The hits and misses of the Aruna Shanbaug verdict

The Supreme Court has legalised passive euthanasia while declaring that Aruna Shanbaug should be allowed to live. The judgment does not address many issues, some of which need to be considered with seriousness.

First, the judgment ignores the point that in Aruna Shanbaug’s case, the right to life has become a privilege. It has chosen to stay silent on an issue that is likely to become extremely vexatious:

Can one person be allowed to block a taxpayer-paid-for-bed for 37 years, and thus deprive thousands of other patients whose lives could be saved, especially in a country where there is always a shortage of hospital beds and good medicare?

The issue is pertinent because it is well known that had Shanbaug not been an employee of KEM Hospital, she would not have been nursed and looked after for more than 6-12 months.

The normal convention for hospitals — worldwide — is that beds are reserved for patients whose ailments can be addressed and remedied, whether partial or total. Hospitals cannot become a place of residence.

Such a practice makes the treatment of an incurable condition a privilege that is extended only to the well-connected, which can be both dangerous and discriminatory.

Thus, when former Israeli prime minister Ariel Sharon went into a coma and the doctors realised that there was little they could do to alleviate his condition, his family was asked to take him home, where he continues to receive treatment even as he remains comatose.

Such a practice creates a precedent for other freeloaders to take advantage of a situation where unlimited and near-perennial support can be given at state expense.

Second, the judgment gives legal sanction to passive euthanasia, though this has always been practiced behind closed doors. But, the legal procedure laid down hardly serves any purpose.

All along, most good family doctors generally advise a family about the futility of keeping in hospital a patient who is terminally ill. Instead, they often recommend that the patient be kept at home and advice treatment that allows the patient to die in the least painful manner as is possible.

But most doctors don’t talk about this, because it was illegal till now, even though it is both sensible and humanitarian.

Unfortunately, the court now wants judicial clearance for each application of passive euthanasia. In a matter of life and death, no family would like to go to a court and wait for years for the court’s ratification.

The best part of the judgment has thus become unfructuous.
Third, the judgement fails to recognise that notwithstanding previous verdicts to the contrary, the right to live implies the right to die.

For instance, the law permits a person to refuse treatment, even if doing so may result in cutting short a patient’s life. Thus, a patient who can afford dialysis but refuses to go through this painful and inconvenient treatment is, technically, guilty of an attempt to commit suicide. 

But since he has the right to refuse treatment, it does not invite punitive action under Section 309 of the Indian Penal Code.

Also, cultural practices like santhara among the Jain community, allows a person to conclude that his work in this world is over and he can thus prepare for the soul’s onward journey, namely death.

Such a person gradually reduces the amount of food and water he consumes and allows his body to waste away. It is a practice that is revered in much the same manner that a soldier is honoured for dying on the battlefield.

Fourth, the judgement fails to address the issue of the state’s responsibility to protect and fulfil the right to life. When a person dies of starvation, it is because the state has failed to support him with the sustenance that it is required to provide under Article 21 of the Indian constitution, which is the right to life.

Sadly, even doctors rarely certify starvation as the immediate cause of death; instead, the death certificate invariably states that the person died of natural causes.

When a state abdicates its responsibility, shouldn’t the officers and the elected representatives of the government be prosecuted under Section 306 (abetment of killing) of the IPC for allowing the person to die?