The Supreme Court today rejected activist Pinky Virani’s mercy-killing petition for comatose former nurse Aruna Ramachandra Shanbaug with the case not qualifying for “passive euthanasia” which the court accepted “in principle”.

The court was also in favour of decriminalising “attempt to suicide” (by deletion of section 309 of the Indian Penal Code) after calling the provision “anachronistic” and said: “A person attempts suicide in depression, and hence needs help rather than punishment.”

Defining legal concepts and procedures:

“The difference between ‘active’ and ‘passive’ euthanasia is that in active euthanasia, something is done to end the patient's life while in passive euthanasia, something is not done that would have preserved the patient's life,” the court stated while holding active euthanasia to be completely illegal in India.

Justice Markendya Katju who wrote the judgement quoted famous Urdu poet Mirza Ghalib reflecting on the subject of death: “Marte hain aarzoo mein marne ki; Maut aati hai par nahin aati”. Katju said that the importance of the issue merited deep discussion rather than outright rejection under Article 32 as the fundamental “right to life” did not include the “right to die”.

The landmark ruling had its origin in a two-year old petition in which the KEM hospital and staff were held to be Shanbaug’s “next friend” in whom vested the “surrogate authority” to decide her fate instead of Virani.

The court said that passive euthanasia was permitted for those “incompetent” to take decision by laying down strict guidelines which the high courts have to follow as a prerequisite before considering any such pleas on behalf of incompetent persons.

“In our opinion, in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight,” the court said.

Besides placing reliance on the legal doctrine of parens patriae the court also highlighted the perils of rampant commercialisation and unscrupulous motives of relatives for being able to justify courts’ interventions.

According to the Supreme Court, until parliament-enacted legislation was in place, the procedure to be adopted at the time of filing of a mercy plea included constitution of a two-judge bench by the concerned high court, in accordance with the English House of Lords case of Airedale NHS Trust v Bland (1993)

The bench at the very onset, the court said, must first take medical opinion from a committee of three doctors empanelled for this purpose by the state.

“The committee of three doctors nominated by the Bench should carefully examine the patient and also consult the record of the patient as well as taking the views of the hospital staff and submit its report to the High Court Bench. Simultaneously with appointing the committee of doctors, the High Court Bench shall also issue notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, and supply a copy of the report of the doctor’s committee to them as soon as it is available. After hearing them, the High Court bench should give its verdict.”

Attorney General G E Vahanvati, amicus curiae T R Andhyarujina, Ballabh Sisodia for the hospital, Shekhar Naphade for the petitioner and Virani were some of the counsel involved in the high-profile case.

Key players:

KEM hospital had questioned Virani's locus standi and supported mercy killing for Aruna whom they had cared for over 38 years, ever since she first entered a persistent vegetative state (PVS).

The central government on the other hand vehemently opposed the plea for euthanasia primarily for its constitutional invalidity and going against India's Law Commission’s recommendations on the subject of euthanasia.

Download the full Supreme Court judgment here.