence to kill.

Patients wishing to end their own lives must be conscious when the  

demand is made and repeat their request for euthanasia. They have to  

be under  "constant  and unbearable  physical  or  psychological  pain"  

resulting from an accident or incurable illness.

The law gives patients  the  right  to receive ongoing treatment  with  

painkillers -- the authorities have to pay to ensure that poor or isolated  

patients do not ask to die because they do not have money for such  

treatment.

Unlike the Dutch legislation, minors cannot seek assistance to die.

In the case of someone who is not in the terminal stages of illness, a  

third medical opinion must be sought.

Every mercy killing case will have to be filed at a special commission  

to decide if the doctors in charge are following the regulations.

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U.K., Spain, Austria, Italy, Germany, France, etc.

In none of these countries is euthanasia or physician assisted death  

legal.  In January 2011 the French Senate defeated by a 170-142 vote  

a bill seeking to legalize euthanasia.  In England, in May 2006 a bill  

allowing physician assisted suicide, was blocked, and never became  

law.  

United States of America:

Active  Euthanasia  is  illegal  in  all  states  in  U.S.A.,  but  physician  

assisted  dying  is  legal  in  the  states  of  Oregon,  Washington  and  

Montana.   As  already  pointed  out  above,  the  difference  between  

euthanasia and physician assisted suicide lies in who administers the  

lethal  medication.  In  the  former,  the  physician  or  someone  else  

administers it, while in the latter the patient himself does so, though  

on the advice of the doctor.

Oregon:

Oregon was the  first  state  in  U.S.A.  to  legalize  physician  assisted  

death.   

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The Oregon legislature enacted the Oregon Death with Dignity Act, in  

1997.   Under  the  Death  With  Dignity  Act,  a  person  who  sought  

physician-assisted suicide would have to meet certain criteria:   

• He must be an Oregon resident, at least 18 years old, and must have  

decision making capacity.

• The person must be terminally ill, having six months or less to live.

• The  person  must  make  one  written  and  two  oral  requests  for  

medication to end his/her life, the written one substantially in the form  

provided in the Act, signed, dated, witnessed by two persons in the  

presence of the patient who attest that the person is capable, acting  

voluntarily  and  not  being  coerced  to  sign  the  request.   There  are  

stringent qualifications as to who may act as a witness.

• The patient’s decision must be an ‘informed’ one, and the attending  

physician is obligated to provide the patient with information about  

the diagnosis, prognosis, potential risks, and probable consequences  

of taking the prescribed medication, and alternatives,  including, but  

not limited to comfort care, hospice care and pain control.  Another  

physician must confirm the diagnosis, the patient’s decision making  

capacity, and voluntariness of the patient’s decisions.  

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• Counselling  has  to  be  provided  if  the  patient  is  suffering  from  

depression or a mental disorder which may impact his judgment.

• There has to be a waiting period of 15 days, next of kin have to be  

notified, and State authorities have to be informed.

• The patient can rescind his decision at any time  

In response to concerns that patients with depression may seek to end  

their lives, the 1999 amendment provides that the attending physician  

must  determine  that  the  patient  does  not  have  ‘depression  causing  

impaired judgment’ before prescribing the medication.

Under the law, a person who met all  requirements could receive a  

prescription of a barbiturate that would be sufficient to cause death.  

However,  the  lethal  injection  must  be  administered  by  the  patient  

himself, and physicians are prohibited from administering it.

The  landmark  case  to  declare  that  the  practice  of  euthanasia  by  

doctors to help their patients shall not be taken into cognizance was  

Gonzalez vs Oregon decided in 2006.

After  the  Oregon  Law  was  enacted  about  200  persons  have  had  

euthanasia in Oregon.  

53

Washington:

Washington was the second state in U.S.A. which allowed the practice  

of  physician  assisted  death  in  the  year  2008  by  passing  the  

Washington Death with Dignity Act, 2008.

Montana:

Montana was the third state (after Oregon and Washington) in U.S.A.  

to legalize physician assisted deaths, but this was done by the State  

judiciary and not the legislature.  On December 31, 2009, the Montana  

Supreme Court delivered its verdict in the case of Baxter v. Montana  

permitting physicians to prescribe lethal indication.  The court held  

that  there  was  “nothing  in  Montana  Supreme  Court  precedent  or  

Montana  statutes  indicating  that  physician  aid  in  dying  is  against  

public policy.”

Other States in U.S.A.:

In no other State in U.S.A. is euthanasia or physician assisted death  

legal.  Michigan banned euthanasia and assisted suicide in 1993, after  

Dr.  Kevorkian  (who  became  known  as  ‘doctor  death’)  began  

encouraging and assisting in suicides.  He was convicted in 1999 for  

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an  assisted  suicide  displayed  on  television,  his  medical  licence  

cancelled, and he spent 8 years in jail.    

In 1999 the State of Texas enacted the Texas Futile Care Law which  

entitles Texas hospitals and doctors, in some situations, to withdraw  

life support measures, such as mechanical respiration, from terminally  

ill patient when such treatment is considered futile and inappropriate.  

However,  Texas  has  not  legalized  euthanasia  or  physician  assisted  

death.  In California, though 75 of people support physician assisted  

death, the issue is highly controversial in the State legislature.  Forty  

States in USA have enacted laws which explicitly make it a crime to  

provide another with the means of taking his or her life.

In  1977  California  legalized  living  wills,  and  other  States  soon  

followed  suit.   A  living  will  (also  known as  advance  directive  or  

advance  decision)  is  an  instruction  given  by  an  individual  while  

conscious specifying what action should be taken in the event he/she  

is unable to make a decision due to illness or incapacity, and appoints  

a person to take such decisions on his/her behalf.  It may include a  

directive to withdraw life support on certain eventualities.

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Canada:

In Canada, physician assisted suicide is illegal vide Section 241(b) of  

the Criminal Code of Canada.

The  leading  decision  of  the  Canadian  Supreme  Court  in  this  

connection  is  Sue  Rodriguez   v.   British  Columbia  (Attorney  

General), (1993)  3  SCR  519.   Rodriguez,  a  woman  of  43,  was  

diagnosed with Amyotrophic Lateral Sclerosis (ALS), and requested  

the Canadian Supreme Court to allow someone to aid her in ending  

her life.  Her condition was deteriorating rapidly, and the doctors told  

her that she would soon lose the ability to swallow, speak, walk, and  

move  her  body without  assistance.   Thereafter  she  would  lose  her  

capacity to breathe without a respirator, to eat without a gastrotomy,  

and would eventually be confined to bed.  Her life expectancy was 2  

to 14 months.

The  Canadian  Supreme  Court  was  deeply  divided.   By  a  5  to  4  

majority  her  plea  was  rejected.   Justice  Sopinka,  speaking  for  the  

majority (which included Justices La Forest, Gonthier, Iacobucci and  

Major) observed :

“Sanctity of life has been understood historically  as excluding freedom of choice in the self infliction of  

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death,  and  certainly  in  the  involvement  of  others  in  carrying  out  that  choice.   At  the  very  least,  no  new  consensus has emerged in society opposing the right of  the  State  to  regulate  the  involvement  of  others  in  exercising power over individuals ending their lives.”

   The  minority,  consisting  of  Chief  Justice  Lamer  and  Justices  

L’Heureux-Dube, Cory and McLachlin, dissented.

PASSIVE EUTHANASIA

51. Passive  euthanasia  is  usually  defined  as  withdrawing  medical  

treatment with a deliberate intention  of causing the patient’s death.  For  

example, if a patient requires kidney dialysis to survive, not giving dialysis  

although  the  machine  is  available,  is  passive  euthanasia.  Similarly,  if  a  

patient is in coma or on a heart lung machine, withdrawing of the machine  

will ordinarily result in passive euthanasia.  Similarly not giving life saving  

medicines  like  antibiotics  in  certain  situations  may  result  in  passive  

euthanasia.  Denying food to a person in coma or PVS may also amount to  

passive euthanasia.

52. As  already  stated  above,  euthanasia  can  be  both  voluntary  or  non  

voluntary.   In  voluntary  passive  euthanasia  a  person  who  is  capable  of  

deciding for himself decides that he would prefer to die (which may be for  

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various reasons e.g., that he is in great pain or that the money being spent on  

his treatment should instead be given to his family who are in greater need,  

etc.), and for this purpose he consciously and of his own free will refuses to  

take life saving medicines.  In India, if a person consciously and voluntarily  

refuses to take life saving medical treatment it is not a crime.  Whether not  

taking food consciously and voluntarily with the aim of ending one’s life is a  

crime under section 309 IPC (attempt to commit suicide) is a question which  

need not be decided in this case.

53. Non voluntary passive euthanasia implies that the person is not in a  

position to decide for himself e.g., if he is in coma or PVS.  The present is a  

case  where  we  have  to  consider  non  voluntary  passive  euthanasia  i.e.  

whether to allow a person to die who is not in a position to give his/her  

consent.   

54.  There is a plethora of case law on the subject   of the Courts all over  

the world relating to both active and passive euthanasia.   It is not necessary  

to refer in detail  to all  the decisions of the Courts in the world   on the  

subject  of  euthanasia  or  physically  assisted  dead  (p.a.d.)  but  we think  it  

appropriate to refer in detail to certain landmark decisions, which have laid  

down the law on the subject.

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THE AIREDALE CASE : (Airedale NHS Trust v. Bland (1993) All E.R. 82)  (H.L.)

55. In the Airedale case decided by the House of Lords in the U.K., the  

facts were that one Anthony Bland aged about 17 went to the Hillsborough  

Ground on 15th April 1989 to support the Liverpool Football Club.  In the  

course of the disaster which occurred on that day, his lungs were crushed  

and punctured and the supply to his brain was interrupted.  As a result, he  

suffered catastrophic and irreversible damage to the higher centres of the  

brain.  For three years, he was in a condition known as ‘persistent vegetative  

state (PVS).  This state arises from the destruction of the cerebral cortex on  

account  of  prolonged  deprivation  of  oxygen,  and  the  cerebral  cortex  of  

Anthony had resolved into a watery mass.  The cortex is that part of the  

brain which is the seat of cognitive function and sensory capacity.  Anthony  

Bland could not see, hear or feel anything.  He could not communicate in  

any way.  His consciousness, which is an essential feature of an individual  

personality, had departed forever.  However, his brain-stem, which controls  

the reflective functions of the body, in particular the heart beat, breathing  

and digestion, continued to operate.  He was in persistent vegetative state  

(PVS) which is  a  recognized medical  condition quite  distinct  from other  

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conditions  sometimes  known  as  "irreversible  coma",  "the  Guillain-Barre  

syndrome", "the locked-in syndrome" and "brain death".  

56. The distinguishing characteristic of PVS is that the brain stem remains  

alive  and functioning while  the  cortex  has  lost  its  function  and activity.  

Thus  the  PVS  patient  continues  to  breathe  unaided  and  his  digestion  

continues to function.  But although his eyes are open, he cannot see.  He  

cannot hear.  Although capable of reflex movement, particularly in response  

to painful stimuli, the patient is uncapable of voluntary movement and can  

feel no pain.  He cannot taste or smell.  He cannot speak or communicate in  

any  way.   He  has  no  cognitive  function  and  thus  can  feel  no  emotion,  

whether  pleasure  or  distress.   The  absence  of  cerebral  function  is  not  a  

matter of surmise; it can be scientifically demonstrated.  The space which  

the brain should occupy is full of watery fluid.

57. In order to maintain Mr. Bland in his condition, feeding and hydration  

were achieved by artificial means of a nasogastric tube while the excretory  

functions were regulated by a catheter and enemas.  According to eminent  

medical opinion, there was no prospect whatsoever that he would ever make  

a recovery from his condition, but there was every likelihood that he would  

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maintain  this  state  of  existence  for  many  years  to  come  provided  the  

artificial means of medical care was continued.  

58. In this state of affairs the medical men in charge of Anthony Bland  

case  took  the  view,  which  was  supported  by  his  parents,  that  no  useful  

purpose  would  be  served  by  continuing  medical  care,  and  that  artificial  

feeding  and other  measures  aimed  at  prolonging his  existence  should  be  

stopped.  Since however, there was a doubt as to whether this course might  

constitute a criminal offence, the hospital authorities sought a declaration  

from the British High Court to resolve these doubts.  

59. The declaration was granted by the Family Division of the High Court  

on 19.11.1992 and that judgment was affirmed by the Court of Appeal on  

9.12.1992.  A further appeal was made to the House of Lords which then  

decided the case.

60. The broad issued raised before the House of Lords in the  Airedale  

case (supra) was “In what circumstances, if ever, can those having a duty to  

feed an invalid lawfully stop doing so?”  In fact this is precisely the question  

raised in the present case of Aruna Shanbaug  before us.   

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61.   In  Airedale’s case (supra),  Lord Keith  of  Kinkel,  noted that  it  was  

unlawful to administer treatment to an adult who is conscious and of sound  

mind, without his consent. Such a person is completely at liberty to decline  

to undergo treatment, even if the result of his doing so will be that he will  

die.  This  extends to the situation where the person in anticipation of  his  

entering into a condition such as PVS, gives clear instructions that in such an  

event  he  is  not  to  be  given  medical  care,  including  artificial  feeding,  

designed to keep him alive.    

62. It  was  held  that  if  a  person,  due  to  accident  or  some  other  cause  

becomes unconscious and is thus not able to give or withhold consent to  

medical treatment, in that situation it is lawful for medical men to apply such  

treatment  as  in  their  informed  opinion  is  in  the  best  interests  of  the  

unconscious patient. That is what happened in the case of Anthony  Bland  

when he was first dealt with by the emergency services and later taken to  

hospital.  

63. When  the  incident  happened  the  first  imperative  was  to  prevent  

Anthony from dying, as he would certainly have done in the absence of the  

steps that were taken. For a time, no doubt, there was some hope that he  

might recover sufficiently for him to be able to live a life that had some  

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meaning. Some patients who have suffered damage to the cerebral cortex  

have,  indeed, made a complete recovery.  It  all  depends on the degree of  

damage. But sound medical opinion takes the view that if a P.V.S. patient  

shows no signs of recovery after six months, or at most a year, then there is  

no prospect whatever of any recovery.  

64. There are techniques available which make it possible to ascertain the  

state of the cerebral cortex, and in  Anthony Bland's case these indicated  

that, it  had degenerated into a mass of watery fluid.  In this situation the  

question before the House of Lords was whether the doctors could withdraw  

medical treatment or feeding Anthony Bland thus allowing him to die.  

65. It was held by Lord Keith that a medical practitioner is under no duty  

to  continue  to  treat  such  a  patient  where  a  large  body  of  informed  and  

responsible medical opinion is to the effect that no benefit at all would be  

conferred by continuance of the treatment.  Existence in a vegetative state  

with no prospect  of recovery is by that opinion regarded as not being of  

benefit to the patient.

66. Given that existence in the persistent vegetative state is of no benefit  

to the patient, the House of Lords then considered whether the principle of  

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the sanctity of life which is the concern of the State (and the Judiciary is one  

of the arms of the State) required the Court to hold that medical treatment to  

Bland could not be discontinued.   

67. Lord Keith observed that  the principle  of sanctity  of life  is  not  an  

absolute one.  For instance, it does not compel the medical practitioner on  

pain of criminal  sanction to treat  a patient,  who will  die,  if  he does not,  

according to the express wish of the patient. It does not authorize forcible  

feeding  of  prisoners  on  hunger  strike.  It  does  not  compel  the  temporary  

keeping alive of patients who are terminally ill where to do so would merely  

prolong their suffering.  On the other hand, it forbids the taking of active  

measures  to  cut  short  the  life  of  a  terminally-ill  patient  (unless  there  is  

legislation which permits it).  

68.  Lord Keith observed that although the decision whether or not the  

continued treatment and cure of a PVS patient confers any benefit on him is  

essentially one for the medical practitioners in charge of his case to decide,  

as a matter of routine the hospital/medical practitioner should apply to the  

Family  Division  of  the  High  Court  for  endorsing  or  reversing  the  said  

decision.  This is in the interest of the protection of the patient, protection of  

the doctors, and for the reassurance of the patient’s family and the public.   

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69.   In  Airdale’s case (Supra) another Judge on the Bench, Lord Goff of  

Chievely observed:-

“The  central  issue  in  the  present  case  has  been  aptly  stated by the Master of the Rolls to be whether artificial  feeding  and antibiotic  drugs  may  lawfully  be  withheld  from an insensate patient with no hope of recovery when  it  is known that if that is  done the patient will  shortly  thereafter die.  The Court of Appeal,  like the President,  answered this question generally in the affirmative, and  (in  the  declarations  made  or  approved  by  them)  specifically also in the affirmative in relation to Anthony  Bland  .  I  find  myself  to  be  in  agreement  with  the  conclusions  so  reached  by  all  the  judges  below,  substantially  for  the  reasons  given  by  them.  But  the  matter is of such importance that I propose to express my  reasons in my own words.

I start with the simple fact that, in law, Anthony is still  alive. It is true that his condition is such that it can be  described as a  living death;  but  he is  nevertheless  still  alive.  This  is  because,  as  a  result  of  developments  in  modern medical technology, doctors no longer associate  death exclusively with breathing and heart  beat,  and it  has  come  to  be  accepted  that  death  occurs  when  the  brain, and in particular the brain stem, has been destroyed  (see Professor Ian Kennedy's  Paper entitled "Switching  off  Life  Support  Machines:  The  Legal  Implications"  reprinted in Treat Me Right, Essays in Medical Law and  Ethics, (1988)), especially at pp. 351-2, and the material  there cited). There has been no dispute on this point in  the present case, and it is unnecessary for me to consider  it  further. The evidence is that Anthony's brain stem is  still  alive  and  functioning  and  it  follows  that,  in  the  present  state  of  medical  science,  he  is  still  alive  and  should be so regarded as a matter of law.

It is on this basis that I turn to the applicable principles of  law. Here, the fundamental principle is the principle of  

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the sanctity of human life – a principle long recognized  not only in our own society but also in most, if not all,  civilized  societies  throughout  the  modern  world,  as  is  indeed evidenced by its recognition both in article 2 of  the European Convention of Human Rights, and in article  6  of  the  International  Covenant  of  Civil  and  Political  Rights.

But  this  principle,  fundamental  though  it  is,  is  not  absolute.  Indeed there are  circumstances  in which it  is  lawful to take another man's life, for example by a lawful  act  of  self-defence,  or  (in  the  days  when  capital  punishment  was  acceptable  in  our  society)  by  lawful  execution.  We  are  not  however  concerned  with  cases  such as these. We are concerned with circumstances in  which  it  may  be  lawful  to  withhold  from  a  patient  medical treatment or care by means of which his life may  be prolonged. But here too there is no absolute rule that  the patient's life must be prolonged by such treatment or  care, if available, regardless of the circumstances.

First,  it  is  established  that  the  principle  of  self- determination requires that respect must be given to the  wishes of the patient, so that if an adult patient of sound  mind  refuses,  however  unreasonably,  to  consent  to  treatment  or care by which his life would or  might  be  prolonged, the doctors responsible for his care must give  effect to his wishes, even though they do not consider it  to be in his best interests to do so (see Schloendorff  v .  Society  of  New  York  Hospital  105  N.E.  92,  93,  per  Cardozo J. (1914); S.  v . McC. (Orse S.) and M (D.S.  Intervene); W  v . W [1972] A.C. 24, 43, per Lord Reid;  and Sidaway  v  .  Board of  Governors  of  the  Bethlem  Royal  Hospital  and  the  Maudsley  Hospital  [1985]  AC  871, 882, per Lord Scarman). To this extent, the principle  of the sanctity of human life must yield to the principle of  self- determination (see Court of Appeal Transcript in the  present  case,  at  p.  38F  per  Hoffmann  L.J.),  and,  for  present  purposes  perhaps  more  important,  the  doctor's  duty  to  act  in  the  best  interests  of  his  patient  must  

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likewise be qualified. On this basis, it has been held that  a  patient  of  sound  mind  may,  if  properly  informed,  require  that  life  support  should  be  discontinued:  see  Nancy B.  v. Hotel Dieu de Quebec (1992) 86 D.L.R.  (4th) 385. Moreover the same principle applies where the  patient's refusal to give his consent has been expressed at  an  earlier  date,  before  he  became  unconscious  or  otherwise incapable of communicating it; though in such  circumstances especial care may be necessary to ensure  that  the  prior  refusal  of  consent  is  still  properly  to  be  regarded as applicable in the circumstances which have  subsequently occurred (see, e.g. In re T. (Adult: Refusal  of treatment) [1992] 3 W.L.R. 782). I wish to add that, in  cases  of  this  kind,  there  is  no  question  of  the  patient  having  committed  suicide,  nor  therefore  of  the  doctor  having aided or abetted him in doing so. It is simply that  the patient has, as he is entitled to do, declined to consent  to  treatment  which  might  or  would  have  the  effect  of  prolonging  his  life,  and  the  doctor  has,  in  accordance  with his duty, complied with his patient's wishes.

But  in  many cases  not  only  may the  patient  be  in  no  condition to be able to say whether or not he consents to  the relevant treatment or care, but also he may have given  no prior indication of his wishes with regard to it. In the  case of a child who is a ward of court, the court itself will  decide whether medical treatment should be provided in  the  child's  best  interests,  taking  into  account  medical  opinion. But the court cannot give its consent on behalf  of an adult patient who is incapable of himself deciding  whether  or  not  to  consent  to  treatment.  I  am  of  the  opinion that  there is nevertheless no absolute obligation  upon the doctor who has the patient in his care to prolong  his life, regardless of the circumstances. Indeed, it would  be most startling, and could lead to the most adverse and  cruel effects upon the patient, if any such absolute rule  were  held  to  exist.  It  is  scarcely  consistent  with  the  primacy given to  the  principle  of  self-determination  in  those  cases  in  which  the  patient  of  sound  mind  has  declined to give his consent, that the law should provide  

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no  means  of  enabling  treatment  to  be  withheld  in  appropriate  circumstances  where  the  patient  is  in  no  condition to indicate, if that was his wish, that he did not  consent to it. The point was put forcibly in the judgment  of  the  Supreme  Judicial  Court  of  Massachusetts  in  Superintendent  of  Belchertown  State  School   v.  Saikewicz (1977) 370 N.E. 2d. 417, 428, as follows:

"To presume that the incompetent person must always be  subjected to what many rational and intelligent persons  may  decline  is  to  downgrade  the  status  of  the  incompetent  person  by  placing  a  lesser  value  on  his  intrinsic human worth and vitality."

I must however stress, at this point, that the law draws a  crucial  distinction  between  cases  in  which  a  doctor  decides not to provide, or to continue to provide, for his  patient treatment or care which could or might prolong  his life, and those in which he decides, for example by  administering a lethal drug, actively to bring his patient's  life to an end.  As I have already indicated,  the former  may be lawful, either because the doctor is giving effect  to his patient's  wishes by withholding the treatment  or  care,  or  even  in  certain  circumstances  in  which  (on  principles  which  I  shall  describe)  the  patient  is  incapacitated  from stating  whether  or  not  he  gives  his  consent. But it is not lawful for a doctor to administer a  drug to his patient to bring about his death, even though  that course is prompted by a humanitarian desire to end  his suffering, however great that suffering may be: see  Reg. v. Cox (Unreported), Ognall J., Winchester Crown  Court,  18  September  1992.  So  to  act  is  to  cross  the  Rubicon which runs between on the one hand the care of  the  living  patient  and  on  the  other  hand  euthanasia  -  actively causing his death to avoid or to end his suffering.  Euthanasia is not lawful at common law. It is of course  well known that there are many responsible members of  our society who believe that euthanasia should be made  lawful; but  that result could, I believe, only be achieved  by legislation which expresses the democratic will that so  

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fundamental  a change should be made in our law, and  can, if enacted, ensure that such legalised killing can only  be  carried  out  subject  to  appropriate  supervision  and  control. It is true that the drawing of this distinction may  lead to a charge of hypocrisy; because it  can be asked  why, if the doctor, by discontinuing treatment, is entitled  in  consequence  to  let  his  patient  die,  it  should  not  be  lawful to put him out of his misery straight away, in a  more humane manner,  by a lethal injection, rather than  let him linger on in pain until he dies. But the law does  not  feel  able  to  authorize  euthanasia,  even  in  circumstances  such  as  these;  for  once  euthanasia  is  recognized as lawful in these circumstances, it is difficult  to see any logical basis for excluding it in others.

At the heart of this distinction lies a theoretical question.  Why is it that the doctor who gives his patient a lethal  injection which kills him commits an unlawful act and  indeed  is  guilty  of  murder,  whereas  a  doctor  who,  by  discontinuing life support, allows his patient to die, may  not act unlawfully - and will not do so, if he commits no  breach  of  duty  to  his  patient?  Professor  Glanville  Williams has  suggested  (see  his  Textbook  of  Criminal  Law,  2nd ed.,  p.  282) that  the reason is  that  what  the  doctor does when he switches off a life support machine  'is in substance not an act but an omission to struggle,  and  that  'the  omission  is  not  a  breach  of  duty  by  the  doctor because he is not obliged to continue in a hopeless  case'.

I  agree  that  the  doctor's  conduct  in  discontinuing  life  support can properly be categorized as an omission. It is  true that it may be difficult to describe what the doctor  actually does as an omission, for example where he takes  some positive step to bring the life support to an end. But  discontinuation of life support is, for present purposes, no  different from not initiating life support in the first place.  In each case, the doctor is simply allowing his patient to  die in the sense that he is desisting from taking a step  which might, in certain circumstances, prevent his patient  

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from dying as a result of his pre-existing condition; and  as a matter of general principle an omission such as this  will not be unlawful unless it constitutes a breach of duty  to the patient. I also agree that the doctor's conduct is to  be differentiated from that of, for example, an interloper  who  maliciously  switches  off  a  life  support  machine  because, although the interloper may perform exactly the  same act as the doctor who discontinues life support, his  doing so constitutes interference with the life-prolonging  treatment  then  being  administered  by  the  doctor.  Accordingly,  whereas  the  doctor,  in  discontinuing  life  support, is simply allowing his patient to die of his pre- existing condition, the interloper is actively intervening  to stop the doctor from prolonging the patient's life, and  such  conduct  cannot  possibly  be  categorised  as  an  omission.

The  distinction  appears,  therefore,  to  be  useful  in  the  present context in that it can be invoked to explain how  discontinuance of life support can be differentiated from  ending a patient's life by a lethal injection. But in the end  the  reason for  that  difference  is  that,  whereas  the  law  considers  that  discontinuance  of  life  support  may  be  consistent with the doctor's duty to care for his patient, it  does not, for reasons of policy, consider that it forms any  part of his duty to give his patient a lethal injection to put  him out of his agony.

I return to the patient who, because for example he is of  unsound  mind  or  has  been  rendered  unconscious  by  accident or by illness, is incapable of stating whether or  not  he  consents  to  treatment  or  care.  In  such  circumstances,  it  is  now established that  a  doctor  may  lawfully treat such a patient if he acts in his best interests,  and indeed that, if the patient is already in his care, he is  under a duty so to treat him: see In re F [1990] 2 AC 1, in  which the  legal  principles  governing treatment  in  such  circumstances were stated by this House. For my part I  can  see  no  reason  why,  as  a  matter  of  principle,  a  decision  by  a  doctor  whether  or  not  to  initiate,  or  to  

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continue  to  provide,  treatment  or  care  which  could  or  might have the effect of prolonging such a patient's life,  should  not  be  governed  by  the  same  fundamental  principle. Of course, in the great majority of cases, the  best  interests  of  the  patient  are  likely  to  require  that  treatment of this kind, if available, should be given to a  patient. But this may not always be so. To take a simple  example given by Thomas J. in Re J.H.L. (Unreported)  (High Court of New Zealand) 13 August 1992, at p. 35),  to whose judgment in that case I wish to pay tribute, it  cannot be right that a doctor, who has under his care a  patient suffering painfully from terminal cancer, should  be  under  an  absolute  obligation  to  perform upon  him  major  surgery  to  abate  another  condition  which,  if  unabated,  would  or  might  shorten  his  life  still  further.  The doctor who is caring for such a patient cannot, in my  opinion, be under an absolute obligation to prolong his  life  by  any  means  available  to  him,  regardless  of  the  quality of the patient's life. Common humanity requires  otherwise,  as  do  medical  ethics  and  good  medical  practice accepted in this country and overseas. As I see it,  the doctor's decision whether or not to take any such step  must (subject to his patient's ability to give or withhold  his consent) be made in the best interests of the patient. It  is this principle too which, in my opinion, underlies the  established  rule  that  a  doctor  may,  when  caring  for  a  patient  who is,  for  example,  dying  of  cancer,  lawfully  administer  painkilling  drugs  despite  the  fact  that  he  knows that an incidental effect of that application will be  to  abbreviate  the  patient's  life.  Such  a  decision  may  properly be made as part of the care of the living patient,  in his best interests; and, on this basis, the treatment will  be lawful. Moreover, where the doctor's treatment of his  patient is lawful, the patient's death will be regarded in  law  as  exclusively  caused  by  the  injury  or  disease  to  which his condition is attributable.

It  is  of  course  the  development  of  modern  medical  technology,  and  in  particular  the  development  of  life  support  systems,  which has rendered cases such as the  

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present so much more relevant than in the past. Even so,  where (for example) a patient is brought into hospital in  such a condition that, without the benefit of a life support  system, he will not continue to live, the decision has to be  made whether or not to give him that benefit, if available.  That decision can only be made in the best interests of  the  patient.  No doubt,  his  best  interests  will  ordinarily  require that he should be placed on a life support system  as  soon  as  necessary,  if  only  to  make  an  accurate  assessment  of  his  condition  and  a  prognosis  for  the  future. But if he neither recovers sufficiently to be taken  off it nor dies, the question will ultimately arise whether  he  should  be  kept  on  it  indefinitely.  As  I  see  it,  that  question  (assuming  the  continued  availability  of  the  system) can only be answered by reference to the best  interests  of  the  patient  himself,  having  regard  to  established medical practice.  Indeed,  if the justification  for treating a patient who lacks the capacity to consent  lies in the fact that the treatment is provided in his best  interests,  it  must  follow  that  the  treatment may,  and  indeed ultimately should, be discontinued where it is no  longer  in  his  best  interests  to  provide  it.  The question  which lies at the heart of the present case is, as I see it,  whether on that principle the doctors responsible for the  treatment  and care  of  Anthony  Bland  can  justifiably  discontinue the process of artificial feeding upon which  the prolongation of his life depends.

It is crucial for the understanding of this question that the  question  itself  should  be  correctly  formulated.  The  question is not whether the doctor should take a course  which will kill his patient, or even take a course which  has the effect of accelerating his death. The question is  whether  the  doctor  should  or  should  not  continue  to  provide his patient with medical treatment or care which,  if continued, will prolong his patient's life. The question  is sometimes put in striking or emotional terms, which  can  be  misleading.  For  example,  in  the  case  of  a  life  support system, it is sometimes asked: Should a doctor be  entitled to switch it off, or to pull the plug? And then it is  

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asked: Can it be in the best interests of the patient that a  doctor should be able to switch the life support system  off, when this will inevitably result in the patient's death?  Such  an  approach  has  rightly  been  criticised  as  misleading, for example by Professor Ian Kennedy (in his  paper  in  Treat  Me Right,  Essays  in  Medical  Law and  Ethics (1988), and by Thomas J. in Re J.H.L. at pp. 21-  22. This is because the question is not whether it is in the  best  interests  of  the  patient  that  he  should  die.  The  question is whether it is in the best interests of the patient  that his life should be prolonged by the continuance of  this form of medical treatment or care.

The correct formulation of the question is of particular  importance  in  a  case  such  as  the  present,  where  the  patient is totally unconscious and where there is no hope  whatsoever  of  any  amelioration  of  his  condition.  In  circumstances such as these,  it  may be difficult  to say  that it is in his best interests that the treatment should be  ended. But if the question is asked, as in my opinion it  should be, whether it is in his best interests that treatment  which  has  the  effect  of  artificially  prolonging  his  life  should  be  continued,  that  question  can  sensibly  be  answered to the effect that it is not in his best interests to  do so.

                                                                                    (emphasis supplied)

70. In  a  Discussion  Paper  on  Treatment  of  Patients  in  Persistent  

Vegetative State issued in September 1992 by the Medical Ethics Committee  

of the British Medical Association certain safeguards were mentioned which  

should be observed before constituting life support for such patients:-

“(1) Every effort should be made at rehabilitation for at  least  six  months  after  the  injury;  (2)  The diagnosis  of  irreversible  PVS  should  not  be  considered  confirmed  

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until  at  least  twelve  months  after  the  injury,  with  the  effect  that  any  decision  to  withhold  life  prolonging  treatment  will  be  delayed  for  that  period;  (3)  The  diagnosis  should  be  agreed  by  two  other  independent  doctors;  and  (4)  Generally,  the  wishes  of  the  patient's  immediate family will be given great weight.”

71. Lord Goff observed that discontinuance of artificial feeding in such  

cases is not equivalent to cutting a mountaineer’s rope, or severing the air  

pipe of a deep sea diver.  The true question is not whether the doctor should  

take a course in which he will actively kill his patient, but rather whether he  

should continue to provide his patient with medical treatment or care which,  

if continued, will prolong his life.

72. Lord  Browne-Wilkinson  was  of  the  view  that  removing  the  

nasogastric  tube  in  the  case  of  Anthony  Bland  cannot  be  regarded  as  a  

positive  act  causing  the  death.   The  tube  itself,  without  the  food  being  

supplied through it, does nothing.  Its non removal itself does not cause the  

death since by itself,  it  does not sustain life.  Hence removal of the tube  

would not constitute the actus reus  of murder, since such an act would not  

cause the death.   

73. Lord Mustill observed:-  

“Threaded  through  the  technical  arguments  addressed to the House were the strands of a much wider  

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position, that it is in the best interests of the community  at large that Anthony Bland’s life should now end.  The  doctors  have done all they can.  Nothing will be gained  by going on and much will be lost.  The  distress of the  family will get steadily worse.  The strain on the devotion  of  a  medical  staff  charged  with  the  care of  a  patient  whose condition will never improve, who may live for  years and who does not even recognize that he is being  cared for, will continue to mount.  The large resources of  skill,  labour and money now being devoted to Anthony  Bland might in the opinion of many be more fruitfully  employed in improving the condition of other patients,  who if  treated may have useful,  healthy and enjoyable  lives for years to come.”

74. Thus all the Judges of the House of Lords in the Airedale case (supra)  

were agreed that Anthony Bland should be allowed to die.

75. Airedale (1993) decided by the House of Lords has been followed in a  

number of cases in U.K., and the law is now fairly well settled that in the  

case  of  incompetent  patients,  if  the  doctors  act  on the basis  of  informed  

medical opinion, and withdraw the artificial life support system if it is in the  

patient’s best interest, the said act cannot be regarded as a crime.

76. The question, however,  remains as to who is to decide what is the  

patient’s  best  interest  where he is  in a persistent  vegetative state  (PVS)?  

Most decisions have held that the decision of the parents, spouse, or other  

close relative,  should carry weight  if  it  is  an informed one,  but  it  is  not  

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decisive (several of these decisions have been referred to in Chapter IV of  

the 196th Report of the Law Commission of India on Medical Treatment to  

Terminally ill Patients).

77. It is ultimately for the Court to decide, as parens patriae, as to what is  

is in the best interest of the patient, though the wishes of close relatives and  

next friend, and opinion of medical practitioners should be given due weight  

in coming to its decision.  As stated by Balcombe, J. in In Re J ( A Minor  

Wardship  :  Medical  Treatment)  1990(3)  All  E.R.  930,  the  Court  as  

representative  of  the  Sovereign  as  parens  patriae  will  adopt  the  same  

standard which a reasonable and responsible parent would do.

78. The  parens  patriae  (father  of  the  country)  jurisdiction  was  the  

jurisdiction of the Crown, which, as stated in Airedale, could be traced to the  

13th Century.  This principle laid down that as the Sovereign it was the duty  

of the King to protect the person and property of those who were unable to  

protect  themselves.   The Court,  as a wing of the State,  has inherited the  

parens patriae jurisdiction which formerly belonged to the King.         

U.S. decisions

79. The  two  most  significant  cases  of  the  U.S.  Supreme  Court  that  

addressed  the  issue  whether  there  was  a  federal  constitutional  right  to  

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assisted  suicide  arose  from  challenges  to  State  laws  banning  physician  

assisted suicide brought by terminally ill patients and their physicians. These  

were  Washington  vs.  Glucksberg 521 U.S. 702 (1997) and  Vacco  vs.  

Quill 521 U.S. 793 (1997).

80. In Glucksberg’s case, the U.S. Supreme Court held that the asserted  

right to assistance in committing suicide is not a fundamental liberty interest  

protected by the Due Process Clause of the Fourteenth Amendment.   The  

Court observed :

“The decision to commit suicide with the assistance of  another  may  be  just  as  personal  and  profound  as  the  decision to refuse unwanted medical treatment, but it has  never enjoyed similar legal protection.  Indeed the two  acts  are  widely  and  reasonably  regarded  as  quite  distinct.”

81. The  Court  went  on  to  conclude  that  the  Washington  statute  being  

challenged  was rationally  related  to  five  legitimate  government  interest  :  

protection of life, prevention of suicide, protection of ethical integrity of the  

medical profession, protection of vulnerable groups, and protection against  

the “slippery slope” towards euthanasia.  The Court then noted that perhaps  

the individual States were more suited to resolving or at least addressing the  

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myriad  concerns  raised  by  both  proponents  and  opponents  of  physician  

assisted suicide.  The Court observed :      

“Throughout the Nation, Americans are engaged in  an  earnest  and  profound  debate  about  the  morality,  legality  and  practicality  of  physician  assisted  suicide.  Our holding permits this debate to continue, as it should  in a democratic society.”

82. In Vacco’s case (supra) the U.S. Supreme Court again recognized the  

distinction between refusing life saving medical treatment and giving lethal  

medication.   The  Court  disagreed  with  the  view  of  the  Second  Circuit  

Federal Court that ending or refusing lifesaving medical treatment is nothing  

more nor less than assisted suicide.   The Court held that “the distinction  

between  letting  a  patient  die  and  making  that  patient  die  is  important,  

logical, rational, and well established”.  The Court held that the State of New  

York could validly ban the latter.

83.    In  Cruzan v.  Director, MDH, 497 U.S. 261(1990) decided by the  

U.S. Supreme Court the majority opinion was delivered by the Chief Justice  

Rehnquist.

84. In  that  case,  the  petitioner  Nancy  Cruzan  sustained  injuries  in  an  

automobile accident and lay in a Missouri State hospital in what has been  

referred to as  a persistent  vegetative state  (PVS),  a condition in which a  

person  exhibits  motor  reflexes  but  evinces  no  indication  of  significant  

cognitive function.   The state of Missouri was bearing the cost of her care.  

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Her  parents  and  co-guardians  applied  to  the  Court  for  permission  to  

withdraw her artificial  feeding and hydration equipment and allow her to  

die.   While the trial Court granted the prayer, the State Supreme Court of  

Missouri reversed, holding that under a statute in the State of Missouri it was  

necessary to prove by clear and convincing evidence that the incompetent  

person had wanted, while competent, withdrawal of life support treatment in  

such an eventuality.  The only evidence led on that point was the alleged  

statement of Nancy Cruzan to a housemate about a year before the accident  

that she did not want life as a ‘vegetable’.  The State Supreme Court was of  

the  view  that  this  did  not  amount  to  saying  that  medical  treatment  or  

nutrition or hydration should be withdrawn.

85. Chief Justice Rehnquist delivering the opinion of the Court (in which  

Justices White, O'Connor, Scalia, and Kennedy, joined) in his judgment first  

noted  the facts:-

“On the night of January 11, 1983, Nancy Cruzan lost  control  of  her  car  as  she  traveled  down Elm Road  in  Jasper  County,  Missouri.  The  vehicle  overturned,  and  Cruzan  was  discovered  lying  face  down  in  a  ditch  without  detectable  respiratory  or  cardiac  function.  Paramedics  were  able  to  restore  her  breathing  and  heartbeat at the accident site, and she was transported to a  hospital  in  an  unconscious  state.  An  attending  neurosurgeon diagnosed her as having sustained probable  

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cerebral  contusions  compounded  by  significant  anoxia  (lack of  oxygen).  The Missouri  trial  court  in  this  case  found that permanent brain damage generally results after  6 minutes in an anoxic state; it was estimated that Cruzan  was  deprived  of  oxygen  from  12  to  14  minutes.  She  remained in a coma for approximately three weeks, and  then progressed to an unconscious state in which she was  able  to  orally  ingest  some  nutrition.  In  order  to  ease  feeding and further  the recovery,  surgeons implanted a  gastrostomy feeding and hydration tube in Cruzan with  the  consent  of  her  then  husband.  Subsequent  rehabilitative efforts proved unavailing. She now lies in a  Missouri state hospital in what is commonly referred to  as a persistent vegetative state: generally, a condition in  which a  person exhibits  motor  reflexes  but  evinces  no  indications of significant cognitive function.  1  The State  of Missouri is bearing the cost of her care. [497 U.S. 261,  267]    

After  it  had  become  apparent  that  Nancy  Cruzan  had  virtually no chance of regaining her mental faculties, her  parents  asked  hospital  employees  to  terminate  the  artificial  nutrition  and  hydration  procedures.  All  agree  that such a  [497 U.S. 261, 268]    removal would cause  her  death. The employees refused to honor the request  without  court  approval.  The  parents  then  sought  and  received  authorization  from  the  state  trial  court  for  termination.”  

86. While the trial Court allowed the petition the State Supreme Court of  

Missouri reversed.  The US Supreme Court by majority affirmed the verdict  

of the State Supreme Court

87. Chief Justice Rehnquist noted that in law even touching of one person  

by another without consent and without legal justification was a battery, and  

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hence  illegal.   The  notion  of  bodily  integrity  has  been  embodied  in  the  

requirement  that  informed  consent  is  generally  required  for  medical  

treatment.  As observed by Justice Cardozo, while on the Court of Appeals  

of New York “Every human being of adult years and sound mind has a right  

to determine what shall  be done with his own body, and a surgeon who  

performs an operation without his patient’s consent commits an assault, for  

which he is liable in damages.” vide  Schloendorff  vs.  Society of New  

York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914).   Thus the  

informed consent doctrine has become firmly entrenched in American Tort  

Law.  The logical corollary  of the doctrine of informed consent is that the  

patient  generally  possesses  the  right  not  to  consent,  that  is  to  refuse  

treatment.   

88. The question, however, arises in cases where the patient is unable to  

decide whether the treatment should continue or not e.g. if he is in coma or  

PVS.  Who is to give consent to terminate the treatment in such a case?  The  

learned Chief Justice referred to a large number of decisions of Courts in  

U.S.A. in this connection, often taking diverse approaches.

89. In re Quinlan 70 N.J.10,  355 A. 2d 647,  Karen Quinlan suffered  

severe brain damage as a result of anoxia, and entered into PVS.  Her father  

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sought  judicial  approval  to  disconnect  her  respirator.   The  New  Jersey  

Supreme Court granted the prayer, holding that Karen had a right of privacy  

grounded  in  the  U.S.  Constitution  to  terminate  treatment.   The  Court  

concluded that the way Karen’s right to privacy could be exercised would be  

to allow her guardian and family to decide whether she would exercise it in  

the circumstances.    

90. In re Conroy 98 NJ 321, 486 A.2d 1209 (1985), however, the New  

Jersey Supreme Court, in a case of an 84 year old incompetent nursing home  

resident  who  had  suffered  irreversible  mental  and  physical  ailments,  

contrary to its decision in Quinlan’s case, decided to base its decision on the  

common law right to self determination and informed consent.  This right  

can  be  exercised  by  a  surrogate  decision  maker  when there  was  a  clear  

evidence that the incompetent person would have exercised it.  Where such  

evidence was lacking the Court held that an individual’s right could still be  

invoked in certain circumstances under objective ‘best interest’ standards.  

Where  no  trustworthy  evidence  existed  that  the  individual  would  have  

wanted  to  terminate  treatment,  and a  person’s  suffering  would  make the  

administration  of  life  sustaining  treatment  inhumane,  a  pure  objective  

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standard  could  be  used  to  terminate  the  treatment.    If  none  of  these  

conditions obtained, it was best to err in favour of preserving life.

91. What is important to note in Cruzan’s case (supra) is that there was a  

statute of the State of Missouri, unlike in Airedale’s case (where there was  

none), which required clear and convincing evidence that while the patient  

was competent she had desired that if she becomes incompetent and in a  

PVS her life support should be withdrawn.

92. In Cruzan’s case (supra) the learned Chief Justice observed :

“Not  all  incompetent  patients  will  have  loved  ones  available  to  serve  as  surrogate  decision  makers.   And  even where family members are present, there will be, of  course,  some  unfortunate  situations  in  which  family  members  will  not  act  to  protect  a  patient.   A  State  is  entitled  to  guard  against  potential  abuses  in  such  situations.”    

93. The learned Chief Justice further observed :

“An  erroneous  decision  not  to  terminate  results  in  maintenance  of  the  status  quo;  the  possibility  of  subsequent  developments  such  as  advancements  in  medical science, the discovery of new evidence regarding  the  patient’s  intent,  changes  in  the  law,  or  simply  the  unexpected death of the patient despite the administration  of life-sustaining treatment, at least create the potential  that a wrong decision will eventually be corrected or its  impact  mitigated.   An erroneous  decision  to  withdraw  

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life-sustaining treatment, however, is not susceptible of  correction.”

94. No  doubt  Mr.  Justice  Brennan  (with  whom Justices  Marshall  and  

Blackmun  joined)  wrote  a  powerful  dissenting  opinion,  but  it  is  not  

necessary for us to go into the question whether  the view of the learned  

Chief Justice or that of Justice Brennan, is correct.

95. It may be clarified that foreign decisions have only persuasive value  

in our country, and are not binding authorities on our Courts.  Hence we can  

even prefer to follow the minority view, rather than the majority view, of a  

foreign decision, or follow an overruled foreign decision.

96. Cruzan’s case (supra) can be distinguished on the simple ground that  

there was a statute in the State of Missouri, whereas there was none in the  

Airedale’s case nor in the present case before us.  We are, therefore, of the  

opinion that the Airedale’s case (supra) is more apposite as a precedent for  

us.  No doubt foreign decisions are not binding on us, but they certainly have  

persuasive value.

LAW IN INDIA

97. In  India  abetment  of  suicide  (Section  306 Indian  Penal  Code)  and  

attempt  to  suicide  (Section  309 of  Indian Penal  Code)  are  both criminal  

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offences.  This is in contrast to many countries such as USA where attempt  

to suicide is not a crime.

98. The Constitution Bench of the Indian Supreme Court in  Gian Kaur  

vs.   State  of  Punjab,  1996(2)  SCC  648  held  that  both  euthanasia  and  

assisted suicide are not lawful in India.  That decision overruled the earlier  

two Judge Bench decision of the Supreme Court in P. Rathinam  vs.  Union  

of  India,  1994(3)  SCC 394.  The Court  held that  the right  to life under  

Article 21 of the Constitution does not include the right to die (vide para 33).  

In Gian Kaur’s case (supra) the Supreme Court approved of the decision of  

the House of Lords in Airedale’s case (supra), and observed that euthanasia  

could be made lawful only by legislation.  

99. Sections 306 and 309 IPC read as under :

“306. Abetment of suicide - If  any  person  commits  suicide, whoever abets the commission of such suicide,  shall be punished with imprisonment of either description  for a term which may extend to ten years, and shall also  be liable to fine.

309. Attempt to commit suicide - Whoever  attempts to commit suicide and does any act towards the  commission  of  such  offence,  shall  be  punished  with  simple imprisonment for a term which may extend to one  year or with fine, or with both.”   

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100. We are of the opinion that although Section 309 Indian Penal Code  

(attempt  to commit  suicide)  has been held to be constitutionally  valid in  

Gian Kaur’s case (supra), the time has come when it should be deleted by  

Parliament as it has become anachronistic.  A person attempts suicide in a  

depression, and hence he needs help, rather than punishment.  We therefore  

recommend to Parliament to consider the feasibility of deleting Section 309  

from the Indian Penal Code.   

101. It  may  be  noted  that  in  Gian  Kaur’s case  (supra)  although  the  

Supreme Court has quoted with approval the view of the House of Lords in  

Airedale’s case (supra),  it  has not  clarified  who can decide whether  life  

support should be discontinued in the case of an incompetent person e.g. a  

person in coma or PVS.  This vexed question has been arising often in India  

because there are a large number of cases where persons go into coma (due  

to an accident or some other reason) or for some other reason are unable to  

give consent, and then the question arises as to who should give consent for  

withdrawal of life support.

102. This  is  an  extremely  important  question  in  India  because  of  the  

unfortunate  low  level  of  ethical  standards  to  which  our  society  has  

descended,  its  raw  and  widespread  commercialization,  and  the  rampant  

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corruption, and hence, the Court has to be very cautious that unscrupulous  

persons  who  wish  to  inherit  the  property  of  someone  may  not  get  him  

eliminated by some crooked method.

103. Also,  since  medical  science  is  advancing  fast,  doctors  must  not  

declare  a  patient  to  be  a  hopeless  case  unless  there  appears  to  be  no  

reasonable  possibility  of  any  improvement  by  some  newly  discovered  

medical method in the near future.  In this connection we may refer to a  

recent news item which we have come across on the internet of an Arkansas  

man Terry Wallis, who was 19 years of age and newly married with a baby  

daughter when in 1984 his truck plunged through a guard rail,  falling 25  

feet.   He went into coma in the crash in 1984, but after 24 years he has  

regained consciousness.  This was perhaps because his brain spontaneously  

rewired itself by growing tiny new nerve connections to replace the ones  

sheared apart in the car crash.  Probably the nerve fibers from Terry Wallis’  

cells  were  severed but  the  cells  themselves  remained intact,  unlike  Terri  

Schiavo, whose brain cells had died (see Terri Schiavo’s case on Google).   

104. However, we make it clear that it is experts like medical practitioners  

who can decide whether there is any reasonable possibility of a new medical  

discovery which could enable such a patient to revive in the near future.

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WHEN CAN A PERSON IS SAID TO BE DEAD  

105. It is alleged in the writ petition filed by Ms. Pinky Virani  (claiming to  

be  the  next  friend of   Aruna  Shanbaug)  that  in  fact  Aruna  Shanbaug  is  

already dead and hence by not feeding her body any more we shall not be  

killing her.  The question hence arises as to when a person can be said to be  

dead ?

106. A person’s most important organ is his/her brain.  This organ cannot  

be replaced.  Other body parts can be replaced e.g. if a person’s hand or leg  

is  amputed, he can get  an artificial  limb.  Similarly,  we can transplant  a  

kidney, a heart or a liver when the original one has failed.  However, we  

cannot transplant a brain.  If someone  else’s brain is transplanted into one’s  

body, then in fact,  it will be that other person living in one’s body.  The  

entire  mind,  including  one’s  personality,  cognition,  memory,  capacity  of  

receiving signals from the five senses and capacity of giving commands to  

the other parts of the body, etc. are the functions of the brain.  Hence one is  

one’s brain.  It follows that one is dead when one’s brain is dead.

107. As is well-known, the brain cells normally do not multiply after the  

early years of childhood (except in the region called hippocampus), unlike  

other cells like skin cells, which are regularly dying and being replaced by  

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new cells produced by multiplying of the old cells.  This is probably because  

brain cells are too highly specialized to multiply.  Hence if the brain cells  

die, they usually cannot be replaced (though sometimes one part of the brain  

can take over the function of another part  in certain situations where the  

other part has been irreversibly damaged).

108. Brain cells require regular supply of oxygen which comes through the  

red cells in the blood.  If oxygen supply is cut off for more than six minutes,  

the brain cells die and this condition is known as anoxia.  Hence, if the brain  

is dead a person is said to be dead.

BRAIN DEATH

109. The  term  ‘brain  death’  has  developed  various  meanings.  While  

initially,  death  could  be  defined  as  a  cessation  of  breathing,  or,  more  

scientifically, a cessation of heart-beat, recent medical advances have made  

such definitions obsolete.  In order  to understand the nature and scope of  

brain  death,  it  is  worthwhile  to  look  at  how  death  was  understood.  

Historically,  as  the  oft-quoted  definition  in  Black’s  Law  Dictionary  

suggests, death was:

“The cessation of life; the ceasing to exist; defined by physicians as a total   

stoppage of the circulation of the blood, and a cessation of the animal and  

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vital  functions  consequent  thereon,  such as  respiration,  pulsation,  etc.”.1  

This definition saw its echo in numerous other texts and legal case law. This  

includes many American precedents- such as Schmidt v. Pierce, 344 S.W.2d  

120, 133 (Mo. 1961) (“Black's Law Dictionary, 4th Ed., defines death as  

‘the cessation of life; the ceasing to exist ....”’); and Sanger v. Butler, 101  

S.W.  459,  462  (Tex.  Civ.  App.  1907) (“The  Encyclopaedic  Dictionary,  

among others, gives the following definitions of [death]: ‘The state of being  

dead;  the  act  or  state  of  dying;  the  state  or  condition  of  the  dead.’  The  

Century Dictionary defines death as ‘cessation of life; that state of a being,  

animal or vegetable, in which there is a total and permanent cessation of all  

the vital functions.”’).2

110. This  understanding  of  death  emerged  from  a  cardiopulmonary  

perspective.  In  such  cases,  the  brain  was  usually  irrelevant  --  being  

understood that the cessation of circulation would automatically lead to the  

death of brain cells, which require a great deal of blood to survive.  

111. The  invention  of  the  ventilator  and  the  defibrillator  in  the  1920s  

altered  this  understanding,  it  being  now  possible  that  the  cessation  of  

1 Black's Law Dictionary 488 (4th ed., rev. 1968).

2 Goldsmith, Jason, Wanted! Dead and/or Alive: Choosing Amongst the Many Not-so-Uniform Definitions   of Death, 61 U. Miami L. Rev. 871. (2007).

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respiration and circulation, though critical, would no longer be irreversible3.  

Hence, a present-day understanding of death as the irreversible end of life  

must imply total brain failure, such that neither breathing, nor circulation is  

possible any more. The question of the length of time that may determine  

such  death  is  significant,  especially  considering  a  significant  increase  in  

organ donations across jurisdictions over the last few years.  

112. Brain death, may thus, be defined as “the irreversible cessation of all  

functions of the entire brain, including the brain stem”.4  It is important to  

understand that this definition goes beyond acknowledging consciousness --  

a  person  who  is  incapable  of  ever  regaining  consciousness  will  not  be  

considered to be brain dead as long as parts of the brain e.g. brain stem that  

regulate involuntary activity (such as response to light, respiration, heartbeat  

etc.) still continue to function.  Likewise, if consciousness, albeit severely  

limited, is present, then a person will be considered to be alive even if he has  

suffered brain stem death, wherein breathing and heartbeat can no longer be  

regulated  and must  be mechanically  determined.  Hence,  the  international  

standard  for  brain  death  is  usually  considered  to  include  “whole-brain  

death”, i.e., a situation where the higher brain (i.e. the part of the brain that  

3 Samantha Weyrauch, Acceptance of Whole Brain Death Criteria for Determination of Death: A  Comparative Analysis of the United States and Japan, 17 UCLA Pac. Basin L.J. 91, 96. (1999). 4 Section 1, Universal Determination of Death Act, (The United States Legislation)

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regulates consciousness and thought), the cerebellum or mid-brain, and the  

brain-stem have all ceased to demonstrate any electrical activity whatsoever  

for a significant amount of time. To say, in most cases, that only the death of  

the  higher  brain  would  be  a  criteria  for  ‘brain  death’  may  have  certain  

serious  consequences  --  for  example,  a  foetus,  technically  under  this  

definition, would not be considered to be alive at all. Similarly, as per this,  

different  definitions  of  death  would  apply  to  human  and  non-human  

organisms.

113. Brain death, thus, is different from a persistent vegetative state, where  

the  brain  stem continues  to  work,  and so  some degree  of  reactions  may  

occur, though the possibility of regaining consciousness is relatively remote.  

Even when a  person is  incapable  of  any response,  but  is  able  to sustain  

respiration  and  circulation,  he  cannot  be  said  to  be  dead.  The  mere  

mechanical act of breathing, thus, would enable him or her to be “alive”.  

114. The first attempt to define death in this manner came about in 1968, as  

a result of a Harvard Committee constituted for the purpose.5 This definition,  

widely criticized for trying to maximize organ donations, considered death  

to be a situation wherein “individuals who had sustained traumatic brain  

5 Ad Hoc Comm. of the Harvard Med. Sch. to Examine the Definition of Brain Death,  A Definition of   Irreversible Coma, 205 JAMA 337, 337-40 (1968).

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injury  that  caused them to  be in  an irreversible  coma,  and had lost  the  

ability  to  breathe  spontaneously”6,  would  be  considered  dead.  This  

criticism led to the Presidents’ Committee, set up for the purpose, in 1981,  

defining death more vaguely as the point  “where the body’s physiological   

system ceases to contribute a uniform whole”.  

This  definition  of  whole  brain  death,  however,  is  not  without  its  critics.  

Some  argue  that  the  brain  is  not  always  responsible  for  all  bodily  

functioning- digestion, growth, and some degree of movement (regulated by  

the spinal cord) may not require any electrical activity in the brain. In order  

to combat this argument, and further explain what brain death could include,  

the President’s Committee on Bio-ethics in the United States of America in  

2008 came up with a new definition of brain death, according to which a  

person was considered to be brain dead when he could no longer perform the  

fundamental human work of an organism.  These are:

“(1) “openness to the world, that is receptivity to stimuli and signals from   

the surrounding environment,”

(2) “the ability to act upon the world to obtain selectively what it needs.

and (3) “the basic felt need that drives the organism to act ... to obtain what  

it needs.”7

6 Seema K. Shah, Franklin Miller, Can We Handle The Truth? Legal Fictions in the Determination of   Death. 36 Am. J.L. & Med. 540 (2010).

7 Ibid.

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115. When this situation is reached, it is possible to assume that the person  

is dead, even though he or she, through mechanical stimulation, may be able  

to breathe, his or her heart might be able to beat, and he or she may be able  

to take some form of nourishment. It is important, thus, that it be medically  

proved that a situation where any human functioning would be impossible  

should  have  been  reached  for  there  to  be  a  declaration  of  brain  death--

situations where a person is in a persistent vegetative state but can support  

breathing, cardiac functions, and digestion  without  any mechanical aid are  

necessarily those that will not come within the ambit of brain death.

116. In  legal  terms,  the  question  of  death  would  naturally  assume  

significance as death has a set of  legal  consequences as well.  As per the  

definition  in  the  American  Uniform  Definition  of  Death  Act,  1980.  an  

individual who “sustain[s] . . . irreversible cessation of all functions of the  

entire brain, including the brain stem, is dead.” This stage, thus, is reached  

at a situation where not only consciousness, but every other aspect of life  

regulated from the brain can no longer be so regulated.  

117. In the case of ‘euthanasia’, however, the situation is slightly different.  

In these cases, it is believed, that a determination of when it would be right  

or fair to disallow resuscitation of a person who is incapable of expressing  

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his  or  her  consent  to  a  termination  of  his  or  her  life  depends  on  two  

circumstances:

a. when a person is only kept alive mechanically, i.e. when not  

only consciousness  is  lost,  but  the  person is  only  able  to  

sustain  involuntary  functioning  through  advanced  medical  

technology--such as the use of heart-lung machines, medical  

ventilators etc.

b. when  there  is  no  plausible  possibility  of  the  person  ever  

being able to come out of this stage. Medical “miracles” are  

not unknown, but if a person has been at a stage where his  

life is only sustained through medical technology, and there  

has been no significant alteration in the person’s condition  

for a long period of time—at least a few years--then there  

can be a fair case made out for passive euthanasia.

To extend this further, especially when a person is incapable of being able to  

give any consent, would amount to committing judicial murder.  

118. In  this  connection  we  may  refer  to  the  Transplantation  of  Human  

Organs Act, 1994 enacted by the Indian Parliament.  Section 2(d) of  the Act  

states :

“brain-stem death” means the stage at which all functions of  the brain-stem have permanently and irreversibly ceased and is  so certified under sub-section (6) of section 3:”   

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119. Section 3(6) of the said Act states:

“(6)  Where any human organ is to be removed from the body of a  

person  in  the  event  of  his  brain-stem  death,  no  such  removal  shall  be  

undertaken unless such death is certified, in such form and in such manner  

and  on  satisfaction  of  such  conditions  and  requirements  as  may  be  

prescribed,  by  a  Board  of  medical  experts  consisting  of  the  following,  

namely:-

(i) the registered medical practitioner, in charge of the  hospital in which brain-stem death has occurred;

(ii) an  independent  registered  medical  practitioner,  being  a  specialist,  to  be  nominated  by  the  registered medical practitioner specified in clause  (i),  from  the  panel  of  names  approved  by  the  Appropriate Authority;

(iii) a neurologist  or a neurosurgeon to be nominated  by the registered medical practitioner specified in  clause (i),  from the panel  of names approved by  the Appropriate Authority; and  

(iv) the  registered  medical  practitioner  treating  the  person whose brain-stem death has occurred”.

120. Although the above Act was only for  the purpose of  regulation of  

transplantation  of  human organs it  throws some light  on the  meaning of  

brain death.

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121. From the above angle, it cannot be said that Aruna Shanbaug is dead.  

Even from the report of Committee of Doctors which we have quoted above  

it appears that she has some brain activity, though very little.

122. She recognizes that persons are around her and expresses her like or  

dislike  by  making  some  vocal  sound  and  waving  her  hand  by  certain  

movements.  She smiles if she receives her favourite food, fish and chicken  

soup.  She breathes normally and does not require a heart lung machine or  

intravenous tube for feeding.  Her pulse rate and respiratory rate and blood  

pressure are normal.  She was able to blink well and could see her doctors  

who examined her.  When an attempt was made to feed her through mouth  

she accepted a spoonful of water, some sugar and mashed banana.  She also  

licked the sugar and banana paste sticking on her upper lips and swallowed  

it.  She would get disturbed when many people entered her room, but she  

appeared to calm down when she was touched or caressed gently.   

123. Aruna Shanbaug meets most of the criteria for being in a permanent  

vegetative state which has resulted for 37 years.   However, her dementia has  

not progressed  and has remained stable for many years.  

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124. From the above examination by the team of doctors, it cannot be said  

that Aruna Shanbaug is  dead.  Whatever the condition of her cortex,  her  

brain stem is certainly alive.  She does not need a heart--lung machine.  She  

breathes on her own without the help of a respirator.  She digests food, and  

her body performs other involuntary function without any help.  From the  

CD (which we had screened in the courtroom on 2.3.2011 in the presence of  

counsels and others) it appears that she can certainly not be called dead.  She  

was making some sounds, blinking, eating food put in her mouth, and even  

licking with her tongue morsels on her mouth.  

125. However, there appears little possibility of her coming out of PVS in  

which she is in.  In all probability, she will continue to be in the state in  

which she is in till her death.  The question now is whether her life support  

system (which is done by feeding her) should be withdrawn, and at whose  

instance?

WITHDRAWAL  OF  LIFE  SUPPORT  OF  A  PATIENT  IN  PERMANENT VEGETATIVE STATE (PVS)

126. There is no statutory provision in our country as to the legal procedure  

for  withdrawing  life  support  to  a  person  in  PVS  or  who  is  otherwise  

incompetent  to  take  a  decision  in  this  connection.   We  agree  with  Mr.  

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Andhyarujina that passive euthanasia should be permitted in our country in  

certain situations, and we disagree with the learned Attorney General that it  

should  never  be  permitted.   Hence,  following  the  technique  used  in  

Vishakha’s case  (supra),  we are laying down the law in  this  connection  

which  will  continue  to  be  the  law until  Parliament  makes  a  law on  the  

subject.

(i) A decision  has  to  be taken  to  discontinue  life  support  

either  by  the  parents  or  the  spouse  or  other  close  

relatives,  or  in  the  absence  of  any  of  them,  such  a  

decision  can  be  taken  even  by  a  person  or  a  body  of  

persons acting as a next friend.  It can also be taken by  

the doctors attending the patient.  However, the decision  

should  be  taken  bona  fide  in  the  best  interest  of  the  

patient.   

In the present  case,  we have already noted that  Aruna  

Shanbaug’s parents are dead and other close relatives are not  

interested in her ever since she had the unfortunate assault on  

her.  As already noted above, it is the KEM hospital staff, who  

have been amazingly caring for her day and night for so many  

long years, who really are her next friends, and not Ms. Pinky  

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Virani who has only visited her on few occasions and written a  

book on her.  Hence it is for the KEM hospital staff to take that  

decision.   The KEM hospital staff have clearly expressed their  

wish that Aruna Shanbaug should be allowed to live.   

Mr.  Pallav  Shisodia,  learned  senior  counsel,  appearing  

for  the  Dean,  KEM  Hospital,  Mumbai,  submitted  that  Ms.  

Pinky Virani has no locus standi in this case.  In our opinion it  

is not necessary for us to go into this question since we are of  

the opinion that it is the KEM Hospital staff who is really the  

next friend of Aruna Shanbaug.  

We do not mean to decry or disparage what Ms. Pinky  

Virani has done.  Rather, we wish to express our appreciation of  

the splendid social spirit she has shown.  We have seen on the  

internet that she has been espousing many social causes, and we  

hold her in high esteem.  All that we wish to say is that however  

much her interest in Aruna Shanbaug may be it cannot match  

the  involvement  of  the  KEM  hospital  staff  who  have  been  

taking care of Aruna day and night for 38 years.

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However, assuming that the KEM hospital staff at some  

future time changes its mind, in our opinion in such a situation  

the KEM hospital  would have to apply to the Bombay High  

Court  for  approval  of  the  decision  to  withdraw life support.

(ii) Hence, even if a decision is taken by the near relatives or  

doctors or next friend to withdraw life support,  such a  

decision  requires  approval  from  the  High  Court  

concerned as laid down in Airedale’s case (supra).     

In our opinion, this is even more necessary in our country  

as we cannot rule out the possibility of mischief being done by  

relatives or others for inheriting the property of the patient.

127. 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  

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the help of some unscrupulous doctors may fabricate material to show that it  

is  a  terminal  case  with  no  chance  of  recovery.   There  are  doctors  and  

doctors.   While  many  doctors  are  upright,  there  are  others  who  can  do  

anything  for  money  (see  George  Bernard  Shaw’s  play  ‘The  Doctors  

Dilemma’).   The commercialization  of  our society has crossed all  limits.  

Hence we have to guard against the potential of misuse (see Robin Cook’s  

novel ‘Coma’).  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  

case (supra)  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  

128. The doctrine of Parens Patriae (father of the country)  had originated  

in British law as early as the 13th century.  It implies that the King is the  

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father of the country and is  under obligation to look after  the interest  of  

those who are unable to look after themselves.    The idea behind Parens  

Patriae is that if a citizen is in need of someone who can act as a parent who  

can make decisions and take some other action, sometimes the State is best  

qualified to take on this role.    

129. In the Constitution Bench decision of this Court in Charan Lal Sahu  

vs. Union of India (1990) 1 SCC 613 (vide paras 35 and 36), the doctrine  

has been explained in some details as follows :

“In the “Words and Phrases” Permanent Edition,  Vol. 33 at page 99, it is stated that parens patriae is the  inherent power and authority of a legislature to provide  protection to the person and property of persons non sui  juris,  such  as  minor,  insane,  and incompetent  persons,  but the words parens patriae meaning thereby ‘the father  of the country’, were applied originally to the King and  are used to designate the State referring to its sovereign  power  of  guardianship  over  persons  under  disability.  Parens patriae jurisdiction, it has been explained, is the  right  of  the  sovereign  and  imposes  a  duty  on  the  sovereign,  in  public  interest,  to  protect  persons  under  disability  who  have  no  rightful  protector.   The  connotation  of  the  term  parens  patriae  differs  from  country to country, for instance, in England it is the King,  in  America  it  is  the  people,  etc.   The  government  is  within its  duty to protect  and to control  persons under  disability”.  

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The duty of the King in feudal times to act as parens patriae (father of the  

country) has been taken over in modern times by the State.

130. In  Heller vs. DOE (509) US 312 Mr. Justice Kennedy speaking for  

the U.S. Supreme Court observed :

“the  State  has  a  legitimate  interest  under  its  parens  patriae powers in providing care to its citizens who are  unable to care for themselves”.

131. In State of Kerala vs. N.M. Thomas, 1976(1) SCR 906 (at page 951)  

Mr. Justice Mathew observed :

“ The Court also is ‘state’ within the meaning of Article  12 (of the Constitution).”.

132. In our opinion, in the case of an incompetent person who is unable to  

take a decision whether to withdraw life support or not, it is the Court alone,  

as  parens  patriae,  which  ultimately  must  take  this  decision,  though,  no  

doubt, the views of the near relatives, next friend and doctors must be given  

due weight.

UNDER  WHICH  PROVISION  OF  THE  LAW  CAN  THE  COURT  GRANT APPROVAL FOR WITHDRAWING LIFE SUPPORT TO AN  INCOMPETENT PERSON

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133. In  our  opinion,  it  is  the  High  Court  under  Article  226  of  the  

Constitution which can grant approval for withdrawal of life support to such  

an incompetent person.  Article 226(1) of the Constitution states :

“Notwithstanding  anything  in  article  32,  every  High  Court  shall  have  power,  throughout  the  territories  in  relation to which it exercises jurisdiction, to issue to any  person or authority, including in appropriate cases, any  Government, within those territories directions, orders or  writs,  including  writs  in  the  nature  of  habeas  corpus,  mandamus, prohibition,  quo warranto and  certiorari, or  any of  them,  for  the  enforcement  of  any of  the  rights  conferred by Part III and for any other purpose”.

134. A bare perusal  of  the above provisions shows that  the High Court  

under Article 226 of the Constitution is not only entitled to issue writs, but is  

also entitled to issue directions or orders.  

135. In  Dwarka Nath vs.  ITO AIR 1966 SC 81(vide paragraph 4) this  

Court observed :   

“This  article  is  couched in  comprehensive phraseology  and it ex facie confers a wide power on the High Courts  to reach injustice wherever it is found.  The Constitution  designedly used a wide language in describing the nature  of the power, the purpose for which and the person or  authority against whom it can be exercised.  It can issue  writs in the nature of prerogative writs as understood in  England; but the scope of those writs also is widened by  the use of the expression “nature”, for the said expression  does not equate the writs that can be issued in India with  those in  England, but only draws an analogy from them.  

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That apart, High Courts can also issue directions, orders  or writs other than the prerogative writs.  It enables the  High Courts to mould the reliefs to meet the peculiar and  complicated requirements of this country.  Any attempt  to equate the scope of the power of the High Court under  Art.  226  of  the  Constitution  with  that  of  the  English  Courts  to  issue  prerogative  writs  is  to  introduce  the  unnecessary procedural restrictions grown over the years  in  a  comparatively  small  country  like  England  with  a  unitary form of Government to a vast country like India  functioning under a federal structure.”

136. The above decision has been followed by this Court in  Shri Anadi  

Mukta Sadguru  vs. V. R. Rudani AIR 1989 SC 1607 (vide para 18).   

137. No doubt, the ordinary practice in our High Courts since the time of  

framing of the Constitution in 1950 is that petitions filed under Article 226  

of the Constitution pray for a writ of the kind referred to in the provision.  

However, from the very language of the Article 226, and as explained by the  

above decisions, a petition can also be made to the High Court under Article  

226 of the Constitution praying for  an order or direction, and not for any  

writ.  Hence, in our opinion, Article 226 gives abundant power to the High  

Court to pass suitable orders on the application filed by the near relatives or  

next friend or the doctors/hospital staff praying for permission to withdraw  

the life support to an incompetent person of the kind above mentioned.    

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PROCEDURE TO BE ADOPTED BY THE HIGH COURT WHEN  SUCH AN APPLICATION IS FILED

138. When such an application 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.  Preferably one of the three doctors should be a neurologist,  

one should be a psychiatrist, and the third a physician.  For this purpose a  

panel  of  doctors  in  every  city  may  be  prepared  by  the  High  Court  in  

consultation with the State Government/Union Territory and their fees for  

this purpose may be fixed.    

139. The  committee  of  three  doctors  nominated  by  the  Bench  should  

carefully examine the patient and also consult the record of the patient as  

well as taking the views of the hospital staff and submit its report to the  

High Court Bench.

140. 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  

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his/her next friend, and supply a copy of the report of the doctor’s 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.  

141. The High Court should give its decision speedily at the earliest, since  

delay in the matter may result in causing great mental agony to the relatives  

and persons close to the patient.

142. The High Court should give its decision assigning specific reasons in  

accordance with the principle of ‘best interest of the patient’ laid down by  

the  House  of  Lords  in  Airedale’s case  (supra).  The  views  of  the  near  

relatives and committee of doctors should be given due weight by the High  

Court  before pronouncing a final  verdict  which shall  not  be summary  in  

nature.

143. With these observations, this petition is dismissed.

144. Before parting with the case, we would like to express our gratitude to  

Mr. Shekhar Naphade, learned senior counsel for the petitioner, assisted by  

Ms.  Shubhangi  Tuli,  Ms.  Divya  Jain  and  Mr.  Vimal  Chandra  S.  Dave,  

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advocates,  the  learned  Attorney  General  for  India  Mr.  G.  E.  Vahanvati,  

assisted  by  Mr.  Chinmoy P.  Sharma,  advocate,  Mr.  T.  R.  Andhyarujina,  

learned Senior Counsel, whom we had appointed as amicus curiae assisted  

by  Mr.  Soumik  Ghoshal,  advocate,  Mr.  Pallav  Shishodia,  learned  senior  

counsel,  assisted  by  Ms.  Sunaina  Dutta  and  Mrs.  Suchitra  Atul  Chitale,  

advocates  for  the  KEM  Hospital,  Mumbai  and  Mr.  Chinmoy  Khaldkar,  

counsel for the State of Maharashtra, assisted by Mr. Sanjay V. Kharde and  

Ms. Asha Gopalan Nair, advocates, who were of great assistance to us.  We  

wish to express our appreciation of Mr. Manav Kapur, Advocate, who is  

Law-Clerk-cum-Research Assistant of one of us (Katju, J.) as well as Ms.  

Neha  Purohit,  Advocate,  who  is  Law-Clerk-cum-Research  Assistant  of  

Hon’ble Justice Gyan Sudha Mishra.  We also wish to mention the names of  

Mr. Nithyaesh Nataraj and Mr. Vaibhav Rangarajan, final year law students  

in the School of Excellence, Dr. B.R. Ambedkar Law University, Chennai,  

who were the interns of one of us (Katju, J.) and who were of great help in  

doing research in this case.

145. We wish to commend the team of doctors of Mumbai who helped us  

viz.  Dr.  J.  V.  Divatia,  Professor  and  Head,  Department  of   Anesthesia,  

Critical  Care  and  Pain  at  Tata  Memorial  Hospital,  Mumbai;  Dr.  Roop  

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Gursahani, Consultant Neurologist at P.D. Hinduja, Mumbai; and Dr. Nilesh  

Shah,  Professor  and Head,  Department  of  Psychiatry  at  Lokmanya  Tilak  

Municipal Corporation Medical College and General Hospital.  They did an  

excellent job.

146. We also wish to express our appreciation of Ms. Pinki Virani who  

filed this petition.  Although we have dismissed the petition for the reasons  

given above, we regard her as a public spirited person who filed the petition  

for a cause she bona fide regarded as correct and ethical.  We hold her in  

high esteem.

147. We  also  commend  the  entire  staff  of  KEM  Hospital,  Mumbai  

(including the retired staff) for their noble spirit and outstanding, exemplary  

and unprecedented  dedication  in  taking care  of  Aruna for  so  many  long  

years.  Every Indian is proud of them.       

           ……….…………………….J.              (Markandey Katju)

                       …………………………….J.              (Gyan Sudha Misra)

New Delhi: March 07, 2011  

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