Is the 'Next Friend' the Best Friend?

Author(s): RAKESH SHUKLA

Source: Economic and Political Weekly, Vol. 46, No. 18 (APRIL 30-MAY 6, 2011), pp. 10-13
Published by: Economic and Political Weekly
Stable URL: https://www.jstor.org/stable/41152332
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 new member to her. The views of the nurs-
Is the 'Next Friend9 ing staff who take care of her are unequi-

the Best Friend? vocal: "We are her family and we want her
to live. No one else has the right to decide
for her", in the words of the present sister-
in-charge, Vibhawari Winge. Pinki Virani,
RAKESH SHUKLA
who wrote a book on the life of Shanbaug
titled Aruna's Story, approached the Su-
The Supreme
first glance, the Supreme Court preme Court for permission to withdraw

the (sc)'s
Aruna judgment in the Aruna her medical treatment and food. The Sh
Shanbaug case seems to have, in a present judgment is the result.
case seems to
broad sweep, sanctioned passive eutha-
the views
nasia. However, it seems to have turned Predilections
ofof Judges th
the solelyMumbai
on the point as to who is the "next The status of a plea of withdrawal of med- h
friend" of a person in a permanent vegeta- ical treatment by a conscious suffering pa-
been looking a
tive state with no plausible possibility of tient remains outside the ambit of the
ignores the pa
recovery. The legal concept of "next present ruling. The Shanbaug judgment
and friend"turns on
is in the context of persons who has appealed to Parliament to delete the
of are unable to maintain a suit on their own
"next frien
provision criminalising attempt to suicide
behalf due to disability and iscontext
akin to a under Section 309 of the Indian Penal
in the
"guardian" legally representing a "minor". Code (ipc). In contrast, the sc in the
unable to main
A legally competent adult person whose P Rathinam case1 struck down Section
own behalf
interests do not run counter, the "next 309 ipc in 1994 as unconstitutional du and
is friend"
akin acts in the "best interests" of the to
violative of the a
fundamental right to "g
life
person he or she is representing. Apartguaranteed under Article 21 of the Consti-
representing
from the legal fiction of "next friend", eu- tution. It held that fundamental rights
considered the
thanasia and the connected question ofguaranteed under the Constitution have
be Shanbaug's
the right to commit suicide raise complex positive as well as negative aspects. It ob-
Theissues ranging
total den
from the material to the served that the fundamental right to free-
spiritual, covering the entire gamut of le- dom of speech and expression can be said
of the right t
gal, financial, emotional, psychological to include the right not to speak. Similarly,
self-determin
and religious aspects. The ratio decidendi freedom of movement and association in-
incompetent
of a judgment, which becomes the law ofcludes the freedom not to move or join an
the in case of the apex court, is the association. On a parity of reasoning, the
usurpatio
the land

or pronouncement on the specific

the
best
hazardous course of action.
Rakesh Shukla (rakeshxounsel@gmail.com)
practises law and is an affiliate of the Indian
Psycho-Analytical Society and member of the
Indian Association of Family Therapy.
issues Court declared that freedom to live could
State o
which arise in the facts of the case. The be held to include the freedom not to live.
interests
However, straying from issues of constitu-
other observations made by the Court fall
tional jurisprudence, the judgment cited
within the category of obiter dicta and do
not constitute a binding precedent. examples from mythology of lord Rama
taking jal samadhi in Sarayu to Buddha
To briefly recapitulate the facts: Aruna
and Mahavira achieving death by seeking
Shanbaug joined the King Edward Memo-
it, and hazardously declared that suicide
rial (кем) Hospital in Mumbai as a nursing
student, and then worked as a conscien- could not be termed as an irreligious act.
A sizeable section of religious belief is of
tious nursing staff in the hospital. She was
sodomised and brutally strangulated by the
a view that life is god-given and an indi-
vidual does not have the right to take his/
dog chain by a ward boy in the basement of
her own life. The judgment observed that
the hospital on 27 November 1973. The at-
suicide-prone persons need soft words and
tack cut off the oxygen supply to her brain
wise counselling, not "stony dealing by a
resulting in brainstem contusion and cervi-
cal cord injury. Since then she has been injailor
a following harsh treatment meted
permanent vegetative state (pvs) and hasout by a heartless prosecutor". The decrim-
inalising of the attempt to commit suicide
been looked after by the кем staff for more
would have helped develop a jurisprudence
than 37 years. The staff consider Aruna to
to work towards an individual asserting
be one of them still, and introduce each

10 apríl 30, 2011 vol XLVi no 18 E33S3 Economic & Political weekly

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 = COMMENTARY

the right to, at the least, discontinue un-

or defeated in life and that by a personfirm
like view that assisting or encouraging
wanted medical treatment. the petitioner. another person to (attempt to) commit sui-
However, the rulings of the apex court cide must not go unpunished. Thus, even
A Monstrous Procedure in the event of decriminalisation of the at-
are notoriously dependent on the predilec-
tions of the individual judges who consti- Given the lack of priority shown by tempt to commit suicide by repeal of Sec-
Parlia-
tion re-
tute the bench dealing with the case. An ment engaging with a host of issues 309, abetment to suicide would re-
attempt to commit suicide was not an of- quiring urgent changes in law, there
main an offence punishable with up to 10
fence in this country for a brief period of seems little chance of the appeal years
in theof imprisonment under the ipc. The
two years. In 1996, a constitution bench of Shanbaug judgment resulting in the
task re-
of the Society for Right to Die with
the Supreme Court in the Gyan Kaur case2 peal of Section 309 ipc in the near future.
Dignity, founded by Minoo Masani in 1981
overruled the earlier decision. It observed In fact, the Law Commission had recom-
to assert the right to choose to live or die,
that the right to life has been construed as mended the repeal of the provisionremains
as far an uphill one. In India physician-
assisted
life with human dignity. Therefore aspects back as 1971.4 Quoting Romilly Fedden "it suicide (as is permissible in Swit-
of life which make it more dignified could seems a monstrous procedure to zerland
inflictin certain conditions), would make
the doctor liable for abetment to suicide.
be read into the right. However, an act further suffering on even a single individ-
which extinguishes life is inconsistent with ual who has already found life so unbear-
Limited
continued existence and results in effacing able, his chances of happiness so slender, Application of Judgment
Theand
the right itself. The judgment declared that that he has been willing to face pain present judgment legalising passive
the "right to die" is inconsistent with the death in order to cease living", theeuthanasia
com- for patients who are brain dead
right to life, as is death with life. The con- mission had declared the ipc Section or in a permanent vegetative state with no
sequence was that the police were back in harsh and unjustifiable. However,plausible
as a possibility of recovery is welcome
but it
business, turning up at hospitals, threaten- matter of record and to give credit where has limited application. The Court has
ing interrogation, implying abetment by is due, the Indian Penal Code (Amend-
devised the mechanism of high court
benches and Court appointed expert panel
other members and extorting money from ment) Bill to repeal section 309 was passed
of medical experts as safeguards in cases
the family of the hapless "accused" who in the Rajya Sabha in 1978. It was pending
failed in his or her attempt to end life. The in the sixth Lok Sabha when it was dis- where an appeal is made to withdraw life
other fallout of the judgment is the force- solved in 1979, bringing an end to its legis-
support to an incompetent person. It point-
feeding of persons on hunger strike on is- lative career. Thus in a kafkaesque twist,
ed out that "if left solely to the patient's rel-
atives or to the doctors or next friend to de-
sues which have shocked their conscience, the "criminal" who "successfully" commits
as in the case of Irom Sharmila who has suicide is outside the reach of the law. The cide whether to withdraw the life support
person who fails to successfully commit
been on a protest fast for the repeal of the of an incompetent person there is always a
Armed Forces (Special Powers) Act for thethe offence is righteously punished! risk in our country that this may be misused
past 12 years. In view of the fact that the ruling in the by some unscrupulous persons who wish to
С A Thomas Master,3 an 80 -year oldGyan Kaur case criminalising the attempt inherit or otherwise grab the property of
retired teacher, wanted to voluntarily putto commit suicide remains the law of the the patient". The argument of the possibili-
land, the Law Commission again examinedty of misuse cannot be a ground to oppose
an end to his life after having had a suc-
cessful, contented and happy life. Master,the issue and submitted a report in 2008 legalising euthanasia. If misuse were to be
who was charged with attempt to commit on "Humanisation and Decriminalisation the ground to do away with laws, the first
suicide, petitioned the court pleading thatof Attempt to Suicide".5 The commission
provision to go would be the power of the
his mission in life had ended and arguedobserved that the "attempt to suicidepolice
is to arrest, as according to the Nation-
that voluntary termination of one's lifemore a manifestation of a diseased condi- al Police Commission approximately two-
tion of mind deserving of treatment and thirds of detentions in the country are un-
was not equivalent to committing suicide.
The Kerala High Court held that no dis-
care rather than punishment. It would not justified.6 However, the anguished pleas for
tinction can be made between suicide as be just and fair to inflict additional legaleuthanasia by persons suffering from ter-
ordinarily understood and the right to
punishment on a person who has already minal and debilitating diseases like muscu-
voluntarily put an end to one's life. The
suffered agony and ignominy in his failure lar dystrophy and articulated as an issue of
voluntary termination of one's life for
to commit suicide." It also pointed out that human dignity remain outside the scope of
whatever reason would amount to suicide Section 309 was a stumbling block in the the present judgment.
within the meaning of Sections 306 and prevention of suicides and improving ac- In fact, at the request of the Indian Society
cess to medical care for those who have at- of Critical Care Medicine in 2005, the Law
309, ipc. It observed that the question as
tempted suicide. The commission recom- Commission examined the issue of ''with-
to whether suicide was committed impul-
mended that irrespective of whether theholding of Life Support Measures" to ter-
sively or whether it was committed after
prolonged deliberation is wholly irrele-
provision is constitutional or unconstitu-minally ill patients. Under the chairman-
vant and declared that a distinction tional, the offence of attempt to suicide un- ship of justice M Jagannadha Rao, the com-
cannot be made between suicide com- der Section 309 of the ipc needs to be mission submitted a comprehensive report
omitted as inhuman. However, it took theon "Medical Treatment of Terminally 111
mitted by a person who is either frustrated

Economic & Political weekly GEE3 april 30, 2011 vol xlvi no 18 11

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 COMMENTARY =

Religious Sanction
Patients also reflected in the Aruna Shanbaug judg-
(Protecti
Practitioners).7 The vehement opposition by the govern- ment. The Suchita Srivastava judgment10 It
between "Euthanasia and Assisted Suicide" ment in the apex court to even passive by a three-judge bench of the sc was given
and withholding of "Life Support Systems" euthanasia on the grounds that Indian in the context of the Punjab and Haryana
to terminally ill patients. The report de- society is not ready for it seems quite at High Court directing the medical termina-
fines "euthanasia" as an act of any person, odds with the view and practice in many tion of pregnancy of an adult young wom-
including a doctor, of intentionally killing communities that the departure of a per- an who had not consented to abort the foe-
an individual who is terminally ill by giv- son at a ripe old age after living a rich and tus. The не ordered the termination with-
ing drugs and "assisted suicide" as an act full life is an occasion to celebrate. In fact, out her consent as the woman had been
of the patient who receives the assistance the Law Commission examined the issue of categorised as "mentally retarded". The
of a doctor and takes a drug with the inten- permissibility of suicide as per Hindu scrip- Supreme Court reversed the order respect-
tion of committing suicide. Euthanasia and tures in the 42nd report in 1971, which was ing the wishes of the young woman, and
assisted suicide are treated as unlawful in quoted and affirmed in the 210th report on cautioning against being prey to prejudices
the report while withholding of life sup- decriminalisation of suicide in 2008. It that operate to the detriment of mentally
port system to terminally ill patients is retarded persons. The Suchita Srivastava
quoted the chapter titled "Hermit in the
looked upon as lawful. judgment had categorically ruled that in
Forest" in Manusmňú. The chapter advo-
deciding the "best interests", the Court
The report is categorical and unequivocal: cates walking in the forest while subsisting
should be guided by the interests of the
Every terminally ill, competent patient has on water and air till the body sinks to rest8
patient alone, and not of others including
a right to refuse treatment and an "in- and exalts the resolve to get rid of the body
by drowning, precipitating burningguardians.
formed decision" in this regard is binding or The Aruna Shanbaug ruling
on the doctors. Invasive treatment contra- seems to be solely based on the views of
starving.9 Two commentators on Manu,
ry to the decision would constitute battery Govardhana and Kulluka, take the view
the nursing staff of the кем hospital, totally
ignoring the patient's interests. The total
and in case of death, may even amount to that a man may undertake the mahapras-
murder. An informed decision is defined thana (great departure) on a journey
denial of recognition of the right to auton-
as one taken by a patient who has been in- which ends in death, when he is incurably
omy and self-determination of a person in-
competent to consent, and the usurpation
formed of the nature of his/her illness; of diseased or meets with a great misfortune,
alternative treatments available; of conse- and that, because it is taught in the shas-
by guardians or state as "Parens Patriae"11
quences of taking the treatments and of tras, it is not opposed to the vedic rules
determining the best interests is a hazard-
ous course of action. In a shocking move,
remaining untreated. The recommenda- which forbid suicide. The report takes note
tions of the commission are clear - the administration of a home for mentally
of the comment by Max Müller that a vol-
retarded women in Pune performed hys-
untary death by starvation was considered
Where a 'competent patient' takes an 'in-
formed decision' to allow nature to have its terectomies in 1994 on 17 women in the
the befitting conclusion of a hermiťs life.
"best interests" of the inmates. The ration-
Müller notes that the antiquity and general
course, he is, under common law, not guilty
ale offered was that the women would not
of 'attempt to commit suicide' (under secprevalence of the practice may be inferred
309, Indian Penal Code, i860), nor is the be able to take care of menstrual hygiene
from the fact that the Jaina ascetics, too,
doctor who thereby omits to give treatment,
consider it particularly meritorious. and that hysterectomy would protect them
guilty of abetting suicide under sec 306 or of
from unwanted pregnancy.
The practice of Santhara (voluntary fast
culpable homicide.
to death) among Jains is well known.The debate on withdrawal of the life
The recommendation that only an "en-Viewed from the perspective of endlessly support system has also to be seen in the
prolonging life, the spectacle of a personcontext
abling" provision is necessary and there is on of the extreme commercialisation
no need of a provision which requires the a last journey being accompanied by mu- of the healthcare industry. Inflicting costly
declaratory relief to be obtained manda-sicians and a band would be a strange but totally ineffective treatment, unneces-
sary interventions by hospitals, and emo-
torily from the high court in every casesight. At the emotional and psychological
where the medical treatment is proposed tionally blackmailing the bereaved family
level, there is need to pause and reflect
to be withheld or withdrawn is salutary.whether care need be increasingly translat-
by refusing to release the body till payments
ed into forcing loved ones into hospitalsare
In cases where there is clearly "informed re-made are some prevalent practices. The
consent" by a "competent patient", no ben-gardless of their wishes. It could be that argument
our that until medical treatment
eficial purpose would be served by forcingown anxieties about loss, fears connected and services including palliative care is
universally accessible, the issue of eutha-
with death, and inability to cope with grief
a person to petition courts and suffer the
nasia should not be considered, shows
tribulations of a legal case. The recom-and apprehensions, play a role in the deci-
mendations of the commission have been sion to force-feed a dear one for years. that the apex court's ruling ignores the im-
concretised by formulating a draft bill One aspect of apex court rulings - that portant factor of affordability of treatment
in regard to euthanasia. However, the
annexed to the report titled "The Medicalthey rest on the predilections of individual
present trend is towards privatisation of
judges with an increasing lack of judicial
Treatment of Terminally 111 Patients (Pro-
tection of Patients and Medical Practition- healthcare with government hospitals too
discipline in terms of not considering prin-
ers) Bill, 2006". ciples enunciated in earlier decisions charging
- is money for medical tests. In such

12 apríl 30, 2011 vol XLVi no 18 E33S3 Economic & Political weekly

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 COMMENTARY

5 Law Commission of India, 210th Report, 2008.

a context, to deny individuals who are suf- subsisting on water and air, until his body sinks
to rest."of
6 On the basis of a sample study of the quality
fering from debilitating terminal diseases
arrests made in a state the Third National Police 9 Manusmriti, Chapter on "The Hermit in the For-
the option of euthanasia until healthcare
Commission concludes: "It is obvious that a major est" says,
portion of the arrests were connected with very
is provided to all, seems unjust. "3.2. A Brahmana having got rid of his body by
minor prosecutions and cannot, therefore, be re-
one of those modes (i e, drowning, precipitating
garded as quite necessary from the point of view
burning or starving) practised by the great sages,
of crime prevention".
NOTES is exalted in the world of Brahamana, free from
7 Law Commission of India, 196th Report on "Medi-
sorrow and fear."
i PRathinam vs Union of India (1994) 3 SCCcal394.
Treatment of Terminally 111 Patients (Protec-
10 Suchita Srivastava versus Chandigarh Administra-
2 Gian Каш vs State of Punjab (1996) 2 SCCtion
648. of Patients and Medical Practitioners)".
8 Manusmriti, Chapter on "The Hermit in the For- tion, 2009 (11) SCALE 813.
3 С A Thomas vs Union of India 2000, Criminal Law
Journal 3729. est" says, 11 A doctrine that grants the inherent power and
"3.1. Or let him walk, fully determined and
4 Law Commission of India, Forty-Second Report, authority of the state to protect persons who are
1971. going straight on, in a north-easterly direction, legally unable to act on their own behalf.

The Moral Basis that it is morally wrong to intentionally

take a life, but permissible to allow the in-

for a Right to Die

evitable to happen by withdrawing or
withholding treatment (Potts 1988: 504).
Thus active euthanasia was deemed ille-

gal and a crime in India by the Court, pun-

SUSHILA RAO ishable as murder under Section 302 of
the Indian Penal Code (ipc), i860; or at
In Aruna Ramchandra Shanbaug vs surrounding the legalisa- the very least as culpable homicide not
debate
tion of euthanasia in India has amounting to murder under Section 304
Union of India, the Supreme Court
proven both protracted and intrac-
of the ipc.6 On the other hand, passively
permitted passive euthanasia for
table. Opponents cry themselves hoarse
permitting nature to take its course by
terminally ill patients in certain
about the "sanctity of life" (sol) being
withdrawing life support was an "omis-
circumstances. Judicial reasoning sion",7
violated by self-styled angels of death, and and hence not a crime.
tends to accord an inordinate cite eclectic religious authorities to shoreNow,
up in the context of a "right" or enti-
their claim.1 Proponents of a more liberal
tlement to die, it appears only logical that
degree of importance to an
view, on the other hand, insist that
our amusings should be focused on those
absolutist reading of the "sanctity "right to life"2 must include a concomitant
situations when an individual could face

of life" principle. But this tenet has
already been compromised to
such an extent as to render its
continued influence tenuous at
best. Moreover, the ethical and
jurisprudential foundation for
extending the right to die to
encompass assisted suicide or
active euthanasia in controlled
right to choose when that life becomes
legal or societal hindrances to choosing
unbearable or not worth living.3 when and how she wishes to depart
from this realm. Pondering an able-
Active and Passive Euthanasia
bodied individual's right to end her life is
On 7 March 2011, the Supreme Court de- unexciting endeavour, given that
a rather
it in
livered a "path-breaking" judgment will
theusually be extremely difficult to
case of Aruna Ramchandra Shanbaug vs or pre-empt. The rigour and ful-
prevent
Union of India* {Aruna), permittingsomeness
passive of a right to die will be tested
euthanasia for terminally ill patients inexamining the distinctive ethical
only by
certain circumstances. Comparing itself that arise when an individual
quandaries
seeks
to a "ship in an uncharted sea", the assistance from others in termin-
court

circumstances already exists in the borrowed heavily from the decisionating her existence, and thus requires
present framework. However,
patients incapable of ending their
lives are unjustly pre-empted fromdecision
availing of the right to die in its
plenary form.
Sushila Rao (sushila.raoi@gmail.com) is a
researcher at the Balliol College, University of
Oxford, UK.
of the
United Kingdom House of Lords that the state countenance the "macabre"
(ukhl)
in Airedale nhs Trust vs Bland5 transaction.
(Bland).
The Court thus based the crux of its The law as declared in Aruna presently
on the much-vaunted distinction concedes a right to die for terminally ill
between "active" and "passive" euthana-patients by refusing life-saving or life-
sia. Active euthanasia generally referspreserving intervention by others. How-
to positive steps taken to deliberately ever, there is no right to be assisted to die,
induce death, whereas passive euthanasiaeither by one's own hand or by another's
infers withdrawing life support and treat- intervention, variously referred to as
ment, and letting nature take its course "active euthanasia" or "assisted suicide".
(Waineyiçeç: 651). Judicial reasoning, as well as public
This active/passive distinction is cou-discourse, tends to accord an inordinate
ched in terms of a dichotomy betweendegree of importance to an absolutist
"killing" and "letting die", which stipulatesreading of the sol principle, which asserts

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