To let a humming bird die

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The Supreme Court may have rejected the euthanasia plea for Aruna, but it has opened a window on the right to die

By Flavia Agnes
Women’s Rights Lawyer

Illustration: Anand Naorem

DOES THE right to life include the right to die? In a path-breaking judgment delivered on 7 March, the Supreme Court seems to have answered this question in the affirmative, at least partially. The two-judge Bench of Justice Markandey Katju and Justice Gyan Sudha Misra has upheld a person’s right to die.

However, the ruling has cautiously restrained the right of family members, doctors and friends to make this choice on behalf of a terminally ill patient and has directed that the permission can be granted by high courts on a case-to-case basis after examining the facts and circumstances.

The ruling was delivered on a petition filed by author Pinky Virani as the ‘next friend’ of Aruna Shanbaug, the nurse at KEM Hospital who was subjected to brutal sexual violence by a ward boy. He had strangled her with a dog chain and sodomised her 38 years ago, while she was in the prime of her youth, causing irreparable brain damage.

The court declared that Virani — who had written a book on Aruna’s life — cannot be deemed as her ‘next friend’ and hence did not have the locus to plead on her behalf for her death. This power to petition vests squarely with the medical and nursing staff of KEM Hospital, who have been caring for Aruna all these years with utmost dedication. Despite being bed-ridden for nearly four decades, there are no bedsores on Aruna’s body, a silent testimony to the affectionate care she receives at the hospital. At the appropriate time, it is they who will have the right to plead for mercy killing on her behalf, the court said.

Though the writ petition could have been dismissed at the preliminary stage as no ground of violation of a fundamental right was made out, the Supreme Court opted to examine the issue at length due to the growing societal concern over euthanasia and set certain guidelines for future cases. But while doing so, it placed the issue squarely in the domain of the legislature and urged the government to enact a suitable legislation after a wider debate. This is a positive move and it is for this reason that the ruling must be applauded.

While rejecting the petition for mercy killing, the court made a distinction between ‘passive’ and ‘active’ euthanasia and held that while passive euthanasia is permissible, active euthanasia is prohibited. The court reasoned that if the person is allowed to die by not administering life-saving drugs or support systems, it can be deemed to be passive euthanasia. But administering lethal drugs that would induce death would be active euthanasia.

While the right to life is a basic and fundamental right, the right to life with dignity and also correspondingly, death with dignity, is also an equally valued fundamental right that the court seems to have upheld in this ruling. The ruling affirmed 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, (s)he may be permitted to terminate it by a premature extinction of his (her) life, and it is not a crime.

The fear of misuse by greedy relatives of a terminally ill person who might resort to this remedy is real

This statement will have far reaching implications and will bring some respite to families lacking financial resources to meet the prohibitive costs of privatised medical care and save the terminally ill from a tortuous and lingering death.

Unless the State provides free medical aid to the poor and marginalised, mere moral pontification from the pulpit about the divinity enshrined in the right to life is of little solace to the families of terminally ill people. The fear of misuse by greedy relatives who might resort to this remedy and withdraw life-saving support, or the manner in which this provision can be against women by their husbands is real.

The guidelines or a case-to-case approach is necessary and appropriate to separate the grain from the chaff.

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