Vol. XXXVII No. 2 April-June, 2018

www.commoncause.in POLICY-ORIENTED JOURNAL SINCE 1982 LIFE OR DEATH?

Under Article 21 of the Constitution of India, an individual’s right to life includes the right to die with dignity

w To Our Readers: Road Ahead 3 w The Answer is Palliative Care 23 w A Request to Ease Suffering 5 w Global Practices 28 w Life & Death are One Thread 10 w Real-Life Cases 35 w A Model Living Will 16 w Case Updates 38

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Common Cause is a non-profit organisation which makes democratic interventions for a better India. Established in 1980 by the legendary Mr. H D Shourie, Common Cause also works on judicial, police, electoral and administrative reforms, environment, human development and good governance. Its very first Public Interest Litigation benefitted millions of pensioners. Subsequent PILs transformed the way natural resources are allocated in India. Its landmark cases include those regarding criminalisation of politics; cancellation (and re-auction) of the arbitrary 2G telecom licenses and captive coal block allocations; quashing of Section 66A of the IT Act; prohibiting misuse of public money through self-congratulatory advertisements by politicians in power, to name only a few. Our other prominent petitions pertain to challenging the appointments of the Chief Vigilance Commissioner (CVC) and Vigilance Commissioner (VC), and about ‘Living Will’ seeking human beings’ right to die with dignity. The impact: Re-auctions leading to earning of several thousand crores, and counting. Even though that is a lot of money for a poor country, the earnings are a smaller gain when compared to the institutional integrity built in the process. From spectrum to coal to mines, today no government can ‘gift’ precious resources to cronies thanks to these two PILs. (For more details about cases, please visit www.commoncause.in) Common Cause runs mainly on donations and contributions from members and well-wishers. Your donations enable us to research and pursue more ideas for a better India. Common Cause believes that no donation is too small. Donations are exempt under Section 80-G of the Income Tax Act. Please send your cheques with your personal info at the address given below. You may also deposit directly into our bank account (details are given below) and send us an email at [email protected], providing information such as donor’s name, address and PAN number for issuance of donation receipt. Name: Common Cause, Bank: IndusInd Bank, Branch: Vasant Kunj, New Delhi S.B. Account No.: 100054373678, IFSC Code: INDB0000161 Address: Common Cause, Common Cause House, 5, Institutional Area, Nelson Mandela Marg, Vasant Kunj, New Delhi - 11 00 70 (Phone numbers: 011 26131313 and 45152796)

COMMON CAUSE VISION An India where every citizen is respected and fairly treated MISSION To champion vital public causes OBJECTIVES To defend and fight for the rights and entitlements of all groups of citizens

Designed at GENESIS [email protected] 9810033682 2 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 LIVING WILL: THE ROAD AHEAD It Is All About Human Dignity and Meaningful Life

Dear readers, The cover theme this time is Living Will but let me first recap the society’s main activities since the last quarter. Our Status of Policing in India Report (SPIR) released in May last continues to get extensive and noteworthy coverage in the media. Among the prominent experts who have commended its findings are French political scientist Christopher Jefferlot, former Planning Commission Member Syeda Hameed and human rights activist Maja Daruwala. It is a subject of discussion among activists, bureaucrats, cops, criminologists and political scientists which is heartening and which was one of the reasons why an enterprise like this was undertaken. Lately, our PILs have also evoked a good response. The petitions to watch in the coming months are the ones about the non-appointment of the Lokpal and the introduction of opaque Electoral Bonds, never mind if the pace of their progress is agonisingly slow. We hope these modest attempts will contribute to India’s fight against political corruption, non-transparent Happy old age to all! electoral funding and black money. In the Lokpal matter, the Supreme Court nudged the government once again to come up with a roadmap for the appointment. Last year, the Court had observed while disposing of our earlier petition that the Lokpal and Lokayuktas Act 2013 was a perfectly workable piece of legislation. Common Cause later filed a contempt petition for the compliance of this judgment. After several postponements and circuitous submissions, the Court asked for a proper time frame for the appointment. In the other matter challenging the introduction of the Electoral Bonds (filed with the Association for Democratic Reforms), notices have been issued and one can only hope that some action will be taken before the next and crucial round of elections. The bonds have unlocked Indian elections for foreign lobbyists, removed funding limits for big corporates and made the process a lot more opaque, without a minute’s discussion in Parliament. In the meantime, a group of Gandhian activists brought to our notice an environmental catastrophe called the Chardham Road Project in Uttarakhand where 900 km of road-widening is wreaking havoc with the ecology. The project is hurtling through rivers and forests at breakneck speed and without conducting the mandatory Environmental Impact Assessment (EIA). Thousands of trees have been felled in ecologically sensitive zones including in the core forest areas around the glaciers which feed the Ganga. A group of citizens did file a PIL but the National Green Tribunal (NGT) reserved its judgment to the activists’ utter frustration. Common Cause also intervened by filing an Original Application in the NGT against the indiscriminate dumping of debris and muck directly into the Bhagirathi river and along the slopes. The petition has submitted photographic evidence to point out that this would excessively pollute the river and alter its course. The NGT has issued notices to the concerned authorities. (for details of the PILs, see the Case Updates section and also commoncause.in)

*photo credit: Himanshu Joshi

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 3 Living Will: The Road Ahead This issue of Common Cause journal is dedicated to Living Will. As shared earlier, it was in response to our PIL that the Supreme Court gave a historical Judgment in March 2018 on an individual’s right to die with dignity as part of her Right to Life and Personal Liberty enshrined in Article 21 of the Constitution. The judgment was very well covered in the national media and was a subject of many debates on TV. As a petitioner, we are gratified but we are equally aware that it is one thing to get a favourable order and quite another to get it implemented in the true spirit. If one reads between the lines, the Apex Court, while recognising and upholding the citizens’ right to die with dignity, is clearly concerned about its possible misuse. It is precisely for this reason that in many countries it is a serious criminal offence to fake or misusing someone else’s Living Will or Advance Medical Directive (AMD). We can also consider making it a part of the package in the legislation which will eventually replace the Court’s directive. Clearly, our laws and ethics will have to catch up with rapid advancements in medical sciences. It also means that every stakeholder, from courts to hospitals and from doctors to patients and their caregivers, will have to be better-informed and better-prepared for the new realities surrounding us. The private sector can also help by redesigning insurance policies and hospitals to cover the end of life care. It is well-known that ageing influences our decisions. And that is why the idea of the Living Will or the AMD is to write it much in advance and at a time when the individual is of sound mind and is in command of her faculties. We have attempted to draw a Living Will or AMD in this issue of Common Cause on the basis of the court judgment. The idea is to provide a first draft for more discussion and deliberation on the subject. If you have any comments, criticism or suggestions, please share them with us. Although the Living Will judgment is about patient autonomy and old age, it opens up a significant debate on several interrelated concepts like palliative care and hospices which are beginning to be followed globally. Palliative care is a medical speciality which provides quality of life to patients and their families besides relief from pain and stress, while a hospice is a specialised care meant for those patients who are terminally ill or facing life-limiting diseases. Internationally, these are being included in medical insurance covers. The articles in this issue have tried to answer some of the moot questions surrounding the debate. They also talk about an immediate need for all Indian states to factor ageing and palliative care in their health policies. The real scope of the Living Will or the patient autonomy goes much beyond the legal provisions because it is about human dignity and meaningful life. The courts can only fill a legislative void or set the ground rules. In the end, it is our society which should be able to provide constant and compassionate care for people nearing the end of their lives. Our primary objective should be to allow old people to live (and die) as they wish. They need social and emotional security, comfort and care, besides freedom from unnecessary medical intrusions. It takes a lot more than a court order for a society to be kind and compassionate to its ageing population. Like always we will wait for your comments or suggestions, please write to us at [email protected]. -Vipul Mudgal Editor

4 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 DIGNIFIED DYING IS A HUMAN RIGHT A Living Will is Merely a Request to Ease Suffering Dr. Mala Kapur Shankardass*

s the population is ageing, In particular, there is a concern or pain-racked body with Aincreased longevity is bringing about older people who would interventions which they did not in more worries than just crow’s have died naturally, but are now choose. feet. Under the shadow of being kept alive longer presumably rising life expectancy lurks non- in unhappy and uncomfortable Should they not have the right communicable and degenerative situations. They are being kept on to end their life, or rather have diseases as well as chronic machines with no hope of recovery the option of assisted dying, is a conditions. Coping with the trials and incurring huge medical costs, question that many gerontologists, of ageing is an uphill task. And so is which are a big constraint on many. civil society organisations, social the challenge of facing unavoidable They are lingering in a physically workers, care providers and older suffering. disabled, mentally compromised people themselves are asking in

*Dr. Mala Kapur Shankardass is a sociologist, health social scientist and gerontologist working as Associate Professor, Maitreyi College, (South Campus) University of Delhi, India. She is also Asia Representative: International Network for Prevention of Elder Abuse (INPEA). Email: [email protected]

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 5 have the choice of when to die or not. In this paper I use the terms assisted suicide and assisted dying interchangeably, though technically there is a difference between them. Assisted suicide is any act that intentionally helps other persons kill themselves, for example, by providing them with the means to do so, most commonly by prescribing a lethal medication. Assisted dying is usually used in the US and the UK to mean assisted suicide for the terminally ill only, as exemplified in the Assisted Dying Bills debated in the UK around 2015. Passive Euthanasia Around the Globe In recent times more and more countries are legalising assisted many countries. Increasingly, the on their children and society, all of dying or suicide/passive euthanasia answer is yes, although there are which they want to avoid as it is a and authorising physicians to debates and arguments both for psychological, financial and social provide the knowledge and/or and against it. Regardless, there are strain on the individuals themselves, means for suffering patients to growing voices for the need to have as well as on their families and the end their life. The Netherlands, prudent planning for the future of society. Belgium, Luxembourg, critically ailing older people and for The current cohorts of older people Switzerland and Canada, as well appropriately addressing the issue and adults want solutions different as the American states of Oregon, of the right to die with dignity. from earlier times. They also Washington, Montana, California, Vermont, Colorado and the District In more and more ageing view end-of-life-care as including of Columbia along with the state societies, both in the developed practices that involve the hastening of Victoria in Australia are some of and developing world, the issues of death by providing euthanasia the countries and states where PAS/ of death and dying with dignity (EU) or physician-assisted suicide passive euthanasia/assisted dying are becoming pertinent. For a (PAS) or through assisted dying is now legal, but of course with growing number of adult children (Rietjens et al., 2012). Older certain safeguards and guidelines. caring for older parents, the fear people and their carers want to With PAS, the physician prescribes of prolonged and futile medical Assisted suicide is any or supplies the lethal drug to the treatment to terminally ill patients

act that intentionally patient, at his/her request, but the whose suffering is unbearable and helps other persons kill patient takes the action that will impossible to treat near the end “ induce his/her own death (Emanuel of life is becoming widespread. themselves, for example, “by providing them with et al. 2016; Marcoux 2011; Many are visualising their own later Radbruch et al. 2016). lives as chronically diseased with the means to do so, most no hope for dignity and continued commonly by prescribing PAS and related methods are suffering in their final years. Some a lethal medication. increasingly being seen as a are also fearful of being a burden rational, logical and justified choice.

6 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2

In Switzerland, records Along with passive euthanasia a fundamental right and that an

of 1,301 suicides, is the concept of Living Will. In advance directive by a person in assisted by right-to-die its judgment the Supreme Court the form of a Living Will could be organisations“ between recognised that a terminally-ill approved by the courts. A Living “ 2003 and 2008, patient or a person in persistent Will is a formal, legal document. It vegetative state can execute showed that rates sets out a patient’s wishes regarding “Advance Medical Directives increased exponentially healthcare and how he/she wants to (AMD)” or “Living Will” to refuse with age. be treated in cases of serious illness medical treatment, noting that when he/she is unable to make the right to live with dignity also or communicate medical choices. Furthermore, in the case of older includes “smoothening” the process It gives the person the power to adults, some proponents argue that of dying. In simple words, medical choose how he/she would like to PAS is not limited to terminally ill treatment can be withdrawn to be cared for in the days leading to patients, but can also be seen as hasten a person’s death, if strict his/her death. Through this will, a a choice in mentally competent guidelines are followed. This would patient can give explicit instructions elderly people (ill or not) who apply to patients suffering from in advance about the medical believe their life is now complete terminal illness and who are in a treatment to be administered when and who die by suicide (McCue vegetative state. However, it may he or she is terminally ill or no and Balasubramaniam 2017). In be more effective for Living Wills the American states of Oregon and to be compiled in the early stages longer able to express informed Washington, reported cases of PAS of a disease or disability, as this consent. The person has to be represent respectively 0.39 percent will allow doctors to give realistic alive to use Living Will but unable and 0.32 percent of all deaths, with guidance about possible future to make decisions about his/her patients over 65 years comprising situations. care. It is not enough for an older 70 percent of all cases (Emanuel et person to just have a Living Will. al. 2016). “In Switzerland, records Given the low literacy rates among The Court has also mandated the of 1,301 suicides, assisted by older people in India currently, hospital to discuss decisions with right-to-die organisations between drafting a Living Will may not the designated representative, 2003 and 2008, showed that rates be popular. However, with legal or proxy, making it important for increased exponentially with age.” literacy campaigns by NGOs and the concerned person to choose From 0.3 per 100,000 person-years those working in the interests of wisely when designating a proxy. in the age group 25–34, it went up older people, including government to 38.9 among those aged 85 to 94 agencies, this hurdle can be Having a Living Will removes years (Steck et al. 2014). overcome. In addition, persistent some of the burden from the media promotion of this issue can family caring for the afflicted India’s Case: Right to reinforce efforts to make older person when the members Reject Medical Treatment people realise their rights. As some know that they are following the surveys done on older people in patient’s wishes. Doctors may also In India, on March 9, 2018, the developed countries in recent past be spared of any accusation of foul Supreme Court passed a landmark have revealed, elderly inpatients play or negligence in cases where judgment outlining detailed were confused by the term Living patients had penned down a Living guidelines for facilitating passive Will. However, most welcomed Will (Shankardass, 2107). Thus, euthanasia. The Apex Court said the chance to discuss issues about that family members and relatives Living Wills are also called active facing the end of life and many declarations and may be helpful of terminally ill patients seeking wanted to limit their healthcare if passive euthanasia could go to to relatives of older people and to they were terminally ill or suffering medical professionals in the case Court to have it sanctioned. A intolerably. team of doctors would then be of seriously ill and incapacitated appointed by the Court to decide if The Indian judiciary held that patients of advanced age. it is needed. the right to die with dignity was

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 7 stage in life when the aged are in better health and have the mental competency to manage their life as well as death, is of great advantage. Through this, the old can have dignity both in living and in dying. It is necessary that courts work out modalities that guarantee that Living Wills are not drafted by patients under coercion, as that is a risk with older people. One of the protective shields which some countries are adopting, such as Victoria in Australia, is noteworthy. It includes provisions such as — a patient must make three requests to specially trained doctors in order to end his/her life; no to life-sustaining treatments Ethical, Moral and Legal a special board must review all such they did not want but are too ill Debates cases; and the coercion of a patient to communicate so, this concept into ending his/her life should be It must be recognised that a has been greatly improved in all made a crime. Similar guidelines Living Will is not an instrument countries sanctioning it. Countries are part of the laws which allow of euthanasia, but a request in have taken into consideration the terminally ill patients to legally advance by healthy adults to acceptable standards in the medical end their lives under a doctor’s doctors not to give certain medical and legal community. In addition, supervision in countries including treatments in case of a terminal they have elicited and recorded the Canada, the Netherlands and illness. A major advantage which opinions, wishes, and reasoning of Belgium. this has for older people is that it the terminally ill patients or those respects patients’ human rights, in acute pain and who are suffering Akin to provisions made in other and in particular their right to reject unbearably, particularly those countries which have legalised medical treatment. The patient ageing. passive euthanasia, judges of gives details about his/her end-of- Supreme Court in India have life decisions and this encourages The Court has laid down principles outlined detailed guidelines for the doctor to respect his/her wishes. relating to the procedure for facilitating the same as well. execution of the AMD or the According to the Court’s mandate, A Living Will also facilitates the Living Will. It has also spelt out the medical community has to play likelihood of doctors giving more guidelines and safeguards to give a very proactive role. While passive appropriate treatment as well as effect to passive euthanasia in both euthanasia may be sanctioned to taking decisions regarding medical circumstances — where there are the family members and relatives of treatment which may be difficult advance directives and where there terminally ill patients seeking it, the but may ease the situation for are none. This becomes particularly final decision will be only based on the patient’s family and friends. useful for older people, as data the advice of doctors appointed by Since 1969 when Living Will was from different countries suggest the Court. The Court recommends first proposed by the American that this age group is particularly the setting up of a medical board lawyer Louis Kutner as a simple prone to dementia. Thus advance which will be competent to certify device to allow patients to say directives, given at an earlier that the patient’s comatose state is

*Photographs courtesy: Sulabh International Social Service Organisation

8 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 irreversible. Therefore, a person will regarding end-of-life treatment is a Emanuel, Ezekiel J., Diane L. Fairclough, be given the choice through Living complex process, a fact that health and Linda L. Emanuel. 2000. Attitudes and Desires Related to Euthanasia and Will to refuse the life-support professionals and legislators should Physician-Assisted Suicide Among Terminally system and thereby the likelihood be aware of. A web of psychosocial Ill Patients and Their Caregivers. JAMA 284: of him/her enduring a permanent and spiritual variables, that are as 2460–68. vegetative state will be reduced important as physical and medical Marcoux, I. 2011. Euthanasia: A (Shankardass, 2017). ones, contributes towards the wish, Confounding and Intricate Issue. In The and probably also the request, for Good Death: Controversy in Humans and So, a person has the right to create PAS (Emanuel et al, 2000). Animals. Edited by Josef Kure. Rijeka: In a Living Will stating that when he/ Tech Open, pp. 45–62. she can’t recover from illness, his/ Future research should thus her life should not be prolonged, widen the field of investigation McCue, Robert E., and Meera Balasubramaniam. 2017. Rational Suicide since under Article 21 of the to variables that encompass and in the Elderly: Clinical, Ethical, and Constitution, a person has the address issues pertaining to older Sociocultural Aspects. Cham: Springer right to die peacefully and in a persons’ preferences for end-of- International Publishing. dignified manner. The underlying life concerns. Choosing the path Radbruch, Lukas, Carlo Leget, Patrick Bahr, argument here is that forcing of dying with dignity relates not Christof Müller-Busch, John Ellershaw, prolonged medical treatment on only to issues of health, but also Franco de Conno, and Paul Vanden Berghe. someone who does not want it to self-determination or personal 2016. Euthanasia and Physician-Assisted amounts to assault, which should preference as well as relational and Suicide: A White Paper from the European not be allowed. As the Supreme social issues. The societal discourse Association for Palliative Care. Palliative Medicine 30: 104–16. Court in India recently observed, on ageing influences the decision, “One cannot say that you have a whereby the opinion of others Rietjens, Judith A. C., Reginald Deschepper, right to die, but you have a right to (family, peers and professionals) Roeline Pasman, and Luc Deliens. 2012. dignified death. If we recognise the regarding passive euthanasia Medical End-of-Life Decisions: Does its Use Differ in Vulnerable Patient Groups? right to dignity in death, then why encourages the older person to A Systematic Review and Meta-Analysis. not dignity in dying”. voice his/her right to die with Social Science & Medicine 74: 1282–87. dignity. We must allow the elderly Conclusion Shankardass, Mala Kapur. 2017, ‘Living will this right. for passive euthanasia: The right way to go’. We must recognise that older The Asian Age, 25 October, New Delhi. persons’ preferences with regard to References Steck, Nicole, Christoph Junker, Maud PAS/passive euthanasia are likely to Emanuel, Ezekiel J., Bregje D. Onwuteaka- Maessen, Thomas Reisch, Marcel Zwahlen, Philipsen, John W. Urwin, and Joachim be influenced by a variety of factors and Matthias Egger. 2014. Suicide Assisted Cohen. 2016. Attitudes and Practices of by Right-to-Die Associations: A Population pertaining to several dimensions Euthanasia and Physician-Assisted Suicide Based Cohort Study. International Journal of (health, social, relational, spiritual, in the United States, Canada, and Europe. and existential). Taking decisions JAMA316: 79–90 Epidemiology 43: 614–22.

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 9 LIFE & DEATH ARE ONE THREAD Right to Life Includes Right to Die with Dignity Swapna Jha*

he rituals of embracing the life’s or desired death with a balanced environment encouraging intrusive Tend have been practised by mind. procedures that invade privacy of Indians since eternity. Prayopavesa, the human body, it is degrading. Santhara or Samadhi Marana and These customs, followed by Hindus, Artificial medical interventions that Mahaprasthana are all final pit Jains and Buddhists, are not merely extend the longevity of a stops in the spiritual trajectory of regarded as suicide, but voluntary meaningless life, do not translate human life, as described in different acts that give individuals the choice into a life with dignity. religious traditions. These terms are to end their lives in a dignified variously understood as the grand manner. The decision to hasten To that end, Common Cause journey, great going, liberation life’s end is undertaken after much approached the Supreme Court introspection and practitioners are in 2005 with a prayer seeking to believed to choose them when declare “right to die with dignity”

The customs, followed they are either terminally ill or feel as a fundamental right within the

by Hindus, Jains and that life has served its purpose. fold of “right to live with dignity,” Buddhists, are not Therefore, the right to exercise guaranteed under Article 21 of “ the Constitution. The petition regarded as suicide, but individual autonomy had religious requested the top Court to issue “voluntary acts that give sanctions for a very long time. directions to the executive to adopt individuals the choice Common Cause believes that suitable procedures in consultation to end their lives in a the right to die with dignity is with the state governments, for dignified manner. an integral part of right to live ensuring the execution of an with dignity. If an entire life Advance Medical Directive (AMD), lived with dignity culminates also called ‘Living Will.’ These in an undignified death, in an directives need to be drawn up

*Swapna is a Senior Legal Consultant with Common Cause

10 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 by persons who are terminally ill the previous Constitutional Bench is an intrinsic facet of the right or suffer from deteriorating health judgment (Gian Kaur) the right to to live, under Article 21 of the conditions. die with dignity at the end of life Constitution, thereby enlarging the is not to be confused or equated scope of this fundamental right. On February 25, 2014, owing to with the “right to die” an unnatural the inconsistencies between the death, curtailing the natural span of The Supreme Court in its judgment Division Bench judgment in the life. legalised passive euthanasia by Aruna Shanbaug (2011) case and reiterating previous judgments and that of the Constitution Bench in The combined judgment of Justices by referring to supporting material, the Gian Kaur (1996) case, which Dipak Misra and A M Khanwilkar including the 241st report of the both had a direct bearing on the noted that “…a dignified procedure Law Commission of India. The Common Cause petition, the of death may include the right of a Court emphasised that “…The Court invited a Constitution Bench dying man to also die with dignity law must, therefore, in a changing to resolve the inconsistency and when the life is ebbing out. This is society, march in tune with the address the prayers. The Division how the pronouncement in Gian changed ideas and ideologies”. Bench had in 2011 allowed passive Kaur has to be understood. It is At the same time, it drew a clear euthanasia, subject to certain also not the ratio of the authority in distinction between active and Gian Kaur that euthanasia has to be safeguards, under the presumption passive euthanasia. Justices Misra introduced only by a legislation... that the Constitution Bench in Gian and Khanwilkar’s judgment clearly Therefore, the perception in Aruna Kaur (1996), had held that the right states that only passive euthanasia Shanbaug that the Constitution to life included the right to die. would fall within the ambit of right Bench has approved the decision to die with dignity under Article 21. On March 9, 2018 the Constitution in Airedale is not correct. It is also The judgment also unequivocally Bench, comprising the Chief Justice quite clear that Gian Kaur does not declares that active euthanasia of India Dipak Misra as well as lay down that passive euthanasia (where positive steps are taken Justices A K Sikri, A M Khanwilkar, can only be thought of or given either by the treating physician D Y Chandrachud and Ashok effect to by legislation. Therefore, it or any other person to terminate Bhushan, delivered four separate can be held without any hesitation the life of the patient) will not be but concurring judgments bringing that Gian Kaur has neither given included in the right to die with the right to die with dignity, within any definite opinion with regard to dignity under the same Article. the fundamental right “to live”. euthanasia nor has it stated that the This article analyses and presents same can be conceived of only by a In the context of social morality, the essence of the four judgments legislation.” medical ethics and state delivered on March 9, 2018. interest, the SC highlighted two Passive Euthanasia and the important considerations. First, Resolving Inconsistencies Right to Die with Dignity that withdrawal of treatment of Previous Judgments in an irreversible situation is After a careful analysis of the different from not treating or The Court in the Common Cause Aruna Shanbaug and the Gian attending to the patient. Second, case referred to the judgment in Kaur judgments, the Court noted the legal recognition of right to Aruna Shanbaug, which placed that the legal position until this die with dignity under Article reliance on paragraphs 24 and judgment was that right to life 21 will make apprehensions of 25 from Gian Kaur, and drew the does not include right to die. It physicians regarding facing litigation conclusion that the Constitution is in this background that the secondary. That’s because the Bench in the latter did not express legality of passive euthanasia primacy of the right of an individual any binding view on the subject was being determined. In this in this regard has to be kept on a of euthanasia. Rather, it reiterated momentous judgment, the Court high pedestal. that the legislature would be the not only provided legal validity to appropriate authority to bring the passive euthanasia, but also held Justice Sikri quoted from the change. The SC clarified that in that the right to die with dignity judgment of the nine-judge

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 11 Constitutional Bench in the case of the citizens as enshrined under while on the other hand, opening of K.S. Puttaswamy, where it was Article 21 of the Constitution. It it to a possible misuse. It was held, authoritatively held that the right to is our constitutional obligation. however, that the possibility of life enshrined in Article 21, includes As noticed earlier, the two-judge misuse cannot be a valid ground for the right to privacy. He pointed Bench in Aruna Shanbaug (supra) rejecting the need for an advance out that one of the facets of this has provided for approaching the directive, as is also opined by the right acknowledged an individual’s High Court under Article 226 of Law Commission of India in its decision to refuse life prolonging the Constitution. The directions 196th and 241st report. medical treatment. and guidelines to be given in this judgment would be comprehensive Justice Chandrachud in his Advance Medical and would also cover the situation judgment defined Advance dealt with Aruna Shanbaug case. Directives as documents a person Directives and the Right to draws up while he or she is still in Self-Determination 191. In our considered opinion, possession of decisional capacity. The above reading of the law, in Advance Medical Directive would This means he can lay down which there’s a clear recognition of serve as a fruitful means to facilitate instructions on how treatment the individual’s right to autonomy the fructification of the sacrosanct decisions should be undertaken in and self-determination so as to be right to life with dignity. The said the event she or he loses decision able to refuse medical treatment, directive, we think, will dispel making capacity in future. He lies at the heart of the judgment many a doubt at the relevant outlined three conditions for which delivered by the Bench. In the time of need during the course of these directives may be applicable: treatment of the patient. That apart, landmark judgment, the Court (i) a terminal condition; (ii) a it will strengthen the mind of the legalised the validity of the persistently unconscious condition; treating doctors as they will be in AMD, also known elsewhere as and (iii) an end-stage condition. a position to ensure, after being Living Will, to give effect to the satisfied, that they are acting in a Justices Chandrachud, Bhushan individual’s right to refuse medical lawful manner. We may hasten to and Sikri all concurred with the treatment in case of a terminal add that Advance Medical Directive observations made by Chief Justice illness. cannot operate in abstraction. Dipak Misra and Justice Khanwilkar The SC did an analysis of the There has to be safeguards. They with regard to the legal validity existing law in other common need to be spelt out. ….” of the Advance Directive. They law countries and concluded that also agreed on the procedural On page 229 the SC states, all adults with the capacity to mechanisms to be followed for its execution, which will act as a consent have the common law “In this process, as far as ‘living safeguard against its misuse. Justice right to refuse medical treatment. will’ or ‘AMD’ is concerned, that Sikri in the concluding lines stated, They also possess the right of self- needs to be permitted, along with determination. Justices Misra and certain safeguards. It would not “My last remarks are a pious Khanwilkar’s judgment dealt with only facilitate prevention of any hope that the Legislature would this issue and thereby provided misuse but take care of many step in at the earliest and enact a legal sanctity to the AMD: apprehensions expressed about comprehensive law on ‘living will/ euthanasia.” “First, we shall analyse the issue of advance directive’ so that there legal permissibility of the Advance The Court pointed out that an is a proper statutory regime to Medical Directive. In other individual’s self-autonomy gives govern various aspects and nuances jurisdictions, the concepts of ‘living him the right to choose his destiny. thereof which also take care of the will’ and involvement of Attorney This, on the one hand, helps apprehensions that are expressed are stipulated. There is no legal him decide through an advance against euthanasia.” framework in our country as regards directive at what stage of his the Advance Medical Directive but physical condition he would not The Need for Safeguards we are obliged to protect the right like to have medical treatment, In order to prevent any misuse

12 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 of the AMD, the Bench added expert body with whom shall rest executed, without any coercion a word of caution. It stressed oversight in regard to whether or inducement or compulsion that doctors would be bound by a patient in the terminal stage and after having full knowledge the choice of self-determination of an illness or in a permanent or information. It should have made by the patient. The person vegetative state should be withheld characteristics of an informed receiving medical attention in this or withdrawn from artificial life consent given without any undue case could either be terminally support.” influence or constraint. ill and undergoing a prolonged medical treatment or surviving on The Court gave a detailed Recording and Preservation of life support. Therefore, the doctor explanation of how the AMD is to AMD needs to be bound by the patient’s be defined and understood, and i. The document should be the legal procedures that are to be choice, subject to being satisfied signed by the executor put in place for its execution, till that his or her illness is incurable in the presence of two the legislature drafts and enacts a and there is no hope of him or her attesting witnesses, comprehensive law on it. The Court being cured. The judgment added preferably independent, directives have been provided in that “any other consideration and countersigned by the the following section. cannot pass off as being in the best jurisdictional Judicial Magistrate interests of the patient.” SC Guidelines on Advance of First Class (JMFC), so Justice Chandrachud elaborated: designated by the concerned Medical Directives District Judge. “The view which this judgment Defining AMD: ii. The witnesses and the puts forth is that the recognition jurisdictional JMFC shall record of advance directives as part The AMD is a legal document their satisfaction that the of a regime of constitutional with unambiguous instructions, document has been executed jurisprudence is an essential detailing an individual’s decision voluntarily and without any attribute of the right to life and relating to the circumstances in coercion or inducement or personal liberty under Article 21. which withholding or withdrawal of compulsion. They should That right comprehends dignity as medical treatment can be resorted also agree that the AMD’s its essential foundation. Quality to. It should specify the name of a execution has been done of life is integral to dignity. As an guardian/close relative who, in the with full understanding of all essential aspect of dignity and event of the executor becoming the relevant information and the preservation of autonomy incapable of taking decision at the consequences. of choice and decision-making, relevant time, will be authorised to each individual must have the give consent to refuse or withdraw iii. The JMFC shall preserve one right on whether or not to accept medical treatment in a manner copy of the document in his medical intervention. Such a choice consistent with the AMD. The office, in addition to keeping it expressed at a point in time when document should also mention in digital format. the individual is in a sound and that it is revocable by the executor iv. The JMFC shall forward one competent state of mind should at any time and that he or she has copy of the document to the have sanctity in the future if the understood the consequences of registry of the jurisdictional individual were to cease to have executing the AMD. District Court for it to be the mental capability to take Execution of AMD preserved. Additionally, the decisions and make choices. Yet, a registry of the District Judge balance between the application of The AMD can be executed only by shall retain the document in the substituted judgment standard an adult of a sound mind and in digital format. and the best interest standard is a position to communicate, relate necessary as a matter of public and comprehend the purpose and v. The JMFC shall cause to inform interest. This can be achieved by consequences of executing the the immediate family members allowing a supervisory role to an document. It must be voluntarily of the executor, if they are

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 13 not present at the time of patient (executor of the v. In the event the Hospital execution, and make them document) is satisfied that Medical Board certifies that aware about the execution of the instructions given in the the instructions contained the document. document need to be acted in the AMD ought to be upon, he shall inform the carried out, the physician/ vi. A copy shall be handed over to executor or his guardian/ hospital shall forthwith inform a competent officer of the local close relative, as the case the jurisdictional Collector government or the municipal may be. The executor or his/ about the proposal. The corporation or municipality her guardian must be notified jurisdictional Collector shall or panchayat, as the case may about the nature of illness, the then immediately constitute a be. The aforesaid authorities availability of medical care, Medical Board comprising the shall nominate a competent consequences of alternative Chief District Medical Officer official in that regard who shall forms of treatment as well as of the concerned district as the be the custodian of the said those of remaining untreated. Chairman and three expert document. The physician must also ensure doctors from the fields of vii. The JMFC shall cause to that he believes on reasonable general medicine, cardiology, handover copy of the AMD to grounds that the person in neurology, nephrology, the family physician, if any. question understands the psychiatry or oncology with information provided, has experience in critical care When and by Whom Can it be cogitated over the options and and with overall standing in Given Effect? has come to a firm view that the medical profession of i. In the event the executor the option of withdrawal or at least 20 years (who were becomes terminally ill and is refusal of medical treatment is not members of the previous undergoing prolonged medical the best choice. Medical Board of the hospital). They shall jointly visit the treatment with no hope of iv. The physician/hospital hospital where the patient is recovery and cure of the where the executor has been admitted and if they concur ailment, the treating physician, admitted for medical treatment with the initial decision of when made aware about shall then constitute a Medical the Medical Board of the the AMD, shall ascertain the Board. The board should hospital, they may endorse genuineness and authenticity consist of the Head of the the certificate to carry out the thereof from the jurisdictional treating Department and at instructions given in the AMD. JMFC before acting upon the least three experts from the same. fields of general medicine, vi. The Board constituted by the ii. The instructions in the cardiology, neurology, Collector must beforehand document must be given nephrology, psychiatry or ascertain the wishes of the due weight by the doctors. oncology with experience in executor if he or she is in a However, it should be given critical care and with overall position to communicate and standing in the medical is capable of understanding the effect to only after being fully profession of at least 20 years. consequences of withdrawal satisfied about the following. The board, in turn, shall visit of medical treatment. In the The doctors should be certain the patient in the presence of event the executor is incapable that the executor is terminally his guardian/close relative and of taking decision or develops ill and is undergoing prolonged form an opinion whether to impaired decision making treatment or is surviving on life certify or not the carrying out of capacity, then another process support and that the illness of the instructions of withdrawal needs to be followed. In such the executor is incurable or or refusal of further medical situations, the consent of the there is no hope of him/her treatment. This decision shall guardian nominated by the being cured. be regarded as a preliminary executor in the AMD should iii. If the physician treating the opinion. be obtained regarding refusal

14 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 or withdrawal of medical oncology with experience in Medical Boards shall not give treatment to the executor of critical care and with overall effect to the same and, in that and consistent with the clear standing in the medical event, the guidelines meant for instructions given in the AMD. profession of at least 20 years. patients without AMD shall be vii. The Chairman of the Medical ii. The High Court shall hear the made applicable. Board nominated by the application expeditiously after Collector, that is, the Chief affording opportunity to the iv. When the Hospital Medical District Medical Officer, shall State counsel. It would be open Board takes a decision not to convey the Board’s decision to the High Court to constitute follow an AMD while treating to the jurisdictional JMFC a Medical Board in terms of its a person, it shall make an before giving effect to the order to examine the patient application to the Medical pronouncement to withdraw and submit report about the Board constituted by the the medical treatment feasibility of acting upon the Collector for consideration and administered to the executor. instructions contained in the appropriate direction on the The JMFC shall visit the patient AMD. at the earliest and, after AMD. iii. Needless to say that the High examining all aspects, authorise Court shall render its decision the implementation of the Conclusion at the earliest as such matters Board’s decision. cannot brook any delay and it The lack of legislation on patient viii. It will be open to the executor shall ascribe reasons specifically autonomy and self-determination to revoke the document at any keeping in mind the principles has forced the SC to take a decisive stage before it is acted upon of “best interests of the step in this direction. The AMD and implemented. patient”. guidelines will remain in force till What if Permission is Refused Revocation or Inapplicability of an appropriate Act is passed by the by the Medical Board? AMD Parliament. Though the guidelines are very comprehensive, we need i. If permission to withdraw i. An individual may withdraw medical treatment is refused or alter the AMD at any time an Act, which is unambiguous in by the Medical Board, it when he/she has the capacity the AMD’s definition and scope. would be open to the AMD’s to do so and by following the Legislation detailing the complex executor or his family members same procedure as provided terms and precise conditions of a or even the treating doctor or for recording of AMD. Living Will is indeed the need of the hospital staff to approach Withdrawal or revocation of an the hour. The Courts cannot and the High Court by way of writ AMD must be in writing. should not take on the policy- petition under Article 226 ii. An AMD shall not be of the Constitution. If such making role of the Parliament, but applicable to the treatment in application is filed before the can only fill in a legislative vacuum. question if there are reasonable High Court, the Chief Justice Now the executive must take a cue grounds for believing that of the said High Court shall from the Apex Court judgment and circumstances exist which the constitute a Division Bench to come up with a draft legislation for person making the directive decide upon grant of approval did not anticipate at the time effective deliberations, discussion or to refuse the same. The High of drawing up the AMD, and and suggestions on a public Court will be free to constitute which would have affected platform. Undoubtedly, this is a an independent committee, his/her decision had he/she consisting of three doctors from much-awaited relief granted by anticipated them. the fields of general medicine, the judiciary, which has on several cardiology, neurology, iii. If the AMD is not clear and occasions protected the citizens nephrology, psychiatry or ambiguous, the concerned against intractable situations.

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 15 ADVANCE MEDICAL DIRECTIVE A First Draft of a Model Living Will

isclaimer: This is a draft Advance Medical Directive (AMD) prepared on the basis of what we understood Dfrom the Supreme Court Judgment. It is meant to be a first draft and indicative in nature. We strongly recommend seeking sound legal opinion before writing or executing an actual Living Will. As per the Supreme Court of India’s judgment dated March 9, 2018, the following Advance Medical Directive has been executed by me to lay down clear and specific instructions during the course of my treatment, as well as to strengthen the mind of the treating doctors that they are acting in a lawful manner. I ___(name)__ am an adult of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing this document. This AMD has been voluntarily executed without any coercion or inducement or compulsion and after having full knowledge or information. I certify that this AMD has the characteristics of an informed consent given without any undue influence or constraint. The purpose of this AMD in writing is to clearly specify the situations when medical treatment, having the effect of delaying the process of my death may be withdrawn or when no specific medical treatment is to be provided. This covers treatments, which if given, may cause me pain, anguish and suffering and further put me in a state of indignity. In case the situation so arises that I become terminally ill or am reduced to a persistent vegetative state I may be permitted to accelerate the process of natural death which would have already commenced. If at any time, I reach the stage of terminal illness, and go into a coma with no reasonable expectation of regaining consciousness, or reach a persistent vegetative stage with no reasonable expectation of regaining significant cognitive functioning, or have a disease state from which I have no reasonable expectation of coming back to a life with reasonable quality of life, I should be deemed to decline to receive life-sustaining treatment. I request that this ‘AMD’ should be honoured by my family members and physicians as the final expression of my legal right to refuse medical or surgical treatment and accept the consequences of such refusal. In addition, and as a supplementary alternative, I hereby appoint Mr./Mrs. ______who, in the event of my becoming incapable of taking decision at the relevant time, is hereby authorised to give consent to refuse or withdraw medical treatment in a manner consistent with this AMD. I may at any time revoke these specific terms/instructions spelt out absolutely clearly and unambiguously by me in this AMD. I have understood fully the consequences of executing this AMD. This AMD shall not be applicable to the treatment in question if there are reasonable grounds for believing that circumstances existed which I did not anticipate at the time of the AMD and which would have affected my decision had I anticipated them.

16 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 WITNESS STATEMENT I declare that the person who signed or acknowledged this document is personally known to me, that he/she signed or acknowledged this Living Will Declaration in my presence, and that he/she appears to be of sound mind and under no duress, fraud, or undue influence.

______First Witness Signature Second Witness Signature

______First Witness Full Name Second Witness Full Name

______

______First Witness Address Second Witness Address

In the event that I execute more than one valid AMD my most recently signed AMD should be considered as the last expression of my wishes and should be given effect to. As per the directions of the Hon’ble Supreme Court this AMD has been signed by me in the presence of two independent attesting witnesses, and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge. I understand the full importance of this AMD and am fully competent to make it. Conditions to be followed for implementation of the AMD: 1. The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with full understanding of all the relevant information and consequences. 2. The JMFC shall preserve one copy of the document in his office, in addition to keeping it in digital format. 3. The JMFC shall forward one copy of the document to the Registry of the jurisdictional District Court for being preserved. Additionally, the Registry of the District Judge shall retain the document in digital format. 4. The JMFC shall cause to inform the immediate family members of the executor, if not present at the time of execution, and make them aware about the execution of the document. 5. A copy shall be handed over to the competent officer of the local Government or the Municipal Corporation or Municipality or Panchayat, as the case may be. The aforesaid authorities shall nominate a competent official in that regard who shall be the custodian of the said document. 6. The JMFC shall cause to handover copy of the AMD to the family physician, if any. 7. In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of the ailment, the treating physician, when made aware about the Advance Directive, shall ascertain the genuineness and authenticity thereof from the jurisdictional JMFC before acting upon the same. 8. The instructions in the document must be given due weight by the doctors. However, it should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 17 surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured. 9. If the physician treating the patient (executor of the document) is satisfied that the instructions given in the document need to be acted upon, he shall inform the executor or his guardian/close relative, as the case may be, about the nature of illness, the availability of medical care, the consequences of alternative forms of treatment as well as the consequences of remaining untreated. He must also ensure that he believes on reasonable grounds that the person in question understands the information provided, has cogitated over the options and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice. 10. The physician/hospital where the executor has been admitted for medical treatment shall then constitute a Hospital Medical Board (HMB). It should consist of the Head of the treating Department (HOD) and at least three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology, with experience in critical care and with overall standing in the medical profession of at least 20 years. The Board, in turn, shall visit the patient in the presence of his guardian/close relative and form an opinion whether to certify or not to certify carrying out the instructions of withdrawal or refusal of further medical treatment. This decision shall be regarded as a preliminary opinion. 11. After the confirmatory preliminary opinion of HMB, the jurisdictional collector shall be informed, who in turn shall immediately constitute another Medical Board. This Board will have the Chief District Medical Officer of the concerned district as the Chairman, instead of the HOD. It shall jointly visit the hospital where the patient is admitted and if the members concur with the initial decision of the HMB, they may endorse the certificate to carry out the instructions given in the AMD. 12. The Board constituted by the Collector must beforehand ascertain the wishes of the executor and determine if he is in a position to communicate as well as capable of understanding the consequences of withdrawal of medical treatment. In the event the executor is incapable of taking decision or develops impaired decision making capacity, another course of action needs to be taken. Then the consent of the guardian nominated by the executor in the AMD should be obtained regarding refusal or withdrawal of medical treatment to the executor to the extent of and consistent with the clear instructions given in the AMD. 13. The Chairman of the Medical Board nominated by the Collector, shall convey the decision of the Board to the jurisdictional JMFC before giving effect to the decision to withdraw the medical treatment administered to the executor. The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the Board. 14. It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.

Euthanasia: Concerns and Considerations “This Court has to consider euthanasia and its impact ‘not only at an individual level’, but also at the ‘institutional, governmental and societal levels’. The impact has to be analysed not only in the context of the present era, but has to be contemplated for the future as well. The judge is not a soothsayer. Nor does the law have predictive tools at its command which can approximate those available to a scientist. Constitutional principle must have an abiding value. It can have that value if it is firmly grounded in the distilled experience of the past, is flexible to accommodate the concerns of the present and allows room for the unforeseeable future. The possibility of the abuse of euthanasia and the effect that legalising euthanasia would have on intangible societal fabrics and institutions is of utmost concern.” --- Justice Chandrachud

18 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 NOTES FROM A COMMON CAUSE EVENT Launch of Status of Policing in India Report (SPIR 2018) Susmita Saha*

(From left) Dr. Vipul Mudgal, Professor Suhas Palshikar, Mr. Prakash Singh, Justice A. P. Shah, Ms. Warisha Farasat, Professor Sanjay Kumar

ommon Cause and Lokniti lawyer, Ms. Warisha Farasat. The parameters like citizens’ trust and CProgramme of the Centre for discussion was chaired by Professor satisfaction levels, discrimination the Study of Developing Societies Suhas Palshikar, Co-Director of against the vulnerable, police (CSDS) launched India’s first Status Lokniti Programme. excesses, infrastructure, diversity in of Policing in India Report (SPIR forces, state of prisons and disposal Dr. Vipul Mudgal, Director and 2018) at the India Habitat Centre of cases etc.” Chief Executive, Common Cause on May 9. The well-attended began the evening’s proceedings release function was followed by “The study combines mixed with a presentation on the key methodologies in order to present a a panel discussion on “People- findings of SPIR 2018. Centric Policing and the Rule of slice of life of policing in India. The Law.” While discussing the contours of first part of the study is an analysis the main findings of the report of the manifest data collated by the The participants of the panel through graphics, Dr Mudgal said government agencies, particularly discussion were former Law that it is India’s first rigorous study the National Crime Records Bureau Commission Chairman Justice A. of performance and perceptions of (NCRB) and the Bureau of Police P. Shah, former DGP and Indian policing. He added: “The one- Research and Development (BPRD) Police Foundation Chairman Mr. of-its-kind study covers 22 states followed by a perception survey of Prakash Singh and Human Rights and about 16,000 respondents on common people in 22 states and an

*Susmita Saha is a Senior Research Analyst at Common Cause

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 19 Former Law Commission Chairman Justice A. P. Shah Former DGP and Indian Police Foundation Chairman Prakash Singh analysis of the CAG reports on state of the working of the police The Police Act of 1861, was police organisations,” explained Dr through the prism of its practices used in other countries like Mudgal. across India. According to him, Ireland, to perpetuate the British when policing meets expected Rule. It was never intended Here are the excerpts of the benchmarks, law is maintained and to promote the Rule of Law, proceedings and the discussion that human rights are protected. “But serve the community or ensure followed: when there’s no accountability, accountability. or regulation of police systems, The post-independent Indian Former Law Commission everything gets compromised: government did very little to Chairman Justice A. P. corruption and violence can run change the perceptions about rampant, access to justice can Shah the police or its institutional be affected, human rights and Justice Shah enlivened his speech national security can be weakened, structure. As a result, the police with an anecdote about his own terrorism and insurgency are remained an instrument of exposure to the police system given space to thrive,” he said. coercive state power and political as a child. In Solapur, where he Justice Shah also pointed out the intelligence. grew up, an old lady was found following: When it comes to law murdered in a fort. One of his enforcement and administration, That the report recognises school friends, known for his artistic the police must be able to act skills, was contacted by the police the problem of being saddled with the legacy of a colonial independently. They should to draw a portrait of the accused. be able to take independent His illustration helped nab the institution. Any reform can be made only by grasping the issues decision regarding search, accused who was subsequently of an antiquated police system seizure, investigation, tried and convicted. However, the and its old-fashioned interface questioning, detention, arrest truth on the ground was different. with the public. and prosecution. In reality, the police had given The government must never Justice Shah’s friend a photograph The rights of the marginalised be involved in decisions of of the accused, on which he based populations like women and appointment, assignment, his image. children, minorities, refugees and the poor tend to be undermined. employment and promotion of Justice Shah spoke of the SPIR The idea of the Rule of Law soon police officers other than those of study’s importance in its analyses vanishes. the highest rank.

20 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 Radhika Jha of Common Cause Human Rights lawyer Warisha Farasat

The role of the state in police victim who had approached her Rule of Law and policing are reforms is critical. The Supreme for legal consultation. The victim interdependent. Court (SC) has issued several had recounted how her efforts to Arrests are immediate in this directives to state governments register an FIR ran into a stone country. What needs to happen regarding workings of the police wall earlier. Along the way she had instead is thorough investigation, systems. Years have passed and met assorted people, including before an arrest. Arrests need yet those directives have not lawyers and therapists, before to be made at a stage when the been implemented by states. securing an appointment with a police are armed with more What is more surprising is DCP rank police officer. The victim information and evidence. that there are more than 10 finally underscored how the senior Under representation of the contempt petitions filed in the officer turned out to be the most marginalised communities SC on account of the non- sensitive among all individuals she in the police force is a big implementation of the Apex encountered through her ordeal. issue highlighted by the SPIR Court’s directives. There’s a Her other main points: study. If the communities were colossal failure on the part of Police reforms are linked to adequately represented and the SC in implementing its own criminal justice reforms as the integrated into the police force, it order. would make a huge difference. Even when the SC issues a Data from communal flare- particular direction, the state ups showcase how police legislation will provide something turn not only partisan but also that will ultimately defeat the SC perpetrators in some instances. directive. This charade is going Police definitely have the on for the past 12 years. wherewithal to put an end to Human Rights lawyer, Ms. these violent incidents. Representations from different Warisha Farasat communities will not only help Warisha Farasat illustrated her general policing and help build trust in well-meaning police trust of communities in the police personnel by narrating the case force but also minimise instances of a Delhi-based sexual assault Common Cause Director of communal violence. Vipul Mudgal

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 21 Former DGP and Indian provides the framework, or the Justice K T Thomas Committee Police Foundation foundation, but we have to build was appointed in 2008 and on that foundation. it gave its report in 2010. In Chairman Mr. Prakash I never use the word the report, Justice K T Thomas Singh independence in the context of expressed his complete dismay over the total indifference of Mr. Prakash Singh recounted how the police. I only use the word the states to implement police he started reading the SPIR study functional autonomy. You lay reforms. with trepidation as he is used to down the policies and define reading damaging accounts of the the parameters. But once the We need police reforms if we police. “But after going through parameters have been laid down, want to sustain the momentum the report I found it to be pretty let the police officers function. of economic progress as it refreshing. Some of the conclusions That is exactly what the SC tried requires an atmosphere of were even contrary to my own to achieve when it ordered the good law and order. In one of setting up of the State Security impressions, in a flattering sense,” my articles, I remarked how Commissions. he said. He also made the following the Prime Minister is raising an points while the audience listened The laws passed by 17 states economic super structure on foundations of sand. in rapt attention: were to legitimise the status quo and circumvent the If we want the democratic

Two features that have corroded implementation of the Apex structure to remain as it is, we the police from within are Court’s directions. By passing must have police reforms. We politicisation and gradual these laws, it was implied, must be in a position to send criminalisation. These have to be that they would go beyond criminals behind bars. But arrested and the trend has to be the purview of the Court’s the fact is that criminals are reversed. monitoring. So, the purpose of gradually entering Parliament A lot of people think that police the directions was defeated. Not and legislatures and with every reforms are all about Supreme surprisingly, Bihar was the first to passing election their percentage Court guidelines. The SC pass the Police Act. is only going up.

22 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 RIGHT TO DIE IN PEACE The Real Answer Lies in Compassionate Palliative Care Dr M. R. Rajagopal*

landmark ruling by the Euthanasia is the process of allowing natural death

A honourable Supreme Court of intentional act by withdrawing life-prolonging India on March 9, 2018 recognised of killing a dying treatment. As the Indian Council a person’s right to die with dignity. patient with terminal “ of Medical Research points out, It also validated the citizens’ right “illness by the direct Euthanasia is the intentional act of to prepare Advance Medical intervention of a killing a dying patient with terminal illness by the direct intervention of Directives and the medical system’s doctor, for the purpose obligation to respect it. a doctor, for the purpose of good of good of the patient. of the patient. However, allowing This is a huge milestone in many However, medical practice cannot natural death, withholding and ways, and while it still leaves a few depend on law alone. It has to withdrawing of life sustaining areas quite grey, the fact that a be tempered with and guided treatment to limit harm and person’s dignity in life and death is by acceptable ethical practices. suffering in a dying patient should not be construed as euthanasia. upheld as a fundamental guiding There are three basic issues to be factor is reassuring and heartening. considered here. The term passive euthanasia is This can potentially apply to at least an obsolete terminology and some of the 8.2 million people who First: The term ‘passive euthanasia’ should be avoided. Euthanasia die in India every year. has been used to describe the cannot be passive and withholding or withdrawing a potentially inappropriate treatment in a patient dying with a terminal illness that only prolongs the dying process, cannot be construed as an intention to kill. The terminology does matter. The term euthanasia often leaves the patient and family with guilt. It also brings in religious objections. It is necessary to be accurate with terminology and clarify that permitting a natural death cannot be called euthanasia. Second: The procedures prescribed as safeguards are not only unwieldy

*Dr M. R. Rajagopal is the director of the WHO Collaborating Centre at Trivandrum, Kerala for Policy and Training on Access to Pain Relief, and the founder-chairman of Pallium India. In 2018, he was honoured with Padma Shri.

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 23 in their bureaucracy but are also unfathomable in how they may be navigated by a family for whom time translates into a matter of life and death. As it stands now, implementation of the Living Will has to involve the following steps: 1) decision on futility of treatment by the attending physician, 2) decision on futility of treatment by a three-doctor-board convened by the hospital, 3) involvement of the district collector and the district medical officer, 4) appointment of and action by an independent three-doctor-board and 5) personal visit to the patient by the judicial first-class magistrate. How long will all that take? Every moment of life on a ventilator in an intensive care unit can be absolute torture for the patient. intensive care unit (ICU). He the hands and feet are physically Third: The palliative care discipline goes on a ventilator for artificial tied up. With every admission to is conspicuous by its absence. breathing. He is isolated from the ICU, the person’s duration of End-of-life care is not only a matter his family, in a room typically artificial ventilation tends to get of law. It is also about humanity, artificially lit where there’s no longer and the psyche gets mortally compassion and providing of difference between night and day. wounded. The person’s autonomy comfort. As an example, take the The room comes with no windows and dignity are violated in the worst case of a person with advanced and the patient has for company possible way. chronic pulmonary disease. strange bleeps, noises and masked Typically, this patient would have professionals. Every aspect of his The legal and public thinking seems had breathlessness, possibly due to body chemistry as well as every to be centred around vegetative asthma or emphysema (a long-term organ gets attention, but not his existence like the sad case of the lung disease), for years or decades. feeling of hopelessness, fear and the late Aruna Shanbaug. But more In this condition, as time passes, wish that he were dead. Intensive realistically, the above is what the lungs gradually worsen and care is very physical – typically happens to tens of thousands the reserve capacity for breathing organ and disease-centred. of patients every year in Indian becomes less. The person becomes hospitals. unable to exert much. Still later, Typically, again, the person gets The humane and viable alternative there would be some breathlessness disoriented in the intensive care would be an open discussion with even at rest and chances of unit. It happens to one-third of the person and the family, a switch superadded infections increase. all people treated in an intensive care unit within 48 hours, and over from aggressive intensive care For such a person at a certain to two-thirds of the elderly to humane palliative care. It is then point of time, life may become patients. Such disorientation is that the comfort level and exercise a continual journey between the often accompanied with intense tolerance improve. As a result, home and hospital. As respiratory suffering. Hallucinations cause life, albeit limited, can become functions worsen, care in the panic and the person tries to tear enjoyable with time spent on what hospital is typically given in the away the tubes and cables. Then one enjoys the most. At this point

24 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 of time many material possessions When indicated, the necessary to stressed mental conditions, – car, house, degrees, professional medicines like corticosteroids misunderstandings tend to be positions – tend to become would be tried and any infection common. irrelevant. What is significant treated. However, our mainstay The objective of such thereafter turns out to be the love of management would be opioid communication should be to that the person gives and the love therapy to reduce the sensation of reach an understanding of the that he receives. breathlessness. In the absence of person’s emotional status (anxiety, pain, the treatment would be with depression, fear, guilt etc.), social This is precisely what aggressive a starting dose of 2-5mg of oral issues (financial hardships, issues and intensive care denies to the morphine, given every four to six of relationship within the family dying person. And typically this is hours. If the patient is unable to and with the outside world, stigma what palliative care can provide as swallow, the opioid medicine may against the disease, isolation etc.) an alternative. be administered subcutaneously. and spiritual issues (connectedness While at one time, breathlessness The effectiveness of palliative care with one’s own faith and family, was considered an absolute has been clearly showcased in the meaning and purpose of life etc.). context of cancer. End-of-life care contraindication for morphine, today it has been clearly proved integrated with disease-specific All issues cannot obviously be that morphine is the drug of choice treatment can not only improve the addressed. But a concerted effort for symptom control in terminal quality of life, but also prolong a needs to be made to mitigate as breathlessness. many problems as possible and to person’s life by an average of three make life enjoyable. To this end, a months (Temel et al, 2010). Concurrently, there should be conducive environment at home adequate communication with Our Plan of Action for is the best solution. In case that is the patient. For most of us, elusive, a hospice or hospital room, Palliative Care communication is a matter of where the patient is surrounded by instinct. However, it is much Most importantly, a person in his or her caring family, works well more complicated than that. As in palliative care would not be too. In addition, communication, Western countries, it is necessary isolated from the family. Certainly, when undertaken with sensitivity for healthcare professionals we would look for any correctible and honesty, can lead to a dignified to have some basic training in factors and rectify them. We would and comfortable end-of-life communication skills, if we are to try graded oxygen therapy after an planning. give some solace to the patient agreement with the patient and and the family. Depending on how family that it would be continued The Evolving Role of much they want to know, they only if it provides relief to the Palliation in Healthcare should be informed- patient. Realistic reassurance will The above example illustrates how be very valuable, as will avoiding About the status of the patient the focus of management needs to meaningless phrases like ‘Don’t and goals of care shift from a totally disease–oriented worry’ or ‘Everything is going to be Signs, symptoms and time course approach to one focused on all right.’ that is expected. However, it mitigating the patient’s agony. The should be emphasised that time physical, psychological, social and Such words do not bring relief course can be unpredictable, and spiritual domains of suffering need because the patient knows the to be addressed to improve quality truth. Instead, a reassurance that Possible course of action of life. someone will be staying to look in the event of unexpected circumstances. after him or her till the patient feels The concept of palliative care better is likely to bring some relief. It would be important to check pioneered by Dame Cicely This goes a long way in reducing whether the recipient of the Saunders in the 1980s, had anxiety and making breathing information has really understood concentrated on people dying easier. what was communicated. Owing with cancer. Today, it is universally

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 25 translated to change in practice. Persistent efforts are needed to effect change. Barriers to palliative care like lack of awareness among professionals, administrators and public will have to be over come. It is essential to educate the public and make them aware of the possibilities of a humane end of life care, which can be realised through the adoption of palliative care. The media hence, has an important role to play in this regard. Simultaneous educational programmes will be necessary for professionals. Many institutions in India offer a six-week course in palliative care to doctors and nurses accepted that discrimination in palliative approach in their day- as well as volunteers’ training the name of a diagnosis is unfair. to-day practice, end-of-life care programmes. One to two-year Anyone who has Serious Health- will remain an uphill task. As a postgraduate programmes for related Suffering (SHS) should result, the vast burden of serious doctors have been recently started receive palliative care (Knaul et al, health-related suffering in India will too. Even more importantly, 2017). It is also a globally accepted continue to plague patients and palliative care must be included in principle that palliative care is not their families. the curriculum of undergraduate medical and nursing education. only for those with incurable illness or for the terminally ill, but for What Can Be Done? 2. Drug Availability everyone who has SHS. Compassionate intensive care Morphine is the mainstay of cancer In fact, in 2014, the World Health and end-of-life care can become pain management as well as that Assembly asked all member a reality only when they are of intractable breathlessness. Its countries to integrate palliative integrated with the principles of availability has been eased in some care into their healthcare plans at palliative care. Imagine a person states up to a point, but for the with breathing difficulty who all levels (primary, secondary and vast majority of the needy, there is dependent on an artificial tertiary) across the continuum of is still no access. And the reality of ventilator. When he is disconnected care (from the beginning of the poverty in our country mandates from the ventilator, he should suffering to the end). It is also that the majority of patients will get not be left to suffer in agony. He important to remember that the pain relief only if essential drugs needs proper symptom control subject is not only the person with are dispensed free of cost. Owing and psychological support. Such the disease, but also the family. For to advocacy for over 19 years, the integration of intensive care with that reason, palliative care would Narcotic Drugs and Psychotropic palliative care would necessitate include support for the bereaved Substances (NDPS) Act has been three areas of action: persons as well. amended, thus easing the legal barriers to access opioids. But this is 1. Education Unless palliative care becomes an yet to be implemented by all state integral part of medical and nursing Change is always resisted. governments so that all hospitals education and medical, nursing Existence of proof of scientific can become Recognised Medical and allied professionals adopt the advances does not always get Institutions (RMI) and can procure

26 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 essential opioids with a simple, yet It is then up to the professional Temel, JS, Greer, JA, Muzikansky, MA, safe, single window system. bodies and the society to recognise Gallagher, ER et al. 2010. “Early Palliative Care for Patients with Metastatic Non– that the physician’s duty of care Small-Cell Lung Cancer.” The New England 3. Policy and its comes first and that he is not bound Journal of Medicine. 2010;363:733-42. Implementation to provide any treatment that is in conflict with the duty of care. The Logical Indian Crew. 2018. “Aruna In India, like much of the world, Shanbaug: Her Life Was So Unbearable palliative care came into being As a person who is almost sure to That We Are Happy She Is No More.” The because of individual initiatives Logical Indian March 09, 2018. Available need palliative care at a certain at https://thelogicalindian.com/exclusive/ and action by non-government stage of my life (like everyone aruna-shanbaug/ (Accessed 24 June 2018) organisations. However, to achieve else), I hope application of the national coverage, palliative Supreme Court judgment needs to care needs to be integrated be relevant only to those situations into general healthcare delivery in which it is doubtful or contested system. Experience from countries what the “duty of care” comprises. like Uganda has shown that And I hope that at that time, the even in resource-poor countries, healthcare system will permit a government efforts can result in humane transition from disease- effective action, aimed at achieving focused care to compassionate coverage. India’s National Program care, aimed primarily at quality of for Palliative Care (NPPC) is a step life. in the right direction. References Significant progress has been Indian Council of Medical Research. achieved in Kerala by bringing in a 2018. “Definition of terms used in state palliative care policy in 2008. limitation of treatment and providing A national palliative care policy is palliative care at end of life”. Available at the need of the day. But the bulk of https://palliumindia.org/cms/wp-content/ uploads/2018/06/Definition-of-terms-used- healthcare in India is in the private in-limitation-of-treatment-and-providing- sector, and unless the private palliative-care-at-end-of-life.pdf healthcare system also embraces palliative care, coverage will be Jones, JW. 2000. “Law & Ethics: The Healthcare Professional and the Bolam difficult. Test.” British Dental Journal 2000. 188. Ethical End-Of-Life Care Knaul, FM, Farmer, PE, Krakeur, EL et al. 2017. “Alleviating the Access Abyss and Law in Palliative Care and Pain Relief—An Imperative of Universal Health Coverage: The Bolam test which has been The Lancet Commission report.” The advocated in the UK states, “A Lancet, 391:10128 doctor is not guilty of negligence Scottish Palliative Care Guidelines. if he has acted in accordance with Undated. Breathlessness. Available at http:// a practice accepted as proper by www.palliativecareguidelines.scot.nhs.uk/ a responsible body of medical guidelines/symptom-control/breathlessness. men skilled in that particular art. aspx. (Accessed on 24 June 2018) Putting it in another way, a doctor Supreme Court of India. 09 March 2018. is not negligent if he is acting in Common Cause (A Regd. Society) vs Union accordance with such a practice, of India and Ors. MANU/SC/0232/2018 merely because there is a body Available at https://supremecourtofindia.nic. in/supremecourt/2005/9123/9123_2005_ of opinion that takes a contrary Judgement_09-Mar-2018.pdf (Accessed 24 view” (Jones, 2000). June 2018)

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 27 UNDERSTANDING GLOBAL PRACTICES A Bird’s Eye View of Euthanasia Laws Across the World Anshi Beohar*

peaceful, dignified death is Not only are physicians and the “…The last 58 days on this bed of “A the entitlement of all who judiciary conflicted on the right- arrows (death bed) was painful. want it. And a person should not be to-die movement, there are grave It felt longer than 100 years…” forced to leave home to achieve it,” sanctions from societies and (translated) said the Jan-April 2018 newsletter religious orders on questions of of the Australian right-to-die group patient autonomy and desires Uttered by the grand warrior Exit International, while discussing of the elderly. Euthanasia laws, Bhishma, who had the boon of scientist David Goodall’s wish to reinforcing pro-choice guidelines, Ichcha Mrityu or death at will, the die on his own terms. do exist in some countries, but so words convey unremitting physical does its criminalisation in many pain. For the battle-weary son of The wish became a reality in May others. Ganga, the ability to choose the this year, when the noted ecologist time of his death was a gift like no and botanist flew across the world Following is a ready roster of global other. to end his life, exactly when and legislations around euthanasia how he wanted to. Goodall had and the complex eligibility criteria Interestingly, the incident can be to log precious air miles to travel drawn up for people who want read as a narrative of euthanasia in to Switzerland, home to liberal to have a say in terminating their Indian mythology. In fact, Ichcha assisted dying laws, for the simple lives in a dignified manner. It is not Mrityu is the Hindi translation of reason that his own country only a roundup of laws but also a the voluntary euthanasia concept, Australia does not grant the right to discussion on how citizens fare in as it is understood today. die to its citizens. countries that have legalised the Several instances of Ichcha Mrityu right to die and how suffering and Not surprisingly, the 104-year- are available in Indian culture, quality of life have been defined by texts and scriptures. Ideas such old Australian, who had been diverse nations. campaigning for legalising assisted as prayopavesa, a Hindu practice or Jainism’s Santhara, a practice death, shared his powerful thoughts Going Back in Time: on the quality of life before he put of gradual fasting till death, were the brakes on it: “I no longer find Euthanasia Defined considered acceptable recourses much joy in life. Up to, even up to, Through the Ages for those who have fulfilled their responsibilities, achieved their say, the age of 90 I was enjoying life. Suryakant Tripathi Nirala in his But not now,” Professor Goodall, goals, and overcome their desires, Hindi version of the Mahabharat and who would want to continue who was not terminally ill, told the writes: Australian broadcaster ABC. their journey to the higher, spiritual

life.

Needless to say, Goodall’s A peaceful, physician-assisted suicide at an dignified death is Oxford Dictionary defines assisted-dying agency in Basel, the entitlement of “ euthanasia as: by exercising his right to die all who want it. And “Painless killing of a patient suffering has sharpened debates around “ a person should not from an incurable and painful euthanasia across the world. be forced to leave disease or in an irreversible coma”. It has also put legalisation of home to achieve it assisted dying under spotlight.

*Anshi is a Legal Consultant with Common Cause.

28 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 Though one may be hard-pressed Greek philosopher Plato, in both last Roman emperor of the Julio- to find the word euthanasia in Phaedo and Republic argued that Claudian dynasty. history, the act of euthanasia when the time comes, one must -- active, or passive -- with the embrace death as it will free one To Terminate or Not to: A assistance of a physician, or from the “shadowy cave of human World View in the form of suicide or self- existence.” He was opposed to administration of a lethal dose of non-natural prolongation of life, an Australia medication, has existed for a very idea that lies at the core of passive The legislative scheme for assisted long time. euthanasia. dying in Australia has gained context after David Goodall’s death The word euthanasia, Greek in In ancient Rome, however, suicide described in the beginning of this origin, is a mix of the words Eu or euthanasia was not specifically article. Although Australia does and Thanatosis which translates addressed as an illegal act. Whether not recognise the right to die, the into “good killing.” It made an it was due to age or moral disgrace, state of Victoria did legalise assisted appearance in Greek literature sacrifice of life was viewed as an dying in 2017 by passing a bill around 5th century, during the honourable, courageous act against that is all set to be effective from Classical and Hellenistic period adversities. Mors Bona appears in June 2019. However, this would (Youug, 1994). It is believed that Roman literature, which means an be legal option only for terminally Greek citizens in the Classical honest and happy way of dying ill patients who not only possess period, after receiving the consent and Felici vel honesta morte mori complete mental clarity but also of the community, could end their (to die in a lucky and honest way) have not more than six months to lives by drinking hemlock, in order was an ancient ideal (Kure, 2011). live. to avoid the senility, weakness, Similar instances of relinquishment fragility and illness that comes with of life can be observed in Mark The legislation has opened up old age. Antony and Cleopatra, Brutus and conversations amongst those his wife Porcia, as well as Nero, the who, though not terminally ill,

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 29 are looking forward to exercising seeking physician-assisted suicide countries for assisted dying, such their right to die without any legal and has frequently been dubbed as getting second opinion from implications. As Goodall explained as the centre of ‘suicide tourism’ a doctor, being afflicted with a in much-publicised interviews, loss by sections of the media. However, terminal illness and so on. of mobility, freedom and certain Article 114 of the Swiss Criminal faculties were reasons that seemed Code of 1937 penalises euthanasia United States good enough for him to pull the and Article 115 prohibits assisting in The Patient Self-Determination plug. Terminal illness, according to suicide for selfish motives. Act of 1990, as the name itself him, was not the sole criterion for suggests, provides one the right Euthanasia, or as the Swiss defining enduring and irremediable to determine their healthcare Criminal Code terms it, homicide suffering. In the end, Goodall has strategy. This federal law requires ended up being a name and face at the request of the victim, is that all healthcare agencies such to euthanasia and an exploration of covered under the Swiss Criminal as hospitals, nursing homes, etc., the idea of a good death. Code of 1937, Offences against provide information on advance Life and Limb. After an incident directives, at the time of admission Switzerland of physician-assisted suicide of an adult patient. A healthcare takes place, a police enquiry Physician-assisted suicide has been advance directive can include not in practice in the country since is conducted to ascertain its only the medical power of attorney, 1942 but it needs to be guided by compliance with Swiss laws. but also a Living Will which can be altruism and self-determination. The broad laws of the country referred to in the event the patient More often than not, this is looked mean that there are hardly any is incapacitated physically or at as a medical recourse. mandated eligibility requirements mentally or becomes incompetent Owing to its liberal regulations on for physician-assisted suicide. to make sound decisions or loses assisted dying, Switzerland seems Individuals do not have to meet consciousness. This is mandated to be a big draw for individuals the strict criteria laid down in other in order to protect and respect the

30 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 rights of those patients who lose all The Netherlands The patient must be in control over their senses. Through unbearable pain, without any The first country to legalise this, patients could ascertain the prospect of improvement. euthanasia was the Netherlands in refusal of perpetuation of their April 2002. In 1973, Dr. Geertruida Both the doctor and the patient lives through artificial and evasive Postma, a physician, was relentlessly should have concluded that procedures. This precisely is Passive requested by her mother to assist there are no other reasonable Euthanasia. her in the termination of her life. alternatives.

Oregon was the first state in the After she acceded to her mother’s There must be a second opinion US to introduce the Death with requests, she was held accountable from an independent doctor Dignity Act, 1997 which legalised for murder. Although she received who needs to provide a written physician-assisted suicide for a short sentence, the Court gave an confirmation of the above- terminally ill patients. However, this additional open-ended response mentioned conditions. Act prescribes certain requirements regarding the patient’s right of If a minor, aged above 16 years, that need to be fulfilled in order to self-determination. It observed that requests for the procedure, a qualify for the procedure. It also a physician can administer pain- doctor may accept it, only if his requires elaborate physiological and relieving drugs, even if it results in parents have participated in the psychological tests of the patient death, when such administration is decision-making process. In case of and the procurement of a second done to relieve the patient of the a minor aged between 12 and 15 opinion once he or she requests (in pain arising from an irreversible years, parental consent is required. writing) for the administration of a medical condition. In addition to this, the Groningen lethal dose of a medication to end Eventually, with more such cases, Protocol (https://www.ieb-eib.org/fr/ life. the Court went on to form a pdf/20150204-groningen-eng.pdf) is in place since 2005. It lists the It is to be noted that though structure for enabling euthanasia. necessary conditions and steps to euthanasia and physician- In fact, much of it was developed be followed in cases where severely assisted suicide are often used as an exception to the application ill young children, especially new- interchangeably, they are not of the penal code. Given below born babies need to be euthanised. synonymous. Self-administration are the criteria of due care to On the other hand, when such characterises physician-assisted be followed by doctors before a request is made by a patient suicide while euthanasia requires euthanising a patient as per the suffering from mental illness(es), the final act to be performed by a 2002 statute viz. Termination of Life at least one psychiatrist and two third party. on Request and Assisted Suicide (Review Procedures) Act: independent physicians should be consulted before a euthanasia Subsequent to Oregon’s Death with Dignity Act of 2005, other The patient’s request for decision can be arrived upon. states in the US have also passed euthanasia must be voluntary similar legislations. Washington’s and made in full consciousness. Belgium If the patient is no longer able Death with Dignity Act, 2009; Immediately after the Netherlands to express himself but has Act 39, Vermont Patient Choice legalised euthanasia, Belgium previously made a written and Control at the End of Life Act, followed suit in May 2002. It declaration to that effect (a living 2013; Washington D.C.’s B21- became the second country to do will), that must be taken into 0038, the Death with Dignity Act so and has laid down definitive consideration. of 2015 and Colorado’s Proposition regulatory and eligibility criteria.

106, the End of Life Options Act, The patient must be fully The physician must inform the 2017 are all legislations that allow informed and aware of his patient about his or her medical suffering patients to die with condition, prospects and condition, prospects, and variations. The Hawaii Our Care, alternatives. possible alternative treatments Our Choice Act will come into The patient must be at least 18 including palliative and hospice effect on January 1, 2019. years of age. care. A legally competent and

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 31 conscious adult, suffering constant, of death, unbearable physical pain Germany unbearable pain, and ailing from as well as lack of any alternative Germany has a long history of an incurable disease can request treatment. Through various anti-Semitic persecution and euthanasia in writing or through judgments, Japan established that genocide during the Holocaust. In an Advance Medical Directive. in cases where a patient’s express this context, euthanasia took on an Another independent physician request to assist in dying is absent, impossibly sinister meaning when must be consulted to determine the medical service provider it was used as part of Adolf Hitler’s the serious and incurable nature of (doctor or clinic or hospital, as the systemic killing programme which the condition. The physicians who case may be) shall be held liable aimed to rid the nation of physically conduct euthanasia are required for murder. Only in cases where all and mentally disabled individuals. to report the case for review to the these conditions have been met, Owing to its ominous history in the Federal Control and Evaluation will euthanasia be permissible. country, euthanasia remained a Committee on Euthanasia to ensure taboo idea in Germany for a very that the legal requirements are The Japan Society for Dying long time. being fulfilled and to check for with Dignity has approximately irregularities. In fact, Belgium is the 125,000 registered members across However, since November 2015, first country in the world to abolish the country. All members carry physician-assisted suicide is legal all age restrictions on the right to identification cards that say they in Germany, which is performed die. refuse to receive any life-saving on a case-to-case basis. Despite this, commercialising death is Legalisation of euthanasia and treatments once they enter the severely looked down upon, while voluntary assisted dying in several terminal phase of their illness. motives, altruism and selflessness other countries have come close on Finland of the parties involved are analysed the heels of Belgium. with microscopic precision to In May 2018, nearly 50,000 avoid chances of mishap. Active Japan signatures were collected under an euthanasia is still a criminal act in initiative by the citizens of Finland The legal framework for Anrakushi Germany. or ‘peaceful death’ in Japan has to initiate Right to Die. The nation’s been established through judicial Parliament, however, rejected the South Korea legalisation of active euthanasia cases. However, no additional According to a survey conducted by a vote of 128 to 60 against the policies have been framed and the by the state-run Korea Institute initiative. Assisted death is however government has not taken a fixed for Health and Social Affairs in legal in Finland. It entails end-of-life position on euthanasia. 2014, 88.9 percent of respondents care services where a patient self- aged 65 and above objected to The first matter concerning administers a deadly dose of lethal active euthanasia reached the continuing medical care to prolong medicine. Japanese courts in 1949 but the life without the possibility of state took no stand on the issue. Colombia recovery. Only 3.9 percent chose to Along the way, similar cases support continued treatment. were filed and based on those Colombia, the first Latin American country to allow legal euthanasia, In January 2016, South Korea’s judgments, a basic framework was National Assembly passed a law developed. However, it was the regulated it under Resolution 1216/2015. In 1997, the that allows incurable patients to Tokai University Hospital Case of reject life-prolonging treatment. Constitutional Court of Colombia 1995, that helped Japan establish In order to develop its first “well- held that an individual may choose stricter pre-requisites for physician- dying” law, a pilot programme has to end his or her life and that assisted suicide and voluntary been planned. More than 3,000 doctors assisting such persons euthanasia. To opt for either of people have signed up under cannot be prosecuted for the same. these, it is necessary to have a clear this project to forgo artificial life- and voluntary desire to terminate However, this translated into a law extending treatment when they one’s life, along with imminence only in June 2015. become incurably ill.

32 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 Canada prohibits unreasonable obstinacy offence amounting to homicide or in investigations or therapeutics manslaughter, as the case maybe. Canada has grabbed top spot in and authorises the withholding or 2017 Country RepTrak, published withdrawal of treatments when they Conclusion by the Reputation Institute, an appear “useless, disproportionate annual ranking of reputations of Although the Supreme Court has or having no other effect than solely nations. They are ranked on the been actively pursuing the right to the artificial preservation of life”. basis of parameters like effective self-determination through various France recognises relief from pain government, advanced economy cases, there is a serious lack of as a fundamental right of patients. and appealing environment. Lately, any statute, policy or guideline It advocates for administration of Canada has also been championing emanating from the legislature. This pain-relief medication even if these the right to die with dignity by calls for an urgent need to formalise treatments hasten a patient’s death. a system which ensures that supporting those seeking assisted In fact, French law also allows death. provisions for euthanasia are not doctors to make these decisions, misused. Meanwhile the narratives In June 2016 a new federal but there are strict requirements to surrounding ethics of medical care legislation came into force be followed before the process is for the dying continue to expand creating a regulatory framework undertaken. globally. It would be constructive for physician-assisted suicide if India can take a leaf from the in Canada. To receive medical Euthanasia: Permissions experiences of other nations. assistance in Canada, it is and Punishment An Advance Medical Directive imperative to fulfil the following While euthanasia is considered conditions. The patient should be: according to Black’s Law illegal in some countries, if the Dictionary is “a legal document A major patient explicitly requests or the explaining one’s wishes about Eligible for enjoying health nearest kith and kin of the patient medical treatment if one becomes services funded by the Canada does so in case the patient is incompetent or unable to unable to express such a request, government communicate” artificial life support systems may

Suffering from a grievous and be withdrawn, and he/she can The term Advance Medical irremediable medical condition, refuse intrusive procedures that Directive is often used at an advanced stage will merely elongate life without interchangeably with Living Will, In a position to have made a actually treating him/her. A similar although the former is a much more voluntary request for medical form of passive euthanasia was elaborate document in several assistance in dying legalised by the Supreme Court in countries. While Living Will merely In a position to have given the Common Cause vs Union of expresses an individual’s wishes informed consent to receiving India 2018 judgment, wherein a regarding medical treatment when medical assistance in dying. The five-judge Bench upheld the right he is unable to communicate, consent should be taken after to die with dignity as a fundamental an Advance Medical Directive he or she is informed of the right under Article 21 of the can include healthcare, medical available alternatives to relieve Constitution. The judgment also power of attorney, directions on suffering, including palliative provided legal validity to Advance acceptance or refusal of treatment care. Medical Directives which can be and Do Not Resuscitate orders drafted by individuals to refuse when one reaches a state of no- Able to foresee natural death, life-prolonging medical treatment recovery. within a specific period of time in case of a terminal illness in the France future. The Apex Court judgment is comprehensive and includes In France, 2005-370 of April In several countries discussed detailed guidelines required to 22, 2005 (also called Leonetti’s above, including India, the act outline a framework. However, law), allows the right to die. It of active euthanasia is a penal euthanasia is a complex issue

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 33 and demands both ethical and Choon, Chang May. 2017. “3000 South Kill Himself”. Daily Mail Australia, May 6, emotional responses. Apart Koreans Choose to ‘Die Well’ in Trial of 2018. http://www.dailymail.co.uk/news/ New Law”. The Straits Times, December from the patient, relatives of the 16, 2017. https://www.straitstimes.com/ article-5696251/Australian-scientist-104- terminally ill have to navigate a asia/east-asia/3000-south-koreans-choose- end-life-Swiss-suicide-clinic-prove-hes-not- cultural minefield when it comes to-die-well-in-trial-of-new-law. (Accessed insane.html (Accessed June 20, 2018) to taking a firm decision on this June 20, 2018) Papadimitriou, J.D., Skiadas, P., matter. At the same time, there Common Cause (A Registered Society) vs is also the undeniable truth that Union of India and ors. 9 May 2018. Writ Mavrantonis, C.S., Polimeropoulos, V., end-of-life situations are ripe for petition (C) 215 of 2005. Papadimitriou, D.J. and Papacostas, exploitation. Therefore, there’s “David Goodall: Scientist, 104, Ends His K.J. 2007. “Euthanasia and Suicide in a great scope for Supreme Court Life in Switzerland”. BBC News, May 10, Antiquity: Viewpoint of the Dramatists and guidelines to be supplemented 2018. https://www.bbc.com/news/world- Philosophers”. Journal of the Royal Society europe-44069885 (Accessed June 20, with additional provisions by the of Medicines. 100(1): 25-28. doi: 10.1258/ legislature, as was also suggested 2018) jrsm.100.1.25. https://www.ncbi.nlm.nih. by the Court in the present case. “Euthanasia, Assisted Dying, and Suicide”. gov/pmc/articles/PMC1761665/. (Accessed Academic and research-oriented BBC, August 25, 2018. http://www. exercises can be undertaken to bbc.co.uk/religion/religions/hinduism/ June 20, 2018) hinduethics/euthanasia.shtml#top better understand the practical (Accessed June 20, 2018) “Pilot ‘Right to Die’ Program Gets Warm implications of this complex issue. Reception at South Korea”. The Korea “Finland Slashes Citizens’ ‘Dying with Until then, the Supreme Court’s Dignity’ Initiative for Euthanasia”. Herald, October 26, 2017. http://newsinfo. landmark judgment could be the Sputnik International, May 05, inquirer.net/940774/south-korea-right- 2018. https://sputniknews.com/ lodestar, amid the noise around to-die-health-death-asia#ixzz5I3THtzRJ. europe/201805051064171111-finland- euthanasia debates, guiding us euthanasia-initiative/. (Accessed June 20, (Accessed June 20, 2018) towards a simple truth: exercising 2018) autonomy over one’s life (and Reputation Institute. 2018. “Country Hayashi, M., Kitamura, T. 2002. RepTrak- Annual Ranking of Most death) comes before everything “Euthanasia Trials in Japan: Implications for else. Legal and Medical Practices”. International Reputable Countries Worldwide”. https:// Journal of Law and Psychiatry. 25 (2002) www.reputationinstitute.com/country- References 557-571. http://www.institute-of-mental- reptrak (Accessed June 20, 2018) health.jp/thesis/pdf/thesis-03/thesis-03-08. Bhat B., Sandeepa. and D., Shyamala. pdf (Accessed June 20, 2018) 2011. “Euthanasia Regime: A Comparative Rietjens, J.A.C., Van der Maas, P.J., Analysis of Dutch and Indian Positions”. The Hongo, Jun. 2014. “Euthanasia: The Onwuteaka-Philipsen, B.D., Van Delden, West Bengal National University of Juridical Dilemma of Choice”. The Japan Times, J.J.M. and van der Heide, A. 2009. “Two Sciences. NUJS/WP/2011/03. http://www. February 15, 2014. https://www.japantimes. nujs.edu/workingpapers/euthanasia-regime- co.jp/life/2014/02/15/general/euthanasia- Decades of Research on Euthanasia from a-comparative-analysis-of-dutch-and- the-dilemma-of-choice/#.W0Sy1tIzbIV. the Netherlands. What Have We Learnt indian-positions.pdf. (Accessed June 20, (Accessed June 20, 2018) and What Questions Remain?”. Journal of 2018) Kure, Joseph. 2011. “Good Death Within its Bioethical Inquiry. 2009 Sep; 6(3): 271– Bosshard, G., Fischer, S. and Bar, W. 2002. Historical Context and as a Contemporary 283. doi: 10.1007/s11673-009-9172-3. “Open regulation and practice in assisted Challenge: A Philosophical Clarification of https://www.ncbi.nlm.nih.gov/pmc/articles/ dying”. Swiss Medical Weekly,132 (37-38), the Concept of ‘Euthanasia’”. In Euthanasia: pp.527-534. The “Good Death” Controversy in Humans PMC2733179/. (Accessed June 20, 2018) https://smw.ch/resource/jf/journal/file/ and Animals, edited by Joseph Kure, 3-45. view/article/smw/en/smw.2002.09794/ Croatia: InTech. https://nphf.nl/footage/ Youug, K.K. 1994. “A Cross-Cultural smw.2002.09794.pdf/. (Accessed June 20, fm/File/Euthanasia_-__The____Good_ Historical Case Against Planned Self- 2018) Death____Controversy_in_Humans_and_ Willed Death and Assisted Suicide”. Animals.pdf. (Accessed June 20, 2018) Braithwaite, J., Mannion, R., Matsuyama, Y., McGill Law Journal. (1994) 39 McGill L.J. Shekelle, P., Whittaker, S. and Al-Adawi, S. Locke, Sam. 2018. “Australian Scientist, 657. http://lawjournal.mcgill.ca/userfiles/ (eds.) 2017. Health Systems Improvement 104, Planning to End His Life at A Swiss Across the Globe: Success Stories from 60 Suicide Clinic Will Have to Prove He’s other/2218870-39.3.Young.pdf. (Accessed Countries. Florida: CRC Press. Not Insane or Doctors Won’t Let Him June 20, 2018.

34 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 PERSPECTIVES FROM REAL-LIFE CASES Should One Exercise a Choice or Go on Living a Tormented Life? Trishala Roy*

at least have mercy on him and allow him to die with dignity, rather than let him prolong his life of agony. So far, their request has been denied every time. The Existential Nature of Human Life Cases like Danny’s seek clear answers from not just the government or the hospitals but from the whole society. Such cases force us to think about the meaning of human life. The issue becomes even more complex with further advances in medical sciences he story of porter Dennis Kumar and remains in a state of constant and the advent of life prolonging Tis rather unique. According suffering. medicines and equipment. Despite to several media reports, Kumar With a meagre earning of `12,000 perpetual uncertainty about what earns a living carrying passengers’ a month, Kumar cannot afford to exactly encompasses life, human luggage in the Kanyakumari district sustain the medical treatments societies have generally agreed on of Tamil Nadu. But his family is required. He has requested the one thing: we as individuals do unlike that of other coolies. His government to provide assistance not have the power to take life. five-year-old son, Danny, suffers and pursue a case of medical However, the state’s power to take from Symptomatic West Syndrome, negligence against the erring away a citizen’s life to penalise a debilitating condition that has hospital, but to no avail. The deviant behaviour needs to be left him blind, deaf, and in a impoverished porter constantly differentiated from its authority vegetative state. There were some struggles to provide for his family, to grant mercy killing to suffering complications during his birth, helplessly watching as his son individuals. Modern societies perhaps as a result of medical continues to suffer. He and his wife and states continue to grapple negligence. Then, during the have petitioned the government with this ethical dilemma. The first week of his life, the glucose to allow them to end their son’s compelling argument is if human in his bloodstream plummeted suffering by means of active life is more than just our physical but the doctors failed to detect euthanasia. They are of the opinion being, defined by experiences the anomaly. As a result, Danny that if the government cannot help and interactions, then why should needs constant supervision. He is supplement the family’s paltry someone who is suffering intensely unable to do anything for himself earnings and treat Danny, it should and is devoid of such experiences

*Trishala is an intern at Common Cause

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 35 be forced to stay alive? This President about their deplorable a slight chance that they will reasoning brings us to the subject of situation, they had received survive. The couple have even gone active euthanasia. financial assistance of Rs 50,000. so far as to commit their bodies While they were grateful for the and wealth to the government Appeals to the help, the amount did not cover after their deaths. As a last resort, Government their medical costs for more than a they have asked the President to few days. Their request for active make an exception for them and As for India, there are many euthanasia has also been denied. grant them permission for active cases similar to that of Dennis euthanasia. Their request has so far Kumar and his family. People with A Break from the Norm been denied. debilitating conditions who cannot be provided for by the state, are Besides those who face devastating Is Active Euthanasia the often left with no other recourse lifelong disabilities or suffer from but to ask to be allowed to die excruciating medical conditions and Answer? with dignity. In 2015, a sweet shop want to be relieved of suffering, In three of the four cases discussed, owner from Agra named Mohd. there are also some who have active euthanasia has been Nazir sent a letter to the President simply lived a full life and are ready sought as a last resort out of sheer of India, requesting permission to move on. In Mumbai, Narayan frustration. In each case, the first for active euthanasia for six of his and Iravati Lavate, 88 and 78 years demand is for the state to provide eight children. They had been old, respectively, have requested support in the absence of the ability diagnosed with Canavan disease, active euthanasia because they to afford treatment. The root of this a degenerative condition that believe they are no longer of any issue, then, is not mercy killing, but gradually paralyses the body, often use to the society. The couple do that of an ineffective and affordable causing seizures as well as leading not have any children, and none of health care system. In a debate to hearing and vision loss. This is a their close relatives is living. They on the programme Epicentre, curable disease, but unfortunately, feel they are being forced to stay anchored by Marya Shakil and Nazir was unable to afford the alive against their will and that it is telecast on CNN-News18, a critical treatment. He demanded that the a waste of the country’s resources. care doctor Sumit Ray mentions government should either provide Further, they think it is cruel on the that “the inability of a society and his family with the financial means government’s part to expect them a state to provide good quality to treat his children, or allow him to wait to die till they are afflicted and free public healthcare to to take their lives and end their with some serious ailment, most a person in need cannot be an suffering. His request was denied. likely to also cause them suffering. excuse to take that person’s life”. Narayan claims, “the President He avers that, “the disability by Earlier this year, Shashi Mishra and has the powers for showing mercy itself does not stop one from her daughter Anamika Mishra from to those on death row. We are living a qualitatively good life” (As Kanpur wrote to the President serving a life imprisonment and quoted in News18 dated June 19, requesting active euthanasia. Both the President can show us mercy 2018). Ray then gives the example mother and daughter are suffering by allowing us to end our lives” of theoretical physicist, Stephen from muscular dystrophy which (As quoted in The Hindu, dated Hawking, who suffered from ALS leads to increasing weakening and January 10, 2018). (Amyotrophic Lateral Sclerosis). breakdown of skeletal muscles. ALS is a neurodegenerative disease

Shashi’s husband passed away 15 One might wonder, if they are so years ago and Anamika claims there intent on killing themselves, why The root of this is no one to look after the family have they not committed suicide? issue, then, is not “ since her father’s death. Their days It is for the simple reason that an mercy killing, but are filled with agony because they attempt to commit suicide does that of an ineffective cannot afford treatment and wish to not guarantee death: whether they “ and affordable be freed from this painful existence. jump from the roof of a tall building health care system. Previously, upon writing to the or hang themselves, there is always

36 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 that affects motor nerve cells in the not in a position to give informed On the other hand, there is the brain and the spinal cord. It is a consent. If the courts allow one question of ethics. Is it ethical progressive disease, much like the family to perform active euthanasia to actively take away one’s life ailments which have compelled under specific circumstances, that just because an individual needs certain Indian citizens to request case can then be used to justify assistance while performing his/ active euthanasia. thousands of mercy killing requests. her daily functions? What if that The influx of requests could also person has lived a full life and is By this logic, Hawking should have slow down the judicial system as a ready to die? How can we claim to been allowed to die. Had that been whole. live in a democratic and just society the case, the world would have if individuals are not given an lost one of the greatest minds of The Mumbai couple truly are equal opportunity to exercise their st the 21 century. More importantly, outliers within the frame of this free will? Until these conflicting his family would have lost a dearly debate. However, their case positions are reconciled, there will loved member. Instead, he was brings the discussion to an ethical be no conclusive answers to the provided the requisite healthcare precipice. The Lavates cannot be vexed question. by the National Health Service the only aged individuals who are (NHS) of the United Kingdom. ready to bid adieu to this world. If References Hawking himself conceded that we allow them to fulfil their wish “Elderly Mumbai Couple Seek ‘Active “[he] would not have survived” if and die peacefully, then once again, Euthanasia’”. 2018. The Hindu, January 10, not for the excellent care provided we set the precedent for misuse 2018. https://www.thehindu.com/news/ to him by the NHS (As quoted in of law. However, it is equally national/other-states/elderly-couple-seek- active-euthanasia/article22413855.ece The Guardian, dated March 14, important to evaluate the situation (Accessed 20 June 2018) 2018). Hawking’s case illustrates from the other side. What if they how the state needs to improve its feel imprisoned by this life? As News18. 2018. “Epicentre with Marya system of delivering effective and citizens of this country and world, Shakil”. Filmed February 6, 2018. https:// www.news18.com/videos/india/watch- affordable health care to its citizens, they also have the right to exercise epicentre-with-marya-shakil-69-1651763. which in itself can reduce the their free will, to determine their html (Accessed 19 June 2018) number of mercy killing requests. fate. Sample, Ian. 2018. “’I Would Not Have Survived’: Stephen Hawking Lived Long A Dangerous Precedent An Ethical Dilemma Thanks to NHS”. The Guardian, March Since the lack of an effective The questions arising from active 14, 2018. https://www.theguardian.com/ science/2018/mar/14/i-would-not-have- healthcare system forms the euthanasia debates are highly survived-nhs-enabled-stephen-hawking-to- backbone of this discussion, it is complex. These, combined with live-long-life (Accessed 21 June 2018) important to consider the attitude the layered cultural fabric of India, of Indians towards disability in makes the issue truly burdensome general. People with disabilities for our Courts and legislature. are frequently pitied, segregated or On the one hand, there is the even worse, discriminated against. question of quality of life. Each There is little to no infrastructure individual does have the right to in place to make common live a dignified life, as upheld by spaces accessible to them. Taking the Courts in India time and again. into account an all-pervading But should we continue living environment of indifference and a tormented life when living a apathy, a cautionary note needs dignified life becomes impossible? to be sounded. Using any kind of While the Supreme Court has disability as a reason to perform held that the right to life includes active euthanasia sets a dangerous the right to a dignified death, it precedent, especially in cases only goes so far as to allow passive where disabled individuals are euthanasia, and not the active one.

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 37 COMMON CAUSE UPDATES

Supreme Court Introduction of Electoral Bonds Government made the said Challenged: No further hearings appointments in a non-transparent ontempt Petition on Non- have been held in the case filed by manner. Therefore, these were CAppointment of Lokpal: Common Cause and the Association illegal and void as they violated the The petition for appointment of for Democratic Reforms (ADR), principles of ‘impeccable integrity’ Lokpal filed by Common Cause challenging the introduction of and ‘institutional integrity,’ as laid (CC) was disposed by the SC in electoral bonds as part of the down in the landmark judgments April 2017 maintaining that the Finance Act 2017. of the Apex Court in Vineet Narain Lokpal Act was a perfectly workable case (1998) and Centre for Public piece of legislation. However, the However, in another matter, Interest Litigation (CPIL) case government failed to appoint the the Supreme Court Bench of (2011). Common Cause later filed Lokpal nine months after the Apex Chief Justice Dipak Misra, Justice an Intervention Application praying Court verdict. Common Cause filed AM Khanwilkar and Justice DY that the Union of India (UOI) a contempt petition seeking Court’s Chandrachud on July 2, 2018 may be directed to not make any directions against the government’s issued notices seeking the Central appointments which required the wilful and deliberate failure to fully government's response on a plea participation of either the CVC or comply with the aforementioned challenging the amendments to VC, since their own appointments judgment. The matter was taken up Foreign Contribution (Regulation) on February 23, 2018 and thereafter Act. The petition, filed by ADR have been challenged by it. in March, April and May, 2018 and Mr EAS Sarma, a retired IAS On September 7, 2017 the Bench respectively. The Centre had on Officer and a former Secretary to the of Justices Arun Mishra and Mohan May 15, 2018 informed the Court Government of India, argued that M Shantanagoudar completed its that senior advocate Mukul Rohatgi the amendments were introduced to hearing and reserved the judgment. has been appointed as an eminent bail out the BJP and Congress parties Upholding the appointments, jurist in the selection committee for after the High Court held them the petition was disposed on Lokpal appointment. The Supreme guilty of taking foreign funding. The July 2, 2018 with the following Court on July 2, 2018 directed the retrospective amendments changed observations: Centre to apprise it within 10 days the definition of what constituted about the time frame for Lokpal a foreign company in such a way “We are nowadays in the scenario appointment. A Bench comprising that key beneficiaries would not that such complaints cannot be Justices Ranjan Gogoi and R face legal scrutiny for donations taken on face value. Even against Banumathi asked the government with effect from September 26, very honest persons, allegations to file an affidavit within 10 days 2010. The BJP and Congress had can be made. Those days have giving details of the steps which are challenged the High Court judgment gone when filing of the complaints likely to be taken for appointing in the Apex Court only to withdraw was taken as serious aspersions on the Lokpal. The Bench posted the it later. Instead, the government integrity. Ideally, there should not matter for hearing on July 17, 2018, undertook legislative steps to be any serious complaint as the when the Centre informed the SC circumvent the ruling and legitimise filing of same raises eyebrows. As in that the Lokpal selection committee 1 the funding received from abroad. the instant matter, complaints have had decided to meet on July 19 been looked into and we decline to for constituting a search panel. Challenging Appointments of interfere. This panel would be responsible CVC and VC: Common Cause, for recommending names to be along with a few renowned and 114. Resultantly, we find no considered for Lokpal appointment. concerned citizens, had filed grounds to quash the appointment As the selection committee was the PIL, challenging the arbitrary of Respondent No.2 as CVC scheduled to meet on July 19, appointments of the Central and respondent No.3 as VC. 2018, the Bench fixed the matter Vigilance Commissioner (CVC) Writ Petitions are disposed of for further hearing on July 24, 2018, and the Vigilance Commissioner accordingly.” without passing any orders. (VC). It was argued that the Central

38 | April-June, 2018 COMMON CAUSE | Vol. XXXVII No. 2 Combating the Criminalisation should as far as practicable empanel National Green Tribunal of Politics: The PIL was filed for officers who have got at least two debarring persons charged with years of service left, giving due Common Cause has filed an Original serious criminal offences from weightage to merit and seniority Application (OA) on July 3, 2018, contesting elections and expediting and that “any legislation/rule framed under section 14, 15 and 18 of the the disposal of pending criminal by any of the states or the Central National Green Tribunal Act, 2010. cases involving MPs and MLAs. The Government running counter to the The petition points out that due to constitutional validity of Section direction shall remain in abeyance”. the widening of NH108 as part of 8(4) of the Representation of the The matter has been listed for July the Chardham project, debris and People Act, 1951, was challenged. 20, 2018. muck were being directly dumped A landmark order was obtained in along the slopes into the Bhagirathi March 2014 for concluding criminal Delhi High Court river. With the onset of the monsoon, the impact of the muck cases against lawmakers within a SIT on Over-invoicing Requested year of charges being framed. The by CPIL and Common Cause: disposal exercise was dire, raising matter was tagged with two other Common Cause and Centre for fears of landslides. Indiscriminate cases with similar prayers and was Public Interest Litigation (CPIL), dumping into the river would also referred to a Constitution Bench on approached the Delhi High Court result in excessive pollution and March 8, 2016. in 2017, seeking a direction for a lead to the alteration of its course. The main directions sought for the Writ for Police Reforms: The battle thorough investigation by an SIT into executive include: to establish that for police reforms has been going on the over-invoicing of imported coal the road design conformed to the for the last 22 years. The Supreme and equipment. In the hearing on principle of mass balancing of cut Court took 10 years to give a historic December 11, 2017, notices were and fill; to bar it from undertaking judgment in 2006 in the petition issued to UOI and the Directorate of Revenue Intelligence. On May1, any further widening work till filed by Prakash Singh, Common 2018, the CBI informed the Delhi the stability of the new slope was Cause and NK Singh. Since then it High Court by way of an affidavit has been a struggle to get the Court’s established; to submit a time-bound that its preliminary enquiry (PE) was directions implemented. On July 3, muck disposal plan at the earliest closed in July 2015 against Adani 2018, responding to an interlocutory and bar it from continuing with Enterprises Ltd, Maharashtra Eastern application filed by the Ministry of construction of road until proper Grid Power Transmission Co. Ltd Home Affairs, the Supreme Court disposal of muck already generated (MEGPTCL) and others, including gave a slew of directions to ensure was undertaken. public sector banks, over allegations that there are no distortions in the of over-invoicing of import of raw On July 10, 2018 the Bench headed appointment of Director General material and equipment relating by NGT Chairperson Justice Adarsh of Police (DGP) of the state. It laid to power projects in India. The Kumar Goel issued notices to the down that the states shall send their investigative agency said it closed Environment Ministry, Ministry of proposals three months prior to the the PE because much progress Road, Transport and Highways and retirement of the incumbent DGP. could not be made in the enquiry Uttarakhand government. It also ruled that the Union Public on jurisdictional issue, since the Service Commission (UPSC) shall The matter will now come up for project was under the Maharashtra hearing on August 26. prepare a panel of three officers government. suitable for elevation to the post of DGP and that the state shall The matter was taken up on July 4, (Endnotes) 1 Rautray, Samanwaya. 2018. “Supreme appoint one of the persons from 2018, where the Court gave more Court Notices to Centre Over Foreign the panel only. Additionally, it time for the parties to file additional Funding to BJP, Congress”. The pronounced that there would be no applications and interventions. The Economic Times, July 03, 2018. https:// appointments of Acting DGP and court also noted that the CBI and economictimes.indiatimes.com/news/ that a person appointed as DGP the DRI have undertaken to file politics-and-nation/supreme-court-notices- should continue to hold the post up-to date status report in the form to-centre-over-foreign-funding-to-bjp- for a reasonable period “beyond of an affidavit at least three weeks congress/articleshow/64834436.cms the date of superannuation.” The before the next date of hearing. The (Accessed July 03, 2018) SC even adjudicated that the UPSC matter has been listed for October 11, 2018.

COMMON CAUSE | Vol. XXXVII No. 2 April-June, 2018 | 39 FUNDAMENTAL RIGHTS AND DUTIES Rights beget empowerment for citizens. They enable them to participate in public affairs and to lead a life of dignity. Rights are also the bedrock of the citizens’ legitimate entitlements from the State, their freedom and personhood. Every great nation is defined by the rights of their citizens. In most modern liberal democracies, citizens are meant to be sovereign, equal before the law, and morally autonomous beings, free to pursue their enlightened self-interest. However, it is equally true that citizenship comes not only with Fundamental Rights but also with Fundamental Duties. After all great power comes with great responsibility. Those who make demands on the system for their Fundamental Rights must give back to the system by fulfilling their responsibilities as citizens. These duties should not be taken lightly, for they are just as important to our national identity as our Fundamental Rights. The notion of Fundamental Duties does not run counter to our freedoms, but rather the two occur in harmony, for a country is run for its citizen and by its citizens, and as citizens we cannot simply take without giving back. It is perhaps in this spirit that Article 51(a) of the Constitution of India enlists the Fundamental Duties that cast upon the citizens a moral obligation to: 1. To abide by the Constitution and respect its ideas and institutions, the National Flag and the NationalAnthem; 2. To cherish and follow the noble ideals which inspired our national struggle for freedom; 3. To uphold and protect the sovereignty, unity and integrity of India; 4. To defend the country and render national service when called upon to do so; 5. To promote harmony and spirit of common brotherhood among all the people of India, transcending religious, linguistic, regional or sectional diversities, to renounce practices derogatory to the dignity of women; 6. To value and preserve the rich heritage of our composite culture; 7. To protect and improve the natural environment including forests, lakes, river, and wildlife and to have compassion for living creatures; 8. To develop the scientific temper, humanism and spirit of inquiry and reform; 9. To safeguard public property and to abjure violence; 10. To strive towards excellence in all spheres of individual and collective activities so that the nation constantly rises to higher levels of endeavor and achievement; 11. To provide opportunities for education to his child or, as the case may be, ward between age of 6 and 14 years; “Ask not what your country can do for you, ask what you can do for your country.”

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