LAW RESOURCE INDIA

Apex court dilemma: Does right to life also imply the right not to live?

Posted in CRIMINAL JUSTICE SYSTEM, JUSTICE by NNLRJ INDIA on January 10, 2010

10 Jan 2010, 0038 hrs IST, Mythili Bhusnurmath, ECONOMIC TIMES

Last month when the Supreme Court agreed to admit a plea on behalf of Aruna Shanbag, the KEM hospital nurse who was brutally assaulted sexually by a ward boy in the same hospital 36 years ago, the news made headlines in many papers.

‘Is this not akin to euthanasia?’ the Supreme Court bench comprising Chief Justice K G Balakrishnan and Justices AK Ganguly and BS Chauhan, reportedly asked when Aruna’s plea by her ‘next friend’ Pinki Virani came up for hearing. Yes it is. And it is time we as a society and the judiciary, which takes its cues from society, looked afresh at the gamut of issue raised by the plea. Every few years, some case makes it to the headlines, there is a great deal of public debate, but nothing really changes and it back to square one.

In 2004, it was 25-year-old Venkatesh who petitioned the Andhra Pradesh High Court seeking euthanasia while he lived out his last few days on life-support in a Hyderabad hospital, his body wracked by a cruel muscular disorder. The Court turned down his request despite impassioned pleas from both the young man and his mother. Venkatesh found release from his suffering as he died soon after. But the reality is there are many others whose cases don’t make it to the headlines or even to the papers but suffer silently. In Aruna’s case, for instance, doctors agree there is no chance of any improvement but are unwilling to remove her life-support systems. Hence Virani’s plea to the apex court to direct KEM Hospital not to force-feed her. But this is not the first time the Supreme Court has been asked to rule on this particularly vexed issue: does the right to life enshrined in the Constitution (Article 21) also imply the right to die? The law as it stands today, in terms of the Supreme Court’s own ruling, is that it does not. However, to the extent that the Court has admitted Aruna’s plea, is a welcome sign that the Court might take a fresh look at its earlier rulings.

After all, law is not cast in stone; nor is it that judicial interpretation remains unchanged over time. The apex court had itself ruled (in the case of P Rathinam) that the right to life also implies the right to die. Relying on certain earlier decisions, it had argued that ‘life’ does not mean mere animal existence but the right to live with human dignity. Drawing a parallel with other rights such as the right to freedom of speech and expression where the right to speak includes the freedom not to speak, the Court held that right to live must also include the right not to live or the right to die.

Subsequently, however, this enlightened view was over-turned by the Court in its decision (in the Gian Kaur case) saying that while right to life might include right to die with dignity, this is not to be confused with the right to die an unnatural death by curtailing the natural span of life. And that is the position in law as it stands at present: the right to life does not extend to the right not to live.

The Supreme Court, therefore, has a tough job on its hands. Given the moral dilemma inherent in such decisions, it is but natural that most of us would prefer not to take a position. Who is to decide when life is not worth living any more? What if the individual concerned is not in a position to take that decision? How can one ensure freedom on this account will not be misused by unscrupulous elements?

But as longevity increases and advances in medical science keep human beings alive for longer than many of us would wish, this is something every society will have to debate and decide for itself. It is human nature to shy away from tough decisions. So there are very few countries that formally allow mercy-killing; many prefer turn a blind eye. London University studies estimate that one in 500 deaths in Britain involve voluntary euthanasia, and one in 300, involuntary euthanasia; in India we have no data. But at the end of the day we have to decide: Which is more merciful? Allowing someone who is suffering intolerably and doctors have given up hope of any recovery to end her life or keeping her alive only in name?

http://economictimes.indiatimes.com/features/the-sunday-et/as-you-like-it/Apex-court-dilemma-Does-right-to-life-also-imply-the-right-not-to-live/articleshow/5429020.cms

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