(March 2011)
Para 1
The Supreme Court has apparently decided this case under its writ jurisdiction u/a. 32 of the Indian Constitution in a Criminal Writ Petition filed before it. The criminal law in India is very clear: Any act (which includes omission) done with the knowledge that the act would cause death of a person amounts to culpable homicide/murder; and, by implication, any person doing any such act (omission) unto himself would amount to suicide. The SC, earlier in Gian Kaur’s case (Re: Gian Kaur vs. State of Punjab, 1996(2) SCC 648; download the judgment from http://indiankanoon.org/doc/217501/), has held that Right to Life doesn’t include “Right to Die” (including right to dignified death). Therefore, the SC, in Para 4 of the Aruna Shanbaug judgment (Re: Aruna R. Shaunbaug v. UOI, Writ Petition (criminal) no. 115 of 2009 in the Supreme Court of India; downloaded the judgment from http://indiankanoon.org/doc/235821/), has very clearly stated that the case could have been dismissed on a short point that there is no case made out for the violation of fundamental rights. However, vide Para 98 of the judgment, the SC has also stated that, earlier in Gian Kaur’s case, it has approved of the decision in Airedale’s case (Re: Airedale vs. Director MHD, (1993) 2 WLR 316) to the extent that “euthanasia could be made lawful only by legislation”. Thereafter, in the Aruna Shanbaug judgment, the SC has laid down guidelines in the cases of passive euthanasia, deriving precedence from the Vishaka judgment (Re: Vishaka and others v. State of Rajasthan and others, (1997) 6 SCC 241, AIR 1997 SC 3011, (1998) BHRC 261, (1997) 3 LRC 361, (1997) 2 CHRLD 202; download the judjment from http://indiankanoon.org/doc/1031794/).
Para 2
From the above, the view of the SC with respect to the legality of “Right to Die” u/a. 21 of the Constitution is not clear. If the answer is in affirmative with respect to the legality, the Aruna Shanbaug judgment is apparently legal (?), and, by ramification, the relevant section/s of the IPC stand quashed/modified. However, if the view of the SC is in negative with respect to the legality, the judgment may be deemed legal only u/a. 142 of the Constitution, but this view is amenable to challenge as Article 142 may not grant new original jurisdiction to the SC.
Para 3
So, what has the Supreme Court done? Well, it has referred to the Airedale decision and got extra-ordinarily persuaded by it. The Airedale decision has recognized the common law rights of self-determination and informed consent, which, simply speaking, means that a patient with the knowledge of his death in absence of treatment, nevertheless, has a right to make a decision and give an informed consent thereof to not to be treated of the ailment and thus thereby omitting to take treatment for the ailment. The SC has, interestingly, restrained itself from discussing the case of a person with the knowledge of his death in absence of food intake, nevertheless, omitting to take food. The two cases have glaring similarities, and I wonder how a decision can be taken on the first case without discussion on the second case. I think the SC has got extraordinarily persuaded by the Airedale decision with respect to the view that in a case when the patient omits treatment, there is no question of the patient committing suicide, nor, therefore, of the doctor aiding or abetting suicide. I think the Indian Criminal Law is clear on this aspect: Anybody found guilty of withdrawing treatment to self with the knowledge of imminent death thereof but not actually dead is, nevertheless, guilty of attempt to commit suicide u/s. 309 IPC. So, the SC judgment in this case has, by implication, quashed/modified s. 309 and s. 306 IPC.
Para 4
Now, I will refer to my question mark in Para 2 above. This judgment is legal only if the SC has not overruled the Gian Kaur judgment while quashing/modifying s. 309 and s. 306 IPC but has only distinguished the Gian Kaur judgment in those cases when a person with the knowledge of imminent death in absence of treatment, nevertheless, omits treatment to self, for the Gian Kaur judgment was a larger bench judgment. However, I say that the SC has not even distinguished the earlier Gian Kaur judgment as neither is there anything in the judgment suggesting the same nor was there any circumstance requiring the same. So, in fact, the SC has laid down guidelines contrary to the precedent in the Vishaka judgment. In the Vishakha judgment, the precedent is that in those cases where there is a legislative vacuum in absence of a domestic codified law but, however, exists a non-codified domestic law in form of a harmonious international law, appropriate guidelines can be formulated by the SC by interpreting the said non-codified domestic law in order to fill the legislative vacuum; it would be a stop-gap arrangement to provide clarity to the citizens with respect to the existing law of the country, but it is not creation of law by the SC. However, in this case, the SC has, without overruling/distinguishing the earlier codified domestic law on the subject of passive euthanasia and attempt to suicide, created a new law in derogation of the existing codified domestic law, on the basis of the persuasive value of the international common law precedent in Airedale’s case — the common law precedent had no authoritative value.
Para 5
In other words, the SC judgment in Aruna Shanbaug’s case is without jurisdiction, and the people relying on it would be doing so at their own risk of being convicted of abetment of suicide or of attempt to suicide. At least if I come across any such case, I will immediately file a police complaint.
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