Holding

Passive euthanasia may be permitted in India subject to safeguards, and the withdrawal of life‑support for an incompetent patient must be authorised by the High Court after due process, with the hospital staff deemed the appropriate next friend in this case, leading to dismissal of the petition.

Summary

The petition sought permission to discontinue life‑supporting treatment for Aruna Ramchandra Shanbaug, a 60‑year‑old woman in a persistent vegetative state for 37 years following a violent assault. The Court examined medical evidence, concluding that she was not brain‑dead and retained minimal brain‑stem activity, but her condition was irreversible. It held that while the Constitution does not guarantee a right to die, passive euthanasia (withdrawing life‑sustaining treatment) may be permitted under strict safeguards. The decision to withdraw such treatment for an incompetent patient must be made by the High Court under Article 226, after hearing the views of close relatives, a "next friend" (in this case the KEM hospital staff), and a three‑doctor committee. The Court laid down detailed procedural guidelines for High Courts and rejected the petition, directing that any future withdrawal of life support follow the prescribed process.

Issues considered

The existence of a fundamental right to die under Article 21 of the Constitution
Whether passive euthanasia (withdrawal of life‑support) is permissible in India
Who may act as a "next friend" or surrogate decision‑maker for a patient in a persistent vegetative state
The appropriate legal procedure and forum for authorising withdrawal of life‑support
The jurisdiction of the High Court under Article 226 to grant such approval
The medical determination of death versus persistent vegetative state

Legislation cited

Constitution of Indias. Article 21, s. Article 226
Indian Penal Code, 1860s. 302, s. 304, s. 306, s. 309
Transplantation of Human Organs Act, 1994s. 2(d), s. 3(6)

Subjects

euthanasiapassive euthanasiawithdrawal of life supportpersistent vegetative stateparens patriaeArticle 21Article 226right to diemedical ethicsnext friendbrain death

Judgment

• [2011] 4 S.C.R. 1057

ARUNA RAMCHANDRA SHANBAUG A
v.
UNION OF INDIA AND OTHERS
(Writ Petition (Criminal) No. 115 of 2009)
MARCH 7, 2011
B
[MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.)

Human Rights:

Euthanasia - Withdrawal of life support - Writ petition c
filed in Supreme Court seeking euthanasia for a 60 year old
woman - Petitioner was a Staff Nurse working in KEM
Hospital, Mumbai, who was assaulted by a sweeper in the
hospital who sodomized her and during this act twisted a dog
chain around her neck due to which supply of oxygen to the 0
Petitioner's brain stopped and her brain got damaged -
Petitioner lay bed-ridden in KEM Hospital, Mumbai since
1973 allegedly in a Persistent Vegetative State (PVS) - Held:
The Petitioner cannot be said to be dead - Even from the
report of Committee of Doctors it appears that she has some E
brain activity, though very little - The Petitioner recognizes
that persons are around her and expresses her like or dislike
by making some vocal sound and waving her hand by certain
movements - She smiles if she receives her favourite food,
fish and chicken soup - She breathes normally and does not
require a heart lung machine or intravenous tube for feeding F
- Her dementia has not progressed and has remained stable
for many years - Whatever the condition of her cortex, her
brain stem is certainly alive - Though the Petitioner's parents
are dead and other close relatives are not interested in her
ever since she had the unfortunate assault on her, however, G
the KEM hospital staff have been caring for her day and night
for so many long years, who really are her next friends -
Hence it is for the KEM hospital staff to tak~ a decision on
withdrawal of life support to the Petitioner - The KEM hospital
1057 H
1058 SUPREME COURT REPORTS [2011] 4 S.C.R.

A staff have clearly expressed their wish that Petitioner should
be allowed to live - However, assuming that the KEM hospital
staff at some future time changes its mind, in such a situation
the KEM hospital would have to apply to the Bombay High
Court for approval of the decision to withdraw life support -
B Petition accordingly dismissed.

Euthanasia - Withdrawal of life support of a patient in
Permanent Vegetative State (PVS) - No statutory provision
in India as to the legal procedure for withdrawing life support
to a person in PVS or who is otherwise incompetent to take a
C decision in this connection - Held: Passive euthanasia should
be permitted in India in certain situations.

Euthanasia - Withdrawal of life support of a patient in
Permanent Vegetative State (PVS) - Law laid down by
D Supreme Court in this connection until Parliament makes a
law on the subject - Held: A decision has to be taken to
discontinue life support either by the parents or the spouse
or other close relatives, or in the absence of any of them, such
a decision can be taken even by a person or a body of persons
E acting as a next friend - If can also be taken by the doctors
attending the patient - However, the decision should be taken
bona fide in the best interest of the patient - Even if a
decision is taken by the near relatives or doctors or next friend
to withdraw life support, such a decision requires approval
F from the High Court - This is even more necessary since
cannot rule out the possibility of mischief being done by
relatives or others for inheriting the property of the patient -
This is in the interest of the protection of the patient, protection
of the doctors, relative and next friend, and for re-assurance
G of the patient's family as well as the public - This is also in
consonance with the doctrine of parens patriae.

Euthanasia - Withdrawal of life support to a person who
is unable to take a decision as regards such withdrawal -
H Application for, by near relatives or next friend or the doctors!
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1059
INDIA AND ORS.

hospital staff- Power of High Court u/Art.226 - Held: Article A
226 gives abundant power to the High Court to pass suitable
orders on the application filed by the near relatives or next
friend or the doctors/hospital staff praying for permission to
withdraw the life support - Procedure to be adopted by the
High Court when such an application is filed - When such an B
application is filed the Chief Justice of the High Court should
I forthwith constitute a Bench of at least two Judges who should
I decide to grant approval or not - Before doing so the Bench
should seek the opinion of a committee of three reputed
doctors to be nominated by the Bench after consulting such C
medical authorities/medical practitioners as it may deem fit
- Preferably one of the three doctors should be a neurologist,
one a psychiatrist, and the third a physician - For this purpose
a panel of doctors in every city may be prepared by the High
Court in consultation with the State Government! Union D
Territory and their fees for this purpose may be fixed - 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 E
with appointing the committee of doctors, the High Court
Bench shall a/so 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 F
available - After hearing them, the High Court bench should
give its verdict - The abol/e procedure should be followed all
over India until Parliament makes legislation on this subject
- The High Court should give its decision speedily at the
earliest, since delay in the matter may result in causing great G
mental agony to the relatives and persons close to the patient
- The High Court should give its decision assigning specific
reasons in accordance with the principle of 'best interest of
the patient' - The views of the near relatives and committee
of doctors should be given due weight by the High Court H
1060 SUPREME COURT REPORTS [2011] 4 S.C.R.

A before pronouncing a final verdict which shall not be summary
in nature - Constitution of India, 1950 - Article 226.

Euthanasia - Types of- Held: Euthanasia is of two types:
active and passive - Active euthanasia entails the use of
8 lethal substances or forces to kill a person e.g. a lethal
injection given to a person with terminal cancer who is in
terrible agony - Passive euthanasia entails withholding of
medical treatment for continuance of life, e.g. withholding of
antibiotics where without giving it a patient is likely to die, or
C removing the heart lung machine, from a patient in coma -
Further categorization of euthanasia between voluntary
euthanasia and non voluntary euthanasia - Voluntary
euthanasia is where the consent is taken from the patient,
whereas non voluntary euthanasia is where the consent is
0 unavailable e.g. when the patient is in coma, or is otherwise
unable to give consent.

Euthanasia - Legal position all over the world - Held:
The general legal position all over the world seems to be that
while active euthanasia is illegal unless there is legislation
E permitting it, passive euthanasia is legal even without
legislation provided certain conditions and safeguards are
maintained.

Euthanasia - Active Euthanasia and Physician assisted
F suicide - Legal position in India - Held: In India active
euthanasia is illegal and a crime under section 302 or at least
section 304 /PC - Physician assisted suicide is a crime
under section 306 /PC (abetment to suicide).

G Euthanasia - Distinction between euthanasia and
physician assisted suicide - Held: The difference is in who
administers the lethal medication - In euthanasia, a physician
or third party administers it, while in physician assisted suicide
it is the patient himself who does it, though on the advice of
H the doctor.
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1061
INDIA AND ORS.

Precedents - Foreign decisions - Value of - Held: A
Foreign decisions have only persuasive value in our country,
and are not binding authorities on our Courts - Hence one
can even prefer to follow the minority view, rather than the
majority view, of a foreign decision, or follow an overruled
foreign decision. B

Penal Code, 1860 - s.309 - Held: s.309 should be
deleted by Parliament as it has become anachronistic - A
person attempts suicide in a depression, and hence he needs
help, rather than punishment. c
Medical Jurisprudence - When can a person be said fo
be dead - Held: If the brain is dead, a person is said to be
dead.

Medical Jurisprudence - Brain death - Meaning.of- D
Discussed.

Doctrines - Doctrine of Parens Patriae - Held: The
doctrine of Parens Patriae (father of the country) had
originated in British law - It implies that the King is the father E
of the country and is under obligation to look after the interest
of those who are unable to look after themselves - The duty
of the King in feudal times to act as parens patriae (father of
the country) has been taken over in modern times by the
State - In the case of an incompetent person who is unable F
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.
G
Constitution of India, 1950 - Article 21 - Held: The right
to life guaranteed by Article 21 of the Constitution does not
include the right to die.

The issue of 'Euthanasia' was raised in a writ petition
under Article 32 of the Constitution. H
1062 SUPREME COURT REPORTS (2011] 4 S.C.R.
•
A It was stated in the writ petition that the petitioner was
a staff Nurse working in King Edward Memorial (KEM)
Hospital, Mumbai; that on the evening of 27th November,
1973 she was assaulted by a sweeper in the hospital who
sodomized the petitioner and to immobilize her during
B this act he twisted a dog chain around her neck and that
the next day, the petitioner was found lying on the floor
with blood all over in an unconscious condition.
It was alleged that due to strangulation by the dog
C chain the supply of oxygen to the petitioner's brain
stopped and her brain got damaged; that now the
Petitioner was about 60 years of age; that she was in a
persistent vegetative state (p.v.s.) and virtually a dead
person and had no state of awareness, and her brain was
virtually dead; that she could neither see, nor hear
0
anything nor could she express herself or communicate,
in any manner whatsoever; that mashed food was put in
her mouth, she was not able to chew or taste any food;
that she was not even aware that food had been put in
E her mouth; that she was not able to swallow any liquid
food, which shows that the food went down on its own
and not because of any effort on her part; that the
process of digestion went on in this way as the mashed
food passed through her system; that, however, the
F Petitioner was virtually a skeleton; her excreta and the
urine was discharged on the bed itself and that once in
a while she was cleaned up but in a short while again she
went back into the same sub-human condition.
It was contended that judged by any parameter, the
G Petitioner could not be said to be a living person and it
was only on account of mashed food which was put into
her mouth that there was a facade of life which was totally
devoid of any human element. It was alleged that there
was not the slightest possibility of any improvement in
H the condition of the Petitioner and her body lay on the
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1063
INDIA AND ORS.
bed in the KEM Hospital, Mumbai like a dead animal, and A
this has been the position for the last 37 years.
The prayer of the petitioner was that the respondents
be directed to stop feeding her, and let her die peacefully.
8
Notice was issued by this Court on 16.12.2009 to all
the respondents. A counter affidavit was earlier filed on
behalf of the respondent nos.3 and 4, the Mumbai
Municipal Corporation and the Dean, KEM Hospital by Dr.
Amar Ramaji Pazare, Professor and Head in the said
hospital. Since there was some variance in the allegation C
in the writ petition and the counter affidavit of Dr. Pazare,
this Court, by order dated 24th January, 2011 appointed
a team of three distinguished doctors of Mumbai to
examine the Petitioner thoroughly and submit a report
about her physical and mental condition. The said team D
of three doctors handed over a report and also handed
over a CD in this connection. Meanwhile, the Dean KEM
Hospital Mumbai issued a statement on 24.1.2011
opposing euthanasia. The Hospital staff of KEM Hospital, E
Mumbai also issued statements that they were looking
after Petitioner and wanted her to live. One retired nurse,
who used to take care of the Petitionerwhile in service,
even offered to continue to take care of her without any
salary and without charging any traveling expenses.
F
Dismissing the petition, the Court
HELD: 1. This Court could have dismissed the instant
petition on the short ground that under Article 32 of the
Constitution of India (unlike Article 226) the petitioner has G
to prove violation of a fundamental right, and the
petitioner herein did not show violation of any of her
fundamental rights. -Thexight to life guaranteed by Article
21 of the Constitution does not include the right to die.
However, in view of the importance of the issues involved, H
1064 SUPREME COURT REPORTS [2011] 4 S.C.R~
A the merits of the case are required to be gone into. [Para
4] (1085-A-C]

Gian Kaur v. State of Punjab 1996(2) SCC 648 - referred
to.

B LEGAL ISSUES: Active and Passive Euthanasia

2.1. Euthanasia is of two types: active and passive.
Active euthanasia entails the use of lethal substances or
forces to kill a person e.g. a lethal injection given to a
C person with terminal cancer who is in terrible agony.
Passive euthanasia entails withholding of medical
treatment for continuance of life, e.g. withholding of
antibiotics where without giving it a patient is likely to die,
or removing the heart lung machine, from a patient in
D coma. The general legal position all over the world seems
to be that while active euthanasia is illegal unless there
is legislation permitting it, passive euthanasia is legal,
even without legislation provided certain conditions and
safeguards are maintained. [Para 38, 39] [1124-A-C]
E
2.2. A further categorization of euthanasia is between
voluntary euthanasia and non voluntary euthanasia.
Voluntary euthanasia is where the consent is taken from
the patient, whereas non voluntary euthanasia is where
F the consent is unavailable e.g. when the patient is in
coma, or is otherwise unable to give consent. While there
is no legal difficulty in the case of the former, the latter
poses several problems. [Para 40] [1124-0-E]
Active Euthanasia
G
2.3. Active euthanasia is a crime all over the world
except where permitted by legislation. In India active
euthanasia is illegal and a crime under section 302 or at
least section 304 IPC. Physician assisted suicide is a
H crime under section 306 IPC (abetment to suicide). Active
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1065
INDIA AND ORS.
euthanasia is taking specific steps to cause the patient's A
death, such as injecting the patient with some lethal
substance, e.g. sodium pentothal which causes a person
deep sleep in a few seconds, and the person
instantaneously and painlessly dies !n this deep sleep.
[Paras 41, 42) (1124-F-HJ B

2.4. A distinction is sometimes drawn between
euthanasia and physician assisted dying, the difference
being in who administers the lethal medication. In
euthanasia, a physician or third party administers it, while c
in physician assisted suicide it is the patient himself who
does it, ·though on the advice of the doctor. In many
countries/States the latter is legal while the former is not.
The difference between "active" and "passive"
euthanasia is that in active euthanasia, something o
is done to end the patient's life' while in passive
euthanasia, something is not done that would have
preserved the patient's life. An important idea behind this
distinction is that in "passive euthanasia" the doctors are
not actively killing anyone; they are simply not saving E
him. While one usually applauds someone who saves
-another person's life, one does not normally condemn
"6omeone for failing to do so. If one rushes into a burning
Juilding and carries someone out to safety, he will
>robably be called a hero. But if one sees a burning F
lUilding and people screaming for help, and he stands
->n the sidelines -- whether out of fear for his own safety,
~)r the belief that an inexperienced and ill-equipped
..jerson like himself would only get in the way of the
rofessional firefighters, or whatever -- if one does G
othing, few would judge him for his. inaction. One would
•Urely not be prosecuted for homicide. (At least, not
-nless one started the fire in the first place.) Thus,
llll'oponents of euthanasia say that while one can debate
•hether active euthanasia 'should be legal, there can be H
1066 SUPREME COURT REPORTS [2011] 4 S.C.R.

A no debate about passive euthanasia: One cannot
prosecute someone for failing to save a life. Even if one
thinks it would be good for people to do X, one cannot
make it illegal for people to not do X, or everyone in the
country who did not do X today would have to be
B arrested. [Para 43 to 45] (1125-A-G]

2.5. Some persons are of the view that the distinction
is not valid. In fact there are many laws that penalize
people for what they did not do. A person cannot simply
c decide not to pay his income taxes, or not bother to send
his/her children to school {where the law requires
sending them), or not to obey a policeman's order to put
down one's gun. However, this Court is of the opinion
that the distinction is valid. (Paras 47 to 49] (1125-H; 1126-
D A-C]
Passsive Euthanasia:

2.6. Passive euthanasia is usually defined as
withdrawing medical treatment with a deliberate intention
E of causing the patient's death. For example, if a patient
requires kidney dialysis to survive, not giving dialysis
although the machine is available, is passive euthanasia.
Similarly, if a patient is in coma or on a heart lung
machine, withdrawing of the machine will ordinarily result
F in passive euthanasia. Similarly not giving life saving
medicines like antibiotics in certain situations may result
in passive euthanasia. Denying food to a person in coma
or PVS may also amount to passive euthanasia. [Para 51]
[1135-B-C]
G
2.7. In voluntary passive euthanasia a person who is
capable of deciding for himself decides that he would
prefer to die {which may be for various reasons e.g., that
he is in great pain or that the money being spent on his
H treatment should instead be given to his family who are
•ARUNA RAMCHANDRA SHA~AUG v. UNION OF 1067
INDIA AND QRS.

in greater need, etc.), and for this purpose he consciously A
and of his own free will refuses to take life saving
medicines. In India, if'a person consciously and
voluntarily refuses to take life saving medical treatment
it is not a crime. [Para,52] [1135-D-F]
' .
B
2.8. Non voluntar}' ·passive euthanasia implies that
the person is not in a position to decide for himself e.g.,
if he is in coma or PVS. The present is a case where one
has to consider non voluntary passive euthanasia i.e.
whether to allow a person to die who is not in a position c
to give his/her consent. [Para 53] [1135-G]

Airedale NHS Trust v. Bland (1993) All E.R. 82 (H.L.) -
referred to.
LEGISLATION IN SOME COUNTRIES RELATING TO D
EUTHANASIA OR PHYSICIAN ASSISTED DEATH
3.1. There is a plethora of case law all over the world
relating to both active and passive euthanasia. [Para 54]
[1135-H; 1136-A] E
3.2. Netherlands: Euthanasia in the Netherlands is
regulated by the "Termination of Life on Request and
Assisted Suicide (Review Procedures) Act", 2002. It states
that euthanasia and physician-assisted suicide are not
punishable if the attending physician acts in accordance F
with the criteria of due care. These criteria concern the
patient's request, the patient's suffering (unbearable and
hopeless), the information provided to the patient, the
presence of reasonable alternatives, consultation of
another physician and the applied method of ending life. G
To demonstrate their compliance, the Act requires
physicians to report euthanasia to a review committee.
[Para 50] [1126-D-E]
3.3. Switzerland: Switzerland has an unusual H
1068 SUPREME COURT REPORTS [2011] 4 S.C.R.

A position on assisted suicide: it is legally permitted and
can be performed by non-physicians. However,
euthanasia is illegal, the difference between assisted
suicide and euthanasia being that while in the former the
patient administers the lethal injection himself, in the
B latter a doctor or some other person administers it.
Switzerland seems to be the only country in which the
law limits the circumstances in which assisted suicide is
a crime, thereby decriminalising it in other cases, without
requiring the involvement of a physician. Consequently,
C non-physicians have participated in assisted suicide.
However, legally, active euthanasia e.g. administering a
lethal injection by a doctor or some other person to a
patient is illegal in Switzerland (unlike in Holland where
it is legal under certain conditions). The Swiss law is
D unique because (1) the recipient need not be a Swiss
national, and (2) a physician need not be involved. Many
persons from other countries, especially Germany, go to
Switzerland to undergo euthanasia. [Para 50) [1129-B-G]
3.4. Belgium: Belgium became the second country in
E Europe after Netherlands to legalize the practice of
euthanasia in September 2002. The Belgian law sets out
conditions under which suicide can be practised without
giving doctors a licence to kill. Patients wishing to end
their own lives must be conscious when the demand is
F made and repeat their request for euthanasia. They have
to be under "constant and unbearable physical or
psychological pain" resulting from an accident or
incurable illness. The law gives patients the right to
receive ongoing treatment with painkillers -- the
G authorities have to pay to ensure that poor or isolated
patients do not ask to die because they do not have
money for such treatment. Unlike the Dutch legislation,
minors cannot seek assistance to die. [Para 50] [1129-H;
H 1130-A-D]
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1069
INDIA AND ORS.
3.5. U.K., Spain, Austria, Italy, Germany, France, etc.: A
In none of these countries is euthanasia or physician
assisted death legal. [Para 50] [1130-E]

3.6. United States of America: Active Euthanasia is
illegal in all states in U.S.A., but physician assisted dying B
is legal in the states of Oregon, Washington and Montana.
[Para 50] [1130-H; 1131-A]

3.7. Canada: In Canada, physician assisted suicide
is illegal vide Section 241(b) of the Criminal Code of C
Canada. [Para 50] [1134-B]

3.8. However, foreign decisions have only persuasive
value in our country, and are not binding authorities on
our Courts. Hence one can even prefer to follow the
minority view, rather than the majority view, of a foreign D
decision, or follow an overruled foreign decision. In the
opinion of this Court, the Airedale's case decided by the
House of Lords in the U.K. is apposite as a precedent.
[Paras 95, 96] [1156-G-H; 1157-A-B]
E
Sue Rodriguez v. British Columbia (Attorney General),
(1993) 3 SCR 519 [Canada Supreme Court]; Airedale NHS
Trust v. Bland (1993) All E.R. 82 (H.L.); In Re J (A Minor
Wardship : Medical Treatment) 1990(3) All E.R. 930;
Washington v. Glucksberg521 U.S. 702 (1997); Vacca v. Quill F
•521 U.S. 793 (1997); Cruzan v. Director, MOH 497 U.S. 261
1(1990); Schloendorff v. Society of New York Hospital 211 N.Y.
125, 129-30, 105 N.E. 92, 93 (1914); In re Quinlan 70 N.J.10,
=355 A. 2d 647; In re Conroy 98 NJ 321, 486 A.2d 1209
"1985) - referred to. G
_AW IN INDIA
4.1. In India abetment of suicide (Section 306 Indian
->enal Code) and attempt to suicide (Section 309 of Indian
•enal Code) are both criminal offences. This is in contrast H
1070 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A to many countries such as USA where attemptto suicide
is not a crime. The Constitution Bench of the Indian
Supreme Court in Gian Kaur's case held that both
euthanasia and assisted suicide are not lawful in India.
The Court held that the right to life under Article 21 of the
B Constitution does not include the right to die. In Gian
Kaur's case the Supreme Court approved of the decision
of the House of Lords in Airedale's case, and observed
that euthanasia could be made lawful only by legislation.
[Para 98) [1157-D-F]
c 4.2. Although Section 309 Indian Penal Code (attempt
to commit suicide) has been held to be constitutionally
valid in Gian Kaur's case, the time has come when it
should be deleted by Parliament as it has become
anachronistic. A person attempts suicide in a depression,
0
and hence he needs help, rather than punishment. This
Court therefore recommends to Parliament to consider
the feasibility of deleting Section 309 from the Indian
Penal Code. [Para 100) [1158-B-C]
E 4.3. In Gian Kaur's case although the Supreme Court
has quoted with approval the view of the House of Lords
in Airedale's case, it has not clarified who can decide
whether life support should be discontinued in the case
of an incompetent person e.g. a person in coma or PVS.
F This vexed question has been arising often in India
because there are a large number of cases where
persons go into coma (due to an accident or some other
reason) or for some other reason are unable to give
consent, and then the question arises as to who should
G give consent for withdrawal of life support. This is an
extremely important question in India because of the
unfortunate low level of ethical standards to which our
society has descended, its raw and widespread
commercialization, and the rampant corruption, and
H hence, the Court has to be very cautious: that
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1071
INDIA AND ORS.
unscrupulous persons who wish to inherit the property A
of someone may not get him eliminated by some crooked
method. [Paras 101 and 102) [1158-0-GJ

4.4. Also, since.medical science is advancing fast,
doctors must not declare a patient to be a hopeless case 8
unless there appears to be no reasonable possibility of
any improvement by some newly discovered medical
method in the near future. However, this Court makes it
clear that it is experts like medical practitioners who can
decide whether there _is any re~sonable possibility of a c
new medical discovery which co~d enable such apatient
to revive in the near future. [Par.a 103 & 104) [1158-H;
1159-A-B]
.
.
. '.

Gian Kaur v. State of Punjab 1996(2) SCC 648 and P.
Rathinam v. Union of India 1994(3) SCC 394 - referred to. D
M ;

Airedale NHS ·Trust v. Bland (1993) All E.R. 82 (H.L.) -
referred to. 1

WHEN CAN A PERSON IS SAID TO BE DEAD E
5.1. A person's most important organ is his/her brain.
This organ cannot be replaced. Other body parts can be
replaced e.g. if a person's hand or leg is amputed, he can
get an artificial limb. Similarly, one can transplant a
kidney, a heart or a liver when the original one has failed. F
However, one cannot transplant a brain. If someone
else's brain is transplanted into one's body, then in fact,
it will be that other person living in one's body. The entire
mind, including one's personality, cognition, memory, G
capacity of receiving signals from the five senses and
capacity of giving commands to the other parts of the
body, etc. are the functions of the brain. Hence one is
one's brain. It follows that one is dead when one's brain
is dead. [Para 106) [1159-F-H; 1160-A]
H
•
1072 SUPREME COURT REPORTS [2011] 4 S.C.R.

A 5.2. The brain cells normally do not multiply after the
early years of childhood (except in the region called
hippocampus), unlike other cells like skin cells, which are
regularly dying and being replaced by new cells
produced by multiplying of the old cells. This is probably
B because brain cells are too highly specialized to multiply.
Hence if the brain cells die, they usually cannot be
replaced (though sometimes one part of the brain can
take over the function of another part in certain situations
where the other part has been irreversibly damaged).
C [Para 107] [1160-8-C]

5.3. Brain cells require regular supply of oxygen
which comes through the red cells in the blood. If oxygen
supply is cut off for more than six minutes, the brain cells
0 die and this condition is known as anoxia. Hence, if the
brain is dead a person is said to be dead. [Para 108] [1160-
D]
BRAIN DEATH

E 6.1. The term 'brain death' has developed various
meanings. While initially, death could be defined as a
cessation of breathing, or, more scientifically, a cessation
of heart-beat, recent medical advances have made such
definitions obsolete. The earlier understanding of death
F emerged from a cardiopulmonary perspective. In such
cases, the brain was usually irrelevant -- being
understood that the cessation of circulation would
automatically lead to the death of brain cells, which
require a great deal of blood to survive. The invention of
G the ventilator and the defibrillator in the 1920s altered this
understanding, it being now possible that the cessation
of respiration and circulation, though critical, would no
longer be irreversible. Hence, a present-day
understanding of death as the irreversible end of life must
H imply total brain failure, such that neither breathing, nor
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1073 ·
INDIA AND ORS.
circulation is possible any more. The question of the A
length of time that may determine such death is
significant, especially considering a significant increase
in organ donations across jurisdictions over the last few
years. [Paras 109, 110 and 111] [1160-E-F; 1161-A-E]
B
6.2. Brain death, may, be defined as "the irreversible
cessation of all functions of the entire brain, including the
brain stem". It is important to understand that this
definition goes beyond acknowledging consciousness •
- a person who is incapable of ever regaining c
consciousness will not be considered to be brain dead
as long as parts of the brain e.g. brain stem that regulate
involuntary activity (such as response to light, respiration,
heartbeat etc.) still continue to function. Likewise, if
consciousness, albeit severely limited, is present, then a o
person will be considered to be alive even if he has
suffered brain stem death, wherein breathing and
heartbeat can no longer be regulated and must be
mechanically determined. Hence, the international
standard for brain death is usually considered to include E
"whole-brain death", i.e., a situation where the higher
brain (i.e. the part of the brain that regulates
consciousness and thought), the cerebellum or mid-
brain, and the brain-stem have all ceased to demonstrate
any electrical activity whatsoever for a significant amount F
of time. To say, in most cases, that only the death of the
higher brain would be a criteria for 'brain death' may have
certain serious consequences -- for example, a foetus,
technically under this definition, would not be considered
to be alive at all. Similarly, as per this, different definitions G
of death would apply to human and non-human
organisms. [Para 112] [1161-F-G; 1162-A-D]

6.3. Brain death, thus, is different from a persistent
vegetative state, where the brain stem continues to work, H
and so some degree of reactions may occur, though the
1074 SUPREME COURT REPORTS [2011] 4 S.C.R.

A possibility of regaining consciousness is relatively
remote. Even when a person is incapable of any
response, but is able to sustain respiration and
circulation, he cannot be said to be dead. The mere
mechanical act of breathing, thus, would enable him or
B her to be "alive". [Para 113] [1162-E-F]

6.4. It is important, that it be medically proved that a
situation where any human functioning would be
impossible should have been reached for there to be a
c declaration of brain death--situations where a person is
in a persistent vegetative state but can support breathing,
cardiac functions, and digestion without any mechanical
aid are necessarily those that will not come within the
ambit of brain death. [Para 115] [1163-G; 1164-A-B]
D
6.5. In legal terms, the question of death would
naturally assume significance as death has a set of legal
consequences as well. As per the definition in the
American Uniform Definition of Death Act, 1980. an
individual who "sustain[s] ... irreversible cessation of all
E functions of the entire brain, including the brain stem, is
dead." This stage, thus, is reached at a situation where
not only consciousness, but every other aspect of life
regulated from the brain can no longer be so regulated.
F [Para 116] [1164-B-C]

6.6. In the case of 'euthanasia', however, the situation
is slightly different. In these cases, it is believed, that a
determination of when it would be right or fair to disallow
resuscitation of a person who is incapable of expressing
G his or her consent to a termination of his or her life
depends on two circumstances:
a. when a person is only kept alive mechanically,
i.e. when not only consciousness is lost, but
H the person is only able to sustain involuntary
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1075
!NOIA AND ORS.
functioning through advanced medical A
technology--such as the use of heart-lung
machines, medical ventilators etc.

b. when there is no plausible possibility of the
person ever being able to come out of this
8
stage. Medical "miracles" are not unknown,
but if a person has been at a stage where his
life is only sustained through medical
technology, and there has been no significant
alteration in the person's condition for a long
period of time-at least a few years-then there C·
can be a fair case made out for passive
euthanasia.

To extend this further, especially when a person is
incapable of being able to give any consent, would D
amount to committing judicial murder. [Para 117] [1164·
D-H; 1165-A]
6.7. In this case, one may refer to the Transplantation
of Human Organs Act, 1994, particularly Section 2(d) and E
3(6) thereof. Although the said Act was enacted only for
the purpose of regulation of transplantation of human
organs, but throws some light on the meaning of brain
death. [Para 118 & 120] [1165-B, H; 1166-A]

Schmidt v. Pierce 344 S.W.2d 120, 133 {Mo. 1961) and F
Sanger v. Butler 101 S.W. 459, 462 (Tex. Civ. App. 1907) -
referred to.

7.1. In the instant case, it cannot be said that the
Petitioner is dead. Even from the report of Committee of G
Doctors it appears that she has some brain activity,
though very little. The Petitioner recognizes that persons
are around her and expresses her like or dislike by
making some vocal sound and waving her hand by
certain movements. She smiles if she receives her H
1076 SUPREME COURT REPORTS [2011] 4 S.C.R.

A favourite food, fish and chicken soup. She breathes
normally and does not require a heart lung machine or
intravenous tube for feeding. Her pulse rate and
respiratory rate and blood pressure are normal. She was
able to blink well and could see her doctors who
B examined her. When an attempt was made to feed her
through mouth she accepted a spoonful of water, some
sugar and mashed banana. She also licked the sugar and
banana paste sticking on her upper lips and swallowed
it. She would get disturbed when many people entered
c her room, but she appeared to calm down when she was
touched or caressed gently. The Petitioner meets most
of the criteria for being in a permanent vegetative state
which has resulted for 37 years. However, her dementia
has not progressed and has remained stable for many
o years. From the examination by the team of doctors, it
cannot be said that Petitioner is dead. Whatever the
condition of her cortex, her brain stem is certainly alive.
She does not need a heart--lung machine. She breathes
on her own without the help of a respirator. She digests
E fo,od, and her body performs other involuntary function
without any help. From the CD (as screened in the
courtroom in the presence of counsels and others) it
appears that she can certainly not be called dead. She
was making some sounds, blinking, eating food put in her
F mouth, and even licking with her tongue morsels on her
mouth. [Paras 121 to 124] (1166-B-H; 1167-A]

7.2. However, there appears little possibility of the
Petitioner coming out of PVS in which she is in. In all
G probability, she will continue to be in the state in which
she is in till her death. [Para 125] [1167-B]
WITHDRAWAL OF LIFE SUPPORT OF A PATIENT IN
PERMANENT VEGETATIVE STATE (PVS)

H 8.1. There is no statutory provision in India as to the
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1077
INDIA AND ORS.

legal procedure for withdrawing life support to a person A
in PVS or who is otherwise incompetent to take a decision
in this connection. Passive euthanasia should be
permitted in our country in certain situations. Hence,
following the technique used in Vishakha's case, this
Court is laying down the law in this connection which will B
continue to be the law until Parliament makes a law on
the subject.

(i) A decision has to be taken to discontinue life
support either by the parents or the spouse or other c
close relatives, or in the absence of any of them,
such a decision can be taken even by a person or a
body of persons acting as a i1ext friend. It can also
be taken by the doctors attending the patient.
However, the decision should be taken bona fide in
0
the best interest of the patient. In the present case,
the Petitioner's parents are dead and other close
relatives are not interested in her ever since she had
the unfortunate assault on her. It is the KEM hospital
staff, who have been amazingly caring for her day E
and night for so many long years, who really are her
next friends, and hence it is for the KEM hospital staff
to take that decision. The KEM hospital staff have
clearly expressed their wish that the Petitioner
should be allowed to live. However, assuming that
the KEM hospital staff at some future time changes F
its mind, in such a situation the KEM hospital would
have to apply to the Bombay High Court for approval
of the decision to withdraw life support.

(ii) Hence, even if a decision is taken by the near G
relatives or doctors or next friend to withdraw life
support, such a decision requires approval from the
High Court concerned as laid down in Airedale's
case. This is even more necessary since cannot rule
out the possibility of mischief being done by H
1078 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A relatives or others for inheriting the property of the
patient. [Para 126) [1167-C-H; 1168-A-H; 1169-A]

8.2. In the opinion of this Court, if it is left solely to
the patient's relatives or to the doctors or next friend to
8 decide whether to withdraw the life support of an
incompetent person there is always a risk that this may
be misused by some unscrupulous persons who wish to
inherit or otherwise grab the property of the patient.
Considering the low ethical levels prevailing in our
C society today and the rampant commercialization and
corruption, one cannot rule out the possibility that
unscrupulous persons with the help of some
unscrupulous doctors may fabricate material to show
that it is a terminal case with no chance of recovery.
There are doctors and doctors. While many doctors are
D upright, there are others who can do anything for money.
The commercialization of society has crossed all limits.
Hence one have to guard against the potential of misuse.
While giving great weight to the wishes of the parents,
spouse, or other close relatives or next friend of the
E incompetent patient and also giving due weight to the
opinion of the attending doctors, one cannot leave it
entirely to their discretion whether to discontinue th~ life
support or not. This Court agrees with the decision of the
Lord Keith in Airedale's case that the approval of the High
F Court should be taken in this connection. This is in the
interest of the protection of the patient, protection of the
doctors, relative and next friend, and for reassurance of
the patient's family as well as the public. This is also in
consonance with the doctrine of parens patriae which is
G a well known principle of law. [Para 127) [1169-B-G]
DOCTRINE OF PARENS PATRIAE

9.1. The doctrine of Parens Patriae (father of the
country) had originated in British law as early as the 13th
H century. It implies that the King is the father of the country
• AR UNA RAMCHANDRA SHANBAUG v. UNION OF 1079
INDIA AND ORS.
and is under obligation to look aftt!r the interest of those A
who are unable to look after themselves. The idea behind
Parens Patriae is that if a citizen is in need of someone
who can act as a parent who can make decisions and
take some other action, sometimes the State is best
qualified to take on this role. The duty of the King in B
feudal times -to act as parens patriae (father of the
country) has been taken over in modern times by the
State. [Paras 128, 129) [1169-H; 1170-A, B, G]

9.2. In the case of an incompetent person who is c
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. [Paras 132) [1171-C] o
Charan Lal Sahu v. Union of India (1990) 1 SCC 613
and State of Kera/a v. N.M. Thomas 1976(1) SCR 906 -
referred to.

Heller v. DOE (509) US 312 - referred to. E
UNDER WHICH PROVISION OF THE LAW CAN THE
COURT GRANT APPROVAL FOR WITHDRAWING LIFE
SUPPORT TO AN INCOMPETENT PERSON
10.1. The High Court, under Article 226 of the F
Constitution, can grant approval for withdrawal of life
support to such an incompetent person. The High Court
under Article 226 of the Constitution is not only entitled
to issue writs, but is also entitled to issue directions or
orders. [Paras 133, 134] (1171-E, H; 1172-A] G
10.2. No doubt, the ordinary practice in our High
-Courts since the time of framing of the Constitution in
1

1950 is that petitions filed under Article 226 of the
Constitution pray for a writ of the kind referred to in the H
1080 SUPREME COURT REPORTS •
[2011] 4 S.C.R.

A provision. However, a petition can also be made to the
High Court under Article 226 of the Constitution praying
for an order or direction, and not for any writ. Article 226
gives abundant power to the High Court to pass suitable
orders on the application filed by the near relatives or next
B friend or the doctors/hospital staff praying for permission
to withdraw the life support to an incompetent person of
the kind above mentioned. [Para 137) [1172-G-H; 1173-A-
B]

c Dwarka Nath v. /TO AIR 1966 SC 81 and Shri Anadi
Mukta Sadguru v. V. R. Rudani AIR 1989 SC 1607 - referred
to.

PROCEDURE TO BE ADOPTED BY THE HIGH COURT
WHEN SUCH AN APPLICATION IS FILED
D
11.1. When such an application is filed the Chief
Justice of the High Court should forthwith constitute a
Bench of at least two Judges who should decide to grant
approval or not. Before doing so the Bench should seek
E the opinion of a committee of three reputed doctors to be
nominated by the Bench after consulting such medical
authorities/medical practitioners as it may deem fit.
Preferably one of the three doctors should be a
neurologist, one should be a psychiatrist, and the third
F a physician. For this purpose a panel of doctors in every
city may be prepared by the High Court in consultation
with the State Government/Union Territory and their fees
for this purpose may be fixed. [Para 138) [1173-C-E]

G 11.2. The committee of three doctors nominated by
the Bench should carefully examine the patient and also
~onsult the record of the patient as well as taking the
views of the hospital staff and submit its report to the
High Court Bench. [Para 139) (1173-E-F]
H
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1081
INDIA AND ORS.
11.3. Simultaneously with appointing the committee A
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 B
hearing them, the High Court bench should give its
verdict. The above procedure should be followed all over
India until Parliament makes legislation on this subject.
[Para 140) [1173-F-H]
c
11.4. The High Court should give its decision
speedily at the earliest, since delay in the matter may
result in causing great mental agony to the relatives and
persons close to the patient. [Para 141] [1174-A]

11.5. The High Court should give its decision D
assigning specific reasons in accordance with the
principle of 'best interest of the patient' laid down by the
House of Lords in Airedale's case. The views of the near
relatives and committee of doctors should be given due E
weight by the High Court before pronouncing a final
verdict which shall not be summary in nature. [Para 142)
[1174-B-C]

Airedale NHS Trust v. Bland (1993) All E.R. 82 (H.L.) -
referred to. F
Case Law Reference:
1996(2) sec 648 referred to Paras 4, 98
(1993) 3 SCR 519 [Canada G
Supreme Court] referred to Para 50
(1993) All E.R. 82 (H.L.) referred to Para 59
1990(3) All E.R. 930 referred to Para 77
521 U.S. 702 (1997) referred to Para 79 H
1082 SUPREME COURT REPORTS •
[2011) 4 S.C.R.

A 521 U.S. 793 (1997) referred to Para 79

MOH 497 U.S. 261 (1990) referred to Para 83

211 N.Y. 125, 129-30, 105
N.E. 92, 93 (1914) referred to Para 87
8
70 N.J.10, 355 A. 2d 647 referred to Para 89

98 NJ 321, 486 A.2d
1209 (1985) referred to Para 90
c 1994(3) sec 394 referred to Para 98

344 S.W.2d 120, 133
(Mo. 1961) referred to Para 109

101 s.w. 459, 462
D
(Tex. Civ. App. 1907) referred to Para 109
''
(1990) 1 sec 613 referred to Para 129

(509) us 312 referred to Para 130
E
1976(1) SCR 906 referred to Para 131

AIR 1966 SC 81 referred to Para 135
AIR 1989 SC 1607 referred to Para 136
F CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.)
No. 115 of 2009.

Under Article 32 of the Constitution of India.

G G.E. Vahanvati, Attorney General, T.R. Andhyarujina,
Shekhar, Naphade, Pallav Shishodia, Chinmoy P. Sharma,
Soumik Ghosal, Shubhangi Tuli, Divya Jain, Vimal Chandra S.
Dave, Sunuina Dutta, Suchitra Atul Chitale, Chinmoy Khaldkar,
Sanjay V. Kharde, Asha Gopalan Nair for the appearing parties.
H The Judgment of the Court was delivered by
•AR UNA RAMCHANDRA SHANBAUG v. UNION OF 1083
INDIA AND ORS.
MARKANDEY KAT JU, J. A
"Marte hain aarzoo mein marne ki

Maut aati hai par nahin aati"

-- Mirza Ghalib B

1. Heard Mr. Shekhar Naphade, learned senior counsel for
the petitioner, learned Attorney General for India for the Union
of India Mr. Vahanvati, Mr. T. R. Andhyarujina, learned Senior
Counsel, whom we had appointed as amicus curiae, Mr. Pallav C
Sisodia, learned senior counsel for the Dean, KEM Hospital,
Mumbai, and Mr. Chinmay Khaldkar, learned counsel for the
State of Maharashtra.

2. Euthanasia is one of the most perplexing issues which
the courts and legislatures all over the world are facing today. D
This Court, in this case, is facing the same issue, and we feel'-
like a ship in an uncharted sea, seeking some guidance by the
light thrown by the legislations and judicial pronouncements of
foreign countries, as well as the submissions of learned
counsels before us. The case before us is a writ petition under E
Article 32 of the Constitution, and has been filed on behalf of
the petitioner Aruna Ramachandra Shanbaug by one Ms. Pinki
Virani of Mumbai, claiming to be a next friend.

3. It is stated in the writ petition that the petitioner Aruna F
Ramachandra Shanbaug was a staff Nurse working in King
Edward Memorial Hospital, Parel, Mumbai. On the evening of
27th November, 1973 she was attacked by a sweeper in the
hospital who wrapped a dog chain around her neck and yanked
her back with it. He tried to rape her but finding that she was
menstruating, he sodomized her. To immobilize her during this G
act he twisted the chain around her neck. The next day on 28th
November, 1973 at 7.45 a.m. a cleaner found her lying on the
floor with blood all over in an unconscious condition. It is alleged
that due to strangulation by the dog chain the supply of oxygen
to the brain stopped and the brain got damaged. It is alleged H
1084 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A that the Neurologist in the Hospital found that she had plantars'
extensor, which indicates damage to the cortex or some other
part of the brain. She also had brain stem contusion injury with
associated cervical cord injury. It is alleged at page 11 of the
petition that 36 years have expired since the incident and now
B Aruna Ramachandra Shanbaug is about 60 years of age. She
is featherweight, and her brittle bones could break if her hand
or leg are awkwardly caught, even accidentally, under her lighter
body. She has stopped menstruating and her skin is now like
papier mache' stretched over a skeleton. She is prone to bed
C sores. Her wrists are twisted inwards. Her teeth had decayed
causing her immense pain. She can only be given mashed
food, on which she survives. It is alleged that Aruna
Ramachandra Shanbaug is in a persistent negetative state
(p.v.s.) and virtually a dead person and has no state of
awareness, and her brain is virtually dead. She can neither see,
0
nor hear anything nor can she express herself or communicate,
in any manner whatsoever. Mashed food is put in her mouth,
she is not able to chew or taste any food. She is not even aware
that food has been put in her mouth. She is not able to swallow
any liquid food, which shows that the food goes down on its
E own and not because of any effort on her part. The process of
digestion goes on in this way as the mashed food passes
through her system. However, Aruna is virtually a skeleton. Her
excreta and the urine is discharged on the bed itself. Once in
a while she is cleaned up but in a short while again she goes
F back into the same sub-human condition. Judged by any
parameter, Aruna cannot be said to be a living person and it
is only on account of mashed food which is put into her mouth
that there is a facade of life which is totally devoid of any human
element. It is alleged that there is not the slightest possibility of
G any improvement in her condition and her body lies on the bed
in the KEM Hospital, Mumbai like a dead animal, and this has
been the position for the last 36 years. The prayer of the
petitioner is that the respondents be directed to stop feeding
Aruna, and let her die peacefully.
H
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1085
INDIA AND ORS. [MARKANDEY KATJU, J.]

4. We could have dismissed this petition on the short A
ground that under Article 32 of the Constitution of India (unlike
Article 226) the petitioner has to prove violation of a
fundamental right, and it has been held by the Constitution
Bench decision of this Court in Gian Kaur vs. State of Punjab,
1996(2) SCC 648 (vide paragraphs 22 and 23) that the right B
to life guaranteed by Article 21 of the Constitution does not
include the right to die. Hence the petitioner has not shown
violation of any of her fundamental rights. However, in view of
the importance of the issues involved we decided to go deeper
into the merits of the case. c
5. Notice had been issued by this Court on 16.12.2009 to
all the respondents in this petition. A counter affidavit was
earlier filed on behalf of the respondent nos.3 and 4, the
Mumbai Municipal Corporation and the Dean, KEM Hospital
by Dr. Amar Ramaji Pazare, Professor and Head in the said D
hospital, stating in paragraph 6 that Aruna accepts the food in
normal course and responds by facial expressions. She
responds to commands intermittently by making sounds. She
makes sounds when she has to pass stool and urine which the
nursing staff identifies and attends to by leading her to the toilet. E
Thus, there was some variance between the allegations in the
writ petition and the counter affidavit of Dr. Pazare.

6. Since there was some variance in the allegation in the
writ petition and the counter affidavit of Dr. Pazare, we, by our F
. order dated 24 January, 2011 appointed a team of three very
distinguished doctors of Mumbai to examine Aruna Shanbaug
thoroughly and submit a report about her physical and mental
condition. These three doctors were :

(1) Dr. J. V. Divatia, Professor and Head, Department G
of Anesthesia, Critical Care and Pain at Tata
Memorial Hospital, Mumbai;

(2) Dr. Roop Gursahani, Consultant Neurologist at
P.D.Hinduja, Mumbai; and · H
1086 SUPREME COURT REPORTS (2011] 4 S.C.R.
•
A ·· (3) Dr. Nilesh Shah, Professor and Head, Department
of Psychiatry at Lokmanya Tilak Municipal
Corporation Medical College and General Hospital.

7. In pursuance of our order dated 24th January, 2011, the
team of three doctors above mentioned examined Aruna
8
Shanbuag in KEM Hospital and has submitted us the following
report:

" Report of Examination of Ms. Aruna Ramachandra
Shanbaug Jointly prepared and signed by
c
1. Dr. J.V. Divatia

(Professor and Head, Department of Anesthesia, Critical
Care and Pain, at Tata Memorial Hospital, Mumbai)
D 2. Dr. Roop Gursahani

(Consultant Neurologist at P.O. Hinduja Hospital, Mumbai)

3. Dr. Nilesh Shah

E (Professor and Head, Department of Psychiatry at
Lokmanya Tilak Municipal Corporation Medical College
and General Hospital).

I. Background
F As per the request of Hon. Justice Katju and
Hon. Justice Mishra of the Supreme Court of India,
Ms. Aruna Ramachandra Shanbaug, a 60-year-old
female patient was examined on 28th January
2011, morning and 3rd February 2011, in the side-
G room of ward-4, of the K. E. M. Hospital by the team
of 3 doctors viz. Dr. J.V. Divatia (Professor and
Head, Department of Anesthesia, Critical Care and
Pain at Tata Memorial Hospital, Mumbai), Dr. Roop
Gursahani (Consultant Neurologist at P.O. Hinduja
H Hospital, Mumbai) and Dr. Nilesh Shah (Professor
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1087
INDIA AND OR$. [MARKANDEY KATJU, J.]

and Head, Department of Psychiatry at Lokmanya A·
Tilak Municipal Corporation Medical College and
Gen~ral Hospital).

-This committee was set up because the Court
found some variance between the allegations in the
8
writ petition filed by Ms. Pinki Virani on behalf of
Aruna Ramchandras Shanbaug and the counter
affidavit of Dr. Pazare. This team of three doctors
was appointed to examine Aruna Ramachandra
Shanbaug thoroughly and give a report to the Court C
about her physical and mental condition

It was felt by the team of doctors appointed by
the Supreme Court that longitudinal case history
and observations of last 37 years along with
findings of examination will give a better; clear and D
comprehensive picture of the patient's condition.·

This report is based on:

1. The longitudinal case history and observations
obtained from the Dean and the medical and E
nursing staff of K. E. M. Hospital,

2. Case records (including nursing records) since
January 2010 ·
F
3. Findings of the physical, neurological and mental
status examinations performed by the panel.

4. 111vestigations perfonned during the course of this
assessment (Blo~cj tests, · CT head,
Electroencephalogram) G

II. Medical history
Medical history of ·Ms. Aruna Ramachandra
Shanbaug was obtained from the Dean, the H
1088 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A Principal of the School of Nursing and the medical
and nursing staff of ward-4 who has been looking
after her.

It was learnt from the persons mentioned
above that
B
1. Ms. Aruna Ramachandra Shanbaug was
admitted in the hospital after she was assaulted and
strangulated by a sweeper of the hospital on
November 27, 1973.
c
2. Though she survived, she never fully recovered
frpm the trauma and brain damage resulting from
the assault and strangulation.

3. Since last so many years she is in the same bed
D in the side-room of ward-4.

4. The hospital staff has provided her an excellent
nursing care since then which included feeding her
by mouth, bathing her and taking care of her toilet
E needs. The care was of such an exceptional nature
that she has not developed a single bed-sore or
fracture in spite of her bed-ridden state since 1973.

5. According to the history from them, though she
is not very much aware of herself and her
F
surrounding, she somehow recognizes the
presence of people around her and expresses her
like or dislike by making certain types of vocal
sounds and by waving her hands in certain
manners. She appears to be happy and smiles
G when she receives her favorite food items like fish
and chicken soup. She accepts feed which she
likes but may spit out food which she doesn't like.
She was able to take oral feeds till 16th September
2010, when she developed a febrile illness,
H probably malaria. After that, her oral intake reduced
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1089
INDIA AND ORS. [MARKANDEY KATJU, J.]

and a feeding tube (Ryle's tube) was passed into A
her stomach via her nose. Since then she receives
her major feeds by the Ryle's tube, and is only
occasionally able to accept the oral liquids. Malaria
has taken a toll in her physical condition but she is
gradually recuperating from it. B

6. Occasionally, when there are many people in the
room she makes vocal sounds indicating distress.
She calms down when people move out of her
room. She also seems to enjoy the devotional C
songs and music which is played in her room and
it has calming effect on her.

7. In an annual ritual, each and every batch of
nursing students is introduced to Ms. Aruna
Ramachandra Shanbaug, and is told that "She was D
one of us"; "She was a very nice and efficient staff
nurse but due to the mishap she is in this bed-
ridden state".

8. The entire nursing staff member and other staff E
members have a very compassionate attitude
towards Ms. Aruna Ramachandra Shanbaug and
they all very happily and willingly take care of her.
They all are very proud of their achievement of
taking such a good care of their bed-ridden
F
colleague and feel very strongly that they want to
continue to take care of her in the same manner till
she succumbs naturally. They do not feel that Ms.
Aruna Ramachandra Shanbaug is living a painful
and miserable life.
G
Ill. Examination

Illa. Physical examination

She was conscious, unable to co-operate and
H
1090 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A appeared to be unaware of her surroundings.

Her body was lean and thin. She appeared neat
and clean and lay curled up in the bed with
movements of the left hand and made sounds,
especially when many people were present in the
B
room.

She was afebrile, pulse rate was 80/min, regular,
and good volume. Her blood pressure recorded on
the nursing charts was normal. Respiratory rate was
c 15/min, regular, with no signs of respiratory distress
or breathlessness.

There was no pallor, cyanosis, clubbing or icterus.
She was edentulous (no teeth).
D Skin appeared to be generally in good condition,
there were no bed sores, bruises or evidence of old
healed bed sores. There were no skin signs
suggestive of nutritional deficiency or dehydration.

E Her wrists had developed severe contractures, and
were fixed in acute flexion. Both knees had also
developed contractures (right more than left).

A nasogastric feeding tube (Ryle?s tube) was in
situ. She was wearing diapers.
F
Abdominal, respiratory and cardiovascular
examination was unremarkable.

lllb. Neurological Examination
G
When examined she was conscious with eyes
open wakefulness but without any apparent
awareness (see Table 1 for detailed assessment
of awareness). From the above examination, she
has evidence of intact auditory, visual, somatic and
H
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1091
INDIA AND ORS. [MARKANDEY KAT JU, J.]

motor primary neural pathways. However ho A
definitive evidence for awareness of auditory, visual,
somatic and motor stimuli was observed during our
examinations.

There was no coherent response to verbal
B
commands or to calling her name. She did not turn
her head to the direction of sounds or voices. When
roused she made non-specific unintelligible sounds
("uhhh, ahhh") loudly and continuously but was
generally silent when undisturbed.
c
Menace reflex (blinking in response to hand
. movements in front of eyes) was present in both
eyes and hemifields but brisker and more
consistent on the left. Pupillary reaction was normal
bilaterally. Fundi could not be seen since she D
closed her eyes tightly when this was attempted. At
rest she seemed to maintain preferential gaze to
the left but otherwise gaze was random and
undirected (roving) though largely conjugate. Facial
movements were symmetric. Gag reflex (movement E
of the palate in response to insertion of a tongue
depressor in the throat) was present and she does
not pool saliva. She could swallow both
teaspoonfuls of water as well as a small quantity of
mashed banana. She licked though not very F
completely sugar smeared on her lips, suggesting
some tongue control.

She had flexioh contractures of all limbs and
seemed to be incapable of turning in bed
spontaneously. There was what appeared to be G
minimal voluntary movement with the left upper limb
(touching her wrist to the eye for instance, perhaps
as an attempt to rub it). When examined/disturbed,
she seemed to curl up even further in her flexed
H
1092 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A foetal position. Sensory examination was not
possible but she did seem to find passive
movement painful in all four limbs and moaned
continuously during the examination. Deep tendon
reflexes were difficult to elicit elsewhere but were
B present at the ankles. Plantars were withdrawal/
extensor.

Thus neurologically she appears to be in a
state of intact consciousness without awareness of
self/environment. No cognitive or communication
c abilities could be discerned. Visual function if
present is severely limited. Motor function is grossly
impaired with quadriparesis.

Ille. Mental Status Examination
D
1. Consciousness, General Appearance, Attitude and
Behavior:

Ms. Aruna Ramachandra Shanbaug was
resting quietly in her bed, apparently listening to the
E devotional music, when we entered the room.
Though, her body built is lean, she appeared to be
well nourished and there were no signs of
malnourishment. She appeared neat and clean.
She has developed contractures at both the wrist
F joints and knee joints and so lied curled up in the
bed with minimum restricted physical movements.

She was conscious but appeared to be
unaware of herself and her surroundings. As soon
as she realized the presence of some people in her
G
room, she started making repetitive vocal sounds
and moving her hands. This behavior subsided as
we left the room. She did not have any involuntary
movements. She did not demonstrate any catatonic,
hostile or violent behavior.
H
• , ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1093
INDIA AND ORS. [MARKANDEY KATJU, J.]
Her eyes were wide open and from her A
behavior it appeared that she could see and hear
us, as when one loudly called her name, she
stopped making vocal sounds and hand
movements for a while. She was unable to maintain
sustained eye-to eye contact but when the hand B
was suddenly taken near her eyes, she was able
to blink well.

When an attempt was made to feed her by
mouth, she accepted a spoonful of water, some C
sugar and mashed banana. She also licked the
sugar and banana paste sticking on her upper lips
and swallowed it. Thus, at times she could
cooperate when fed.

2. Mood and affect : D

It was difficult to assess her mood as she was
unable to communicate or express her feelings.
She appeared to calm down when she was touched
or caressed gently. She did not cry or laugh or E
expressed any other emotions verbally or non-
verbally during the examination period. When not
disturbed and observed quietly from a distance,
she did not appear to be in severe pain or misery.
Only when many people enter her room, she
F
appears to get a bit disturbed about it.

3. Speech and thoughts :

She could make repeated vocal sounds but
she could not utter or repeat any comprehensible F
words or follow and respond to any of the simple
commands (such as "show me your tongue"). The
only way she expressed herself was by making
some sounds. She appeared to have minimal
language comprehension or expression.
H
1094 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A 4. Perception :

She did not appear to be having any
perceptual abnormality like hallucinations or
illusions from her behavior.
B 5. Orientation, memory and intellectual capacity:

Formal assessment of orientation in time,
place and person, memory of immediate, recent
and remote events and her intellectual capacity
c could not be carried out.

6. Insight :

As she does not appear to be fully aware of
herself and her surroundings, she is unlikely to have
D any insight into her illness.

IV. Reports of Investigations

IVa. CT Scan Head (Plain)
E This is contaminated by movement artefacts.
It shows generalized prominence of supratentorial
sulci and ventricles suggestive of generalized
cerebral atrophy. Brainstem and cerebellum seem
normal. lschemic foci are seen in left centrum semi-
F ovale and right external capsule. In addition a small
left parieto-occipital cortical lesion is also seen and
is probably ischemic.

IVb. EEG
G The dominant feature is a moderately rhythmic
alpha frequency at 8-10 Hz and 20-70 microvolts
which is widely distributed and is equally prominent
both anteriorly and posteriorly. It is not responsive
to eye-opening as seen on the video. Beta at 18-
H
•
ARUNA RAM CHANDRA SHANBAUG v. UNION OF 1095
INDIA AND ORS. [MARKANDEY KAT JU, J.]

25 Hz is also seen diffusely but more prominently A
anteriorly. N.o focal or paroxysmal abnormalities
were noted

IVc. Blood

Reports of the hemoglobin, white cell count, B
liver function tests, renal function tests, electrolytes,
thyroid function, Vitamin 812 and 1,25 dihydroxy Vit
03 levels are unremarkable. (Detailed report from
KEM hospital attached.)
c
V. Diagnostic impression

1) From the longitudinal case history and
examination it appears that Ms. Aruna
Ramachandra Shanbaug has developed non-
progressive but irreversible brain damage D
secondary to hypoxic-ischemic brain injury
consistent with the known effects of strangulation.
Most authorities consider a period exceeding 4
we.eks in this condition, especially when due to
hypoxic-ischemic injury as confirming irreversibility. E
In Ms. Aruna's case, this period has been as long
as 37 years, making her perhaps the longest
survivor in this situation.

2) She meets most of the criteria for being in F
a permanent vegetative state (PVS). PVS is
defined as a clinical condition of unawareness
(Table 1) of self and environment in which the
patient breathes spontaneously, has a stable
circulation and shows cycles of eye closure and G
opening which may simulate sleep and waking
(Table 2). While she has evidence of intact auditory,
visual, somatic and motor primary neural pathways,
·no definitive evidence for awareness of auditory,
visual, somatic and motor stimuli was observed H
1096 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
during our examinations.
A
VI. Prognosis

Her dementia has not progressed and has
remained stable for last many years and it is likely
to remain same over next many years. At present
B there is no treatment available for the brain damage
she has sustained.

VII. Appendix

VII a. Table 1. CLINICAL ASSESSMENT TO ESTABLISH
c UNAWARENESS
(Wade OT, Johnston C. British STIMULUS RESPONSE
Med Journal 1999; 319 841-
844) DOMAIN
OBSERVED]
D AUDITORY AWARENESS Sudden loud noise (clap) Startle present,
ceases other movements Meaningful Non-specific head and body
noise (rattled steel tumbler and spoon, movements
film songs of 1970s) Unable to obey commands. No
Spoken commands ("close your ey1;1s''. specific or reproducible response
"lift left hand ": in English, Marathi
E and Konkani)

VISUAL AWARENESS Bright light to eyes Pupillary responses present
Large moving object in front of eyes Tracking movements: present but
(bright red torch, plastic rattle) inconsistent and poorly
reproducible
F Visual threat (fingers suddenly moved Blinks, but more consistent on
toward eyes) left than right
Written command (English, Marathi: No response
close your eyes)
SOMATIC AWARENESS Painful stimuli Withdrawal, maximal in left upper
to limbs (light limb
G prick with sharp
end of tendon
hammer)

Painful stimuli to face Distress but no co-ordinated
Routine sensory stimuli during care response to remove stimulus
H
• AR UNA RAMCHANDRA SHANBAUG v. UNION OF 1097
INDIA AND ORS. [MARKANDEY KAT JU, J.]
(changing position in bed and feeding) Generalized non specific A
response presence but no
coordinated attempt to assist in
process

MOTOR OUTPUT Spontaneous Non-specific undirected
activities. Goal directed - B
lifting left hand to left side of
face, apparently to rub her
left eye.

Responsive Non-specific undirected without
any goal directed activities. C
Conclusion:

From the above examination, she has evidence of
intact auditory, visual, somatic and motor primary neural
pathways. However no definitive evidence for awareness . D
of auditory, visual, somatic and motor stimuli was
observed during our examinations.

Vllb. Table 2. Application of Criteria for Vegetative State
(Bernat JL. Neurology clinical Practice Examination findings : whether E
2010; 75 (suppl. 1): S33-S38)Criteria she meets Criteria (Yes /No I
Probably)
Unaware of self and environment Yes, Unaware
No interaction with others Yes, no interaction
No sustained, reproducible or purposeful Yes, no sustained, reproducible or
voluntary behavioural response to visual, purposeful behavioural response,
auditory, tactile or noxious stimuli but : F
1. Resisted examination of fundus
2. Licked sugar off lips
No language comprehension or Yes, no comprehension
expression
No blink to visual threat Blinks, but more consistent on left
than right
Present sleep wake cycles Yes (according to f!Urses)
G
Preserved autonomic and hypothalamic Yes
function
Preserved cranial nerve reflexes Yes
Bowel'·~l"!d bladder incontinence Yes

H
.1098 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A VIII. References
1. Multi-Society Task Force on PVS. Medical aspects of
the persistent vegetative state. N Engl J Med 1994; 330: 1499-
508

B 2. Wade OT, Johnston C. The permanent vegetative state:
practical guidance on diagnosis and management. Brit Med J
1999; 319:841-4

3. Giacino JT, Ashwal S, Childs N, et al. The minimally
C conscious state : Definition and diagnostic criteria. Neurology
2002;58:349-353

4. Bernat JL. Current controversies in states of chronic
unconsciousness. Neurology 2010;75;533"

D 8. On 18th February, 2011, we then passed the following
order:

"In the above case Or. J.V. Divatia on 17.02.2011
handed over the report of the team of three doctors whom
we had appointed by our order dated 24th January, 2011.
E He has also handed over a CD in this connection. Let the
report as well as the CD form part of the record.

On mentioning, the case has been adjourned to be
listed on 2nd March, 2011 at the request of learned
F Attorney General of India, Mr. T.R. Andhyarujina, learned
Senior Advocate, whom we have appointed as amicus
curiae in the case as well as Mr. Shekhar Naphade,
learned Senior Advocate for the petitioner.

We request the doctors whom we had appointed
G
viz., Dr. J.V. Divatia, Dr. Roop Gurshani and Dr. Nilesh
Shah to appear before us on 2nd March, 2011 at 10.30
A.M. in the Court, since it is quite possible that we may
like to ask them questions about the report which they have
submitted, and in general about their views in connection
H
•
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1099
INDIA AND ORS. [MARKANDEY KATJU, J.]

with euthanasia. · A
On perusal of the report of the committee of doctors
to us we have noted that there are many technical terms ·
which have been used therein which a non-medical man
would find it difficult to understand. We, therefore, request
8
the doctors to submit a supplementary report by the next
date of hearing (by e:mailing copy of the same two days
before the next date of hearing) in which the meaning of
these technical terms in the report is also explained.

The Central Government is directed to arrange for C
the air travel expenses of all the three doctors as well as
their stay in a suitable accommodation at Delhi and also
to provide them necessary conveyance and other facilities
they require, so that they can appear before us on
02.03.2011. D

An honorarium may also be given to the doctors, if
they so desire, which may be arranged mutually With the
· learned Attorney General.

The Dean of King Edward Memorial Hospital as well E
as Ms. Pinky Virani (who claims to be the next friend of
the petitioner) are directed to intimate the brother(s)/
sisterts) or other close relatives of the petitioner that the
case will be listed on 2nd March, 2011 in the Supreme
Court and they can put forward their views before the F
Court, if they so desire. Learned counsel for the petitioner
and the Registry of this Court shall communicate a copy
of this Order forthwith to the Dean, KEM Hospital. The
Dean, KEM Hospital is requested to file an affidavit stating
his views regarding the prayer in this writ petition, and also G
the condition of the petitioner.

Copy of this Order shall be given forthwith to learned
Attorney General of India, Mr. Shekhar Naphade and Mr.
Andhyarujina, learned Senior Advocates.
H
1100 SUPREME COURT REPORTS [2011) 4 S.C.R.
•
A Let the matter be listed as the first item on 2nd March,
2011 ".

9. On 2.3.2011, the matter was listed again before us and
we first saw the screening of the CD submitted by the team of
doctors along with their report. We had arranged for the
8
screening of the CD in the Courtroom, so that all present in
Court could see the condition of Aruna Shanbaug. For doing
so, we have relied on the precedent of the Nuremburg trials in
which a screening was done in the Courtroom of some of the
Nazi atrocities during the Second World War. We have heard
C learned counsel for the parties in great detail. The three doctors
nominated by us are also present in Court. As requested by
us, the doctors team submitted a supplementary report before
us which states :

D Supplement To The Report Of The Medical Examination
Of Aruna Ramchandra Shanbaug Jointly prepared and
signed by
1. Dr. J.V. Divatia
(Professor and Head, Department of Anesthesia, Critical
E Care and Pain, at Tata Memorial Hospital, Mumbai)

2. Dr. Roop Gursahani
(Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)

F 3. Dr. Nilesh Shah
(Professor and Head, Department of Psychiatry at
Lokmanya Tilak Municipal Corporation Medical College
and General Hospital).

G Mumbai
February 26, 2011

H
•
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1101
INDIA AND ORS. [MARKANDEY KAT JU, J.]
INDEX A
Introduction 3
Terminology 4
Glossary of Technical terms 7
Opinion 11 3
B
Introduction

This document is a supplement to the Report of
Examination of Ms. Aruna Ramachandra Shanbaug, dated
February 14, 2011.
c
On perusal of the report, the Hon. Court observed that
there were many technical terms which a non-medical man
would find it difficult to understand, and requested us to
submit a supplementary report in which the meaning of
these technical terms in the report is also explained. D
We have therefore prepared this Supplement to include a
glossary of technical terms usec:t in the earlier Report, and
also to clarify some of the terminology related to brain
damage. Finally, we have given our opinion in the case of E
Aruna Shanbaug.
Terminology

The words coma, brain death and vegetative state are
often used in common language to describe severe brain F
damage. However, in medical terminology, these terms
have specific meaning and significance.

Brain death

A state of prolonged irreversible cessation of all brain G
activity, including lower brain stem function with the
complete absence of voluntary movements, responses to
stimuli, brain stem reflexes, and spontaneous respirations.

E~planation:. This is the most severe form of brain H
1102 SUPREME COURT REPORTS [2011) 4 S.C.R.
•
A damage. The patient is unconscious, completely
unresponsive, has no reflex activity from centres in the
brain, and has no breathing efforts on his own. However
the heart is beating. This patient can only be maintained
alive by advanced life support (breathing machine or
B ventilator, drugs to maintain blood pressure, etc). These
patients can be legally declared dead ('brain dead') to
allow their organs to be taken for donation.

Aruna Shanbaug is clearly not brain dead.
c Coma

Patients in coma have complete failure of the arousal
system with no spontaneous eye opening and are unable
to be awakened by application of vigorous sensory
D stimulation. ·

Explanation: These patients are unconscious. They cannot
be awakened even by application of a painful stimulus.
They have normal heart beat and breathing, and do not
require advanced life support to preserve life.
E
Aruna Shanbaug is clearly not in Coma.
Vegetative State (VS)

The complete absence of behavioral evidence for self or
F environmental awareness. There is preserved capacity for
spontaneous or stimulus-induced arousal, evidenced by
sleep-wake cycles .. i.e. patients are awake, but have no
awareness.
G Explanation: Patients appear awake. They have normal
heart beat and breathing, and do not require advanced life
support to preserve life. They cannot produce a purposeful,
co-ordinated, voluntary response in a sustained manner,
although they may have primitive reflexive responses to
H . light, sound, touch or pain. They cannot understand,
• AR UNA RAM CHANDRA SHANBAUG v. UNION OF 1103
INDIA AND ORS. [MARKANDEY KATJU, J.]
communicate •. speak, or have emotions. They are A
unaware of s~lf and environment and have no interaction
with others. They cannot voluntarily control passing of urine
or stools. They sleep and awaken. As the centres in the
brain controlling the heart and breathing are intact, there
is no threat to life, and patients can survive for many years B
with expert nursing care. The following behaviours may be
seen in the vegetative state :

Sleep-wake cycles with eyes closed, then open

Patient breathes on her own c
Spontaneous blinking and roving eye movements

Produce sounds but no words

Brief, unsustained visual pursuit (following an object with D
her eyes) ·

Grimacing to pain, changing facial expressions

Yawning; chewihg jaw movements
E
Swallowing of her own spit

Nonpurposeful limb movements; arching of back

Reflex withdrawal from painful stimuli
F
Brief movements of head or eyes toward sound or
movement without apparent localization or fixation

Startles with a loud sound
Almost all of these features consistent with the diagnosis G
of permanent vegetative state were present during the
medical examination of Aruna Shanbaug.

H
1104 SUPREME COURT REPORTS [2011] 4 S.C.R.

A Minimally Conscious State
Some patients with severe alteration in consciousness
have neurologic findings that do not meet criteria for VS.
These patients demonstrate some behavioral evidence of·
conscious awareness but remain unable to reproduce this
B
behavior consistently. This condition is referred to here as
the minimally conscious state (MCS). MCS is distinguished
from VS by the partial preservation of conscious
awareness.

C To make the diagnosis of MCS, limited but clearly
discernible evidence of self or environmental awareness
must be demonstrated on a reproducible or sustained
basis by one or more of the following behaviors:

0 • Following simple commands.

• Gestural or verbal yes/no responses (regardless of
accuracy).

• Intelligible sounds
E
• Purposeful behavior, including movements or emotional
behaviors (smiling, crying) that occur in relation to relevant
environmental stimuli and are not due to reflexive activity.
Some examples of qualifying purposeful behavior include:
F - appropriate smiling or crying in response to the linguistic
or visual content of emotional but not.Jo neutral topics or
stimuli

- vocalizations or gestures that occur in direct response
G to the linguistic content of questions

- reaching for objects that demonstrates a clear
relatio.nship between object location and direction of reach

- touching or holding objects in a manner that
H accommodates the size and shape of the object
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1105
INDIA AND ORS. [MARKANDEY KAT JU, J.]

-: pursuit eye movement or sustained fixation that occurs A
in direct response to moving or salient stimuli

None of the above behaviours suggestive of a Minimally
Conscious State were observed during the examination of
Aruna Shanbaug. B

GLOSSARY OF TECHNICAL TERMS USED IN THE MAIN
REPORT
(In Alphabetical order) Term Meaning
in text
Affect Feeling conveyed though
c
expressions and behavior
A febrile No fever
Auditory Related to hearing
Bedsore A painful wound on the body
caused by having to lie in bed for D
a long time
Bilaterally On both sides (right and left)
Bruise An injury or mark where the skin
has not been broken but is darker
in colour, often as a result of being E
hit by something
Catatonic Describes someone who is stiff
and not moving or reacting, as if
dead
Cerebral atrophy Shrinking of the globe (cortex) of F
the brain
Clubbing Bulging or prominence of the
nailbed, making base of the nails
look thick. This is often due to
longstanding infection inside the G
lungs.
Cognitive Related to ability to understand
and process information in the
brain
Conjugate Synchronised movement (of the H
1106 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A eyeball)
Conscious Awake with eyes open. By itself
the term conscious does not
convey any information about
awareness of self and
B surroundings, or the ability to
understand, communicate, have
emotions, etc.
Contractures Muscles or tendons that have
become shortened and taut over
c a period of time. This causes
deformity and restriction of
movements.
CT Scan A specialized X-ray test where
images of the brain (or other part
of the body) are obtained in cross-
D
section at different levels. This
allows clear visualization of
different parts of the brain
Cyanosis Bluish discoloration of the nails,
lips or skin. It may be due to low
E levels of oxygen in the blood
Deep tendon reflexes Reflex response of the fleshy part
of certain muscles when its tendon
is hit lightly with an examination
hammer
F Dementia Disorder in which there is a
cognitive defect, i.e. the patient is
unable to understand and process
information in the brain
Electroencephalography, Recording of the electrical activity
G (EEG) of the brain
Febrile illness Illness with fever
Fracture A crack or a break in bones
Fundi Plural of fundus. Fundus of the eye
is the interior surface of the eye,
H opposite the lens. It is examined
• AR UNA RAMCHANDRA SHANBAUG v. UNION OF 1107
INDIA AND ORS. [MARKANDEY KATJU, J.)
with an instrument called the A
ophthalmoscope
Gag reflex Movement of the palate in
response to insertion of a tongue
depressor in the throat
Hallucinations Perception in the absence of B
stimuli. (e.g. hearing voices which
are not there or which are
inaudible to others)
Hemifields Right or left part of the field of
vision c
Hypoxic Related to reduced oxygen levels
in the blood
lcterus Yellowish discoloration of the skin
and eyeballs. This is commonly
known as jaundice, and may be
0
caused by liver disease
Illusions Misperception of stimuli (seeing a
rope as a snake)
Immediate memory Memory of events which have
occurred just a few minutes ago
Insight Person's understanding of his or E
her own illness
Intellectual capacity Ability to solve problems. The
ability to learn, understand and
make judgments or have opinions
that are based on reason F
Involuntary movements Automatic movements over which
patient has no control
lschemic Related to restriction or cutting off
of the blood flow to any part of the
body G
· Malnourishment Weak and in bad health because
of having too little food or too little
of the types of food necessary for
good health
Menace reflex Blinking in response to hand H
1108 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A movements in front of eyes
Mood The way one feels at a particular
time
Motor Related to movement
Movement artefacts Disturbance in the image seen in
B the CT scan due to patient
movement
Oral feed Food given through mouth
Orientation Awareness about the time, place
and person
c Pallor Pale appearance of the skin.
Usually this is due to a low red
blood cell count or low
haemoglobin level in the blood.
Passive movement Movement of a limb or part of the
body done by the doctor without
D
any effort by the patient
Perception Sensory experiences (such as
seeing, hearing etc.)
Perceptual abnormalities Abnormal sensory experiences,
e.g, seeing things that do not exist,
E hearing sounds when there are
none
Plantars Reflex response of the toes when
a sharp painful stimulus is applied
to the sole of the foot. The normal
F response is curling downwards of
the toes.
Plantars were withdrawal/ When a painful stimulus was
extensor applied to the sole of the foot the
toes spread out and there was
G reflex movement of the leg
(withdrawal) or upward curling of
the- great toe and other toes
(extensor). This is an abnormal
response indicating damage in
H the pathway in the brain or to the
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1109
INDIA AND ORS. [MARKANDEY KATJU, J.]

area in the brain controlling A
function of the legs.
Primary neural pathways Course of the nerves ·from a part
of the body to the area in the brain
responsible for the function of that
part 8
Pupiffary reaction The pupiffary light reflex controls
the diameter of the pupil, in
response to the intensity of fight.
Greater intensity light causes the
pupil to become smaller (allowing c
fess light in), whereas
Opinion

In our view, the issues in this case (and other similar
cases) are: D
1. In a person who is in a permanent vegetative state
(PVS), should withholding or withdrawal of life sustaining
therapies (many authorities would include placement of an
artificial feeding tube as a life sustaining intervention) be
'•, permissible or 'not unlawful' ? E

2. If the patient has previously expressed a wish not to
have life-sustaining treatments in case of futile care or a
PVS, should his I her wishes be respected when the
situation arises? F
:3. In case a person has not previously expressed such a
wish, if his family or next of kin makes a request to withhold
or withdraw futile life-sustaining treatments, should their
wishes be respected?
G
4. Arun~, $hanbaug has been abandoned by her family and
is being r,oo~~d after for the last 37 years by the staff of
KEM Hospital. Who should take decisions on her behalf?
I

Questions such as these come up at times in the course H
1110 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A of medical practice. We realize that answers to these
questions are difficult, and involve several ethical, legal and
social issues. Our opinion is based on medical facts and
on the principles of medical ethics. We hope that the
Honourable Court will provide guidance and clarity in this
B matter.

Two of the cardinal principles of medical ethics are Patient
Autonomy and Beneficiance.

1. Autonomy means the right to self-determination, where
c the informed patient has a right to choose the manner of
his treatment. To be autonomous the patient should be
competent to make decisions and choices. In the event that
he is incompetent to make choices, his wishes expressed
in advance in the form of a Living Will, OR the wishes of
D surrogates acting on his behalf ('substituted judgment') are
to be respected.

The surrogate is expected to represent what the patient may
have decided had he I she been competent, or to act in
the patient's best interest. It is expected that a surrogate
E
acting in the patient's best interest follows a course of
action because it is best for the patient, and is not
influenced by personal convictions, motives or other
considerations.

F 2. Beneficence is acting in what is (or judged to be) in
patient's best interest. Acting in the patient's best interest
means following a course of action that is best for the
patient, and is not influenced by personal convictions,
motives or other considerations. In some cases, the
G doctor's expanded goals may include allowing the natural
dying process (neither hastening nor delaying death, but
'letting nature take its course'), thus avoiding or reducing
the sufferings of the patient and his family, and providing
emotional support. This is not to be confused with
H euthanasia, which involves the doctor's deliberate and
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1111
INDIA AND ORS. [MARKANDEY KAT JU, J.]

intentional act through administering a,lethal injection to A
end the life of the patient.

In the present case under consideration

1. We have no indication of Aruna Shanbaug's views or
wishes with respect to life-sustaining treatments for a B
permanent vegetative state.

2. Any decision regarding her treatment will have to be
taken by a surrogate ·

3. The staff of the KEM hospital have looked after her for
c
37 years, after she was abandoned by her family. We believe
that the Dean of the KEM Hospital (representing the staff of
hospital) is an appropriate surrogate.

4. If the doctors treating Aruna Shanbaug and the Dean D
of the KEM Hospital, together acting in the best interest of the
patient, feel that life sustaining treatments should continue, their
decision should be respected.

5. If the doctors treating Aruna Shanbaug and the Dean E
of the KEM Hospital, together acting in the best interest of the
patient, feel that withholding or withdrawing life-sustaining
treatments is the appropriate course of action, they should be
allowed to do so, and their actions should not be considered
unlawful.
F
10. To complete the narration of facts and before we come
to the legal issues involved, we may mention that Dr. Sanjay
Oak, Dean KEM Hospital Mumbai has issued a statement on
24.1.2011 opposing euthanasia for the petitioner :-
G
"She means a lot to KEM hospital. She is on liquid
diet and loves listening to music. We have never subjected
her to intravenous food or fed her via a tube. All these years,
she hasn't had even one ,bedsore. When those looking
after her do not have a problem, I don't understand why a H
1112 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A third party who has nothing to do with her [Pinky Virani who
has moved the apex court to seek euthanasia for
Shanbaug] needs to worry," added Dr Oak, who, when he
took over as dean of KEM hospital in 2008, visited her first
to take her blessings. "I call on her whenever I get time. I
B am there whenever she has dysentery or any another
problem. She is very much alive and we have faith in the
judiciary," said Dr Oak."

11. Dr. Sanjay Oak has subsequently filed an affidavit in
this Court which states:
c
"a) Smt. Aruna Ramchandra Shanbaug has been
admitted in a single room in Ward No.4 which is a ward
of general internal medicine patients and she has been
there for last 37 years. She is looked after entirely by
D doctors, nurses and para-medical staff of KEM Hospital.
She has been our staff nurse and the unfortunate tragic
incidence has happened with her in KEM Hospital and I
must put on record that the entire medical, administrative,
nursing and para-medical staff is extremely attached to her
E and consider her as one of us. Her relatives and a
gentleman (her fiancee) used to visit her in the initial period
of her illness but subsequently she has been left to the care
of KEM staff. I visit her frequently and my last visit to her
was on 22nd February, 2011. I give my observations as a
F Clinician about Smt. Aruna Shanbaug as under :

b) It would be incorrect to say that Smt. Aruna
Shanbaug is an appropriate case for Coma. It appears
that for a crucial, critical period her brain was deprived of
Oxygen supply and this has resulted in her present state
G similar to that of Cerebral Palsy in the newborn child. It is
a condition where brain looses it's co-ordinatory, sensory
as well as motor functions and this includes loss of speech
and perception. This has resulted into a state which in a
layman's words "Aruna lives in her own world for last -
H
-
•
•
•
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1113
INDIAAND ORS. [MARKANDEY KATJU, J.]
37 years". She is lying in a bed in a single room for 33 A
years. She has not been able to stand or walk, nor have
we attempted to do that of late because we fear that she
is fragile and would break her bones if she falls. Her
extremities and fingers have developed contractures and
subsequent to non-use; there is wasting of her body B
muscles. Her eyes are open and she blinks frequently;
however, these movements are not pertaining to a specific
purpose or as a response to a question. At times she is
quiet and at times she shouts or shrieks. However, I must
say that her shouts and shrieks are completely oblivious c
to anybody's presence in her room. It is not true that. she
shouts after seeing a man. I do not think Aruna can
distinguish between a man and a woman, nor can she
even distinguish between ordinate and inordinate object.
We play devotional songs rendered by -Sadguru
0
Wamanrao Pai continuously in her room and she lies down
on her bed listening to them. She expresses her
displeasure by grimaces and shouts if the tape recorder
is switched off. All these years she was never fed by tube
and whenever a nurse used to take food to her lips, she E
used to swallow it. It is only since September 2010 she
developed Malaria and her oral intake dropped. In order
to take care of her calorie make need, nurses cadre
resorted to naso-gastric tube feed and now she is used
to NG feeding. However, if small morsels are held near her
lips, Aruna accepts them gladly. It appears that she relishes F
fish and occasionally smiles when she is given non-
vegetarian food. However, I am honest in admitting that her
smiles are not purposeful and it would be improper to
interpret them as a signal of gratification. I must put on
record that in the world history of medicine there would not G
be another single case where such a person is cared and
nurtured in bed for 33 long years and has not developed
a single bed sore. This speaks of volumes of excellence
of nursing care that KEM Nursing staff has given to her.
H
1114 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A c) This care is given not as a part of duty but as a
part of feeling of oneness. With every new batch of
entrants, the student nurses are introduced to her and they
are told that she was one of us and she continues to be
one of us and then they whole-heartedly take care of Aruna.
B In my opinion, this one is finest example of love,
professionalism, dedication and commitment to one of our
professional colleagues who is ailing and cannot support
herself. Not once, in this long sojourn of 33 years, anybody
has thought of putting an end to her so called vegetative
c existence. There have been several Deans and Doctors
of KEM Hospital who have cared her in succession. Right
from illustrious Dr. C.K. Deshpande in whose tenure the
incidence happened in 1973, Dr. G.B. Parulkar, Dr. Smt.
Pragna M. Pai, Dr. R.J. Shirahatti, Dr. Smt. N.A.
Kshirsagar, Dr. M.E. Yeolekar and now myself Dr. Sanjay
D
N. Oak, all of us have visited her room time and again and
have cared for her and seen her through her ups and
downs. The very idea of withholding food or putting her to
sleep by active medication (mercy killing) is extremely
difficult for anybody working in Seth GSMC & KEM
E
Hospital to accept and I sincerely make a plea to the
Learned Counsel and Hon'ble Judges of Supreme Court
of India that this should not be allowed. Aruna has probably
crossed 60 years of life and would one day meet her
natural end. The Doctors, Nurses and staff of KEM, are
F determined to take care of her till her last breath by natural
process.

d) I do not think it is proper on my part to make a
comment on the entire case. However, as a clinical
G surgeon for last 3 decades and as an administrator of the
hospitals for last 7 years and as a student of legal system
of India (as I hold "Bachelor of Law" degree from Mumbai
University), I feel that entire society has not matured
enough to accept the execution of an Act of Euthanasia
H or Mercy Killing. I fear that this may get misused and our
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1115
INDIA AND ORS. [MARKANDEY KAT JU, J.]

monitoring and deterring mechanisms may fail to prevent A
those unfortunate incidences. To me any mature society is
best judged by it's capacity and commitment to take care
of it's "invalid" ones. They are the children of Lesser God
and in fact, developing nation as we are, we should move
in a positive manner of taking care of several unfortunate B
ones who have deficiencies, disabilities and deformities."

12. The Hospital staff of KEM Hospital, Mumbai e.g. the
doctors, sister-in-charge ward no. 4 KEM hospital Lenny
Cornielo, Assistant Matron Urmila Chauhan and others have ·c
also issued statements that they were looking after Aruna
$hanbaug and want her to live. "Aruna is the bond that unites
,8s", the KEM Hospital staff has stated. One retired nurse, Tidi
Makwana, who used to take care of Aruna while in service, has
even offered to continue to take care of her without any salary
and without charging any traveling expenses. ·· D

13. We have referred to these statements because it is
evident that the KEM Hospital staff right from the Dean,
including the present Dean Dr. Sanjay Oak and down to the staff
nurses and para-medical staff have been looking after Aruna E
for 38 years day and night. What they have done is simply
marvelous. They feed Aruna, wash her, bathe her, cut her nails,
and generally take care of her, and they have been doing this
not on a few occasions but day and night, year after year. The
whole country must learn the meaning of dedication and F
sacrifice from the KEM hospital staff. In 38 years Aruna has not
developed one bed sore.

14. It is thus obvious that the KEM hospital staff has
developed an emotional bonding and attachment to Aruna
Shanbaug, and in a sense they are her real family today. Ms. G
Pinki Virani who claims to be the next friend of Aruna Shanbaug
and has filed this petition on her behalf is not a relative of Aruna
Shanbaug nor can she claim to have such close emotional
bonding with her as the KEM hospital staff. Hence, we are
treating the KEM hospital staff as the next friend of Aruna H
1116 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A Shanbaug and we decline to recognize Ms. Pinki Virani as her
next friend. No doubt Ms. Pinki Virani has written a boo.I< about
Aruna Shanbaug and has visited her a few times, and we have
great respect for her for the social causes she has espoused,
but she cannot claim to have the extent of attachment or
B bonding with Aruna which the KEM hospital staff, which has
been looking after her for years, claims to have.

SUBMISSIONS OF LEARNED COUNSEL FOR THE
PARTIES
c 15. Mr. Shekhar Naphade, learned senior counsel for the
petitioner has relied on the decision of this Court in Vikram Deo
Singh Tomar vs. State of Bihar 1988 (Supp} SCC 734 (vide
para 2) where it was observed by this Court :

D "We live in an age when this Court has demonstrated, while
interpreting Article 21 of the Constitution, that every person
is entitled to a quality of life consistent with his human
personality. The right to live with human dignity is the
fundamental right of every Indian citizen".
E 16. He has also relied on the decision of this Court in P.
Rathinam vs. Union of India and another (1994) 3 SCC 394
in which a two-Judge bench of this Court quoted with approval
a passage from an article by Dr. M. Indira and Dr. Alka Dhal in
which it was mentioned :
F
"Life is not mere living but living in health. Health is not the
absence of illness but a glowing vitality".

17. The decision in Rathinam's case (supra) was, however,
G overruled by a Constitution Bench decision of this Court in Gian
Kaur vs. State of Punjab (1996) 2 SCC 648.

18. Mr. Naphade, however, has invited our attention to
paras 24 & 25 of the aforesaid decision in which it was
observed:
H

I

•
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1117
INDIA AND ORS. [MARKANDEY KAT JU, J.]

"(24) Protagonism of euthanasia on the view that existence A
in persistent vegetative state (PVS) is not a benefit to the
patient of a terminal illness being unrelated to the principle
of 'sanctity of life' or the right to live with dignity' is of no
assistance to determine the scope of Article 21 for
deciding whether the guarantee of right to life' therein B
includes the right to die'. The right to life' including the right
to live with human dignity would mean the existence of
such a right upto the end of natural life. This also includes
the right to a dignified life upto the point of death including
a dignified procedure of death. In other words, this may c
include the right of a dying man to also die with dignity
when his life is ebbing out. But the 'right to die' with dignity
at the end of life is not to be confused or equated with the
right to die' an unnatural death curtailing the natural span
of life. D
(25) A question may arise, in the context of a dying man,
who is, terminally ill or in a persistent vegetative state that
he may be permitted to terminate it by a premature
extinction of his life in those circumstances. This category
of cases may fall within the ambit of the 'right to die' with E
dignity as a part of right to live with dignity, when death due
to termination of natural life is certain and imminent and
the process of natural death has commenced. These are
not cases of extinguishing life but only of accelerating
conclusion of the process of natural death which has F
already commenced. The debate even in such cases to
permit physician assisted termination of life is inconclusive.
It is sufficient to reiterate that the argument to support the
view of permitting termination of life in such cases to
reduce the period of suffering during the process of certain G
natural death is not available to interpret Article 21 to
include therein the right to curtail the natural span of life".

He has particularly emphasized paragraph 25 of the said
judgment in support of his submission that Aruna Shanbaug H
1118 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A should be allowed to die.

19. We have carefully considered paragraphs 24 and 25
in Gian Kaur's case (supra) and we are of the opinion that all
that has been said therein is that the view in Rathinam's case
(supra) that the right to life includes the right to die is not correct.
8
We cannot construe Gian Kaur's case (supra) to mean anything
beyond that. In fact, it has been specifically mentioned in
paragraph 25 of the aforesaid decision that "the debate even
in such cases to permit physician assisted termination of fife
is inconclusive''. Thus it is obvious that no final view was
C expressed in the decision in Gian Kaur's case beyond what we
have mentioned above .

·. .....
...
. 20. Mr. Naphade, learned senior counsel submitted that
. . '
Ms. Pinky Virani is the next friend of Aruna as she h~s written
D a book on her life called 'Aruna's story' and has been following
Aruna's case from 1980 and has done whatever possible and
within her .m:eans to help Arti'na. Mr. Naphade has also invited
our-attention to the report of the Law Commission of India, 2006
on 'Medical Treatment to Terminally Ill Patients'. We have-
E perused the said report carefully.

21. Learned Attorney General appearing for the Union of
India after inviting our attention to the relevant case law
submitted as under :

F (i) Aruna Ramchandra Shanbaug has the right to live
in her present state.

(ii) The state that Aruna Ramchandra Shanbaug is
presently in does not justify terminating her life by
G withdrawing hydration/food/medical support.

(iii) The aforesaid acts or series of acts and/or such
omissions will be cruel, inhuman and intolerable.

(iv) Withdrawing/withholding of hydration/foi:>d/medical
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1119
INDIA AND ORS. [MARKANDEY KAT JU, J.]

support to a patient is unknown to Indian law and A
is contrary to law.

(v) In case hydration or food is withdrawn/withheld from
Aruna Ramchandra Shanbaug, the efforts which
have been put in by batches after batches of nurses
8
of KEM Hospital for the last 37 years will be
undermined.

(vi) Besides causing a deep sense of resentment in the
nursing staff as well as other well wishers of Aruna
Ramchandra Shanbaug in KEM Hospital including C
the managem~t •.,such-'ads/omissions will lead to
disheartenment in them and large scale
disillusionment.

(vii) In any event,· these· acts/omissions cannot be 0
. ·permitted at the instance of Ms. Pinky Virani who
desires to be the next friend of Aruna Ramchandra
Shanbaug without any locus.

Learned Attorney General stated that the report of the Law
Commission of India on euthanasia has not been accepted by E
the Government of India. He further submitted that Indian society
is emotional and care-oriented. We do not send our parents to
old age homes, as it happens in the West. He stated that there
was a great danger in permitting euthanasia that the relatives
of a person may conspire with doctors and get him killed to F
inherit his property. He further submitted that tomorrow there
may be a cure to a medical state perceived as incurable today.

22. Mr. T. R_. Andhyarujina, learned senior counsel whom
we had appointed as Amicus Curiae, in his erudite G
submissions explained to us the law on the point. He submitted
that in general in common law it is the right of every individual
to have the control of his own person free from all restraints or
interferences of others. Every human being of adult years and
sound mind has. a right to determine what shall be done with
H
1120 SUPREME COURT REPORTS [2011) 4 S.C.R.
•
A his own body. In the case of medical treatment, for example, a
surgeon who performs an operation without the patient's
consent commits assault or battery.

23. It follows as a corollary that the patient possesses the
right not to consent i.e. to refuse treatment. (In the United States
8
this right is reinforced by a Constitutional right of privacy). This
is known as the principle of self-determination or informed
consent.

24. Mr. Andhyarujina submitted that the principle of self-
C determination applies when a patient of sound mind requires
that life support should be discontinued. The same principle
applies where a patient's consent has been expressed at an
earlier date before he became unconscious or otherwise
incapable of communicating it as by a 'living will' or by giving
D written authority to doctors in anticipation of his incompetent
situation.

Mr. Andhyarujina differed from the view of the learned
Attorney General in that while the latter opposed even passive
euthanasia, Mr. Andhyarujina was in favour of passive
E euthanasia provided the decision to discontinue life support
was taken by responsible medical practitioners.

25. If the doctor acts on such consent there is no question
of the patient committing suicide or of the doctor having aided
F or abetted him in doing so. It is simply that the patient, as he is
entitled to do, declines to consent to treatment which might or
would have the effect of prolonging his life and the doctor has
in accordance with his duties complied with the patient's
wishes.
G
26. The troublesome question is what happens when the
patient is in no condition to be able to say whether or not he
consents to discontinuance of the treatment and has also given
no prior indication of his wishes with regard to it as in the case
H of Aruna. In such a situation the patient being incompetent to
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1121
INDIA AND ORS. [MARKANDEY KATJU, J.]

express his self-determination the approach adopted in some A
of the American cases is of "substituted judgment" or the
judgment of a surrogate. This involves a detailed inquiry into
the patient's views and preferences. The surrogate decision
maker has to gather from material facts as far as possible the
decision which the incompetent patient would have made if he B
was competent. However, such a test is not favoured in English
· law in relation to incompetent adults .
."'
2.i. Absent any indication from a patient who is
:: incompetent the test which is adopted by Courts is what is in
the best interest of the patient whose life is artificially prolonged C
by such life support. This is not a question whether it is in the
t. best interest of the patient that he should die. The question is
f whether it is in the best interest of the patient that his life should
' be prolonged by the continuance of the life support treatment.
·This opinion must be formed by a responsible and competent D
body of medical persons in charge of the patient.

28. The withdrawal of life support by the doctors is in law
considered as an omission and not a positive step to terminate
the life. The latter would be euthanasia, a criminal offence under E '
the present law in UK, USA and India.

29. In such a situation, generally the wishes of the patient's
immediate family will be given due weight, though their views
cannot be determinative of the carrying on of treatment as they F
cannot dictate to responsible and competent doctors what is
in the best interest of the patient. However, experience shows
that in most cases the opinions of the doctors and the
immediate relatives coincide.

30. Whilst this Court has held that there is no right to die G !
(suicide) under Article 21 of the Constitution and attempt to
suicide is a crime vide Section 309 IPC, the Court has held
that the right to life includes the right to live with human dignity, ·
and in the case of a dying person who is terminally ill or in a
permanent vegetative state he may be permitted to terminate H
1122 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A it by a premature extinction of his life in these circumstances
and it is not a crime vide Gian Kaur's case (supra).

31. Mr. Andhyarujina submitted that the decision to
withdraw the life support is taken in the best interests of the
patient by a body of medical persons. It is not the function of
8
the Court to evaluate the situation and form an opinion on its
own. In England for historical reasons the parens patriae
jurisdiction over adult mentally incompetent persons was
abolished by statute and the Court has no power now to give
C its consent. In this situation, the Court only gives a declaration
that the proposed omission by doctors is not unlawful.

32. In U.K., the Mental Capacity Act, 2005 now makes
provision relating to persons who lack capacity and to
determine what is in their best interests and the power to make
D declaration by a special Court of Protection as to the lawfulness
of any act done in relation to a patient.

33. Mr. Andhyarujina submitted that the withdrawal of
nutrition by stopping essential food by means of nasogastric
E tube is not the same as unplugging a ventilator which artificially
breathes air into the lungs of a patient incapable of breathing
resulting in instant death. In case of discontinuance of artificial
feeding the patient will as a result starve to death with all the
sufferings and pain and distress associated with such starving.
F This is a very relevant consideration in a PVS patient like Aruna
who is not totally unconscious and has sensory conditions of
pain etc. unlike Antony Bland in Airedale vs. Director MHD
(1993) 2 WLR 316 who was totally unconscious. Would the
doctor be able to avoid such pain or distress by use of
sedatives etc.? In such a condition would it not be more
G appropriate to continue with the nasogastric feeding but not
take any other active steps to combat any other illness which
she may contract and which may lead to her death?

34. Mr. Andhyarujina further submitted that in a situation
H like that of Aruna, it is also necessary to recognize the deep
ARLINA RAMCHANDRA SHANBAUG v. UNION OF 1123
INDIA AND ORS. [MARKANDEY KAT JL}, J.]

agony of nurses of the hospital who have with deep care looked A
after her for over 37 years and who may not appreciate the
withdrawal of the life support. It may be necessary that their
views should be considered by the Court in some appropriate
way.
B
35. Mr. Andhyarujina, in the course of his submission stated
that some Courts in USA have observed that the view of a
surrogate may be taken to be the view of the incompetent
patient for deciding whether to withdraw the life support, though
the House of Lords in Airedale's case has not accepted this. C
He submitted that relatives of Aruna do not seem to have cared
for her and it is only the nursing staff and medical attendants
of KEM hospital who have looked after her for 37 years. He
has also submitted that though the humanistic intention of Ms.
Pinky Virani cannot be doubted, it is the opinion of the
attending doctors and nursing staff which is more relevant in D
this case as they have looked after her for so many years. ·
I

36. Mr. Pallav Shishodia, learned senior counsel for the
Dean, KEM hospital, Mumbai submitted that Ms. Pinky Virani
has no locus standi in the matter and it is only the KEM hospital E
staff which could have filed such a writ petition.

37. We have also heard learned counsel for the State of
Maharashtra, Mr. Chinmoy Khaldkar and other assisting
counsel whose names have been mentioned in this judgment.
They have been of great assistance to us as we are deciding
F
a very sensitive and delicate issue which while requiring a
humanistic approach, also requires great case and caution to
prevent misuse. We were informed that not only the learned
counsel who argued the case before us, but also the assistants
(whose names have been mentioned in the judgment) have G
done research on the subject for several weeks, and indeed
this has made our task easier in deciding this case. They
therefore deserve our compliment and thanks.

Legal Issues : Active and Passive Euthanasia H
1124 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A 38. Coming now to the legal issues in this case, it may be
noted that euthanasia is of two types : active and passive.
Active euthanasia entails the use of lethal substances or forces
to kill a person e.g. a lethal injection given to a person with
terminal cancer who is in terrible agony. Passive euthanasia
B entails withholding of medical treatment for continuance of life,
e.g. withholding of antibiotics where without giving it a patient
is likely to die, or removing the heart lung machine, from a
patient in coma.

39. The general legal position all over the world seems to
C be that while active euthanasia is illegal unless there is
legislation permitting it, passive euthanasia is legal even without
legislation provided certain conditio'ns and safeguards are
maintained.

D 40. A further categorization of euthanasia is between
voluntary euthanasia and non voluntary euthanasia. Voluntary
euthanasia Is where the consent is taken from the patient,
whereas non voluntary euthanasia is where the con&ent is
unavailable e.g. when the patient is in coma, or is otherwise
E unable to give consent. While there is no legal difficulty in the
case of the former, the latter poses several problems, which .
we shall address. ·

ACTIVE EUTHANASIA

F 41. As already stated above active euthanasia is a crime ,
all over the world except where permitted by legislation. In India
active euthanasia is illegal and a crime under section 302 or
at least section 304 IPC. Physician assisted suicide is a crime
under section 306 IPC (abetment to suicide).
G
42. Active euthanasia is taking specific steps to ca~_se the
patient's death, such as injecting the patient with some>lethal
substance, e.g. sodium pentothal which causes a person deep
sleep in a few seconds, and the person instantaneously and
H painlessly dies in this deep sleep.
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1125
INDIA AND ORS. [MARKANDEY KATJU, J.]
43. A distinction is sometimes drawn between euthanasia A
and physician assisted dying, the difference being in who
administers the lethal medication. In euthanasia, a physician or
third party administers it, while in physician assisted suicide it
is the patient himself who does it, though on the advice of the
doctor. In many countries/States the latter is legal while the B
former is not.

44. 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. c
45. An important idea behind this distinction is that in
"passive euthanasia" the doctors are not actively killing anyone;
they are simply not saving him. While we usually applaud
someone who saves another person's life, we do not normally D
condemn someone for failing to do so. If one rushes into a
burning building and carries someone out to safety, he will
probably be called a hero. But if one sees a burning building
and people screaming for help, and he stands on the sidelines
-- whether out of fear for his own safety, or the belief that an E
inexperienced and ill-equipped person like himself would only
get in the way of the professional firefighters, or whatever -- if
one does nothing, few would judge him for his inaction. One
would surely not be prosecuted for homicide. (At least, not
unless one started the fire in the first place.) F

46. Thus, proponents of euthanasia say that while we can
debate whether active euthanasia should be legal, there can
be no debate about passive euthanasia: You cannot prosecute
someone for failing to save a life. Even if you think it would be
good for people to do X, you cannot make it illegal for people G
to not do X, or everyone in the country who did not do X today
would have to be arrested.

47. Some persons are of the view that the distinction is
not valid. They give the example of the old joke about the child H
1126 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A who says to his teacher, "Do you think it's right to punish
someone for something that he didn't do?" "Why, of course
not," the teacher replies. "Good," the child says, "because I
didn't do my homework."

48. In fact we have many laws that penalize people for what
8 they did not do. A person cannot simply decide not to pay his
income taxes, or not bother to send his/her children to school
(where the law requires sending them), or not to obey a
policeman's order to put down one's gun.

C 49. However, we are of the opinion that the distinction is
valid, as has been explained in some details by Lord Goff in
Airedale's case (infra) which we shall presently discuss.

LEGISLATION IN SOME COUNTRIES RELATING TO
D EUTHANASIA OR PHYSICIAN ASSISTED DEATH

50. Although in the present case we are dealing with a
case related to passive euthanasia, it would be of some
interest to note the legislations in certain countries permitting
active euthanasia. These are given below.
E
Netherlands:

Euthanasia in the Netherlands is regulated by the
"Termination of Life on Request and Assisted Suicide
(Review Procedures) Act", 2002. It states that euthanasia
F
and physician-assisted suicide are not punishable if the
attending physician acts in accordance with the criteria of
due care. These criteria concern the patient's request, the
patient's suffering (unbearable and hopeless), the
information provided to the patient, the presence of
G reasonable alternatives, consultation of another physician
and the applied method of ending life. To demonstrate their
compliance, the Act requires physicians to report
euthanasia to a review committee.

H
•
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1127
INDIA AND ORS. [MARKANDEY KATJU, J.]

The legal debate concerning euthanasia in the Netherlands A
took off with the "Postma case" in 1973, concerning a
physician who had facilitated the death of her mother
following repeated explicit requests for euthanasia. While
the physician was convicted, the court's judgment set out
criteria when a doctor would not be required to keep a 8
patient alive contrary to his will. This set of criteria was
formalized in the course of a number of court cases during
the 1980s.

Termination of Life on Request and Assisted Suicide
(Review Procedures) Act took effect on April 1, 2002. It C
legalizes euthanasia and physician assisted suicide in very
specific cases, under very specific circumstances. The law
was proposed by Els Borst, the minister of Health. The
procedures codified in the law had been a convention of
the Dutch medical community for over twenty years. D

The law allows a medical review board to suspend
prosecution of doctors who performed euthanasia when
each of the following conditions is fulfilled:

* the patient's suffering is unbearable with no prospect of E
improvement

* the patient's request for euthanasia must be voluntary and
persist over time (the request cannot be granted when
under the influence of others, psychological illness, or F
drugs)

* the patient must be fully aware of his/her condition,
prospects and options

* there must be consultation with at least one other G
independent doctor who needs fo confirm the conditions
mentioned above

* the death must be carried out in a medically appropriate
H
1128 SUPREME COURT REPORTS (2011) 4 S.C.R.•
A fashion by the doctor or patient, in which case the doctor
must be present

* the patient is at feast 12 years old (patients between 12
and 16 years of age require the consent of their parents)

B The doctor must also report the cause of death to the
municipal coroner in accordance with the relevant
provisions of the Burial and Cremation Act. A regional
review committee assesses whether a case of termination
of life on request or assisted suicide complies with the due
C care criteria. Depending on its findings, the case will either
be closed or, if the conditions are not met, brought to the
attention of the Public Prosecutor. Finally, the legislation
offers an explicit recognition of the validity of a written
declaration of the will of the patient regarding euthanasia
o (a "euthanasia directive"). Such declarations can be used
when a patient is in a coma or otherwise unable to state if
they wish to be euthanized.

Euthanasia remains a criminal offense in cases not
meeting the law's specific conditions, with the exception
E of several situations that are not subject to the restrictions
of the law at all, because they are considered normal
medical practice. These are :

* stopping or not starting a medically useless (futile)
F treatment

* stopping or not starting a treatment at the patient's reques

* speeding up death as a side-effect of treatment
necessary for alleviating serious suffering
G
Euthanasia of children under the age of 12 remains
technically illegal; however, Dr. Eduard Verhagen has
documented several cases and, together with colleagues
and prosecutors, has developed a protocol to be followed
H in those cases. Prosecutors will refrain from pressing
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1129
INDIA AND ORS. [MARKANDEY KATJU, J.)

charges if this Groningen Protocol is followed. A
Switzerland:
Switzerland has an unusual position on assisted suicide:
it is legally permitted and can be performed by non-
physicians. H,owever, euthanasia is illegal, the difference 8
between assisted suicide and euthanasia being that while
in the former the patient administers the lethal injection
himself, in the latter a doctor or some other person
administers it.
c
Article 115 of the Swiss penal code, which came into
effect in 1942 (having been approved in 1937), considers
assisting suicide a crime if, and only if, the motive is selfish.
The code does not give physicians a special status in
assisting suicide; although, they are most likely to have o
access to suitable drugs. Ethical guidelines have cautioned
physicians against prescribing deadly drugs.

Switzerland seems to be the only country in which the law
limits the circumstances in which assisted suicide is a
crime, thereby decriminalising it in other cases, without E
requiring the involvement of a physician. Consequently,
non-physicians have participated in assisted suicide.
However, legally, active euthanasia e.g. administering a
lethal injection by a doctor or some other person to a
patient is illegal in Switzerland (unlike in Holland where it F
is legal under certain conditions).

The Swiss law is unique because (1) the recipient need
not be a Swiss national, and (2) a physician need not be
involved. Many persons from other countries, especially G
Germany, go to Switzerland to undergo euthanasia.

Belgium:

Belgium became the second country in Europe after
H
1130 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A Netherlands to legalize the practice of euthanasia in
September 2002.

The Belgian law sets out conditions under which suicide
can be practised without giving doctors a licence to kill.
B Patients wishing to end their own lives must be conscious
when the demand is made and repeat their request for
euthanasia. They have to be under "constant and
unbearable physical or psychological pain" resulting from ·
an accident or incurable illness.
c
The law gives patients the right to receive ongoing
treatment with painkillers -- the authorities have to pay to
ensure that poor or isolated patients do not ask to die
because they do not have money for such treatment.
D Unlike the Dutch legislation, minors cannot seek assistance
to die.

In the case of someone who is not in the terminal stages
of illness, a third medical opinion must be sought.
E
Every mercy killing case will have to be filed at a special
commission to decide if the doctors in charge are following
the regulations.

U.K., Spain, Austria, Italy, Germany, France, etc.
F
In none of these countries is euthanasia or physician
assisted death legal. In January 2011 the French Senate
defeated by a 170-142 vote a bill seeking to legalize
euthanasia. In England, in May 2006 a bill allowing
G physician assisted suicide, was blocked, and never
became law.
1.Jnited States of America:

Active Euthanasia is illegal in all states in U.S.A., but
H
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1131
INDIA AND ORS. [MARKANDEY KATJU, J.]
physician assisted dying is legal in the states of Oregon, A
Washington and Montana. As already pointed out above,.
the difference between euthanasia and physician assisted
suicide lies in who administers the lethal medication. In the
former, the physician or someone else administers it, while
in the latter the patient himself does so, though on the 8
advice of the doctor.

Oregon:

Oregon was the first state in U.S.A. to legalize physician
assisted death. c
The Oregon legislature enacted the Oregon Death with
Dignity Act, in 1997. Under the Death With Dignity Act, a
person who sought physician-assisted suicide would have
to meet certain criteria:
D
* He must be an Oregon resident, at least 18 years old,
and must have decision making capacity.

* The person must be terminally ill, having six months or
less to live. E
*The person must make one written and two oral requests
for medication to end his/her life, the written one
substantially in the form provided in the Act, signed, dated,
. witnessed by two persons in the presence of the patient
F
who attest that the person is capable, acting voluntarily and
not being coerced to sign the request. There are stringent
qualifications as to who may act as a witness.

* The patient's decision must be an 'informed' one, and
the attending physician is obligated to provide the patient G
with information about the diagnosis, prognosis, potential
risks, and probable consequences of taking the
prescribed medication, and alternatives, including, but not
limited to comfort care, hospice care and pain control.
H
1132 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A Another physician must confirm the diagnosis, the
patient's decision making capacity, and voluntariness of
the patient's decisions.

* Counselling has to be provided if the patient is suffering
from depression or a mental disorder which may impact
8 his judgment.

* There has to be a waiting period of 15 days, next of kin
have to be notified, and State authorities have to be
informed.
c * The patient can rescind his decision at any time
In response to concerns that patients with depression may
seek to end their lives, the 1999 amendment provides that
the attending physician must determine that the patient
D does not have 'depression causing impaired judgment'
before prescribing the medication.

Under the law, a person who met all requirements could
receive a prescription of a barbiturate that would be
E sufficient to cause death. However, the lethal injection must
be administered by the patient himself, and physicians are
prohibited from administering it.

The landmark case to declare that the practice of
euthanasia by doctors to help their patients shall not be
-
F taken into cognizance was Gonzalez vs Oregon decided
in 2006.

After the Oregon Law was enacted about 200 persons
have had euthanasia in Oregon.
G
Washington:

Washington was the second state in U.S.A. which allowed
the practice of physician assisted death in the year 2008
by passing the Washington Death with Dignity Act, 2008.
H
•
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1133
INDIA AND ORS. [MARKANDEY KAT JU, J.]

Montana: A
Montana was the third state (after Oregon and
Washington) in U.S.A. to legalize physician assisted
deaths, but this was done by the State judiciary and not
the legislature. On December 31, 2009, the Montana 8
Supreme Court delivered its verdict in the case of Baxter
v. Montana permitting physicians to prescribe lethal
indication. The court held that there was "nothing in
Montana Supreme Court precedent or Montana statutes
indicating that physician aid in dying is against public C
policy."

Other States in U.S.A.:

In no other State in U.S.A. is euthanasia or physician
assisted death legal. Michigan banned euthanasia and D
assisted suicide in 1993, after Dr. Kevorkian (who became
known as 'doctor death') began encouraging and assisting
in suicides. He was convicted in 1999 for an assisted
suicide displayed on television, his medical licence
cancelled, and he spent 8 years in jail. E

In 1999 the State of Texas enacted the Texas Futile Care
Law which entitles Texas hospitals and doctors, in some
situations, to withdraw life support measures, such as
mechanical respiration, from terminally ill patient when such
treatment is considered futile and inappropriate. However, F
Texas has not legalized euthanasia or physician assisted
death. In California, though 75 of people support physician
assisted death, the issue is highly controversial in the State
legislature. Forty States in USA have enacted laws which
explicitly make it a crime to provide another with the means G
of taking his or her life.

In 1977 California legalized living wills, and other States
soon followed suit. A living will (also known as advance
directive or advance decision) is an instruction given by H
1134 SUPREME COURT REPORTS [2011) 4 S.C.R.
•
A an individual while conscious specifying what action should
be taken in the event he/she is unable to make a decision
due to illness or incapacity, and appoints a person to take
such decisions on his/her behalf. It may include a directive
to withdraw life support on certain eventualities.
B
Canada:
In Canada, physician assisted suicide is illegal vide
Section 241(b) of the Criminal Code of Canada.

c The leading decision of the Canadian Supreme Court in
this connection is Sue Rodriguez v. British Columbia
(Attorney General}, (1993) 3 SCR 519. Rodriguez, a
woman of 43, was diagnosed with Amyotrophic Lateral
Sclerosis (ALS), and requested the Canadian Supreme
D Court to allow someone to aid her in ending her life. Her
condition was deteriorating rapidly, and the doctors told
her that she would soon lose the ability to swallow, speak,
walk, and move her body without assistance. Thereafter
she would lose her capacity to breathe without a respirator,
to eat without a gastrotomy, and would eventually be
E
confined to bed. Her life expectancy was 2 to 14 months.

The Canadian Supreme Court was deeply divided. By a
5 to 4 majority her plea was rejected. Justice Sopinka,
speaking for the majority (which included Justices La
F Forest, Gonthier, Iacobucci and Major) observed :

"Sanctity of life has been understood
historically as excluding freedom of choice in the
self infliction of death, and certainly in the
G involvement of others in carrying out that choice. At
the very least, no new consensus has emerged in
society opposing the right of the State to regulate
the involvement of others in exercising power over
individuals ending their lives."
H
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1135
INDIA AND ORS. [MARKANDEY KATJU, J.]

The minority, consisting of Chief Justice Lamer and A
Justices L'Heureux-Dube, Cory and Mclachlin, dissented.

PASSIVE EUTHANASIA

51. Passive euthanasia is usually defined as withdrawing
medical treatment with a deliberate intention of causing the B
patient's death. For example, if a patient requires kidney
dialysis to survive, not giving dialysis although the machine is
available, is passive euthanasia. Similarly, if a patient is in
coma or on a heart lung machine, withdrawing of the machine
will ordinarily result in passive euthanasia. Similarly not giving C
life saving medicines like antibiotics in certain situations may
result in passive euthanasia. Denying food to a person in coma
or PVS may also amount to passive euthanasia.

52. As already stated above, euthanasia can be both D
voluntary or non voluntary. In voluntary passive euthanasia a
person who is capable of deciding for himself decides that he
would prefer to die (which may be for various reasons e.g., that·
he is in great pain or that the money being spent on his
treatment should instead be given to his family who are in E
greater need, etc.), and for this purpose he consciously and of
his own free will refuses to take life saving medicines. In India,
if a person consciously and voluntarily refuses to take life saving
medical treatment it is not a crime. Whether not taking food
consciously and voluntarily with the aim of ending one's life is .. F
a crime under section 309 IPC (attempt to commit suicide) is
a question which need not be decided in this case.

53. Non voluntary passive euthanasia implies that the
person is not in a position to decide for himself e.g., if he is in
coma or PVS. The present is a case where we have to G
consider non voluntary passive euthanasia i.e. whether to allow
a person to die who is not in a position to give his/her consent.

54. There is a plethora of case law on the subject of the
Courts all over the world relating to both active and passive H
1136 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A euthanasia. It is not necessary to refer in detail to all the
decisions of the Courts in the world on the subject of euthanasia
or physically assisted dead (p.a.d.) but we think it appropriate
to refer in detail to certain landmark decisions, which have laid
down the law on the subject.
B
THE AIREDALE CASE : (Airedale NHS Trust v. Bland
(1993) All E.R. 82) (H.L.)

55. In the Airedale case decided by the House of Lords
in the U.K.. the facts were that one Anthony Bland aged about
C 17 went to the Hillsborough Ground on 15th April 1989 to
support the Liverpool Football Club. In the course of the disaster
which occurred on that day, his lungs were crushed and
punctured and the supply to his brain was interrupted. As a
result, he suffered catastrophic and irreversible damage to the
D higher centres of the brain. For three years, he was in a
condition known as 'persistent vegetative state (PVS). This
state arises from the destruction of the cerebral cortex on
account~f prolonged deprivation of oxygen, and the cerebral
cortex of Anthony had resolved into a watery mass. The cortex
E is that part of the brain which is the seat of cognitive function
and sensory capacity. Anthony Bland could not see, hear or feel
anything. He could not communicate in any way. His
consciousness, which is an essential feature of an individual
personality, had departed forever. However, his brain-stem,
F which controls the reflective functions of the body, in particular
the heart beat, breathing and digestion, continued to operate.
He was in persistent vegetative state (PVS) which is a
recognized medical condition quite distinct from other conditions
sometimes known as "irreversible coma", "the Guillain-Barre
G syndrome", "the locked-in syndrome" and "brain death".

56. The distinguishing characteristic of PVS is that the
brain stem remains alive and functioning while the cortex has
lost its function and activity. Thus the PVS patient continues to
breathe unaided and his digestion continues to function. But
H
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1137
INDIA AND ORS. [MARKANDEY KATJU, J.J

although his eyes are open, he cannot see. He cannot hear. A
Although capable of reflex movement, particularly in response
to painful stimuli, the patient is uncapable of voluntary
movement and can feel no pain. He cannot taste or smell. He
cannot speak or communicate in any way. He has no cognitive
function and thus can feel no emotion, whether pleasure or B
distress. The absence of cerebral function is not a matter of
surmise; it can be scientifically demonstrated. The space which
the brain should occupy is full of watery fluid.

57. In order to maintain Mr. Bland in his condition, feeding C
and hydration were achieved by artificial means of a
nasogastric tube while the excretory functions were regulated
by a catheter and enemas. According to eminent medical
opinion, there was no prospect whatsoever that he would ever
make a recovery from his condition, but there was every
likelihood that he would maintain this state of existence for many D
years to come provided the artificial means of medical care was
continued.

58. In this state of affairs the medical men in charge of
Anthony Bland case took the view, which was supported by his E
parents, that no useful purpose would be served by continuing
medical care, and that artificial feeding and other measures
aimed at prolonging his existence should be stopped. Since
however, there was a doubt as to whether this course might
constitute a criminal offence, the hospital authorities sought a F
declaration from the British High Court to resolve these doubts.

59. The declaration was granted by the Family Division of
the High Court on 19.11.1992 and that judgment was affirmed
by the Court of Appeal on 9.12.1992. A further appeal was
made to the House of Lords which then decided the case. G

60. The broad issued raised before the House of Lords
in the Airedale case (supra) was "In what circumstances, if ever,
can those having a duty to feed an invalid lawfully stop doing
so?" In fact this is precisely the question raised in the present H
1138 SUPREME COURT REPORTS (2011] 4 S.C.R.
•
A case of Aruna Shanbaug before us.

61. In Airedale's case (supra), Lord Keith of Kinkel, noted
that it was unlawful to administer treatment to an adult who is
conscious and of sound mind, without his consent. Such a
B person is completely at liberty to decline to undergo treatment,
even if the result of his doing so will be that he will die. This
extends to the situation where the person in anticipation of his
entering into a condition such as PVS, gives clear instructions
that in such an event he is not to be given medical care,
C including artificial feeding, designed to keep him alive.

62. It was held that if a person, due to accident or some
other cause becomes unconscious and is thus not able to give
or withhold consent to medical treatment, in that situation it is
lawful for medical men to apply such treatment as in their
D informed opinion is in the best interests of the unconscious
patient. That is what happened in the case of Anthony Bland
when he was first dealt with by the emergency services and later
taken to hospital.

E 63. When the incident happened the first imperative was
to prevent Anthony from dying, as he would certainly have done •
in the absence of the steps that were taken. For a time, no
doubt, there was some hope that he might recover sufficiently
for him to be able to live a life that had some meaning. Some
F patients who have suffered damage to the cerebral cortex have,
indeed, made a complete recovery. It all depends on the degree
of damage. But sound medical opinion takes the view that if a
P.V.S. patient shows no signs of recovery after six months, or
at most a year, then there is no prospect whatever of any
recovery.
G
64. There are techniques available which make it possible
to ascertain the state of the cerebral cortex, and in Anthony
Bland's case these indicated that, it had degenerated into a
mass of watery fluid. In this situation the question before the
H House of Lords was whether the doctors could withdraw medical
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1139
INDIA AND ORS. [MARKANDEY KATJU, J.]

treatment or feeding Anthony Bland thus allowing him to die. A

65. It was held by Lord Keith that a medical practitioner is
under no duty to continue to treat such a patient where a large
body of informed and responsible medical opinion is to the
effect that no benefit at all would be conferred by continuance
8
of the treatment. Existence in a vegetative state with no
prospact of recovery is by that opinion regarded as not being
of benefit to the patient.
1
I 66. Given that existence in the persistent vegetative state
is of no benefit to the patient, the House of Lords then C
considered whether the principle of the sanctity of life which is
the concern of the State (and the Judiciary is one of the arms
of the State) required the Court to hold that medical treatment
to Bland could not be discontinued.
D
67. Lord Keith observed that the principle of sanctity of life
is not an absolute one. For instance, it does not compel the
medical practitioner on pain of criminal sanction to treat a
patient, who will die, if he does not, according to the express
wish of the patient. It does not authorize forcible feeding of E
prisoners on hunger strike. It does not compel the temporary
keeping alive of patients who are terminally ill where to do so
would merely prolong their suffering. On the other hand, it
forbids the taking of active measures to cut short the life of a
terminally-ill patient (unless there is legislation which permits it).
F
68. Lord Keith observed that although the decision whether
or not the continued treatment and cure of a PVS patient
confers any benefit on him is essentially one for the medical
practitioners in charge of his case to decide, as a matter of
routine the hospital/medical practitioner should apply to the G
Family Division of the High Court for endorsing or reversing
the said decision. This is in the interest of the protection of
the patient, protection of the doctors, and for the reassurance
of the patient's family and the public.
H
1140 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A 69. In Airdale's case (Supra) another Judge on the Bench,
Lord Goff of Chievely observed:-

"The central issue in the present case has been aptly
stated by the Master of the Rolls to be whether artificial
feeding and antibiotic drugs may lawfully be withheld from
B an insensate patient with no hope of recovery when it is
known that if that is done the patient will shortly thereafter
die. The Court of Appeal, like the President, answered this
question generally in the affirmative, and (in the
declarations made or approved by them) specifically also
c in the affirmative in relation to Anthony Bland . I find myself
to be in agreement with the conclusions so reached by all
the judges below, substantially for the reasons given by
them. But the matter is of such importance that I propose
to express my reasons in my own words.
D
I start with the simple fact that, in law, Anthony is still alive.
It is true that his condition is such that it can be described
as a living death; but he is nevertheless still alive. This is
because, as a result of developments in modern medical
E technology, doctors no longer associate death exclusively
with breathing and heart beat, and it has come to be
accepted that death occurs when the brain, and in
particular the brain stem, has been destroyed (see
Professor Ian Kennedy's Paper entitled "Switching off Life
Support Machines: The Legal Implications" reprinted in
F
Treat Me Right, Essays in Medical Law and Ethics,
(1988)), especially at pp. 351-2. and the material there
cited). There has been no dispute on this point in the
present case, and it is unnecessary for me to consider it
further. The evidence is that Anthony's brain stem is still
G alive and functioning and it follows that, in the present state
of medical science, he is still alive and should be so
regarded as a matter of law.

It is on this basis that I turn to the applicable principles of
H
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1141
INDIA AND ORS. [MARKANDEY KATJU, J.]

law. Here, the fundamental principle is the principle of the A
sanctity of human life - a principle long recognized not only
in our own society but also in most, if not all, civilized
societies throughout the modern world, as is indeed
evidenced by its recognition both in article 2 of the
European Convention of Human Rights, and in article 6 of 8
the International Covenant of Civil and Political Rights.

But this principle, fundamental though it is, is not absolute.
Indeed there are circumstances in which it is lawful to take
another man's life, for example by a lawful act of self- C
defence, or (in the days when capital punishment was
acceptable in our society) by lawful execution. We are not
however concerned with cases such as these. We are
concerned with circumstances in which it may be lawful to
withhold from a patient medical treatment or care by means
of which his life may be prolonged. But here too there is D
no absolute rule that the patient's life must be prolonged
by such treatment or care, if available, regardless of the
circumstances.

First, it is established that the principle of self- E
determination requires that respect must be given to the
wishes of the patient, so that if an adult patient of sound
mind refuses, however unreasonably, to consent to
treatment or care by which his life would or might be
prolonged, the doctors responsible for his care must give F
effect to his wishes, even though they do not consider it to
be in his best interests to do so (see Schloendorff v .
Society of New York Hospital 105 N.E. 92, 93, per
Cardozo J. (1914); S. v . McC. (Orse S.) and M (D.S.
Intervene); W v. W [1972] A.G. 24, 43, per Lord Reid; and G
Sidaway v . Board of Governors of the Beth/em Royal
Hospital and the Mauds/ey Hospital [1985] AC 871, 882,
per Lord Scarman). To this extent, the principle of the
sanctity of human life must yield to the principle of self-
determination (see Court of Appeal Transcript in the H
1142 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A present case, at p. 38F per Hoffmann L.J.), and, for present
purposes perhaps more important, the docto~s duty to act
in the best interests of his patient must likewise be
qualified. On this basis, it has been held that a patient of
sound mind may, if properly informed, require that life
B support should be discontinued: see Nancy B. v. Hotel
Dieu de Quebec (1992) 86 D.L.R. (4th) 385. Moreover the
same principle applies where the patient's refusal to give
his consent has been expressed at an earlier date, before
he became unconscious or otherwise incapable of
c communicating it; though in such circumstances especial
care may be necessary to ensure that the prior refusal of
consent is still properly to be regarded as applicable in the
circumstances which have subsequently occurred (see,
e.g. In re T. (Adult: Refusal of treatment) [1992] 3 W.L.R.
782). I wish to add that, in cases of this kind, there is no
D
question of the patient having committed suicide, nor
therefore of the doctor having aided or abetted him in
doing so. It is simply that the patient has, as he is entitled
to do, declined to consent to treatment which might or
would have.the effect of prolonging his life, and the doctor
E
has, in accordance with his duty, complied with his
patient's wishes.

But in many cases not oniy may the patient be in no
condition to be able to say whether or not he consents to
F the relevant treatment or care, but also he may have given
no prior indication of his wishes with regard to it. In the
case of a child who is a ward of court, the court itself will
decide whether medical treatment should be provided in
the child's best interests, taking into account medical
G opinion. But the court cannot give its consent on behalf of
an adult patient who is incapable of himself deciding
whether or not to consent to treatment. I am of the opinion
that there. is nevertheless no absolute obligation upon the
doctor who has the patient in his care to prolong his life,
H regardless of the circumstances. Indeed, it would be most
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1143
INDIA AND ORS. [MARKANDEY KAT JU, J.]
startling, and could lead to the most adverse and cruel A
effects upon the patient, if any such absolute rule were held
to exist. It is scarcely consistent with the primacy given to
the principle of self-determination in those cases in which
the patient of sound mind has declined to give his consent,
that the law should provide no means of enabling treatment B
to be withheld in appropriate circumstances where the
patient is in no condition to indicate, if that was his wish,
that he did not consent to it. The point was put forcibly in
the judgment of the Supreme Judicial Court of
Massachusetts in Superintendent of Belchertown State C
School v. Saikewicz (1977) 370 N.E. 2d. 417, 428, as
follows:

"To presume that the incompetent person must always be
subjected to what many rational and intelligent persons
may decline is to downgrade the status of the incompetent D
person by placing a lesser value on his intrinsic human
worth and vitality."
I must however stress, at this point, that the law draws a
crucial distinction between cases in which a doctor E
decides not to provide, or to continue to provide, for his
patient treatment or care which could or might prolong his
life, and those in which he decides, for example by
administering a lethal drug, actively to bring his patient's
life to an end. As I have already indicated, the former may F
be lawful, either because the doctor is giving effect to his
patient's wishes by withholding the treatment or care, or
even in certain circumstances in which (on principles which
I shall describe) the patient is incapacitated from stating
whether or not he gives his consent. But it is not lawful for G
a doctor to administer a drug to his patient to bring about
his death, even though that course is prompted by a
humanitarian desire to end his suffering, however great
that suffering may be: see Reg. v. Cox (Unreported),
Ognall J., Winchester Crown Court, 18 September 1992.
H
1144 SUPREME COURT REPORTS (2011] 4 S.C.R.
•
A So to act is to cross the Rubicon which runs between on
the one hand the care of the living patient and on the other
hand euthanasia - actively causing his death to avoid or
to end his suffering. Euthanasia is not lawful at common
law. It is of course well known that there are many
B responsible members of our society who believe that
euthanasia should be made lawful; but that result could, I
believe, only be achieved by legislation which expresses
the democratic will that so fundamental a change should
be made in our law, and can, if enacted, ensure that such
c legalised killing can only be carried out subject to
appropriate supervision and control. It is true that the
drawing of this distinction may lead to a charge of
hypocrisy; because it can be asked why, if the doctor, by
discontinuing treatment, is entitled in consequence to let
his patient die, it should not be lawful to put him out of his
D
misery straight away, in a more humane manner, by a lethal
injection, rather than let him linger on in pain until he dies.
But the law does not feel able to authorize euthanasia, even
in circumstances such as these; for once euthanasia is
recognized as lawful in these circumstances, it is difficult
E to see any logical basis for excluding it in others.

At the heart of this distinction lies a theoretical question.
Why is it that the doctor who gives !'lis patient a lethal
injection which kills him commits an unlawful act and indeed
F is guilty of murder, whereas a doctor who, by discontinuing
life support, allows his patient to die, may not act unlawfully
- and will not do so, if he commits no breach of duty to his
patient? Professor Glanville Williams has suggested (see
his Textbook of Criminal Law, 2nd ed., p. 282) that the
G reason is that what the doctor does when he switches off
a life support machine 'is in substance not an act but an
omission to struggle, and that 'the omission is not a
breach of duty by the doctor because he is not obliged
to continue in a hopeless case'.
H
•
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1145
INDIA AND ORS. [MARKANDEY KATJU, J.]
I agree that the doctor's conduct in discontinuing life A
support can properly be categorized as an omission. It is
true that it may be difficult to describe what the doctor
actually does as an omission, for example where he takes
some positive step to bring the life support to an end. But
discontinuation of life support is, for present purposes, no B
different from not initiating life support in the first place.
In each case, the doctor is simply allowing his patient to
die in the sense that he is desisting from taking a step
which might, in certain circumstances, prevent his patient
from dying as a result of his pre-existing condition; and as c
a matter of general principle an omission such as this will
not be unlawful unless it constitutes a breach of duty to the
patient. I also agree that the doctor's conduct is to be
differentiated from that of, for example, an interloper who
maliciously switches off a life support machine because, 0
although the interloper may perform exactly the same act
as the doctor who discontinues life support, his doing so
constitutes interference with the life-prolonging treatment
then being administered by the doctor. Accordingly,
whereas the doctor, in discontinuing life support, is simply E
allowing his patient to die of his pre-existing condition, the
interloper is actively intervening to stop the doctor from
prolonging the patient's life, and such conduct cannot
possibly be categorised as an omission.

The distinction appears, therefore, to be useful in the F
present context in that it can be invoked to explain how
discontinuance of life support can be differentiated from
ending a patient's life by a lethal injection. But in the end
the reason for that difference is that, whereas the law
considers that discontinuance of life support may be G
consistent with the doctor's duty to care for his patient, it
does not, for reasons of policy, consider that it forms any
part of his duty to give his patient a lethal injection to put
him out of his agony.

I return to the patient who, because for example he is of H
1146 SUPREME COURT REPORTS [2011) 4 S.C.R.
•
A unsound mind or has been rendered unconscious by
accident or by illness, is incapable of stating whether or
not he consents to treatment or care. In such
circumstances, it is now established that a doctor may
lawfully treat such a patient if he acts in his best interests,
8 and indeed that, if the patient is already in his care, he is
under a duty so to treat him: see In re F [1990) 2 AC 1, in
which the legal principles governing treatment in such
circumstances were stated by this House. For my part I
can see no reason why, as a matter of principle, a
c decision by a doctor whether or not to initiate, or to continue
to provide, treatment or care which could or might have
the effect of prolonging such a patient's life, should not be
governed by the same fundamental principle. Of course,
in the great majority of cases, the best interests of the
patient are likely to require that treatment of this kind, if
D
available, should be given to a patient. But this may not
always be so. To take a simple example given by Thomas
J. in Re J.H.L. (Unreported) (High Court of New Zealand)
13 August 1992, at p. 35), to whose judgment in that case
I wish to pay tribute, it cannot be right that a doctor, who
E has under his care a patient suffering painfully from terminal
cancer, should be under an absolute obligation to perform
upon him major surgery to abate another condition which,
if unabated, would or might shorten his life still further. The
doctor who is caring for such a patient cannot, in my
F opinion, be under an absolute obligation to prolong his life
by any means available to him, regardless of the quality
of the patient's life. Common humanity requires otherwise,
as do medical ethics and good medical practice accepted
in this country and overseas. As I see it, the doctor's
G decision whether or not to take any such step must (subject
to his patient's ability to give or withhold his consent) be
made in the best interests of the patient. It is this principle
too which, in my opinion, underlies the established rule that
a doctor may, when caring for a patient who is, for
H
•
ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1147
INDIA AND ORS. [MARKANDEY KAT JU, J.]
example, dying of cancer, lawfully administer painkilling A .
drugs despite the fact that he knows that an incidental
effect of that application will be to abbreviate the patient's
life . .Such a decision may properly be made as part of the
care of the living patient, in his best interests; and, on this
basis, the treatment will be lawful. Moreover, where the B
doctor's treatment of his patient is lawful, the patient's death
will be regarded in law as exclusively caused by the injury
or disease to which his condition is attributable.

It is of course the development of modern medical
technology, and in particular the development of life support C
systems, which has rendered cases such as the present
so much more relevant than in the past. Even so, where
(for example) a patient is brought into hospital in such a
condition that, without the benefit of a life support system,
he will not continue to live, the decision has to be made D
whether or not to give him that benefit, if available. That
decision can only be made in the best interests of the
patient. No doubt, his best interests will ordinarily require
that he should be placed on a life support system as soon
as necessary, if only to make an accurate assessment of E
his condition and a prognosis for the future. But if he
neither recovers sufficiently to be taken off it nor dies, the
question will ultimately arise whether he should be kept
on it indefinitely. As I see it, that question (assuming the
continued availability of the system) can only be answered F
by reference to the best interests of the patient himself,
having regard to established medical practice. Indeed, if
the justification for treating a patient who lacks the capacity
to consent lies in the fact that the treatment is provided in
his best interests, it must follow that the treatment may, and G
indeed ultimately should, be discontinued where it· is no
longer in his best interests to provide it. The question which
lies at the heart of the present case is, as I see it, whether
on that principle the doctors responsible for the treatment
and care of Anthony Bland can justifiably discontinue the H
1148 SUPREME COURT REPORTS [2011] 4 S.C.R. •
A process of artificial feeding upon which the prolongation
of his life depends.

It is crucial for the understanding of this question that the
question itself should be correctly formulated. The question
is not whether the doctor should take a course which will
B
kill his patient, or even take a course which has the effect
of accelerating his death. The question is whether the
doctor should or should not continue to provide his
patient with medical treatment or care which, if continued,
will prolong his patient's life. The question is sometimes
c put in striking or emotional terms, which can be misleading.
For example, in the case of a life support system, it is
sometimes asked: Should a doctor be entitled to switch it
off, or to pull the plug? And then it is asked: Can it be in
the best interests of the patient that a doctor should be able
D to switch the life support system off, when this will inevitably
result in the patient's death? Such an approach has rightly
been criticised as misleading, for example by Professor
Ian Kennedy (in his paper in Treat Me Right, Essays in
Medical Law and Ethk:s (1988), and by Thomas J. in Re
E J.H.L. at pp. 21- 22. This is because the question is not
whether it is in the best interests of the patient that he
should die. The question is whether it is in the best
interests of the patient that his life should be prolonged
by the continuance of this form of medical treatment or
F care.

The correct formulation of the question is of particular
importance in a case such as the present, where the
patient is totally unconscious and where there is no hope
whatsoever of any amelioration of his condition. In
G
circumstances such as these, it may be difficult to say that
it is in his best interests that the treatment should be
ended. But if the question is asked, as in my opinion it
should be, whether it is in his best interests that treatment
which has the effect of artificially prolonging his life should
H
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1149
INDIA AND ORS. [MARKANDEY KATJU, J.]
be continued, that question can sensibly be answered to A
the effect that it is not in his best interests to do so.

(emphasis supplied)

70. In a Discussion Paper on Treatment of Patients in
Persistent Vegetative State issued in September 1992 by the B
Medical Ethics Committee of the British Medical Association
certain safeguards were mentioned which should be observed
before constituting life support for such patients:-

"(1) Every effort should be made at rehabilitation for at c
least six months after the injury; (2) The diagnosis of
irreversible PVS should not be considered confirmed until
at least twelve months after the injury, with the effect that
any decision to withhold life prolonging treatment will be
delayed for that period; (3) The diagnosis should be
0
agreed by two other independent doctors; and (4)
Generally, the wishes of the patient's immediate family will
be given great weight."

71. Lord Goff observed that discontinuance of artificial
feeding in such cases is not equivalent to cutting a E
mountaineer's rope, or severing the air pipe of a deep sea
diver. The true question is not whether the doctor should take
a course in which he will actively kill his patient, but rather
whether he should continue to provide his patient with medical
treatment or care which, if continued, will prolong his life. F

72. Lord Browne-Wilkinson was of the view that removing
the nasogastric tube in the case of Anthony Bland cannot be
regarded as a positive act causing the death. The tube itself,
without the food being supplied through it, does nothing. Its non G
removal itself does not cause the death since by itself, it does
not sustain life. Hence removal of the tube would not constitute
the actus rel.is of murder, since such an act would not cause
the death.

73. Lord Mustill observed:- H
1150 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A "Threaded through the technical arguments
addressed to the House were the strands of a much wider
position, that it is in the best interests of the community at
large that Anthony Bland's life should now end. The
doctors have done all they can. Nothing will be gained
B by going on and much will be lost. The distress of the
family will get steadily worse. The strain on the devotion
of a medical staff charged with the care of a patient whose
condition will never improve, who may live for years and
who does not even recognize that he is being cared for,
will continue to mount. The large resources of skill, labour
c and money now being devoted to Anthony Bland might
in the opinion of many be more fruitfully employed in
improving the condition of other patients, who if treated
may have useful, healthy and enjoyable lives for years to
come."
D
74. Thus all the Judges of the House of Lords in the
Airedale case (supra) were agreed that Anthony Bland should
be allowed to die.

E 75. Airedale (1993) decided by the House of Lords has
been followed in a number of cases in U.K., and the law is now
fairly well settled that in the case of incompetent patients, if the
doctors act on the basis of informed medical opinion, and
withdraw the artificial life support system if it is in the patient's
F best interest, the said act cannot be regarded as a crime.

76. The question, however, remains as to who is to decide
what is the patient's best interest where he is in a persistent
vegetative state (PVS)? Most decisions have held that the
decision of the parents, spouse, or other close relative, should
G carry weight if it is an informed one, but it is not decisive
(several of these decisions have been referred to in Chapter
IV of the 196th Report of the Law Commission of India on
Medical Treatment to Terminally ill Patients).

H
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1151
INDIA AND ORS. [MARKANDEY KATJU, J.]

77. It is ultimately for the Court to decide, as parens patriae, A
as to what is is in the best interest of the patient, though the
wishes of close relatives and next friend, and opinion of
medical practitioners should be given due weight in coming to
its decision. As stated by Balcombe, J. in In Re J (A Minor
Wardship: Medical Treatment) 1990(3) All E.R. 930, the Court B
as representative of the Sovereign as parens patriae will adopt
the same standard which a reasonable and responsible parent
would do.

78. The parens patriae (father of the country) jurisdiction
was the jurisdiction of the Crown, which, as stated in Airedale, C
could be traced to the 13th Century. This principle laid down
that as the Sovereign it was the duty of the King to protect the
person and property of those who were unable to protect
themselves. The Court, as a wing of the State, has inherited
the parens patriae jurisdiction which formerly belonged to the D
King.

U.S. decisions

79. The two most significant cases of the U.S. Supreme
Court that addressed the issue whether there was a federal E
constitutional right to assisted suicide arose from challenges
to State laws banning physician assisted suicide brought by
terminally ill patients and their physicians. These were
Washington vs. G/ucksberg 521 U.S. 702 (1997) and Vacco
vs. Quill 521 U.S. 793 (1997). F

80. In Glucksberg's case, the U.S. Supreme Court held that
the asserted right to assistance in committing suicide is not a
fundamental liberty interest protected by the Due Process
Clause of the Fourteenth Amendment. The Court observed : G

"The decision to commit suicide with the assistance of
another may be just as personal and profound as the
decision to refuse unwanted medical treatment, but it has
never enjoyed similar legal protection. Indeed the two acts H
1152 SUPREME COURT REPORTS (2011) 4 S.C.R. •
A are widely and reasonably regarded as quite distinct."

81. The Court went on to conclude that the Washington
statute being challenged was rationally related to five legitimate
government interest : protection of life, prevention of suicide,
protection of ethical integrity of the medical profession,
B
protection of vulnerable groups, and protection against the
"slippery slope" towards euthanasia. The Court then noted that
perhaps the individual States were more suited to resolving or
at least addressing the myriad concerns raised by both
proponents and opponents of physician assisted suicide. The
c Court observed :
"Throughout the Nation, Americans are engaged in
an earnest and profound debate about the morality, legality
and practicality of physician assisted suicide. Our holding
D permits this debate to continue, as it should in a
democratic society."

82. In Vacco's case (supra) the U.S. Supreme Court again
recognized the distinction between refusing life saving medical ~

E
treatment and giving lethal medication. The Court disagreed
with the view of the Second Circuit Federal Court that ending
or refusing lifesaving medical treatment is nothing more nor less
•
than assisted suicide. The Court held that "the distinction
between letting a patient die and making that patient die is
important, logical, rational, and well established". The Court held
F that the State of New York could validly ban the latter.

83. In Cruzan v. Director, MOH, 497 U.S. 261(1990)
decided by the U.S. Supreme Court the majority opinion was
delivered by the Chief Justice Rehnquist.
G
84. In that case, the petitioner Nancy Cruzan sustained
injuries in an automobile accident and lay in a Missouri State
hospital in what has been referred to as a persistent vegetative
state (PVS), a condition in which a person exhibits motor
reflexes but evinces no indication of significant cognitive
H
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1153.
INDIA AND ORS. [MARKANDEY KATJU, J.]

function. The state of Missouri was bearing the cost of her care. A
Her parents and co-guardians applied to the Court for
permission to withdraw her artificial feeding and hydration
equipment and allow her to die. While the trial Court ttnmted
the prayer, the State Supreme Court of Missouri reversed,
holding that under a statute in the State of Missouri it was B
necessary to prove by clear and convincing evidence that the
incompetent person had wanted, while competent, withdrawal
of life support treatment in such an eventuality. The only
evidence led on that point was the alleged statement of Nancy
Cruzan to a housemate about a year before the accident that c
she did not want life as a 'vegetable'. The State Supreme Court
was of the view that this did not amount to saying that medical
treatment or nutrition or hydration should be withdrawn.

85. Chief Justice Rehnquist delivering the opinion of the
Court (in which Justices White, O'Connor, Scalia, and Kennedy, D
joined) in his judgment first noted the facts:-

"On the night of January 11, 1983, Nancy Cruzan lost
control of her car as she traveled down Elm Road in Jasper
County, Missouri. The vehicle overturned, and Cruzan was E
discoverad lying face down in a ditch without detectable
respiratory or cardiac function. Paramedics were able to
restore her breathing and heartbeat at the accident site,
and she was transported to a hospital in an unconscious
state. An attending neurosurgeon diagnosed her as having F
sustained probable cerebral contusions compounded by
significant anoxia (lack of oxygen). The Missouri trial court
in this case found that permanent brain damage generally
results after 6 minutes in an anoxic state; it was estimated
that Cruzan was deprived of oxygen from 12 to 14 minutes. G
She remained in a coma for approximately three weeks,
and then progressed to an unconscious state in which she
was able to orally ingest some nutrition. In order to ease
feeding and further the recovery, surgeons implanted a
gastrostomy feeding and hydration tube in Cruzan with the H
1154 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A consent of he(then husband. Subsequent rehabilitative
efforts proved unavailing. She now lies in a Missouri state
hospital in what is commonly referred to as a persistent
vegetative state: generally, a condition in which a person
exhibits motor reflexes but evinces no indications of
B significant cognitive function. 1 The State of Missouri is
bearing the cost of her care. [497 U.S. 261, 267)

After it had become apparent that Nancy Cruzan had
virtually no chance of regaining her mental faculties, her
parents asked hospital employees to terminate the
c artificial nutrition and hydration procedures. All agree that
such a [497 U.S. 261, 268] removal would cause her
death. The employees refused to honor the request without
court approval. The parents then sought and received
authorization from the state trial court for termination."
D
86. While the trial Court allowed the petition the State
Supreme Court of Missouri reversed. The US Supreme Court
by majority affirmed the verdict of the State Supreme Court

87. Chief Justice Rehnquist noted that in law even touching 1111
E

-
of one person by another without consent and without legal
justification was a battery, and hence illegal. The notion of bodily
integrity has been embodied in the requirement that informed
consent is generally required for medical treatment. As
observed by Justice Cardozo, while on the Court of Appeals
F of New York "Every human being of adult years and sound mind
has a right to determine what shall be done with his own body,
and a surgeon who performs an operation without his patient's
consent commits an assault, for which he is liable in damages."
vide Schloendorff vs. Society of New York Hospital, 211 N.Y.
G 125, 129-30, 105 N.E. 92, 93 (1914). Thus the informed
consent doctrine has become firmly entrenched in American
Tort Law. The logical corollary of the doctrine of informed
consent is that the patient generally possesses the right not to
consent, that is to refuse treatment.
H
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1155
INDIA AND ORS. [MARKANDEY KATJU, J.]

88. The question, however, arises in cases where the A
patient is unable to decide whether the treatment should
continue or not e.g. if he is in coma or PVS. Who is to give
consent to terminate the treatment in such a case? The learned
Chief Justice referred to a large number of decisions of Courts
in U.S.A. in this connection, often taking diverse approaches. B

89. In re Quinlan 70 N.J.10, 355 A. 2d 647, Karen Quinlan
suffered severe brain damage as a result of anoxia, and entered
into PVS. Her father sought judicial approval to disconnect her
respirator. The New Jersey Supreme Court granted the prayer,
holding that Karen had a right of privacy grounded in the U.S. C
Constitution to terminate treatment. The Court concluded that
the way Karen's right to privacy could be exercised would be
to allow her guardian and family to decide whether she would
exercise it in the circumstances.
D
90. In re Conroy 98 NJ 321, 486 A.2d 1209 (1985),
however, the New Jersey Supreme Court, in a case of an 84
year old incompetent nursing home resident who had suffered
irreversible mental and physical ailments, contrary to its
. decision in Quinlan's case, decided to base its decision on the E
, common law right to self determination and informed consent.
This right can be exercised by a surrogate decision maker
when there was a clear evidence that the incompetent person
would have exercised it. Where such evidence was lacking the
Court held that an individual's right could still be invoked in F
certain circumstances under objective 'best interest' standards.
Where no trustworthy evidence existed that the individual would
have wanted to terminate treatment, and a person's suffering
would make the administration of life sustaining treatment
inhumane, a pure objective standard could be used to terminate G
the treatment. If none of these conditions obtained, it was best
to err in favour of preserving life.

91. What is important to note in Cruzan's case (supra) is
that there was a statute of the State of Missouri, unlike in
Airedale's case (where there was none), which required clear H
1156 SUPREME COURT REPORTS [2011) 4 S.C.R.
•
A and convincing evidence that while the patient was competent
she had desired that if she becomes incompetent and in a PVS
her life support should be withdrawn.

92. In Cruzan's case (supra) the learned Chief Justice
observed:
6
"Not all incompetent patients will have loved ones available
to serve as surrogate decision makers. And even where
family members are present, there will be, of course, some
unfortunate situations in which family members will not act
C to protect a patient. A State is entitled to guard against
potential abuses in such situations."

93. The learned Chief Justice further observed :

"An erroneous decision not to terminate results in
D
maintenance of the status quo; the possibility of
subsequent developments such as advancements in
medical science, the discovery of new evidence regarding
the patient's intent, changes in the law, or simply the
unexpected death of the patient despite the administration •
E of life-sustaining treatment, at least create the potential that
a wrong decision will eventually be corrected or its impact
•
mitigated. An erroneous decision to withdraw life-
sustaining treatment, however, is not susceptible of
correction."
F
94. No doubt Mr. Justice Brennan (with whom Justices
Marshall and Blackmun joined) wrote a powerful dissenting
opinion, but it is not necessary for us to go into the question
whether the view of the learned Chief Justice or that of Justice
G Brennan, is correct.

95. It may be clarified that foreign decisions have only
persuasive value in our country, and are not binding authorities
on our Courts. Hence we can even prefer to follow the minority
view, rather than the majority view, of a foreign decision, or
H
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1157
INDIA AND ORS. [MARKANDEY KATJU, J.]

follow an overruled foreign decision. A
96. Cruzan's case (supra) can be distinguished on the
simple ground that there was a statute in the State of Missouri,
whereas there was none in the Airedale's case nor in the
present case before us. We are, therefore, of the opinion that B
the Airedale's case (supra) is more apposite as a precedent
for us. No doubt foreign decisions are not binding on us, but
they certainly have persuasive value.

LAW IN INDIA
c
97. In India abetment of suicide (Section 306 Indian Penal
Code) and attempt to suicide (Section 309 of Indian Penal
Code) are both criminal offences. This is in contrast to many
countries such as USA where attempt to suicide is not a crime.

98. The Constitution Bench of the Indian Supreme Court D
in Gian Kaur vs. State of Punjab, 1996(2) SCC 648 held that
both euthanasia and assisted suicide are not lawful in India.
That decision overruled the'earlier two Judge Bench decision
of the Supreme Court in P. Rathinam vs. Union of India,
1994(3) SCC 394. The Court held that the right to life under E
Article 21 of the Constitution does not include the right to die
(vide para 33). In Gian Kaur's case (supra) the Supreme Court
approved of the decision of the House of Lords in Airedale's
case (supra), and observed that euthanasia could be made
lawful only by legislation. F

99. Sections 306 and 309 IPC read as under :

"306. Abetment of suicide - If any person commits
suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either description G
for a term which may extend to ten years, and shall also
be liable to fine.

309. Attempt to commit suicide - Whoever
H
1158 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A attempts to commit suicide and does any act towards the
commission of such offence, shall be punished with simple
imprisonment for a term which may extend to one year or
with fine, or with both."

100. We are of the opinion that although Section 309
8
Indian Penal Code (attempt to commit suicide) has been held
to be constitutionally valid in Gian Kaur's case (supra), the time
has come when it should be deleted by Parliament as it has
become anachronistic. A person attempts suicide in a
C depression, and hence he needs help, rather than punishment.
We therefore recommend to Parliament to consider the
feasibility of deleting Section 309 from the Indian Penal Code.

101. It may be noted that in Gian Kaur's case (supra)
although the Supreme Court has quoted with approval the view
D of the House of Lords in Airedale's case (supra), it has not
clarified who can decide whether life support should be
discontinued in the case of an incompetent person e.g. a
person in coma or PVS. This vexed question has been arising
often in India because there are a large number of cases where
E persons go into coma (due to an accident or some other
reason) or for some other reason are unable to give consent,
and then the question arises as to who should give consent for
withdrawal of life support.

102. This is an extremely important question in India
F because of the unfortunate low level of ethical standards to
which our society has descended, its raw and widespread
commercialization, and the rampant corruption, and hence, the
Court has to be very cautious that unscrupulous persons who
wish to inherit the property of someone may not get him
G eliminated by some crooked method.

103. Also, since medical science is advancing fast,
doctors must not declare a patient to be a hopeless case
unless there appears to be no reasonable possibility of any
H
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1159
INDIA AND ORS. [MARKANDEY KAT JU, J.]

improvement by some newly discovered medical method in the. A
near future. In this connection we may refer to a recent news
item which we have come across on the internet of an Arkansas
man Terry Wallis, who was 19 years of age and newly married
with a baby daughter when in 1984 his truck plunged through
a guard rail, falling 25 feet. He went into coma in the crash in B
1984, but after 24 years he has regained consciousness. This
was perhaps because his brain spontaneously rewired itself
by growing tiny new nerve connections to replace the ones
sheared apart ih the car crash. Probably the nerve fibers from
Terry Wallis' cells were severed but the cells themselves c
remained intact, unlike Terri Schiavo, whose brain cells had
died (see Terri Schiavo's case on Google).

104. However, we make it clear that it is experts like
medical practitioners who can decide whether there Is any
reasonable possibility of a new medical discovery which could. D
. enable such a patient to revive in the near future. .

. WHEN CAN A PERSON IS SAID TO BE DEAD

105. It is alleged in the writ petition filed by Ms. Pinky Virani E
(claiming to be the next friend of Aruna Shanbaug) that in fact
Aruna Shanbaug is already dead and hence by not feeding her
body any more we shall not be killing her. The question hence
arises as to when a person can be said to be dead ?

106. A person's most important organ is his/her brain. This F
organ cannot be replaced. Other body parts can be replaced
e.g. if a person's hand or leg is amputed, he can get an artificial
limb. Similarly, we can transplant a kidney, a heart or a liver
when the original one has failed. However, we cannot transplant
a brain. If someone else's brain is transplanted into one's body, G
then in fact, it will be that other person living in one's body. The
entire mind, including one's personality, cognition, memory,
capacity of receiving signals from the five senses and capacity
of giving commands to the other parts of the body, etc. are the
functions of the brain. Hence one is one's brain. It follows that H
1160 SUPREME COURT REPORTS [2011] 4 S.C.R.

A one is dead when one's brain is dead.

107. As is well-known, the brain cells normally do not
multiply after the early years of childhood (except in the region
called hippocampus), unlike other cells like skin cells, which are
B regularly dying and being replaced by new cells produced by
multiplying of the old cells. This is probably because brain cells
are too highly specialized to multiply. Hence if the brain cells
die, they usually cannot be replaced (though sometimes one
part of the brain can take over the function of another part in
C certain situations where the other part has been irreversibly
damaged).

108. Brain cells require regular supply of oxygen which
comes through the red cells in the blood. If oxygen supply is
cut off for more than six minutes, the brain cells die and this
D condition is known as anoxia. Hence, if the brain is dead a
person is said to be dead.

BRAIN DEATH

109. The term 'brain death' has developed various
E meanings. While initially, death could be defined as a cessation
of breathing, or, more scientifically, a cessation of heart-beat,
recent medical advances have made such definitions obsolete.
In order to understand the nature and scope of brain death, it
is worthwhile to look at how death was understood. Historically,
F as the oft-quoted definition in Black's Law Dictionary suggests,
I
death was: I

I
"The cessation of life; the ceasing to exist; defined by
physicians as a total stoppage of the circulation of the blood,
G and a cessation of the animal and vital functions consequent
thereon, such as respiration, pulsation, etc.". 1 This definition
saw its echo in numerous other texts and legal case law. This
includes many American precedents- such as Schmidt v.
Pierce, 344 S:W.2d 120, 133 (Mo. 1961) ("Black's Law
H 1. Black's Law Dictionary 488(4th ed., rev. 1968).
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1161
INDIA AND ORS. [MARKANDEY KAT JU, J.]

Dictionary, 4th Ed., defines death as 'the cessation of life; the A
ceasing to exist .... "'); and Sanger v. Butler, 101 S.W. 459, 462
(Tex. Civ. App. 1907) ("The Encyclopaedic Dictionary, among
others, gives the following definitions of [death]: 'The state of
being dead; the act or state of dying; the state or condition of
the dead.' The Century Dictionary defines death as 'cessation B
of life; that state of a being, animal or vegetable, in which there
is a total and permanent cessation of all the vital functions."'). 2

110. This understanding of death emerged from a
cardiopulmonary perspective. In such cases, the brain was
usually irrelevant -- being understood that the cessa.tion of C
circulation would automatically lead to the death of brain cells,
which require a great deal of blood to survive.

111. The invention of the ventilator and the defibrillator in
the 1920s altered this understanding, it being now possible that D
the cessation of respiration and circulation, though critical,
would no longer be irreversible 3 . Hence, a present-day
understanding of death as the irreversible end of life must imply
total brain failure, such that neither breathing, nor circulation is
possible any more. The question of the length of time that may E
determine such death is significant, especially considering a
significant increase in organ donations across jurisdictions over
the last few years.

112. Brain death, may thus, be defined as "the irreversible
cessation of all functions of the entire brain, including the brain F
stem". 4 It is important to understand that this definition goes
beyond acknowledging consciousness -- a person who is
incapable of ever regaining consciousness will not be

2. Goldsmith, Jason, Wanted! Dead and/or Alive: Choosing Amongst the Many G
Not-so-Unifrom Definitions of Death, 61 U. Miami L. Rev 871. (2007).
3. Samantha Weyrauch, Acceptance of Whole Brain Death Criteria for
Determination of Death: A Comparative Analysis of the United States and
Japan, 17 UCLA Pac. Basin L.J. 91, 96. (1999).
4. Section 1, Universal Determination of Death Act, (The United State
Legislation). H
1162 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A considered to be brain dead as long as parts of the brain e.g.
brain stem that regulate involuntary activity (such as response
to light, respiration, heartbeat etc.) still continue to function.
Likewise, if consciousness, albeit severely limited, is present,
then a person will be considered to be alive even if he has
B suffered brain stem death, wherein breathing and heartbeat can
no longer be regulated and must be mechanically determined.
Hence, the international standard for brain death is usually
considered to include "whole-brain death", i.e., a situation where
the higher brain (i.e. the part of the brain that regulates
c consciousness and thought), the cerebellum or mid-brain, and
the brain-stem have all ceased to demonstrate any electrical
activity whatsoever for a significant amount of time. To say, in
most cases, that only the death of the higher brain would be a
criteria for 'brain death' may have certain serious
consequences -- for example, a foetus, technically under this
0
definition, would not be considered to be alive at all. Similarly,
as per this, different definitions of death would apply to human
and non-human organisms.

113. Brain death, thus, is different from a persistent
E vegetative state, where the brain stem continues to work, and
so some degree of reactions may occur, though the possibility
of regaining consciousness is relatively remote. Even when a
person is incapable of any response, but is able to sustain
respiration and circulation, he cannot be said to be dead. The
F mere mechanical act of breathing, thus, would enable him or
her to be "alive".

114. The first attempt to define death in this manner came
about in 1968, as a result of a Harvard Committee constituted
G for the purpose. 5 This definition, widely criticized for trying to
maximize organ donations, considered death to be a situation
wherein "individuals who had sustained traumatic brain injury

5. Ad Hoc Comm. of the Harvard Med. Sch. to Examine the Definition of Brain
H Death, A Definition of Irreversible Coma, 205 JAMA 337, 337-40 (1968).
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1163
!NOIA AND ORS. [MARKANDEY KAT JU, J.]

that caused them to be in an irreversible coma, and had lost A
the ability to breathe spontaneously'6, would be considered
dead. This criticism led to the Presidents' Committee, set up
for the purpose, in 1981, defining death more vaguely as the
point "where the body's physiological system ceases to
contribute a uniform whole". B

This definition of whole brain death, however, is not without
its critics. Some argue that the brain is not always responsible
for all bodily functioning- digestion, growth, and some degree
of movement (regulated by the spinal cord) may not require any
electrical activity in the brain. In order to combat this argument, C
and further explain what brain death could include, the
President's Committee on Bio-ethics in the United States of
America in 2008 came up with a new definition of brain death,
according to which a person was considered to be .brain dead
when he could no longer perform the fundamental human work D -'
of an organism .. These are: ·

"(1) "openness to the world, that is receptivity to stimuli
and signals from the surrounding environment,"
E
(2) "the ability to act upon the world to obtain selectively
what it needs.

and (3) "the basic felt need that drives the organism to
act ... to obtain what it needs. "7
F
115. When this situation is reached, it is possible to
assume that the person is dead, even though he or she, through
mechanical stimulation, may be able to breathe, his or her heart
might be able to beat, and he or she may be able to take some
form of nourishment. It is important, thus, that it be medically G
pro.~d that a situation where any human functioning would be
impossible should have been reached for there to be a
6. Seema K. Shah, Franklin Miller, Can We Handle The Truth? Legal Fictions
in the Determination of Death. 36 AM. J.L. & Med. 540 (2010).
7. I~. H
1164 SUPREME COURT REPORTS [2011) 4 S.C.R.
•
A declaration of brain death--situations where a person is in a
persistent vegetative state but can support breathing, cardiac
functions, and digestion without any mechanical aid are
necessarily those that will not come within the ambit of brain
death.
B
116. In legal terms, the question of death would naturally
assume significance as death has a set of legal consequences
as well. As per the definition in the American Uniform Definition
of Death Act, 1980. an individual who "sustain[s] ... irreversible
cessation of all functions of the entire brain, including the
C brain stem, is dead." This stage, thus, is reached at a situation
where not only consciousness, but every other aspect of life
regulated from the brain can no longer be so regulated.

117. In the case of 'euthanasia', however, the situation is
D slightly different. In these cases, it is believed, that a
determination of when it would be right or fair to disallow
resuscitation of a person who is incapable of expressing his
or her consent to a termination of his or her life depends on
two circumstances:
E
a. when a person is only kept alive mechanically, i.e.
when not only consciousness is lost, but the person
is only able to sustain involuntary functioning
through advanced medical technology--such as the
use of heart-lung machines, medical ventilators etc.
F
b. when there is no plausible possibility of the person
ever being able to come out of this stage. Medical
"miracles" are not unknown, but if a person has
been at a stage where his life is only sustained
G through medical technology, and there has been no
significant alteration in the person's condition for a
long period of time-at least a few years--then there
can be a fair case made out for passive euthanasia.

H To extend this further, especially when a person is incapable
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1165
INDIA AND ORS. [MARKANDEY KAT JU, J.]

of being able to give any consent, would amount to committing A
judicial murder.

118. In this connection we may refer to the Transplantation
of Human Organs Act, 1994 enacted by the Indian Parliament.
Section 2(d) of the Act states :
B
"brain-stem death" means the stage at which all functions
of the brain-stem have permanently and irreversibly
ceased and is so certified under sub-section (6) of section
3:"
c
119. Section 3(6) of the said Act states:

"(6) Where any human organ is to be removed from the
body of a person in the event of his brain-stem death, no such·
removal shall be undertaken unless such death is certified, in
such form and in such manner and on satisfaction of such D
conditions and requirements as may be prescribed, by a Board
of medical experts consisting of the following, namely:-
(i) the registered medical practitioner, in charge of the
hospital in which brain-stem death has occurred; E
(ii) an independent registered medical practitioner,
being a specialist, to be nominated by the
registered medical practitioner specified in clause
(i), from the panel of names approved by the F
Appropriate Authority;

(iii) a neurologist or a neurosurgeon to be nominated
by the registered medical practitioner specified in
clause (i), from the panel of names approved by the·
Appropriate Authority; and G

(iv) the registered medical practitioner treating the
person whose brain-stem death has occurred".

120. Although the above Act was only for the purpose of H
1166 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A regulation of transplantation of human organs it throws some
light on the meaning of brain death.

121. From the above angle, it cannot be said that Aruna
Shanbaug is dead. Even from the report of Committee of
Doctors which we have quoted above it appears that she has
8
some brain activity, though very little.

122. She recognizes that persons are around her and
expresses her like or dislike by making some vocal sound and
waving her hand by certain movements. She smiles if she
C receives her favourite food, fish and chicken soup. She
breathes normally and does not require a heart lung machine
or intravenous tube for feeding. Her pulse rate and respiratory
rate and blood pressure are normal. She was able to blink well
and could see her doctors who examined her. When an attempt
o was made to feed her through mouth she accepted a spoonful
of water, some sugar and mashed banana. She also licked the
sugar and banana paste sticking on her upper lips and
swallowed it. She would get disturbed when many people
entered her room, but she appeared to calm down when she
E was touched or caressed gently.

123. Aruna Shanbaug meets most of the criteria for being
in a permanent vegetative state which has resulted for 37
years. However, her dementia has not progressed and has
remained stable for many years.
F
124. From the above examination by the team of doctors,
it cannot be said that Aruna Shanbaug is dead. Whatever the
condition of her cortex, her brain stem is certainly alive. She
does not need a heart--lung machine. She breathes on her own
G without the help of a respirator. She digests food, and her body
performs other involuntary function without any help. From the
CD (which we had screened in the courtroom on 2.3.2011 in
the presence of counsels and others) it appears that she can
certainly not be called dea.d. She was making some sounds,
H
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1167
INDIA AND ORS. [MARKANDEY KATJU, J.]

blinking, eating food put in her mouth, and even licking with her A
tongue morsels on her mouth.

125. However, there appears little possibility of her coming
out of PVS in which she is in. In all probability, she will continue
to be in the state in which she is in till her death. The question
8
now is whether her life support system (which is done by feeding
her) should be withdrawn, and at whose instance?

WITHDRAWAL OF LIFE SUPPORT OF A PATIENT IN
PERMANENT VEGETATIVE STATE (PVS)
c
126. There is no statutory provision in our country as to the
legal procedure for withdrawing life support to a person in PVS
or who is otherwise incompetent to take a decision in this
connection. We agree with Mr. Andhyarujina that passive
euthanasia should be permitted in our country in certain 0
situations, and we disagree with the learned Attorney General
that it should never be permitted. Hence, following the technique
used in Vishakha's case (supra), we are laying down the law
in this connection which will continue to be the law until
Parliament makes a law on the subject.
E
(i) A decision has to be taken to discontinue life
support either by the parents or the spouse or other
close relatives, or in the absence of any of them,
such a decision can be taken even by a person or
a body of persons acting as a next friend. It can F
also be taken by the doctors attending the patient.
However, the decision should be taken bona fide
in the best interest of the patient.

In the present case, we have already noted G
that Aruna Shanbaug's parents are dead and other
close relatives are not interested in her ever since
she had the unfortunate assault on her. As already
noted above, it is the KEM hospital staff, who have
been amazingly caring for her day and night for so H
1168 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A many long years, who really are her next friends,
and not Ms. Pinky Virani who has only visited her
on few occasions and written a book on her. Hence
it is for the KEM hospital staff to take that decision.
The KEM hospital staff have clearly expressed their
B wish that Aruna Shanbaug should be allowed to
live.

Mr. Pallav Shisodia, learned senior counsel,
appearing for the Dean, KEM Hospital, Mumbai,
submitted that Ms. Pinky Virani has no locus standi
c in this case. In our opinion it is not necessary for
us to go into this question since we are of the
opinion that it is the KEM Hospital staff who is really
the next friend of Aruna Shanbaug.

D We do not mean to decry or disparage what
Ms. Pinky Virani has done. Rather, we wish to
express our appreciation of the splendid social
spirit she has shown. We have seen on the internet
that she has been espousing many social causes,
E and we hold her in high esteem. All that we wish to
say is that however much her interest in Aruna
Shanbaug may be it cannot match the involvement
of the KEM hospital staff who have been taking
care of Aruna day and night for 38 years.
F However, assuming that the KEM hospital
staff at some future time changes its mind, in our
opinion in such a situation the KEM hospital would
have to apply to the Bombay High Court for
approval of the decision to withdraw life support.
G
(ii) Hence, even if a decision is taken by the near
relatives or doctors or next friend to withdraw life
support, such a decision requires approval from the
High Court concerned as laid down in Airedale's
H case (supra).
• ARLINA RAMCHANDRA SHANBAUG v. UNION OF 1169
INDIA AND ORS. [MARKANDEY KATJU, J.]

In our opinion, this is even more necessary in A
our country as we cannot rule out the possibility of
mischief being done by relatives or others for
inheriting the property of the patient.

127. In our opinion, if we leave it solely to the patient's
8
relatives or to the doctors or next friend to decide whether to
withdraw the life support of an incompetent person there is
always a risk in our country that this may be misused by some
unscrupulous persons who wish to inherit or otherwise grab the
property of the patient. Considering the low ethical levels C
prevaili·1g in our society today and the rampant
commercialization and corruption, we cannot rule out the
possibility that unscrupulous persons with the help of some
unscrupulous doctors may fabricate material to show that it is
a terminal case with no chance of recovery. There are doctors
and doctors. While many doctors are upright, there are others D
who can do anything for money (see George Bernard Shaw's
play 'The Doctors Dilemma'). The commercialization of our
society has crossed all limits. Hence we have to guard against
the potential of misuse (see Robin Cook's novel 'Coma'). In our
opinion, while giving great weight to the wishes of the parents, E
spouse, or other close relatives or next friend of the
incompetent patient and also giving due weight to the opinion
of the attend1ng doctors, we cannot leave it entirely to their
discretion whether to discontinue the life support or not. We
agree with the decision of the Lord Keith in Airedale's case F
(supra) that the approval of the High Court should be taken in
this connection. This is in the interest of the protection of the
patient, protection of the doctors, relative and next friend, and
for reassurance of the patient's family as well as the public. This
is also in consonance with the doctrine of parens patriae which G
is a well known principle of law.

DOCTRINE OF PARENS PATRIAE

128. The doctrine of Parens Patriae (father of the country)
H
1170 SUPREME COURT REPORTS [2011] 4 S.C.R.

A had originated in British law as early as the 13th century. It
implies that the King is the father of the country and is under
obligation to look after the interest of those who are unable to
look after themselves. The idea behind Parens Patriae is that
if a citizen is in need of someone who can act as a parent who
B can make decisions and take some other action, sometimes
the State is best qualified to take on this role.

129. In the Constitution Bench decision of this Court in
Charan Lal Sahu vs. Union of India (1990) 1 SCC 613 (vide
C paras 35 and 36), the doctrine has been explained in some
details as follows :

"In the "Words and Phrases" Permanent Edition, Vol.
33 at page 99, it is stated that parens patriae is the
inherent power and authority of a legislature to provide
D protection to the person and property of persons non sui
juris, such as minor, insane, and incompetent persons, but
the words parens patriae meaning thereby 'the father of
the country', were applied originally to the King and are
used to designate the State referring to its sovereign
E power of guardianship over persons under disability.
Parens patriae jurisdiction, it has been explained, is the
right of the sovereign and imposes a duty on the sovereign,
in public interest, to protect persons under disability who
have no rightful protector. The connotation of the term
F parens patriae differs from country to country, for instance,
in England it is the King, in America it is the people, etc.
The government is within its duty to protect and to control
persons under disability".
The duty of the King in feudal times to act as parens patriae
G (father of the country) has been taken over in modern times by
the State.
· 130. In Heller vs. DOE (509) US 312 Mr. Justice Kennedy
speaking for the U.S. Supreme Court observed :
·H
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1171
INDIA AND ORS. [MARKANDEY KATJU, J.]

"the State has a legitimate interest under its parens patriae A
powers in providing care to its citizens who are unable to
care for themselves".

131. In State of Kera/a vs. N.M. Thomas, 1976(1) SCR
906 (at page 951) Mr. Justice Mathew observed :
B
" The Court also is 'state' within the meaning of Article 12
(of the Constitution).".

132. In our opinion, in the case of an incompetent person
who is unable to take a decision whether to withdraw life c
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.

UNDER WHICH PROVISION OF THE LAW CAN THE D
COURT GRANT APPROVAL FOR WITHDRAWING LIFE
SUPPORT TO AN INCOMPETENT PERSON .

133. In our opinion, it is the High Court under Article 226
of the Constitution which can grant approval for withdrawal of E
life support to such an incompetent person. Article 226(1) of
the Constitution states :

"Notwithstanding anything in article 32, every High Court
shall have power, throughout the territories in relation to F
which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them, for G
the enforcement of any of the rights conferred by Part Ill
and for any other purpose".

134. A bare perusal of the above provisions shows that
the High Court under Article 226 of the Constitution is not only
entitled to issue writs, but is also entitled to issue directions or H
1172 SUPREME COURT REPORTS [2011] 4 S.C.R.
•
A orders.

135. In Dwarka Nath vs. /TO AIR 1966 SC 81(vide
paragraph 4) this Court observed :

''This article is couched in comprehensive phraseology and
8 it ex facie confers a wide power on the High Courts to
reach injustice wherever it is found. The Constitution
designedly used a wide language in describing the nature
of the power, the purpose for which and the person or
authority against whom it can be exercised. It can issue
c writs in the nature of prerogative writs as understood in
England; but the scope of those writs also is widened by
the use of the expression "nature", for the said expression
does not equate the writs that can be issued in India with
those in England, but only draws an analogy from them.
D That apart, High Courts can also issue directions, orders
or writs other than the prerogative writs. It enables the High
Courts to mould the reliefs to meet the peculiar and
complicated requirements of this country. Any attempt to
equate the scope of the power of the High Court under Art.
E 226 of the Constitution with that of the English Courts to
issue prerogative writs is to introduce the unnecessary
procedural restrictions grown over the years in a
comparatively small country like England with a unitary
form of Government to a vast country like India functioning
F under a federal structure."

136. The above decision has been followed by this Court
in Shri Anadi Mukta Sadguru vs. V. R. Rudani AIR 1989 SC
1607 (vide para 18).

G 137. No doubt, the ordinary practice in our High Courts
since the time of framing of the Constitution in 1950 is that
petitions filed under Article 226 of the Constitution pray for a
writ of the kind referred to in the provision. However, from the
very language of the Article 226, and as explained by the above
H decisions, a petition can also be made to the High Court under
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1173
INDIA AND ORS. [MARKANDEY KAT JU, J.]

Article 226 of the Constitution praying for an order or direction, A
and not for any writ. Hence, in our opinion, Article 226 gives
abundant power to the High Court .to pass suitable orders on
the application filed by the near relatives or next friend or the
doctors/hospital staff praying for permission to withdraw the life
support to an incompetent person of the kind above mentioned. B

PROCEDURE TO BE ADOPTED BY THE HIGH COURT
WHEN SUCH AN APPLICATION IS FILED

138. When such an application is filed the Chief Justice
of the High Court should forthwith constitute a Bench of at least C
two Judges who should decide to grant approval or not. Before
doing so the Bench should seek the opinion of a committee of
three reputed doctors to be nominated by the Bench after
consulting such medical authorities/medical practitioners as it
may deem fit. Preferably one of the three doctors should be a D
neurologist, one should be a psychiatrist, and the third a
physician. For this purpose a panel of doctors in every city may
be prepared by the High Court in consultation with the State
Government/Union Territory and their fees for this purpose may
be fixed. E

139. 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.
F
140. 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 G
as soon as it is available. After hearing them, the High Court
bench should give its verdict. The above procedure should be
followed all over India until Parliament makes legislation on this
subject.
H
1174 SUPREME COURT REPORTS [2011) 4 S.C.R.
•
A 141. The High Court should give its decision speedily at
the earliest, since delay in the matter may result in causing great
mental agony to the relatives and persons close to the patient.

142. The High Court should give its decision assigning
specific reasons in accordance with the principle of 'best
8
interest of the patient' laid down by the House of Lords in
Airedale's case (supra). The views of the near relatives and
committee of doctors should be given due weight by the High
Court before pronouncing a final verdict which shall not be
summary in nature.
c
143. With these observations, this petition is dismissed.

144. Before parting with the case, we would like to express
our gratitude to Mr. Shekhar Naphade, learned senior counsel
0 for the petitioner, assisted by Ms. Shubhangi Tuli, Ms. Divya
Jain and Mr. Vimal Chandra S. Dave, advocates, the learned
Attorney General for India Mr. G. E. Vahanvati, assisted by Mr.
Chinmoy P. Sharma, advocate, Mr. T. R. Andhyarujina, learned
Senior Counsel, whom we had appointed as amicus curiae
E assisted by Mr. Soumik Ghoshal, advocate, Mr. Pallav
Shishodia, learned senior counsel, assisted by Ms. Sunaina
Dutta and Mrs. Suchitra Atul Chitale, advocates for the KEM
Hospital, Mumbai and Mr. Chinmoy Khaldkar, counsel for the
State of Maharashtra, assisted by Mr. Sanjay V. Kharde and
F Ms. Asha Gopalan Nair, advocates, who were of great
assistance to us. We wish to express our appreciation of Mr.
Manav Kapur, Aovocate, who is Law-Clerk-cum-Research
Assistant of one of us (Katju, J.) as well as Ms. Neha Purohit,
Advocate, who is Law-Clerk-cum-Research Assistant of
Hon'ble Justice Gyan Sudha Mishra. We also wish to mention
G the names of Mr. Nithyaesh Nataraj and Mr. Vaibhav
Rangarajan, final year law students in the School of Excellence,
Dr. B.R. Ambedkar Law University, Chennai, who were the
interns of one of us (Katju, J.) and who were of great help in
doing research in this case.
H
• ARUNA RAMCHANDRA SHANBAUG v. UNION OF 1175
INDIA AND ORS. [MARKANDEY KATJU, J.]

145. We wish to commend the team of doctors of Mumbai A
who helped us viz, Dr. J. V. Divatia, Professor and Head,
Department of Anesthesia, Critical Care and Pain at Tata
Memorial Hospital, Mumbai; Dr. Roop Gursahani, Consultant
Neurologist at P.O. Hinduja, Mumbai; and Dr. Nilesh Shah,
Professor and Head, Department of Psychiatry at Lokmanya B
Tilak Municipal Corporation Medical College arid· General
Hospital. They did an excellent job.

146. We also wish to express our appreciation of Ms.
Pinki Virani who filed this petition. Although we have dismissed t
the petition for the reasons given above, we regard her as'a
public spirited· person who filed the petition for a cause she
bona fide regarded as corre·ct and ethical:· We hold Aer in high
esteem.

147. We also commend the entire staff of KEM Hospital, D
Mumbai (including the retired staff) for their noble spirit and
outstanding, exemplary and unprecedented dedication in taking
care of Aruna for so many long years. Every Indian is proud of
them.
E
B.B.B., Petition dismissed.