In the Hon’ble Supreme Court of Zingaro
WRIT PETITION NO.
MRS. RASHI KUMAR ...……PETITIONER
Vs.
UNION OF ZINGARO ……...RESPONDENT
SUBMITTED IN THE REGISTRY OF THE RESPECTIVE COURT.
Memorial on behalf of the Respondent.
TABLE OF CONTENTS
Abbreviations…………………………………………………….3
List of Authorities………………………………………………...4
Statement of Jurisdiction…………………………………………6
Statement of Facts………………………………………………..7
Questions Presented……………………………………………...8
Summary of Arguments…………………………………………..9
Arguments Advanced…………………………………………….10
Prayers……………………………………………………………24
ABBREVIATIONS
Hon’ble Honorable
Art. Article
AIR All Indian Reporter
SC Supreme Court
Vs. Versus
AIMS Araval Institute of Medical Sciences
IPC Indian Penal Code
i.e. That is
Sec. Section
PVS Permanent Vegetative State
U.S. United States
IMC Indian Medical Council
BMA British Medical Association
KEM King Edward Medical
LIST OF AUTHORITIES
NO. | CASE LAWS | 1. | Aruna Ramchandra Shanbaug vs Union Of India & Ors. on 7 March, 2011 ; WRIT PETITION (CRIMINAL) NO. 115 OF 2009 | 2. | Mr. Sanjay Mutha S/O Prem Raj Mutha vs Dr. Mrs. Jayasree Desai, Dr. ... on 8 June, 2007; Andhra High Court | 3. | Airedale N.H.S. Trust -v- Bland; COURT: HOUSE OF LORDS; DATE: 4 FEBRUARY 1993; REFERENCES: [1993] 2 WLR 316 | 4. | Smt. Gian Kaur vs The State Of Punjab on 21 March, 1996; AIR 946, 1996 SCC (2) 648 | 5. | Naresh Marotrao Sakhre And ... vs Union Of India And Others; 1996 (1) BomCR 92, 1995 CriLJ 96, 1994 (2) MhLj 1850 | 6. | Chenna Jagadeeswar and another Vs. State of Andhra Pradesh, 1988 Crl.L.J.549; Andhra High Court | 7. | P.Rathinam vs Union Of India on 26 April, 1994; AIR 1844, 1994 SCC (3) 394 |
BOOKS REFERRED 1. Constitution of India by Durga Das Basu 2. Indian Penal Code, 1860
WEBSITES REFERRED 1. www.indiankanoon.com 2. www.wikipedia.org 3. www.indialaw.com 4. www.legallyindia.com 5. www.manupatra.com 6. www.mciindia.org 7. www.bma.org.uk 8. www.legalservice.com
STATEMENT OF JURISDICTION
The respondents would like to establish that the Honorable Supreme Court Of Zingaro has no jurisdiction to hear the present case.
Article 32 (1) of the Indian Constitution states that, “Remedies for enforcement of rights conferred by this Part; the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.”
Under Article 32 of the Indian Constitution, the petitioner is required to prove a violation of the fundamental rights.
Since, there has been no violation of any fundamental rights in the present case, the writ petition filed by Mr. Ramesh is not maintainable and thus the case should be dismissed at the earliest possible event.
STATEMENT OF FACTS 1. The country of Zingaro is the largest democracy with the Constitution and all laws same as that of India. The country is a developing one and has somehow managed to be economically stable despite the crisis worldwide. 2. Araval, the capital of Zingaro has poor medical health facilities and the private medical facilities in there are too costly to be afforded to the middle income group people. 3. Mr. Ramesh Kumar, a resident of Araval is a low paid employee in a private firm and is the only earning member of his family. He has three children, one pursuing an undergraduate course and the other two pursuing their intermediate course. 4. Mrs. Rashi, Mr. Ramesh Kumar’s wife, was diagnosed with a rare disease of spine for the treatment of which she was admitted to Araval Institute of Medical Sciences (AIMS) which is said to be very poor in terms of life saving equipments.. 5. Mrs. Rashi has been under expert medical treatment and strong medication since November 2008. 6. The treatment of Mrs. Rashi had taken a heavy toll upon the family. The marginal land owned by the family had to be sold away, their three children had to abandon their studies and even their residential house had to be mortgaged to secure money for the continuation of treatment. 7. She is now on life support system and is suffering from excruciating pain on account of her medical condition. She has expressed her desire to die following which her family has requested the doctors to withdraw the life support system. 8. The doctors, on the other hand, have advised the family to continue with the treatment and have refused to comply with the family’s request to remove the life support system as they believe that such an endeavor would be contrary to the professional medical ethics and would also be a penal offence.
QUESTIONS PRESENTED
1. Whether the Writ Petition is maintainable under Article 21 or not? 2. Whether the withdrawal of life support system by the doctors of AIMS will lead to a penal offence? 3. Whether the withdrawal of life support system would be contrary to the professional medical ethics?
SUMMARY OF ARGUMENTS
1. The writ petition filed by Mr. Ramesh Kumar in Supreme Court of Zingaro is inadmissible and thus should be dismissed. 2.1 Mr. Ramesh Kumar has no jurisdiction to file a writ petition in this Honorable Court.
2. Withdrawal of life support system by the doctors would amount to several penal offences under Indian Penal Code, 1860. 3.2 The doctors at AIMS shall be held liable under section 304 of the Indian Penal Code, 1860 if they comply with Mrs. Rashi’s desire to die and accordingly withdraw the life support system. 3.3 In arguendo, the withdrawal of the life support system by the doctors shall lead to a penal offence under Section 306 of the Indian Penal Code.
3. Professional medical ethics play a vital role in determining whether Mrs. Rashi’s desire to die should be complied with. 4.4 The Regulation 6.7 of the Indian Medical Council Act, 1956 states practicing euthanasia shall constitute unethical conduct. 4.5 The doctors of AIMS have followed the cardinal principle of Benefeciance by advising Mrs. Rashi to continue with the treatment.
ARGUMENTS ADVANCED
1. The writ petition filed by Mr. Ramesh Kumar in Supreme Court of Zingaro is inadmissible and thus should be dismissed.
2.1 Mr. Ramesh Kumar has no jurisdiction to file a writ petition in this Honorable Court.
Article 32 (1) of the Indian Constitution states that, “Remedies for enforcement of rights conferred by this Part; the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.”
Under Article 32 of the Indian Constitution, the petitioner is required to prove a violation of the fundamental rights.
It has been previously held by the Supreme Court in the Gian Kaur v. State of Punjab, that the Right to Life, guaranteed by Article 21 of the Constitution, does not include the Right to Die. Moreover, the ‘right to die with human dignity’ cannot be construed to include within its ambit ‘the right to terminate natural life’, at least before the natural process of certain death. The ‘right to die’, if any, is inherently inconsistent with the ‘right to life’, as is death with life.
Also in Chenna Jagdishwar v.State of A.P, the Andhra Pradesh High Court held that, “the right to die is not a fundamental right within the meaning of Art. 21.”
In the case in question, Mrs. Rashi has absolutely no right to die as such a right is not guaranteed under Article 21 of the Indian Constitution.
Ergo, there has been no violation of the fundamental rights in the present matter.
In view of the arguments advanced with respect to the jurisdiction of the present case, it is humbly submitted before this Honorable Court that the writ petition filed by Mr. Ramesh Kumar be dismissed as the court does not have the requisite jurisdiction to hear the matter.
2. Withdrawal of life support system by the doctors would amount to several/following penal offences under Indian Penal Code, 1860.
2.1 The doctors at AIMS shall be held liable under section 304 of the Indian Penal Code, 1860 if they comply with Mrs. Rashi’s desire to die and accordingly withdraw the life support system.
In the case Naresh Marotrao Sakhre v. Union of India, Lodha J. affirmed that "Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is effected." It was also held in the same case, In India, euthanasia is absolutely illegal. If a doctor tries to kill a patient, the case will surely fall under Section 300 of Indian Penal Code, 1860. But in the case of voluntary euthanasia in which, such cases will fall under the exception 5 to section 300 of Indian Penal Code,1860 and thus the doctor will be held liable under Section 304 of Indian Penal Code,1860 for culpable homicide not amounting to murder.
Exception (5) to Section 300, Indian Penal Code, 1860, reads as follows:
“Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the "risk" of death with his own consent.”
From the factsheet it is clear that Mrs. Rashi is eligible to give the consent to end her life and she has given the consent by requesting the doctors to withdraw the life support system.
Section 304, Indian Penal Code, 1860 states,
“Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.”
Thus from the facts of the case, we infer that had the doctors complied with Mrs. Rashi’s desire to die, they would have been held liable under Section 304 i.e., Culpable Homicide not amounting to murder if they would have withdrawn the life support system.
The respondents would like to draw a parallel with the present case and that of Mr. Sanjay Mutha S/O Prem Raj Mutha vs Dr. Mrs. Jayasree Desai. This was a case of an unfortunate young lady who was mother of a child and wanted to have a second child and while undergoing investigations at the hands of the accused i.e., the doctors, ended up in a state of health which can only be described as vegetative because of their negligence while inserting fallopian tube
In contrast to the present case the doctors have a clear idea that the withdrawal of the life support system would lead to death of Mrs. Rashi, thus, taking into consideration the same, they have denied to her request to die as it would amount to a penal offence under section 304 of the Indian Penal Code.
2.2 In arguendo, the withdrawal of the life support system by the doctors shall lead to a penal offence under Section 306 of the Indian Penal Code.
Section 306 of the Indian Penal Code deals with the abetment of suicide. It reads as follows, “If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
The word ‘Abetment’ is independently defined under Sec 107 of the Indian Penal Code.
In Gian Kaur case, the Supreme Court made it clear that ‘Euthanasia’ and ‘Assisted Suicide’ are not lawful in India and the provisions of the Penal Code 1860 get attracted to these acts. Fortunately, in the context of sec 306 (abetment of suicide), there are some useful remarks in Gian Kaur case which touch upon the subject of withdrawal of life support. Before the Supreme Court, in the context of an argument dealing with ‘abetment’ of suicide the decision of the House of Lords in Airedale N.H.S. Trust vs. Bland 1993(1) All ER 821, was cited.
The Supreme Court referred to the distinction between withdrawing life support and euthanasia, as follows,
“...Airedale N.H.S. Trust vs. Bland was a case relating to withdrawal of artificial measures for continuance of life by a physician. Even though it is not necessary to deal with physician assisted suicide or euthanasia case, a brief reference to the decision cited at the Bar may be made. In the context of existence in the persistent vegetative state of no benefit to the patient, the principle of sanctity of life, which is the concern of the State, was stated to be not an absolute one. In such cases also, the existing crucial distinction between cases in which a physician decides not to provide, or to continue to provide, for his patient, treatment of 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, was indicated and it was then stated as under….”
And their Lordships quoted the following passage from Airdale,
“But, it is not lawful for 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. Euthanasia is not lawful at Common-law. It is of course well known that there are many 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 legalized killing can only be carried out subject to appropriate supervision and control”.
In effect, the Supreme Court, while making the distinction between euthanasia, which can be legalized only by legislation, and ‘withdrawal of life-support’, appears to agree with the House of Lords that ‘withdrawal of life support’ is permissible in respect of a patient in a persistent vegetative state as it is no longer beneficial to the patient that ‘artificial measures’ be started or continued merely for ‘continuance of life’.
From the facts of the case, we infer that Mrs. Rashi was not in a persistent vegetative. She was well in a conscious state when she expressed her desire to die. Therefore this exception cannot be taken into consideration in this case.
Ergo, if the doctors withdraw the life support system, they will be guilty under Section 306 of the Indian Penal Code for abetment of suicide.
3. Professional medical ethics play a vital role in determining whether Mrs. Rashi’s desire to die should be complied with.
3.1 The Regulation 6.7 of the Indian Medical Council Act, 1956 states practicing euthanasia shall constitute unethical conduct.
Under the Indian Medical Council Act, 1956 practicing euthanasia has been regarded as an unethical conduct further on specific occasions, the question of withdrawing supporting devices to sustain cardio-pulmonary function even after brain death, shall be decided only by a team of doctors. A team of doctors shall declare withdrawal of support system. Such team shall consist of the doctor in charge of the patient, Chief Medical Officer / Medical Officer in charge of the hospital and a doctor nominated by the in-charge of the hospital from the hospital staff.
From the facts we understand that the doctors have advised Mrs. Rashi to continue with the treatment as they strongly believe that there is a scope of recovery in her medical condition and withdrawing the life support which would lead to the death of the patient. The same is contrary to the professional medical ethics.
The British Medical Association’s position is based on two main strands of argument. The moral arguments that killing is intrinsically wrong, alien to the ethos of medicine and potentially diminishes societies that permit it as a solution for social problems are reinforced, in the BMA's published view, by practical concerns. Prominent among these is the view that toleration of euthanasia would irrevocably change the context of health care for everyone but especially for the most vulnerable. Patient autonomy, in the BMA's view, is an important principle but one which must be balanced in proportion with other moral precepts, such as the doctor's duty to avoid harm in its widest sense.
Thus mere request of Mrs. Rashi to die cannot be covered under Patient Autonomy, as affirmed by BMA that this cardinal principle must be balanced with other moral precept i.e., the doctor’s suggestions/advice should also be considered and in the present case the doctors advice to continue the treatment.
BMA publications partly base their arguments on fears that, where euthanasia to be legalised, the goals and context of medical treatment would change.
Pressures including those within the National Health Service where resources are limited, those within society where the inarticulate tend to be marginalized and those arising from emotional, psychological and financial tensions in personal relationships, are likely to impinge on the choices made by people who become ill or disabled. Endorsing some individuals' choice to die would impact on society's views generally, potentially altering perceptions of the weak, the chronically ill and the mentally impaired. While some people readily accept that legalizing euthanasia would oblige all sick people to view their options in a radically different way (and perhaps influence some to die prematurely to benefit family or heirs), the BMA considers that the opportunities for manipulation and abuse in such a situation would be unacceptable. It maintains that the arguments concerning 'beneficence' or 'autonomy' sometimes used to justify changing the law, may appear theoretically convincing but fail to reflect the real flaws and weaknesses inherent in our society and in any system of health care.
This is what is happening in the present case where Mrs. Rashi has chosen the path to die prematurely just to benefit her family and has ignored the advice of the doctors that she might recover from the present medical condition.
The BMA has pointed out that emotive arguments about pain are often, unfortunately, overplayed in the public consciousness. It acknowledges, however, that for a small minority of terminally ill patients, symptom control represents a significant and as yet unresolved problem. Doctors faced with such a situation have obligations to explore all possible sources of specialised expertise. Even for this group of patients, however, the BMA currently maintains that the societal price for changing the law would be unacceptably great and would contravene the principle of justice in reducing protection for the majority of vulnerable people. The BMA has supported the conclusion of the House of Lords that:
'Ultimately we do not believe that the arguments are sufficient reason to weaken society's prohibition of intentional killing. That prohibition is the cornerstone of law and of social relationships. It protects each one of us impartially, embodying the belief that we all are equal. We do not want that protection to be diminished. We acknowledge that there are individual cases in which euthanasia may be seen by some to be appropriate. But individual cases cannot reasonably establish the foundations of a policy which would have such serious and widespread repercussions. Dying is not only a personal or individual affair. The death of a person affects the lives of others, often in ways and to an extent which cannot be foreseen. We believe that the issue of euthanasia is one in which the interests of the individual cannot be separated from the interests of society as a whole'.
3.2 The doctors of AIMS have followed the cardinal principle of Beneficence by advising Mrs. Rashi to continue with the treatment.
While taking under consideration, the principle of beneficence states that when the physician acts from a benevolent spirit in providing beneficent treatment that in the physician's opinion is in the best interests of the patient, without consulting the patient, or by overriding the patient's wishes, it is considered to be "paternalistic." The most clear cut case of justified paternalism is seen in the treatment of suicidal patients who are a clear and present danger to themselves. Here, the duty of beneficence requires that the physician intervene on behalf of saving the patient's life or placing the patient in a protective environment, in the belief that the patient is compromised and cannot act in his own best interest at the moment.
In Aruna Shanbaug case it was held that 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 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 active euthanasia, which involves the doctor's deliberate and intentional act through administering a lethal injection to end the life of the patient.
In the present case the doctors have followed the same principle and have advised the patient to continue with the treatment as they think that this course of action is best for the patient.
Thus euthanasia presents a paradox in the code of Medical Ethics as it involves a contradiction within the Hippocratic Oath itself, which is essentially the promise to prolong and protect life even when a patient is in the late and most painful stages of fatal disease.
In the present case also it is clear that doctors having the scope to prolong life are not of the opinion that Mrs. Rashi’s life support system be withdrawn.
PRAYERS
In the light of the issues raised, arguments advanced and authorities cited, the Counsel for the Respondent most humbly and respectfully pray before this Hon’ble Court that it may be pleased to adjudge and declare that: 1. The Writ Petition be dismissed. 2. Mrs. Rashi’s life support system should not be withdrawn as it would result to violation of Article 21. 3. In arguendo, if permission of withdrawal of life support system is granted, the doctors should not be held liable under sec 304 and 306 of the Indian Penal Code.
The Court may also make any such order that it may deem fit in terms of equity, justice and due conscience. And for this act of kindness the Petitioner shall as duty bound ever humbly pray.
Respectfully submitted
(Counsel for the Respondent)
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[ 2 ]. ‘Smt. Gian Kaur vs The State Of Punjab’; AIR 946, 1996 SCC (2) 648
[ 3 ]. ‘Chenna Jagadeeswar and another Vs. State of Andhra Pradesh’, 1988 Crl.L.J.549; Andhra High Court
[ 4 ]. ‘Naresh Marotrao Sakhre And ... vs Union Of India And Others’; 1996 (1) BomCR 92, 1995 CriLJ 96, 1994 (2) MhLj 1850
[ 5 ]. ‘Mr. Sanjay Mutha S/O Prem Raj Mutha vs Dr. Mrs. Jayasree Desa’i, Dr. ... on 8 June, 2007; Andhra High Court
[ 6 ]. Sec 107, “ Abetment of a thing.- A person abets the doing of a thing, who- First.- Instigates any person to do that thing; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing.”
[ 7 ]. Supra 1
[ 8 ]. ibid
[ 9 ]. ‘Airedale N.H.S. Trust -v- Bland’; Court: House of Lords; Date: 4 February 1993; References: [1993] 2 WLR 316
[ 10 ]. Factsheet para 4
[ 11 ]. Supra 9
[ 12 ]. As per the British Medical Association's Medical Ethics Department
[ 13 ]. ‘Aruna Ramachandra Shanbaug vs Union of India India & Ors. on 7 March, 2011’ NO. 115 OF 2009
[ 14 ]. Supra 9 