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Uttarakhand High Court · body

2014 DIGILAW 89 (UTT)

Mukta Mehra v. State of Uttarakhand

2014-03-19

U.C.DHYANI

body2014
Judgment : 1. An application for grant of euthanasia was given by the petitioner of Criminal Writ Petition No.1047 of 2013 (hereinafter referred to as the ‘victim’) to Hon’ble Chief Justice of the Supreme Court of India, a copy of which was given to Hon’ble Chief Justice of this Court. Such an application dated 17.06.2013 was registered as Criminal Writ Petition no.1047/2013. Counter affidavits were filed by the Director General of Police, Uttarakhand, as also by respondent no.6 (Pramendra Dobal) and the Investigating Officer. 2. The Assistant Superintendent of Police allegedly committed rape with the victim. An FIR (being case crime no.259/2013) was lodged against the accused under Sections 328, 376 & 506 IPC. The investigation was entrusted to CBCID. It was also stated in the petition that the accused used his mobile phone to send indecent and obscene SMS to her. He also sent SMS to the victim tendering apology for his guilt and for pardoning him taking a plea that he has wife and a child. Since the victim has not been able to get justice and the Government as well as the Police Department was saving the accused, therefore, she prayed for granting euthanasia by way of filing application to the Hon’ble Chief Justice of the Supreme Court of India, a copy of which was given to the Hon’ble Chief Justice of this Court. 3. By order dated 14.05.2013 passed by the Director General of Police, the investigation of the case was transferred to CBCID, who, after conducting investigation of the case, submitted a final report on 31.12.2013. Since then the final report is pending disposal before the Magistrate concerned. The departmental enquiry was conducted by the Superintendent of Police, who submitted his report on 29.01.2013 to the Deputy Inspector General of Police, Kumaon Region, Nainital. Although, the accused was censured for his misconduct, but the offence of sexual assault was not found proved against him. The Investigating Officer of CBCID filed a final report against the accused, primarily on the ground that the victim’s location on the date and time of the alleged incident was at her own house at Rampur Road, Haldwani. 4. The alleged incident of sexual assault on 15.10.2012 and the subsequent conversation of the accused with the victim tormented her psyche. The Investigating Officer of CBCID filed a final report against the accused, primarily on the ground that the victim’s location on the date and time of the alleged incident was at her own house at Rampur Road, Haldwani. 4. The alleged incident of sexual assault on 15.10.2012 and the subsequent conversation of the accused with the victim tormented her psyche. The incident of rape was so shocking to her that she chose to end her life with the permission of the Court. She, therefore, moved an application for grant of euthanasia. The shocking incident of sexual assault was, no doubt, unpardonable, but the question which arises for consideration of this Court is – whether she should be granted permission for intentionally ending her life in order to relieve her from pain, mental trauma and suffering? 5. The word ‘euthanasia’ was first used in the medical context by Francis Bacon in the 17th century, to refer to an easy, painless, happy death, during which it was a “physician’s responsibility to alleviate the ‘physical sufferings’ of the body”. An important idea behind the distinction between ‘active euthanasia’ and ‘passive euthanasia’ is that, in the latter, the doctors are not actively killing anyone, they are simply not saving the patient. 6. Rober Ingersoll argued for euthanasia, stating in 1894 that where someone is suffering from a terminal illness, such as terminal cancer, they should have a right to end their pain through suicide. Felix Adler offered a similar approach, although, unlike Ingersoll, Adler did not reject religion, and argued from an Ethical Culture framework. In 1891, Alder argued that those suffering from overwhelming pain should have the right to commit suicide, and, furthermore, that it should be permissible for a doctor to assist – thus making Adler the first ‘prominent American’ to argue for suicide in cases where people were suffering from chronic illness. Both Ingersoll and Adler argued for voluntary euthanasia of adults suffering from terminal ailments. 7. On 07.03.2011, the Hon’ble Supreme Court legalized ‘passive euthanasia’ by means of the withdrawal of life support to patients in a permanent vegetative state. The decision was made as part of the verdict in Aruna Ramachandra Shanbaug vs. Union of India & others, (2011) 4 SCC 454 as also in (2011) 4 SCC 524 . Aruna Shanbaug had been in a vegetative state for 37 years at King Edward Memorial Hospital. The decision was made as part of the verdict in Aruna Ramachandra Shanbaug vs. Union of India & others, (2011) 4 SCC 454 as also in (2011) 4 SCC 524 . Aruna Shanbaug had been in a vegetative state for 37 years at King Edward Memorial Hospital. The High Court rejected active euthanasia by means of lethal injection. In the absence of a law regulating euthanasia in India, the Hon’ble Supreme Court stated that its decision becomes the law of the land until the Indian Parliament enacts a suitable law. Active euthanasia, including the administration of lethal compounds for the purpose of ending life, is still illegal in India, and in most countries of the world. 8. Aruna Shanbaug was a nurse working at the KEM Hospital in Mumbai on 27.11.1973, when she was strangled and sodomised by a sweeper working in the hospital. During the attack, she was strangled with a chain, and the deprivation of oxygen left her in a vegetative stage ever since. She was treated at KEM since the incident and is kept alive by feeding tube. 9. On behalf of Aruna, her friend Pinki Virani, a social activist, filed a petition in the Supreme Court arguing that the ‘continued existence of Aruna is in violation of her right to live in dignity’. The Hon’ble Supreme Court in its decision dated 07.03.2011 rejected the plea to discontinue Aruna’s life support, but issued a set of broad guidelines legalizing ‘passive euthanasia’ in India. 10. According to these guidelines, passive euthanasia involves the withdrawal of treatment or food that would allow the patient to live. Forms of ‘active euthanasia’, including the administration of lethal compounds, legal in a number of nations and jurisdictions including Switzerland, Belgium and the Netherlands, as well as the United States of America, are still illegal in India. 11. Elsewhere in the world, ‘active euthanasia’ is almost always illegal. The legal status of ‘passive euthanasia’ on the other hand, including the withdrawal of nutrition or water, varies across the nations of the world. As India had no law about euthanasia, the Hon’ble Supreme Court’s guidelines are law until and unless our Parliament passes a legislation. 12. 11. Elsewhere in the world, ‘active euthanasia’ is almost always illegal. The legal status of ‘passive euthanasia’ on the other hand, including the withdrawal of nutrition or water, varies across the nations of the world. As India had no law about euthanasia, the Hon’ble Supreme Court’s guidelines are law until and unless our Parliament passes a legislation. 12. The following guidelines were laid down by the Hon’ble Supreme Court: (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 also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient. (ii) 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. (iii) When such an application is filed, the Hon’ble Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. A committee of three reputed doctors is to be nominated by the Bench, who will give report regarding the condition of the patient. Before giving the verdict, a notice regarding the report should be given to the close relatives and the State. After hearing the parties, the High Court can give its verdict. 13. In the light of aforesaid discussion, this Court is of the opinion that the instant case of the victim is not at all covered by the guidelines laid down by Hon’ble Apex Court in Aruna Shanbaug’s case (supra). There is, therefore, no question of granting permission to the victim to end her life in order to relieve her from pain, mental trauma and suffering caused due to the sexual assault allegedly committed by the accused-Pramendra Dobal. In Gian Kaur vs. State of Punjab, (1996) 2 SCC 648 , it was held that both ‘euthanasia’ and ‘assisted suicide’ are not lawful in India. Abetment of suicide (Section 306 IPC) and attempt to commit suicide (Section 309 IPC) are criminal offences. In Gian Kaur vs. State of Punjab, (1996) 2 SCC 648 , it was held that both ‘euthanasia’ and ‘assisted suicide’ are not lawful in India. Abetment of suicide (Section 306 IPC) and attempt to commit suicide (Section 309 IPC) are criminal offences. Section 309 IPC has been held constitutionally valid in Gian Kaur’s case (supra), in which earlier contrary view taken in P. Rathinam vs. Union of India, (1994) 3 SCC 394 , was overruled. The right to life under Article 21 of the Constitution of India does not include the right to die. This Court wanted this message to go to the victim. 14. It is made clear that the Court, by denying such permission to the victim, has not expressed any opinion in favour of the accused Pramendra Dobal. The matter is pending adjudication before the Addl. Chief Judicial Magistrate / Judicial Magistrate, Haldwani and this Court has not granted any kind of interim protection to the accused-Pramendra Dobal. If he was not arrested by the police, it was not on account of any kind of interim protection from arrest by this Court. 15. The criminal writ petition no.1047/2013 filed by the victim for grant of euthanasia is dismissed. 16. So far as the criminal writ petition no.1130/2013 is concerned, it has been brought on record by learned counsel for the victim that C.B.C.I.D. (Investigating Agency) has submitted final report in the case. The criminal writ petition no.1130/2013 has, therefore, rendered infructuous. The same is dismissed as infructuous. [No interim protection was granted to the accused-Pramendra Dobal.] 17. Learned counsel for the victim stated that the prosecutrix intends to file protest petition against the final report submitted by the CBCID, if the same has not been filed earlier. In view of such statement made on behalf of the victim, it is directed that the final report (alongwith protest petition) shall be disposed of by learned Magistrate according to law, as expeditiously as possible, and without unreasonable delay. 18. Let a copy of this judgment be sent to the court concerned for compliance.