The Supreme Court of India (SCI) has apparently written Aruna Shanbaug judgment 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. By implication, any person doing any such act (omission) unto himself would amount to suicide.
The SCI has held in Gian Kaur that right to life doesn’t include “right to die” (including right to dignified death). Therefore, the SCI, in para 4 of the judgment, 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 judgement, the SCI has also stated that earlier in Gian Kaur it has approved of the decision in Airedale to the extent that “euthanasia could be made lawful only by legislation”. Thereafter, in the judgment, the SCI has laid down guidelines in the cases of passive euthanasia, deriving precedence from Vishaka.
From the above, it is not clear what exactly is the view of the SCI with respect to the legality of “right to die” u/a. 21 of the constitution. If the answer is in affirmative wrt the legality, the Aruna Shanbaug judgement is apparently legal, and, by ramification, the relevant section/s of the IPC stand quashed/modified. However, if the view of the SCI is in negative wrt the legality, the judgment may be deemed legal only u/a. 142 of the constitution, but this view is amenable to challenge as a. 142 may not grant new original jurisdiction to the SCI.
So, what has the SCI done? Well, it has got extra-ordinarily persuaded by Airedale. Airedale has recognized the common law rights of self-determination and informed consent. This means that a patient with the knowledge of his death in absence of treatment, still has the right to give an informed consent thereof to not to be treated of the ailment. That is, a patient can opt to omit to take treatment.
The SCI has, interestingly, restrained itself from discussing the case of a person having the knowledge of his imminent death in absence of food intake but omitting to take food. The two cases have glaring similarities, and I wonder how can a decision be taken on the first case without discussion on the second.
The SCI got extraordinarily persuaded by Airedale wrt to the view that in a case when the patient omits treatment, there is no question of the patient committing 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 SCI judgement in this case has, by implication, quashed/modified s. 309 and s. 306 IPC.
This Aruna Shanbaug judgment is legal only if the SCI has only distinguished, not overruled, Gian Kaur, for Gian Kaur was a larger bench judgment. However, I say that the SCI has not even distinguished Gian Kaur. There is nothing in the judgment suggesting the same. So, in fact, the SCI has laid down guidelines contrary to the precedent in Vishaka.
In Vishakha, the precedent is this that in those cases where there is a legislative vacuum in absence of a domestic codified law, but there exists a non-codified domestic law in the form of a harmonious international law, the appropriate guidelines can be formulated in order to fill the legislative vacuum by interpreting the said non-codified domestic law. It is a stop-gap arrangement to provide clarity to the citizens with respect to the existing law of the country, not creation of law by the SCI.
However, in Aruna Shanbaug judgment, the SCI has, without overruling or distinguishing the earlier codified domestic law on the subject of passive euthanasia and attempt to suicide in Gian Kaur, created a new law in derogation of Gian Kaur, on the basis of the persuasive value of the international common law precedent in Airedale. The SCI had no jurisdiction to do so. Neither Airedale is international law, for being only a persuasive, not authoratative, precedent; nor Gian Kaur, interpreting the domestic codified law on the subject, had ceased to operate. So, Visakha had no application in this case as there was neither any legislative vacuum nor any international law to fill the vacuum.
In other words, the Aruna Shanbaug judgment is without jurisdiction. 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.
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© 2011 Ankur Mutreja
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