# ARUNA RAMCHANDRA SHANBAUG v. UNION OF INDIA AND OTHERS

- **Citation:** [2011] 4 S.C.R. 1057
- **Court:** Supreme Court of India
- **Decided:** 2011-03-07
- **Bench:** Markandey Kat Ju, Gyan Sudha Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/aruna-ramchandra-shanbaug-v-union-of-india-and-others-27514
- **Pages:** 119

## Headnote

Human Rights:
A
B
Euthanasia - Withdrawal of life support - Writ petition c
filed in Supreme Court seeking euthanasia for a 60 year old
woman - Petitioner was a Staff Nurse working in KEM
Hospital, Mumbai, who was assaulted by a sweeper in the
hospital who sodomized her and during this act twisted a dog
chain around her neck due to which supply of oxygen to the
0
Petitioner's brain stopped and her brain got damaged -
Petitioner lay bed-ridden in KEM Hospital, Mumbai since
1973 allegedly in a Persistent Vegetative State (PVS) - Held:
The Petitioner cannot be said to be dead - Even from the
report of Committee of Doctors it appears that she has some
E
brain activity, though very little - The Petitioner 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
F
- Her dementia has not progressed and has remained stable
for many years - Whatever the condition of her cortex, her
brain stem is certainly alive - Though the Petitioner's parents
are dead and other close relatives are not interested in her
ever since she had the unfortunate assault on her, however,
G
the KEM hospital staff have been caring for her day and night
for so many long years, who really are her next friends -
Hence it is for the KEM hospital staff to tak~ a decision on
withdrawal of life support to the Petitioner - The KEM hospital
1057
H
1058
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A staff have clearly expressed their wish that Petitioner should
be allowed to live - However, assuming that the KEM hospital
staff at some future time changes its mind, 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 -
B Petition accordingly dismissed.
Euthanasia - Withdrawal of life support of a patient in
Permanent Vegetative State (PVS) - No statutory provision
in India as to the legal procedure for withdrawing life support
to a person in PVS or who is otherwise incompetent to take a
C decision in this connection - Held: Passive euthanasia should
be permitted in India in certain situations.
Euthanasia - Withdrawal of life support of a patient in
Permanent Vegetative State (PVS) - Law laid down by
D Supreme Court in this connection until Parliament makes a
law on the subject - Held: 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
E acting as a next friend - If 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 - Even if a
decision is taken by the near relatives or doctors or next friend
to withdraw life support, such a decision requires approval
F from the High Court - This is even more necessary since
cannot rule out the possibility of mischief being done by
relatives or others for inheriting the property of the patient -
This is in the interest of the protection of the patient, protection
of the doctors, relative and next friend, and for re-assurance
G of the patient's family as well as the public - This is also in
consonance with the doctrine of parens patriae.
Euthanasia - Withdrawal of life support to a person who
is unable to take a decision as regards such withdrawal -
H Application for, by near relatives or next friend or the doctors!
•
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1059
INDIA AND ORS.
hospital staff- Power of High Court u/Art.226 - Held: Article A
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 - Procedure to be ado

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•
[2011] 4 S.C.R. 1057
ARUNA RAMCHANDRA SHANBAUG
v.
UNION OF INDIA AND OTHERS
(Writ Petition (Criminal) No. 115 of 2009)
MARCH 7, 2011
[MARKANDEY KAT JU AND GYAN SUDHA MISRA, JJ.)
Human Rights:
A
B
Euthanasia - Withdrawal of life support - Writ petition c
filed in Supreme Court seeking euthanasia for a 60 year old
woman - Petitioner was a Staff Nurse working in KEM
Hospital, Mumbai, who was assaulted by a sweeper in the
hospital who sodomized her and during this act twisted a dog
chain around her neck due to which supply of oxygen to the
0
Petitioner's brain stopped and her brain got damaged -
Petitioner lay bed-ridden in KEM Hospital, Mumbai since
1973 allegedly in a Persistent Vegetative State (PVS) - Held:
The Petitioner cannot be said to be dead - Even from the
report of Committee of Doctors it appears that she has some
E
brain activity, though very little - The Petitioner 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
F
- Her dementia has not progressed and has remained stable
for many years - Whatever the condition of her cortex, her
brain stem is certainly alive - Though the Petitioner's parents
are dead and other close relatives are not interested in her
ever since she had the unfortunate assault on her, however,
G
the KEM hospital staff have been caring for her day and night
for so many long years, who really are her next friends -
Hence it is for the KEM hospital staff to tak~ a decision on
withdrawal of life support to the Petitioner - The KEM hospital
1057
H
1058
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A staff have clearly expressed their wish that Petitioner should
be allowed to live - However, assuming that the KEM hospital
staff at some future time changes its mind, 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 -
B Petition accordingly dismissed.
Euthanasia - Withdrawal of life support of a patient in
Permanent Vegetative State (PVS) - No statutory provision
in India as to the legal procedure for withdrawing life support
to a person in PVS or who is otherwise incompetent to take a
C decision in this connection - Held: Passive euthanasia should
be permitted in India in certain situations.
Euthanasia - Withdrawal of life support of a patient in
Permanent Vegetative State (PVS) - Law laid down by
D Supreme Court in this connection until Parliament makes a
law on the subject - Held: 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
E acting as a next friend - If 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 - Even if a
decision is taken by the near relatives or doctors or next friend
to withdraw life support, such a decision requires approval
F from the High Court - This is even more necessary since
cannot rule out the possibility of mischief being done by
relatives or others for inheriting the property of the patient -
This is in the interest of the protection of the patient, protection
of the doctors, relative and next friend, and for re-assurance
G of the patient's family as well as the public - This is also in
consonance with the doctrine of parens patriae.
Euthanasia - Withdrawal of life support to a person who
is unable to take a decision as regards such withdrawal -
H Application for, by near relatives or next friend or the doctors!
•
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1059
INDIA AND ORS.
hospital staff- Power of High Court u/Art.226 - Held: Article A
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 - Procedure to be adopted by the
High Court when such an application is filed - When such an
B
application is filed the Chief Justice of the High Court should
I forthwith constitute a Bench of at least two Judges who should
I 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
C
medical authorities/medical practitioners as it may deem fit
- Preferably one of the three doctors should be a neurologist,
one 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
D
Territory and their fees for this purpose may be fixed - 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 - Simultaneously
E
with appointing the committee of doctors, the High Court
Bench shall a/so issue notice to the State and close relatives
e.g. parents, spouse, brothers/sisters etc. of the patient, and
in their absence his/her next friend, and supply a copy of the
report of the doctor's committee to them as soon as it is
F
available - After hearing them, the High Court bench should
give its verdict - The abol/e procedure should be followed all
over India until Parliament makes legislation on this subject
-
The High Court should give its decision speedily at the
earliest, since delay in the matter may result in causing great G
mental agony to the relatives and persons close to the patient
- The High Court should give its decision assigning specific
reasons in accordance with the principle of 'best interest of
the patient' - The views of the near relatives and committee
of doctors should be given due weight by the High Court
H
1060
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A before pronouncing a final verdict which shall not be summary
in nature - Constitution of India, 1950 - Article 226.
Euthanasia - Types of- Held: Euthanasia is of two types:
active and passive - Active euthanasia entails the use of
8 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
C removing the heart lung machine, from a patient in coma -
Further categorization of euthanasia 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
0 unavailable e.g. when the patient is in coma, or is otherwise
unable to give consent.
Euthanasia - Legal position all over the world - Held:
The general legal position all over the world seems to be that
while active euthanasia is illegal unless there is legislation
E permitting it, passive euthanasia is legal even without
legislation provided certain conditions and safeguards are
maintained.
Euthanasia - Active Euthanasia and Physician assisted
F suicide - Legal position in India - Held: In India active
euthanasia is illegal and a crime under section 302 or at least
section 304 /PC - Physician assisted suicide is a crime
under section 306 /PC (abetment to suicide).
G
Euthanasia - Distinction between euthanasia and
physician assisted suicide - Held: The difference is 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
H the doctor.
•
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1061
INDIA AND ORS.
Precedents - Foreign decisions - Value of - Held:
A
Foreign decisions have only persuasive value in our country,
and are not binding authorities on our Courts - Hence one
can even prefer to follow the minority view, rather than the
majority view, of a foreign decision, or follow an overruled
foreign decision.
B
Penal Code, 1860 - s.309 - Held: s.309 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.
c
Medical Jurisprudence - When can a person be said fo
be dead - Held: If the brain is dead, a person is said to be
dead.
Medical Jurisprudence - Brain death - Meaning.ofD
Discussed.
Doctrines - Doctrine of Parens Patriae - Held: The
doctrine of Parens Patriae (father of the country) had
originated in British law - It implies that the King is the father E
of the country and is under obligation to look after the interest
of those who are unable to look after themselves - 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 - In the case of an incompetent person who is unable
F
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.
G
Constitution of India, 1950 - Article 21 - Held: The right
to life guaranteed by Article 21 of the Constitution does not
include the right to die.
The issue of 'Euthanasia' was raised in a writ petition
under Article 32 of the Constitution.
H
1062 SUPREME COURT REPORTS
(2011] 4 S.C.R.
A
It was stated in the writ petition that the petitioner was
a staff Nurse working in King Edward Memorial (KEM)
Hospital, Mumbai; that on the evening of 27th November,
1973 she was assaulted by a sweeper in the hospital who
sodomized the petitioner and to immobilize her during
B this act he twisted a dog chain around her neck and that
the next day, the petitioner was found lying on the floor
with blood all over in an unconscious condition.
It was alleged that due to strangulation by the dog
C chain the supply of oxygen to the petitioner's brain
stopped and her brain got damaged; that now the
Petitioner was about 60 years of age; that she was in a
persistent vegetative state (p.v.s.) and virtually a dead
person and had no state of awareness, and her brain was
0 virtually dead; that she could neither see, nor hear
anything nor could she express herself or communicate,
in any manner whatsoever; that mashed food was put in
her mouth, she was not able to chew or taste any food;
that she was not even aware that food had been put in
E her mouth; that she was not able to swallow any liquid
food, which shows that the food went down on its own
and not because of any effort on her part; that the
process of digestion went on in this way as the mashed
food passed through her system; that, however, the
F Petitioner was virtually a skeleton; her excreta and the
urine was discharged on the bed itself and that once in
a while she was cleaned up but in a short while again she
went back into the same sub-human condition.
It was contended that judged by any parameter, the
G Petitioner could not be said to be a living person and it
was only on account of mashed food which was put into
her mouth that there was a facade of life which was totally
devoid of any human element. It was alleged that there
was not the slightest possibility of any improvement in
H the condition of the Petitioner and her body lay on the
•
•
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1063
INDIA AND ORS.
bed in the KEM Hospital, Mumbai like a dead animal, and
A
this has been the position for the last 37 years.
The prayer of the petitioner was that the respondents
be directed to stop feeding her, and let her die peacefully.
Notice was issued by this Court on 16.12.2009 to all
8
the respondents. 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. Since there was some variance in the allegation C
in the writ petition and the counter affidavit of Dr. Pazare,
this Court, by order dated 24th January, 2011 appointed
a team of three distinguished doctors of Mumbai to
examine the Petitioner thoroughly and submit a report
about her physical and mental condition. The said team
D
of three doctors handed over a report and also handed
over a CD in this connection. Meanwhile, the Dean KEM
Hospital Mumbai issued a statement on 24.1.2011
opposing euthanasia. The Hospital staff of KEM Hospital,
E
Mumbai also issued statements that they were looking
after Petitioner and wanted her to live. One retired nurse,
who used to take care of the Petitionerwhile in service,
even offered to continue to take care of her without any
salary and without charging any traveling expenses.
F
Dismissing the petition, the Court
HELD: 1. This Court could have dismissed the instant
petition on the short ground that under Article 32 of the
Constitution of India (unlike Article 226) the petitioner has
G
to prove violation of a fundamental right, and the
petitioner herein did not show violation of any of her
fundamental rights. -Thexight to life guaranteed by Article
21 of the Constitution does not include the right to die.
However, in view of the importance of the issues involved,
H
1064
SUPREME COURT REPORTS
[2011] 4 S.C.R~
A the merits of the case are required to be gone into. [Para
4] (1085-A-C]
Gian Kaur v. State of Punjab 1996(2) SCC 648 - referred
to.
B LEGAL ISSUES: Active and Passive Euthanasia
2.1. 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
C 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
D coma. The general legal position all over the world seems
to be that while active euthanasia is illegal unless there
is legislation permitting it, passive euthanasia is legal,
even without legislation provided certain conditions and
E
safeguards are maintained. [Para 38, 39] [1124-A-C]
2.2. 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
F 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. [Para 40] [1124-0-E]
G Active Euthanasia
2.3. 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
H crime under section 306 IPC (abetment to suicide). Active
•
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1065
INDIA AND ORS.
euthanasia is taking specific steps to cause the patient's
A
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 !n this deep sleep.
[Paras 41, 42) (1124-F-HJ
B
2.4. 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 c
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.
The difference between "active" and "passive"
euthanasia is that in active euthanasia, something o
is done to end the patient's life' while in passive
euthanasia, something is not done that would have
preserved the patient's life. An important idea behind this
distinction is that in "passive euthanasia" the doctors are
not actively killing anyone; they are simply not saving
E
him. While one usually applauds someone who saves
-another person's life, one does not normally condemn
"6omeone for failing to do so. If one rushes into a burning
Juilding and carries someone out to safety, he will
>robably be called a hero. But if one sees a burning
F
lUilding and people screaming for help, and he stands
->n the sidelines -- whether out of fear for his own safety,
~)r the belief that an inexperienced and ill-equipped
..jerson like himself would only get in the way of the
rofessional firefighters, or whatever -- if one does G
othing, few would judge him for his. inaction. One would
•Urely not be prosecuted for homicide. (At least, not
-nless one started the fire in the first place.) Thus,
llll'oponents of euthanasia say that while one can debate
•hether active euthanasia 'should be legal, there can be
H
1066
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A no debate about passive euthanasia: One cannot
prosecute someone for failing to save a life. Even if one
thinks it would be good for people to do X, one 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
B arrested. [Para 43 to 45] (1125-A-G]
2.5. Some persons are of the view that the distinction
is not valid. In fact there are many laws that penalize
people for what they did not do. A person cannot simply
c 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. However, this Court is of the opinion
that the distinction is valid. (Paras 47 to 49] (1125-H; 1126D A-C]
Passsive Euthanasia:
2.6. Passive euthanasia is usually defined as
withdrawing medical treatment with a deliberate intention
E 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
F 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. [Para 51]
[1135-B-C]
G
2.7. In voluntary passive euthanasia a person who is
capable of deciding for himself decides that he would
prefer to die {which may be for various reasons e.g., that
he is in great pain or that the money being spent on his
H treatment should instead be given to his family who are
•
ARUNA RAMCHANDRA SHA~AUG v. UNION OF 1067
INDIA AND QRS.
in greater need, etc.), and for this purpose he consciously
A
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. [Para,52] [1135-D-F]
'
.
B
2.8. Non voluntar}' ·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 one
has to consider non voluntary passive euthanasia i.e.
whether to allow a person to die who is not in a position c
to give his/her consent. [Para 53] [1135-G]
Airedale NHS Trust v. Bland (1993) All E.R. 82 (H.L.) -
referred to.
LEGISLATION IN SOME COUNTRIES RELATING TO
D
EUTHANASIA OR PHYSICIAN ASSISTED DEATH
3.1. There is a plethora of case law all over the world
relating to both active and passive euthanasia. [Para 54]
[1135-H; 1136-A]
E
3.2. 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
F
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.
G
To demonstrate their compliance, the Act requires
physicians to report euthanasia to a review committee.
[Para 50] [1126-D-E]
3.3. Switzerland: Switzerland has an unusual H
1068
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A 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 lethal injection himself, in the
B latter a doctor or some other person administers it.
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,
C 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
D 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. [Para 50) [1129-B-G]
3.4. Belgium: Belgium became the second country in
E 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
F 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
G 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. [Para 50] [1129-H;
H 1130-A-D]
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1069
INDIA AND ORS.
3.5. U.K., Spain, Austria, Italy, Germany, France, etc.:
A
In none of these countries is euthanasia or physician
assisted death legal. [Para 50] [1130-E]
3.6. United States of America: Active Euthanasia is
illegal in all states in U.S.A., but physician assisted dying
B
is legal in the states of Oregon, Washington and Montana.
[Para 50] [1130-H; 1131-A]
3.7. Canada: In Canada, physician assisted suicide
is illegal vide Section 241(b) of the Criminal Code of C
Canada. [Para 50] [1134-B]
3.8. However, foreign decisions have only persuasive
value in our country, and are not binding authorities on
our Courts. Hence one can even prefer to follow the
minority view, rather than the majority view, of a foreign
D
decision, or follow an overruled foreign decision. In the
opinion of this Court, the Airedale's case decided by the
House of Lords in the U.K. is apposite as a precedent.
[Paras 95, 96] [1156-G-H; 1157-A-B]
E
Sue Rodriguez v. British Columbia (Attorney General),
(1993) 3 SCR 519 [Canada Supreme Court]; Airedale NHS
Trust v. Bland (1993) All E.R. 82 (H.L.); In Re J (A Minor
Wardship : Medical Treatment) 1990(3) All E.R. 930;
Washington v. Glucksberg521 U.S. 702 (1997); Vacca v. Quill
F
•521 U.S. 793 (1997); Cruzan v. Director, MOH 497 U.S. 261
1(1990); Schloendorff v. Society of New York Hospital 211 N.Y.
125, 129-30, 105 N.E. 92, 93 (1914); In re Quinlan 70 N.J.10,
=355 A. 2d 647; In re Conroy 98 NJ 321, 486 A.2d 1209
"1985) - referred to.
G
_AW IN INDIA
4.1. In India abetment of suicide (Section 306 Indian
->enal Code) and attempt to suicide (Section 309 of Indian
•enal Code) are both criminal offences. This is in contrast
H
•
1070
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A to many countries such as USA where attemptto suicide
is not a crime. The Constitution Bench of the Indian
Supreme Court in Gian Kaur's case held that both
euthanasia and assisted suicide are not lawful in India.
The Court held that the right to life under Article 21 of the
B Constitution does not include the right to die. In Gian
Kaur's case the Supreme Court approved of the decision
of the House of Lords in Airedale's case, and observed
that euthanasia could be made lawful only by legislation.
[Para 98) [1157-D-F]
c
4.2. Although Section 309 Indian Penal Code (attempt
to commit suicide) has been held to be constitutionally
valid in Gian Kaur's case, the time has come when it
should be deleted by Parliament as it has become
0 anachronistic. A person attempts suicide in a depression,
and hence he needs help, rather than punishment. This
Court therefore recommends to Parliament to consider
the feasibility of deleting Section 309 from the Indian
Penal Code. [Para 100) [1158-B-C]
E
4.3. In Gian Kaur's case although the Supreme Court
has quoted with approval the view of the House of Lords
in Airedale's case, 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.
F 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
G give consent for withdrawal of life support. 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 corruption, and
H hence, the Court has to be very cautious: that
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1071
INDIA AND ORS.
unscrupulous persons who wish to inherit the property
A
of someone may not get him eliminated by some crooked
method. [Paras 101 and 102) [1158-0-GJ
4.4. Also, since.medical science is advancing fast,
doctors must not declare a patient to be a hopeless case
8
unless there appears to be no reasonable possibility of
any improvement by some newly discovered medical
method in the near future. However, this Court makes it
clear that it is experts like medical practitioners who can
decide whether there _is any re~sonable possibility of a c
new medical discovery which co~d enable such a patient
to revive in the near future. [Par.a 103 & 104) [1158-H;
.
.
'
1159-A-B]
.
.
Gian Kaur v. State of Punjab 1996(2) SCC 648 and P.
Rathinam v. Union of India 1994(3) SCC 394 - referred to.
D
M
;
Airedale NHS ·Trust v. Bland (1993) All E.R. 82 (H.L.) -
referred to.
1
WHEN CAN A PERSON IS SAID TO BE DEAD
E
5.1. 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, one can transplant a
kidney, a heart or a liver when the original one has failed.
F
However, one 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,
G
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. [Para 106) [1159-F-H; 1160-A]
H
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SUPREME COURT REPORTS
[2011] 4 S.C.R.
A
5.2. 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 new cells
produced by multiplying of the old cells. This is probably
B 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).
C [Para 107] [1160-8-C]
5.3. 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
0 die and this condition is known as anoxia. Hence, if the
brain is dead a person is said to be dead. [Para 108] [1160D]
BRAIN DEATH
E
6.1. 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. The earlier understanding of death
F 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. The invention of
G the ventilator and the defibrillator in the 1920s altered this
understanding, it being now possible that the cessation
of respiration and circulation, though critical, would no
longer be irreversible. Hence, a present-day
understanding of death as the irreversible end of life must
H imply total brain failure, such that neither breathing, nor
•
•
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1073 ·
INDIA AND ORS.
circulation is possible any more. The question of the
A
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. [Paras 109, 110 and 111] [1160-E-F; 1161-A-E]
6.2. Brain death, may, be defined as "the irreversible
cessation of all functions of the entire brain, including the
brain stem". It is important to understand that this
definition goes beyond acknowledging consciousness •
B
- a person who is incapable of ever regaining c
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 o
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
E
"whole-brain death", i.e., a situation where the higher
brain (i.e. the part of the brain that regulates
consciousness and thought), the cerebellum or midbrain, and the brain-stem have all ceased to demonstrate
any electrical activity whatsoever for a significant amount
F
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 G
of death would apply to human and non-human
organisms. [Para 112] [1161-F-G; 1162-A-D]
6.3. Brain death, thus, is different from a persistent
vegetative state, where the brain stem continues to work,
H
and so some degree of reactions may occur, though the
1074
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A 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
B her to be "alive". [Para 113] [1162-E-F]
6.4. It is important, that it be medically proved that a
situation where any human functioning would be
impossible should have been reached for there to be a
c 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. [Para 115] [1163-G; 1164-A-B]
D
6.5. 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
E 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.
F [Para 116] [1164-B-C]
6.6. 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
G 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
H
the person is only able to sustain involuntary
•
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1075
!NOIA AND ORS.
functioning through advanced medical
A
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
8
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
C ·
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 D
amount to committing judicial murder. [Para 117] [1164·
D-H; 1165-A]
6.7. In this case, one may refer to the Transplantation
of Human Organs Act, 1994, particularly Section 2(d) and
E
3(6) thereof. Although the said Act was enacted only for
the purpose of regulation of transplantation of human
organs, but throws some light on the meaning of brain
death. [Para 118 & 120] [1165-B, H; 1166-A]
Schmidt v. Pierce 344 S.W.2d 120, 133 {Mo. 1961) and
Sanger v. Butler 101 S.W. 459, 462 (Tex. Civ. App. 1907) -
referred to.
F
7.1. In the instant case, it cannot be said that the
Petitioner is dead. Even from the report of Committee of G
Doctors it appears that she has some brain activity,
though very little. The Petitioner 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 H
1076
SUPREME COURT REPORTS
[2011] 4 S.C.R.
A 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
B 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
c her room, but she appeared to calm down when she was
touched or caressed gently. The Petitioner 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
o years. From the examination by the team of doctors, it
cannot be said that Petitioner 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
E fo,od, and her body performs other involuntary function
without any help. From the CD (as screened in the
courtroom 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
F mouth, and even licking with her tongue morsels on her
mouth. [Paras 121 to 124] (1166-B-H; 1167-A]
7.2. However, there appears little possibility of the
Petitioner coming out of PVS in which she is in. In all
G probability, she will continue to be in the state in which
she is in till her death. [Para 125] [1167-B]
WITHDRAWAL OF LIFE SUPPORT OF A PATIENT IN
PERMANENT VEGETATIVE STATE (PVS)
H
8.1. There is no statutory provision in India as to the
•
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1077
INDIA AND ORS.
legal procedure for withdrawing life support to a person
A
in PVS or who is otherwise incompetent to take a decision
in this connection. Passive euthanasia should be
permitted in our country in certain situations. Hence,
following the technique used in Vishakha's case, this
Court is laying down the law in this connection which will
B
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 c
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 i1ext friend. It can also
be taken by the doctors attending the patient.
However, the decision should be taken bona fide in
0
the best interest of the patient. In the present case,
the Petitioner's parents are dead and other close
relatives are not interested in her ever since she had
the unfortunate assault on her. It is the KEM hospital
staff, who have been amazingly caring for her day
E
and night for so many long years, who really are her
next friends, and hence it is for the KEM hospital staff
to take that decision. The KEM hospital staff have
clearly expressed their wish that the Petitioner
should be allowed to live. However, assuming that
the KEM hospital staff at some future time changes
F
its mind, 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 G
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. This is even more necessary since cannot rule
out the possibility of mischief being done by H
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SUPREME COURT REPORTS
[2011] 4 S.C.R.
A
relatives or others for inheriting the property of the
patient. [Para 126) [1167-C-H; 1168-A-H; 1169-A]
8.2. In the opinion of this Court, if it is left solely to
the patient's relatives or to the doctors or next friend to
8 decide whether to withdraw the life support of an
incompetent person there is always a risk 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
C society today and the rampant commercialization and
corruption, one cannot rule out the possibility that
unscrupulous persons with the help of some
unscrupulous doctors may fabricate material to show
that it is a terminal case with no chance of recovery.
There are doctors and doctors.