Armed Forces Special Power Act and women safety

Maitri Tandon, Student of Law, Symbiosis Law School

ABSTARCT

This research paper concerns in itself the scenario of the northeastern and the northern states of our country, India after the inception of the Armed Forces Special Power Act. The researcher has penned down her own views on, what should be the ambit of area in which the Act should be imposing. Here, in this paper various cases are cited, issues are raised and the researchers analysis followed by a conclusion. The article demonstrates the condition of women in the states where Armed Forces Special Power Act is in power. As such this article should be of interest to a broad readership including those interested in Law, Human Rights, Women Empowerment, and Social Sciences. Views expressed in this article are of authors alone. It does not reflect the views of either publisher or the editors of the journal.

Introduction

Women, the gender that signifies courage, strength and at the same time is a figure for love, compassion and pliability has faced a lot of refinement, vehemence, bias, injustice and cold-heartedness since the inception of humankind. How ironical is it to have been worshiped and thrown ruthlessly on the roads at the same time? Experiencing both the behaviors together has helped women in empowering themselves and has made the government to consider their demands and rights first. The time of crisis has helped them the most.

Time of crisis can be empowering for women across the world, as they are pushed to brink of activism and sometimes, away from their traditional roles ((Gardem and Chalesworth, 2000, UN Security Council Resolution 1325 (2000).)). Nevertheless current research has established that conflict and militarism are more likely to create environments that repress and harm women disproportionately, compared to men ((Id.)).

This is the case particularly in ‘cold’ states of conflicts and authoritarianism. Opportunity for a change in the condition of women in these areas becomes difficult in the form of transitional political reform, rights as such women not only suffer sustained economic and social hardships and gendered violence, but also perpetual restriction on their ability to address these violation through the full exercise of their civil and political rights. Patterns of violence and repression become self-perpetuating, and the damage done to individual’s roots deep into the social fabric of the country ((Gardem and Chalesworth, 2000,UN Security Council Resolution 1325 (2000).)).

Unfortunately such is the situation in Indian ‘low intensity war’ states across North and East. These states, the seven sisters and Jammu and Kashmir are fully or partially governed by the Armed Forces Special Powers Act, 1958 (AFSPA). There have been situations when these states have suffered from draconian rule and militarization for more than 50 years in concurrence with other state and national security laws ((Jammu and Kashmir Public Safety Act 1978 and  National Security Act 1980)). Even though India is well open to the International Human Rights Treaties, author is of the opinion that, AFSPA breaches these guidelines by derogating the key human rights and also robbing the non-army personnel of the legal remedies/recourses for offences committed by the armed forces of the nation.

The Problem

  • Is the Armed Forces Special Power Act constitutional also;
  • Is it in weight with the humanity?

The Armed Forces (Special Power) Act

The unwarranted interference of the British colonies on the Indian Territory gradually led to the bloody Anglo-Manipuri conflict of 1891 with the Second World War the principle, The Naga Movement and also the failure of the new India to live up to the democratic principles treasured in its Constitution and in respecting the rights of the nationalities it had taken within its borders and several other reasons, marked the inception of the idea for this act ((Armed Forces Special Power Act: A study in National Security Tyranny)).

Eventually on 22 May 1958 after a brief discussion in the parliament that lasted merely for 3 hours The Armed Forces (Assam – Manipur) Special Power Act was passed. This act was further amended in 1990 when it broadened its ambit to Jammu and Kashmir. Armed forces (Special Power) Act gives blanket powers to the Army.

Legal Provisions Powers Bestowed over the Army

The section 1 to 3 of the Act covers the jurisdiction, the definition of ‘armed forces’ and also briefly defines  ‘disturbed’ and the power to declare area such as. While section 4 is comprehensively lays down the power given to the army: it allows any army personnel the sweeping power to arrest, without a warrant, “any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence” using any degree of force necessary, including lethal force, and to fire upon or use force “for the maintenance of public order” against persons who are contravening laws in the disturbed areas.

It prohibits “the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances.” Searches of persons and premises can be made without a warrant, while goods “reasonably suspected to be stolen” can be confiscated and structures that could be in use by insurgents, destroyed.

According to Section 5, anyone arrested by the army must be handed to police, not within a specific time period, but “with least possible delay”. Finally, Section 6 ensures that army personnel are accountable only to internal regulation and punishment, stating: “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

This immunity given to the army also extends to the mandate of the National Human Rights Commission (NHRC), which according to Section 19 of the Protection of Human Rights Act (PHRA), is not empowered to investigate apparent violations by the armed forces in areas governed by AFSPA ((It can only seek a report from or make recommendations to the central government, and require that it be informed of action taken on a case within three months [Armed Forces Special Power Act: A study in National Security tyranny].)).

Analysis

The constitutionality of the Armed Forces (Special Power) Act was questioned by the United Nations Human Rights Committee, when India presented its second periodic report to the UNHRC in 1991. India defended the Act by stating that this Act was a necessary measure to prevent the secession of the Northern Eastern states. The Attorney General said that a response to this agitation for secession in the North East had to be done on a “war footing”. He argued for the constitutionality of the act by quoting Article 355 of the Indian Constitution, which makes it the duty of the Central Government to protect the states from internal disturbance and that there is no duty under international law to allow secession ((Armed Forces Special Power Act: A study in National Security tyranny.)).

It may also be assumed that the Central government might argue for its constitutionality by testifying it with avery persuasive jurisprudential theory given by Sir Jeremy Bentham, the theory of utilitarianism, which states that “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand, the standard of right and wrong, on the other, the chain of causes and effects, are fastened to their throne”. This theory can also be explained in simple words, law that provides greater good of greater number is the law of man is deemed to be blameless. Therefore by applying this theory the government may say that the Armed Forces (Special Powers) Act safeguards the mass of the country by sacrificing the rights of some. Thus, is deemed to be constitutional.

But the question that again arises is that is it legitimate/constitutional to let the armed personnel perform heinous crimes under the cover of the act, for they are guarding our nation and flexibly set aside the rights of women provided by the constitution?

Indian Law

There are many cases, which challenge the constitutionality of this act pending in the court of law, but in this paper we will be specifically dealing with women rights, therefore we will point out the laws which are breached by armed personnel under the blankets of AFSPA.

Violation of Art 14 – Right of Equality before Law

The Constitution of India with its Art 14 ensures equality before the law. People living within the territory of India are to be treated equally before the law, which means that the law applies to all, irrespective of the caste, wealth, position, the clan a person, comes from. AFSPA thoroughly violates this right as people who are residing in the areas declared as disturbed have been denied this right because of Section 6 of the Act, which prevents the citizens from filing a suit against any personnel for armed forces without prior sanction of Central Government. This unequally burdens and demotivates the class of people residing in the “disturbed areas’.

Violation of Art 21 – Right to life

The constitution of India guarantees the right to life to its citizens under Article 21, “No person shall be deprived of his life or personal liberty except according to procedure established by law”, which is violated by Section 4 of the Act. The Armed Forces (Special Power) Act deprives the women of an effective penal remedy against forced sexual intercourse/rape performed by the guarding force of our nation; it violates their right to privacy and bodily integrity, aspect of the right to life and personal liberty under Article 21.

Violation of Sec. 375 of the Indian Penal Code

This Section of the Indian Penal Code defines Rape, “ a man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a women under circumstances falling under any of the six following description:-

  1. Against her will.
  2. Without her consent.
  3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
  4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.
  5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
  6. With or without her consent, when she is under sixteen years of age.

Explanation– Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

  • Manipur- (a) In clause sixthly, for the word “sixteen” substitute the word “fourteen”; and

(b) In the Exception, for the word “fifteen” substitute the word “thirteen”. [Vide Act 30 of 1950, sec. 3 (w.e.f. 16-4-1950) (made earlier than Act 43 of 1983)]. Himachal Pradesh, (1989) Cr LJ 841: AIR 1989 SC 702.

Rape being the heinous crime, which is colossally prevalent in our country and is even more aggressively boycotted unfortunately, tops the list of crimes committed by our soldiers. There are no provisions, which are successfully being undertaken by the government, due to non-cooperation by the Indian army. One of the examples would be when Justice Verma Commission said in unequivocal terms that security persons who rape women should be judged under the same act that applies to the civilians, which was opposed by the Army ((Walter Fernandes, AFSPA: Who Rules India?))also when the Jeena Commission appointed to inquire into the alleged rape and murder of 30 year old Manorama Devi of Imphal in Manipur suggested that the law should be repealed and the clauses that are required should be integrated with other All India laws the Government did not even publish the report.

The facts of the Manorama Devi case were, in the early hours of the morning, on July 11, 2004, 29-year-old Manorama was picked up from her house in Imphal and taken away by the Assam Rifles. Three hours later her body was found with eight bullet injuries in a field. The Assam Rifles says she wanted to relieve herself and while doing so attempted to escape. She was, therefore, shot and killed. To the public, however, it appeared incredible that a four-foot eleven inch girl, weighing 50 kgs., should escape from eight highly trained jawans in an open field with nobody around. Public unrest engulfed the whole state. Aman immolated himself. Women stripped naked outside the headquarters of the Assam Rifles inviting rape and executions. In the inquiry set up under the provisions of the Commission of Inquiry Act, Manorama’s brother testified that he saw a jawan pull up Manorama’s T-shirt and insert a kitchen knife into her underwear prior to arresting her. The former police surgeon and chief Medical Officer of the Manipur Health Service and another doctor deposed that she was killed at close rage while in a lying down position. She had bullet injuries in her vagina. Apart from the bullet wounds, there were other injuries caused by blunt object. The Central Forensic Science Laboratory reported semen stains on her petticoat. A resident of the area, who was in the field at that time, contradicted the Assam Rifles version saying that she saw jawans alight from the vehicle with a lifeless body of Manorama and placed her in the field and then she heard the sound of gunshots. Policeman deposed saying that they did not find spent cartridges in the area and there was not a drop of blood on the ground ((The Murder Of Manorama; The Human Rights Bimonthly)).

The brutality and the double face of the Army has also been seen in many cases and operations, like:

Operation Blue Bird (Oinam, Bishunpur District, Manipur)

This operation was launched by the Indian Army on the 11th of July 1987 at Oinam in Manipur, in which more than 30 naga villages were covered and included extensive and cruel violations of the Human Rights violations which included torture with extrajudicial killing in addition to sexual harassment, theft and loot.

Kunan Poshpora (Kupwara District, Jammu and Kashmir)

The Kunan Poshpora search operation was initiated by the Indian Army on 23rd February 1991 during which the Indian Army personnel raped nearly hundred women including pregnant women openly in front of the villagers and there was no clear inquiry, which was held to follow up the condition. Reportedly, a police officer was threatened many times to not to make the report public, which recorded.

Shopian Case (Shopian district, Jammu and Kashmir)

On 29th May 2009 two girls from Shopian district went missing on the way back from orchard. Their dead bodies were found the next morning. This was a case of gang rape based on the information given by the Forensic lab by the Army personnels who were camped nearby ((Available at http://www.countercurrents.org/nitesh171114.htm)).

The Armed Forces (Special Power) Act 1958 was enacted on experimental basis as a measure against “terrorist” groups in the North East for a period of six months. This experimental project which was enacted for Six months has now been enacted for over five decades and there has been no declination of the number of such groups in the North East they have just increased from two in to twenty in Manipur, Assam has not less than fifteen, Meghalaya has five of them and other States have more groups. How has the government allowed an act to stay even when the “experimental” measure has failed to achieve its major goal?

Conclusion

The main aim of writing this paper was to familiarize readers with the harsh reality regarding The Army. On the basis of the aforesaid information we arrive at the conclusion that, even though the Army is deployed for our protection and it is saving the Nation with its fullest strength. It is important for the government to keep a check or intervene in the functioning of the force where it is bestowed with unquestionable power through AFSPA.

When the country is fighting against the sexual assaults, which are prevalent in the Nation is it rational to have the force that is deployed for the protection and betterment of the country to take advantage of the immunity provided to them under the Act? No. Why is it that the culprits are exempted from the punishment?

The government should punish all the criminals in accordance to the principle of equity. No, offenders should be exempted from the punishment just because of the immunity bestowed on the institution he is working for. There is no reason why an offender should have a distinguished law. They should be dealt under the law of land and should be punished in the same way as “civil” criminals.

 

RIGHT TO DIE: AN ADDENDUM TO RIGHT TO LIFE (Euthanasia)

Nimisha Jha, Advocate, High Court of Patna

A detailed study of the judicial decisions with reference to Article 21 and the current judicial standing on Euthanasia after the landmark judgment in Aruna’s ((Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454))case.

INTRODUCTION

Life is the most precious creation of God in this world. No matter how advanced science hasbecome, the beauty of nature and creation of life and cause of death remains an unfoldedmystery. Life cannot be created so taking away of life made legally punishable. But there arecircumstances where even law is in a dilemma over the issues of life and death. And one suchcase is that of mercy killing or euthanasia ((Euthanasia (Mercy Killing): A Comparative Analysis of U.K. and Indian Position ; Diwakar Shukla

http://www.internationalseminar.org/XIII_AIS/TS%204/9.%20Mr.%20Diwakar%20Shukla.pdf (last visited on 21/08/2015 at 20:00).)).

“Euthanasia” is a broad term for mercy killing – taking the life of a hopelessly ill or injured individual in order to end his or her suffering. Mercy killing represents a serious ethical dilemma. People do not always die well. Some afflictions cause people to suffer through extreme physical pain in their last days, and euthanasia may seem like a compassionate way of ending this pain. Other patients may request euthanasia to avoid the weakness and loss of mental faculties that some diseases cause, and many feel these wishes should be respected ((Right to Die – “To be or not to be?” ; Manbir Kaur:

Indian Streams Research Journal ISSN 2230-7850 Volume-3 | Issue-12 | Jan-2014)).

The increased importance given to individual autonomy in the twentieth and twenty-firstcenturies has been a major reason for lateral thinking in the direction of legalizingeuthanasia ((Though the medical intervention in the process of dying started in the nineteenth century, the efforts to hasten death to relieve pain started in the early twentieth century. Anne Kornhauser, The Modern Art of Dying: A History of Euthanasia in the United States, 30 POLITICAL AND LEGAL ANTHROPOLOGY REVIEW(2007) (Book Review). <www.westlaw.com>)).

Every human being is desirous to live and enjoy the fruits of life till he dies. But sometimes a human being is desirous to end his life by use of unnatural means. To end one’s life in an unnatural way is a sign of abnormality. When a person ends his life by his own act we call it “suicide” but to end life of a person by others though on the request of the deceased, is called “euthanasia” or “mercy killing” ((Position of Euthanasia in India – An Analytical Study ; Caesar Roy https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=0CC8QFjAC&url=http%3A%2F%2Fwww.researchgate.net%2Fprofile%2FCaesar_Roy%2Fpublication%2F259485727_POSITION_OF_EUTHANASIA_IN_INDIA_-

_AN_ANALYTICAL_STUDY%2Ffile%2F5046352c2cac3a199d.pdf&ei=_Pb1U6rzGIW2uASqmYDIAw&usg=AFQjCNHGF0m8gYm2ZdPS3ruDD4L93MLdbg&sig2=jI3BAOjtICMJ85qDLEbaDQ (last visited on 21/08/2015 at 19:30).)).

Euthanasia is mainly associated with people with terminal illness or who have become incapacitated and do not want to go through the rest of their life suffering. A severely handicapped or terminally ill person should have the right to choose to live or die. The right to choose to live or die should not be a right allocated for bodied individuals of sound mind but to all human beings. Euthanasia is a controversial issue which encompasses the morals, values and beliefs of our society ((Ibid.)).

Euthanasia has been a much debated subject throughout the world. The debate has become increasingly significant because of the recent developments in Netherlands and England euthanasia has been allowed. As a result many of the nations across the world are now hotly debating whether or not to follow the Dutch example. Recently our Supreme Court in Aruna Shanbaug case ((Supra note 1))has already given its decision on this point and allowed passive euthanasia in India.

Euthanasia societies are emerging rapidly in all parts of the globe to seek publicopinion and to pressurize the legislature to pass legislation in this respect ((The first euthanasia society was established in London in 1935. Subsequently it spread to America (1938) and other parts of the globe.)).The euthanasiadebate has now become increasingly significant because of the developments inNetherlands, Canada, Oregon, Belgium and Columbia where euthanasia has been allowed in therecent period of time.

The term euthanasia comes from the Greek words “eu”-meaning good and “thanatos”-meaning death, which combined means “well-death” or “dying well”. It refers to practice of ending life in a painless manner ((Available at http://www.apiindia.org/pdf/pg_med_2008/Chapter-02.pdf (last visited on 21/08/2015 at 19:30).)). It may be defined as intentional killing by act or omission of a dependant human for his or her alleged benefit. Euthanasia literally means “good death”. Euthanasia, Mercy killing or Physician Assisted Suicide may be referred to as murderous by some and merciful by others and hence it is always surrounded by controversy which arises from serious moral and legal issues involved in it ((Supra note 3

)).

Euthanasia can be classified into active and passive or alternatively into voluntary, involuntary and non-voluntary. Active euthanasia means putting an end to the life of an individual for merciful reason by a medical practitioner by giving a lethal dose of medication to the patient. Passive euthanasia takes place where methods such as removing artificial life support systems such as ventilators, hydration, etc are resorted to ((Supra note 9)).

Legal Status

There have been debates on the need to legalise euthanasia in India too. The Law Commission has recommended legalising euthanasia for terminally ill patients. Currently speaking however, euthanasia is undoubtedly illegal in India as there is an intention on the part of the doctor to kill the patient, such cases would clearly fall under clause first of Section 300 of the Indian Penal Code, 1860. However, as in such cases there is the valid consent of the deceased Exception 5 to the said Section would be attracted and the doctor or mercy killer would be punishable under Section 304 for culpable homicide not amounting to murder. Right to life is the most fundamental and natural human right. Constitution of India declares in Article 21, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The text of article 21 has remained the same throughout the years but the context has been intellectually interpreted by the Indian judiciary, so as to read in variety of other related rights so necessary for true enjoyment of the right to life.

But recently decision given by Supreme Court in the Aruna Shanbaug case ((Supra note 1))broke new ground. In this case, SC has sanctioned passive euthanasia or withdrawal of life support systems on patients who are brain dead or in a permanent vegetative state. But at the same time court clarified that active euthanasia was a crime under law and would continue to remain so.

Position of Euthanasia in India – An Analytical Study; Caesar Roy ((Supra note 5)):

The writer believes that voluntary euthanasia should also be allowed in India and that the legislature should step in and makes a special law dealing with all the aspects of euthanasia. The recommendations laid down in the Reports of Law Commission of India and guidelines given in the Aruna’s case ((Supra note 1))are to be taken into consideration when any law on that point is to be framed to prevent the mal practices and misuse of euthanasia. Besides, if the suggestions laid down above are implemented then the chances of misuse of euthanasia would be greatly reduced.

Euthanasia (Mercy Killing): A Comparative Analysis of U.K. and Indian Position; Diwakar Shukla ((Supra note 2)):

The writer says while legislative reforms are awaited, in this regard in India, one needs to look in to the impact of the defences available to the doctors under IPC. Sections 76, 81 and 88 of IPC are sufficient enough to provide defense to the doctors conducting euthanasia in good faith. While there exists no doubt on the permissibility of passive euthanasia, the active euthanasia, if conducted to avoid greater harm, would be entitled to legal protection under section 81. On this point the Indian position is not very much dissimilar to that of Dutch position. While the Netherlands’ position is clearer due to the specific legislation, Indian position remains unclear in the absence of legislation.

But in Aruna Ramchandra Shanbaug v. Union of India ((Supra note 1))the Apex court of India rejected a plea for its use on a woman in a vegetative state but issued guidelines allowing for the use of ‘passive’ euthanasia for terminally ill patients through the withholding of treatment.

Right to Die – “To be or not to be?”; Manbir Kaur ((Supra note 3)):

The writer comments that while deciding the debate on right to die, the conflict between the principle of sanctity of life and the rights of self determination and dignity of a human being needs to be resolved. Rather than allowing right to die as a general rule by legalizing euthanasia, it may be allowed as necessary exception only in rarest of rare cases, in passive form in appropriate cases where the individual is dying and gives informed consent or where he or she cannot give consent and as per the genuine medical opinion, the death is near and certain and, to withdraw the life support system is in the best interest of the patient and by recent decision in Aruna Shanbaug case ((Supra note 1))the Supreme Court has taken step in right direction and now it is the turn of government and the HCs to follow the guidelines given by the court.

Euthanasia In India; Krishanu Das ((http://www.legalservicesindia.com/article/article/euthanasia-in-india-787-1.html (last visited on 21/08/2015 at 7:41pm).)):

The writer expresses his doubts as follows by saying that Euthanasia could be legalized, but the laws would have to be very stringent. Every case will have to be carefully monitored taking into consideration the point of views of the patient, the relatives and the doctors. But whether Indian society is mature enough to face this, as it is a matter of life and death, is yet to be seen.

Euthanasia: A Dilemma between Right to live and Right to die; Rahul Chawla ((http://www.isrj.net/UploadedData/3463.pdf (last visited on 21/08/2015 at 8:15pm).)):

The writer points out that our earnest effort at the present juncture, should only reinforce the reasoning adopted by the Supreme Court. On taking stock of the pros and cons, it is better to maintain the legal status quo as stated by the Supreme Court and legalize Passive Euthanasia, while laying down affirmative laws to overlook its bona fide and effectuate implementation.

Legalization of Euthanasia in India with specific reference to the Terminally Ill: Problems and Perspectives; Tania Sabastian ((http://jils.ac.in/wp-content/uploads/2011/12/Tania-Sebastian.pdf (last visited on 21/05/2015 at 8:00pm).)):

The writer comments that The ultimate outcome of this debate remains uncertain. It must, however, be remembered that an acrobatic argument that acknowledges technological advances but dismisses the evolving ethical issues which pose uncomfortable and disturbing questions is unfair to the community of patients.

STATEMENT OF PROBLEM

Euthanasia has been a much debated subject throughout the world. The debate has become increasingly significant because of the recent developments in Netherlands and England euthanasia has been allowed. As a result many of the nations across the world are now hotly debating whether or not to follow the Dutch example. Recently our Supreme Court in Aruna Shanbaug casehas already given its decision on this point and allowed passive euthanasia in India. The paper seeks to analyse in detail the need for euthanasia in India and the judicial trend in favour of right to a dignified death.

This paper seeks to study the recent debate in India on euthanasia, make a comparative study on various nations which allow different forms of euthanasia and the judicial interpretation of the fundamental right to life under Article 21 which after 2011 has included the addendum of right to die a dignified death.

EVOLUTION OF EUTHANASIA

The term euthanasia comes from the Greek words “eu”-meaning good and “thanatos”-meaning death, which combined means “well-death” or “dying well” ((Supra note 9)). Hippocrates mentions euthanasia in the Hippocratic Oath, which was written between 400 and 300 BC the original Oath states: “To please no one will I prescribe a deadly drug nor give advice which may cause his death ((Supra note 2)).”

Despite this, the ancient Greeks and Romans generally did not believe that life needed to be preserved at any cost and were, in consequence, tolerant of suicide in cases where no relief could be offered to the dying or, in the case of the Stoics and Epicureans, where a person no longer cared for his life.

In ancient Greece and Rome helping others die or putting them to death was considered permissible in some situations. For example, in the Greek city of Sparta newborns with severe birth defects were put to death. Voluntary euthanasia for the elderly was an approved custom in several ancient societies. Many ancient texts including the Bible, the Koran and the Rig-Veda mention self destruction or suicide ((Supra note 5)).

Hindus:

In India, the history of Vedic age is replete with numerous examples of suicides committed on religious grounds. The Mahabharata and the Ramayana are also full of instances of religious suicides ((Supra note 9)).

Most Hindus would say that a doctor should not accept a patient’s request for euthanasia since this will cause the soul and body to be separated at an unnatural time. The result will damage the karma of both doctor and patient. Other Hindus believe that euthanasia cannot be allowed because it breaches the teaching of ahimsa (doing no harm). However, some Hindus say that by helping to end a painful life a person is performing a good deed and so fulfilling their moral obligations. Govardana and Kulluka, while writing commentaries on Manu, observed that a man may undertake the mahaprastha (great departure) on a journey which ends in death when he is incurably diseased or meets with a great misfortune, and that, it is not opposed to Vedic rules which forbid suicide ((Laws of Manu, translated by George Buhler, Sacred Books of the East by F. Maxmuller (1967 reprint). Vol. 25, page – 206)).

There are two Hindu views on euthanasia ((Supra note 9)):

  1. By helping to end a painful life, a person is performing a good deed and so fulfilling their moral obligations.
  2. By helping to end a life, even one filled with suffering, a person is disturbing the timing of the cycle of death and rebirth. This is a bad thing to do, and those involved in the euthanasia will take on the remaining karma of the patient.

The same argument suggests that keeping a person artificially alive on a life-support machines would also be a bad thing to do. However, the use of a life-support machine as part of a temporary attempt at healing would not be a bad thing. The ideal death is a conscious death, and this means that palliative treatments will be a problem if they reduce mental alertness ((Supra note 5)).

Muslims

Muslims are against euthanasia. They believe that all human life is sacred because Allah gives it, and that Allah chooses how long each person will live. Human beings should not interfere in this.

  1. a) Life is sacred –

Euthanasia and suicide are not included among the reasons allowed for killing in Islam.

Do not take life, which Allah made sacred, other than in the course of justice. If anyone kills a person – unless it be for murder or spreading mischief in the land- it would be as if he killed the whole people.

  1. b) Suicide and euthanasia are explicitly forbidden

“Destroy not yourselves. Surely Allah is ever merciful to you.”

Christians

Christians are mostly against euthanasia. The arguments are usually based on the argument that life is a gift from God and that human beings are made in God’s image.

Birth and death are part of the life processes which God has created, so we should respect them. Therefore no human being has the authority to take the life of any innocent person, even if that person wants to die ((Id.)).

Sikhs

Sikhs derive their ethics largely from the teachings of their scripture, Guru Granth Sahib, and the Sikh Code of Conduct (The Rehat Maryada). The Sikh Gurus rejected suicide (and by extension, euthanasia) as an interference in God’s plan. Suffering, they said, was part of the operation of karma, and human beings should not only accept it without complaint but act so as to make the best of the situation that karma has given them ((Id.)).

Historically, as the oft-quoted definition in Black’s Law Dictionary suggests ((Black’s Law Dictionary, 4th edn.)), death was: “The cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc.”

English Common Law from the 14th century until the middle of the last century made suicide a criminal act in England and Wales. Assisting others to kill themselves remains illegal in that jurisdiction.

However, in the 16th century, Thomas More, considered a saint by Roman Catholics, described a utopian community and envisaged such a community as one that would facilitate the death of those whose lives had become burdensome as a result of “torturing and lingering pain” ((Supra note 2)).

Since the 19th Century, euthanasia has sparked intermittent debates and activism in North America and Europe. According to medical historian Ezekiel Emanuel, it was the availability of anaesthesia that, ushered in the modern era of euthanasia. In 1828, the first known anti-euthanasia law in the United States was passed in the state of New York, with many other localities and states following suit over a period of several years ((Ibid.)).

After the Civil War, voluntary euthanasiawas promoted by advocates, including some doctors. Support peaked around the turn of thecentury in the US and then grew again in the 1930s ((Id.)).

In an article in the Bulletin of the History of Medicine, Brown University historian Jacob M.Appel documented extensive political debate over legislation to legalize physician-assistedsuicide in both Iowa and Ohio in 1906. Appel indicates social activist Anna S. Hall was thedriving force behind this movement. According to historian Ian Dowbiggin, leading publicfigures, including Clarence Darrow and Jack London, advocated for the legalization ofeuthanasia.

Euthanasia societies were formed in England in 1935 and in the USA in 1938 to promoteeuthanasia. Although euthanasia legislation did not pass in the USA or England, in 1937, doctorassistedeuthanasia was declared legal in Switzerland as long as the doctor ending the life hadnothing to gain. During this same era, US courts tackled cases involving critically ill people whorequested physician assistance in dying as well as “mercy killings”, such as by parents of theirseverely disabled children ((Id.)).

Euthanasia brings about many ethical issues regarding a patient’sdeath. Some physicians say euthanasia is a rational choice for competent patients who wish todie to escape unbearable suffering. Others feel that aiding in the patient’s death goes against aphysician’s duty to preserve life.

EUTHANASIA AND SUICIDE

Suicide and euthanasia cannot be treated as one and the same thing. They are twodifferent acts. Therefore, we shall have to make a distinction between ‘euthanasia’ and‘suicide.’ Suicide as mentioned in Oxford Dictionary ((Oxford Advanced Learner’s Dictionary of Current English. (2000). Sixth Edition. ; Oxford University Press.))means the act of killing yourselfdeliberately. Therefore, suicide could be termed as the intentional termination of one’slife by self- induced means for various reasons, such as, frustration in love, failure inexaminations or in getting a good job, but mostly it is due to depression. Euthanasia hasnot been defined in the religious books but since it is very close to concept of suicide,therefore it can be presumed that it is prohibited by all religions. In Indian law intentionis the basis for penal liability. An act is not criminal act if it is committed or omittedwithout the intention and law of crimes in India is based on the famous Roman maxim,“Actus non facit reum nisi men sit rea.” Now applying the above maxim in cases ofeuthanasia one may conclude that since the victim has given the consent to die therefore,the accused is not liable for any offence. But does giving consent for killing a person absolves the offender from his criminal liability is very important question. If answer tothis question is in affirmative then euthanasia is not an offence. But the Indian law is veryclear on this point ((Supra note 5)).

One may argue that giving the consent absolves a person from liabilityor he may plead the defense of “volenti non fit injuria.” Law relating to consent ascontained in Indian Penal Code is very exhaustive and leaves no ambiguity to explain it.

Section 87 of the Indian Penal Code clearly lays down that consent cannot be pleaded asa defense in case where the consent is given to cause death or grievous hurt. The BombayHigh Court in Maruti Shripati Dubal case ((Maruti Shripati Dubal v. State of Maharashtra; 1987 Cri.L.J 743 (Bomb).))has attempted to make a distinction betweensuicide and euthanasia or mercy killing. According to the court the suicide by its very nature is an act of self-killing or termination of one’s own life by one’s act without assistance from others. However, euthanasia means the intervention of others human agency toend the life. Mercy killing therefore cannot be considered in the same footing as onsuicide. Mercy killing is nothing but a homicide, whatever is the circumstance in which itis committed ((Should Euthanasia be Legalised in India?; Shreyans Kasliwal

http://www.ebc-india.com/lawyer/articles/592.htm (last visited on 21/08/2015 at 21:45).)).

In another case ((Naresh Marotrao Sakhre v. Union of India; 1995 Cri.L.J 95 (Bomb).)),the Bombay High Court also observed that suicide by itsvery nature is an act of self-killing or self-destruction, an act of terminating one’s own actand without the aid and assistance of any other human agency. Euthanasia or mercykilling on the other hand means and implies the intervention of other human agency toend the life. Mercy killing is thus not suicide. The two concepts are both factually andlegally distinct. Euthanasia or mercy killing is nothing but homicide whatever thecircumstances in which it is affected ((Supra note 19)).

Herein, the concept of assisted suicide is also involved, which can be defined asproviding an individual with the information, guidance and means to take his or her ownlife with the intention that it will be used for this purpose. Assisted suicide isdistinguished from active euthanasia in the sense that the in the former, person must takedeliberate steps to bring about his or her own death. Medical personnel may provideassistance, but the patient commits the act of suicide while in active euthanasia, it is thedoctor who ends the life of the patient. When a doctor helps people to kill themselves it iscalled ‘doctor assisted suicide’ ((Ibid.)).

Our Supreme Court in Gian Kaur v. State of Punjab ((1996 (2) SCC 648)), clearly held that euthanasia andassisted suicide are not lawful in our country. The court, however, referred to theprinciples laid down by the House of Lords in Airedalecase ((1993(1) All ER 821 (HL).)), where the House of Lordsaccepted that withdrawal of life supporting systems on the basis of informed medicalopinion, would be lawful because such withdrawal would only allow the patient who isbeyond recovery to die a normal death, where there is no longer any duty to prolong life.

TYPES OF EUTHANASIA

According to Black’s Law Dictionary (8th edition) euthanasia means the act or practice of killing or bringing about the death of a person who suffers from an incurable disease or condition, esp. a painful one, for reasons of mercy.

Encyclopedia of ‘Crime and Justice’, explains euthanasia as an act of death, which will provide a relief from a distressing or intolerable condition of living. Simply euthanasia is the practice of mercifully ending a person’s life in order to release the person from an incurable disease, intolerable suffering, misery and pain of the life.

In the modern context euthanasia is limited to the killing of patients by doctors at the request of the patient in order to free him of excruciating pain or from terminal illness. Thus the basic intention behind euthanasia is to ensure a less painful death to a person who is in any case going to die after a long period of suffering ((Supra note 40)).

Euthanasia may be classified as follows ((Supra note 5)):-

(1) Active or Positive

(2) Passive or negative (also known as letting-die)

(3) Voluntary

(4) Involuntary

(5) Non-Voluntary

Euthanasia is one of the most perplexing issues which the courts and legislatures all over the world are facing today.

1. Active Euthanasia:

Active euthanasia entails the use of lethal substances or forces to kill a person e.g. a lethal injection given to a person with terminal cancer who is in terrible agony.

2. Passive or Negative Euthanasia:

Passive euthanasia entails withholding of medical treatment for continuance of life, e.g. withholding of antibiotics where without giving it a patient is likely to die, or removing the heart lung machine, from a patient in coma.

3. Voluntary Euthanasia:

It is voluntary when the euthanasia is practiced with the expressed desire and consent of the patient. Voluntary euthanasia is primarily concerned with the right to choice of the terminally ill patient who decides to end his or her life, choice which serveshis/her best interest and also that of everyone else.

4. Involuntary Euthanasia:

When the patient is killed without an expressed wish to this effect, it is a form of involuntary euthanasia. It refers to cases wherein a competent patient’s life is brought to an end against the wishes of that patient that oppose euthanasia; and would clearly amount to murder.

5. Non-Voluntary Euthanasia:

It refers to ending the life of a person who is not mentally competent to make an informed request to die, such as a comatose patient. In Non-Voluntary euthanasia the patient has left no such living will or given any advance directives, as he may not have had an opportunity to do so, or may not have anticipated any such accident or eventuality. In cases of non voluntary euthanasia, it is often the family members, who make the decision.

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

A further categorization of euthanasia is between voluntary euthanasia and non voluntary euthanasia. Voluntary euthanasia is where the Consent is taken from the patient, whereas non voluntary euthanasia is where the consent is unavailable e.g. when the patient is in coma, or is otherwise unable to give consent ((Supra note 40)).

Active Euthanasia is a crime all over the world except where permitted by legislation ((Supra note 2)).

In India, active euthanasia is illegal and a crime under section 302 or at least section 304 IPC. Physician assisted suicide is a crime under section 306 IPC (abetment to suicide).

Active euthanasia is taking specific steps to cause the patient’s death, such as injecting the patient with some lethal substance, e.g. sodium Pentothal that causes a person deep sleeps in a few seconds, and the person instantaneously and painlessly dies in this deep sleep. A distinction is sometimes drawn between this petition on the euthanasia and physician assisted dying, the difference being in who administers the lethal Medication. In euthanasia, a physician or third party administers it, while in physician-assisted suicide it is the patient himself who does it, though on the advice of the doctor.

In many Countries/States the latter is legal while the difference between “active” and “passive” euthanasia is that in active euthanasia, something is done to end the patient’s life’ while in passive euthanasia, something is not done that would have preserved the patient’s life. An important idea behind this distinction is that in “passive euthanasia” the doctors are not actively killing anyone; they are simply not saving him. Thus, proponents of euthanasia say that while we can debate whether active euthanasia should be legal, there can be no debate about passive euthanasia: You cannot prosecute someone for failing to save a life ((Ibid.)).

TERMINAL ILLNESS: DEFINITION

Defining the term “terminal illness” has proved to be a daunting task. Among the plethora of definitions, an “illness”, almost unanimously, is said to be an abnormal condition of the body, or a disability ((JONATHAN HERRING, MEDICAL LAW AND ETHICS 505 (2008) (citing the view of ‘Union of the Physically Impaired People against Segregation’).)). The World Health Organisation defines health as “a state of complete physical, mental and social wellbeing and not merely the absence of disease and infirmity”. ((Preamble, WORLD HEALTH ORGANIZATION, http://www.who.int/peh-emf/ publications/Preamble1.pdf))In light of the existing ambiguity in defining terminal illness coupled with rapid progress in life prolongation methods, the pertinent question is whether the right to life relates to forcefully staying alive or should it mean a meaningful “natural” life free from forceful medical intervention? For the purposes of this project, however, terminally ill can be safely construed as an illness which not only has no cure, but also whose ultimate conclusion is death itself ((Supra note 21)).

LEGISLATIONS IN SOME COUNTRIES RELATING TO EUTHANASIA OR PHYSICIAN ASSISTED DEATH

Netherlands:

Euthanasia in the Netherlands is regulated by the “Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2002”. ((Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2001.))It states that euthanasia and physician-assisted suicide are not punishable if the attending physician acts in accordance with the criteria of due care.

These criteria concern the patient’s request, the patient’s suffering (unbearable and hopeless), the information provided to the patient, the presence of reasonable alternatives, consultation of another physician and the applied method of ending life. To demonstrate their compliance, the Act requires physicians to report euthanasia to a review committee.

The legal debate concerningeuthanasia in the Netherlands took off with the “Postma case” in 1973, concerning a physicianwho had facilitated the death of her mother following repeated explicit requests for euthanasia ((Supra note 40)).

While the physician was convicted, the court’s judgment set out criteria when a doctor would notbe required to keep a patient alive contrary to his will. This set of criteria was formalized in thecourse of a number of court cases during the 1980s.

Termination of Life on Request and AssistedSuicide (Review Procedures) Act took effect on April 1, 2002. It legalizes euthanasia andphysician assisted suicide in very specific cases, under very specific circumstances. The law was proposed by Els Borst, the Minister of Health. The procedures codified in the law had been aconvention of the Dutch medical community for over twenty years ((Supra note 2)).

Australia:

The Northern Territory of Australia became the first country to legalize euthanasia by passing the Rights of the Terminally Ill Act, 1996. It was held to be legal in the case Wake v. Northern Territory of Australia (([1996] 109 NTR 1))by the Supreme Court of Northern Territory of Australia. But later a subsequent legislation that was the Euthanasia Laws Act, 1997 made it again illegal by repealing the Northern Territory legislation.

Albania:

Euthanasia was legalized in Albania in 1999, it was stated that any form of voluntary euthanasia was legal under the rights of the Terminally ILL act of 1995. Passive euthanasia is considered legal if three or more family members consent to the decisions ((Supra note 19)).

Belgium:

Euthanasia was made legal 2002. The Belgian Parliament had enacted the ‘Belgium Act on Euthanasia’ in September 2002, which defines euthanasia as “intentionally terminating life by someone other than the person concerned at the latter’s request”. Requirements for allowing euthanasia are very strict which includes the patient must be major, has made the request voluntary, well considered and repeated and he/she must be in a condition of consent and unbearable physical or mental suffering that can be alleviated. All these acts must be referred to the authorities before allowing in order to satisfying essential requirements ((Ibid.)).

United States of America:

Active Euthanasia is illegal in all states in the states of Oregon, Washington and Montana.

Laws in the United States maintain the distinction between passive and active euthanasia. Euthanasia has been made totally illegal by the United States Supreme Court in the cases Washington v. Glucksberg ((521 US 702 (1997).))and Vacco v. Quill ((521 US 793 (1997).))but physician assisted dying is legal in the states of Oregon under the Oregon Death with Dignity Act, 1997, in Washington under Washington Death with Dignity Act, 2008 and in Montana by the State judiciary and not the legislature ((Supra note 40)).

Canada:

In Canada, patients have the right to refuse life sustaining treatments but they do not have the right to demand for euthanasia or assisted suicide. In Canada, physician assisted suicide is illegal as per section 241(b) of the Criminal Code of Canada. The Supreme Court of Canada in Sue Rodriguez v. British Columbia (Attorney General), (([1993) 3 SCR 519))said that in the case of assisted suicide the interest of the state will prevail over individual’s interest.

Belgium:

The Belgian Parliament legislation ‘Belgium Act on Euthanasia’ was made euthanasia legal in May, 2002 which is quite similar to that passed in the Netherlands.

Switzerland:

According to Article 115 of Swiss Penal Code, suicide is not a crime and assisting suicide is a crime if only if the motive is selfish. It does not require the involvement of physician nor is that the patient terminally ill. It only requires that the motive must be unselfish.

Switzerland has an unusual position on assisted suicide; it is legally permitted and can be performed by non-physicians. However, euthanasia is illegal.

United Kingdom:

An important distinction in UK law exists between active euthanasia and passive euthanasia.

In England, the House of Lords in Airedale NHS Trust v. Bland ((1993(1) All ER 821 (HL).))permitted non voluntary euthanasia in case of patients in a persistent vegetative state. It was a case relating to withdrawal of artificial measures for continuance of life by a physician. It was held that it would be unlawful to administer treatment to an adult who is conscious and of sound mind, without his consent. Such a person is completely at liberty to decline to undergo treatment, even if the result of his doing so will be that he will die. It was further held that if a person, due to accident or some other cause becomes unconscious and is thus not able to give or with-hold consent to medical treatment, in that situation it is lawful for medical men to apply such treatment as in their informed opinion is in the best interests of the unconscious patient. It is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be. All the judges of the House of Lords in this case were agreed that Anthony Bland should be allowed to die.

After the Airedale ((1993(1) All ER 821 (HL).))case as decided by the House of Lords it has been followed in a number of cases in U.K., and the law is now fairly well settled that in the case of incompetent patients, if the doctors act on the basis of informed medical opinion, and withdraw the artificial life support system if it is in the patient’s best interest, the said act cannot be regarded as a crime. The question, however, remains as to who will decide what the patient’s best interest is and whether he is in a persistent vegetative state (PVS] ((Supra note 5.)).

POSITION IN INDIA:

The legal position of India cannot and should not be studied in isolation. India has drawnits constitution from the constitutions of various countries and the courts have repeatedly referred to various foreign decisions.

In India, euthanasia is undoubtedly illegal. Since in cases of euthanasia or mercy killingthere is an intention on the part of the doctor to kill the patient, such cases would clearlyfall under clause first of Section 300 of the Indian Penal Code, 1860. However, as in suchcases there is the valid consent of the deceased Exception 5 to the said Section would beattracted and the doctor or mercy killer would be punishable under Section 304 forculpable homicide not amounting to murder. But it is only cases of voluntary euthanasia(where the patient consents to death) that would attract Exception 5 to Section 300. Casesof non-voluntary and involuntary euthanasia would be struck by proviso one to Section92 of the IPC and thus be rendered illegal.

The law in India is also very clear on theaspect of assisted suicide. Right to suicide is not an available “right” in India – it ispunishable under the India Penal Code, 1860. Provision of punishing suicide is containedin sections 305 (Abetment of suicide of child or insane person), 306 (Abetment ofsuicide) and 309 (Attempt to commit suicide) of the said Code. Section 309, IPC hasbeen brought under the scanner with regard to its constitutionality. Right to life is animportant right enshrined in Constitution of India. Article 21 guarantees the right to lifein India. It is argued that the right to life under Article 21 includes the right to die.

Therefore the mercy killing is the legal right of a person. After the decision of a fivejudge bench of the Supreme Court in Gian Kaur v. State of Punjab ((1996 (2) SCC 648 : AIR 1996 SC 946))it is well settled thatthe “right to life” guaranteed by Article 21 of the Constitution does not include the “right to die”. The Court held that Article 21 is a provision guaranteeing “protection of life and personal liberty” and by no stretch of the imagination can extinction of life be read into it.

In existing regime under the Indian Medical Council Act, 1956 also incidentally deals with the issue at hand. Under section 20A read with section 33(m) of the said Act, the Medical Council of India may prescribe the standards of professional conduct and etiquette and a code of ethics for medical practitioners. Exercising these powers, the Medical Council of India has amended the code of medical ethics for medical practitioners. There under the act of euthanasia has been classified as unethical except in cases where the life support system is used only to continue the cardio-pulmonary actions of the body. In such cases, subject to the certification by the term of doctors, life support system may be removed ((Supra note 5)).

In Gian Kaur’s((1996 (2) SCC 648 : AIR 1996 SC 946))case section 309 of Indian Penal Code has been held to be constitutionally valid but the time has come when it should be deleted by Parliament as it has become anachronistic. A person attempts suicide in a depression, and hence he needs help, rather than punishment.

The Delhi High Court in State v. Sanjay Kumar Bhatia ((1985 Cri.L.J 931 (Del.).)), in dealing with a case under section 309 of IPC observed that section 309 of I.P.C. has no justification to continue remain on the statute book.

The Bombay High Court in MarutiShripati Dubal v. State of Maharashtra ((1987 Cri.L.J 743 (Bom.).))examined the constitutional validity of section 309 and held that the section is violative of Article 14 as well as Article 21 of the Constitution. The Section was held to be discriminatory in nature and also arbitrary and violated equality guaranteed by Article 14. Article 21 was interpreted to include the right to die or to take away one’s life. Consequently it was held to be violative of Article 21.

ARUNA’s CASE: A NEW LEGAL DIMENSION

Recently the judgment of our Supreme Court in Aruna Ramchandra Shanbaug v. Union of India ((Supra note 1))opened the gateway for legalization of passive euthanasia. In this case a petitionwas filed before the Supreme Court for seeking permission for euthanasia for one ArunaRamchandra Shanbaug as she is in a Persistent Vegetative State (P.V.S.) and virtually adead person and has no state of awareness and her brain is virtually dead. Supreme Courtestablished a committee for medical examination of the patient for ascertaining the issue.

Aruna Shanbaug, who was working as a nurse at KEM Hospital, was assaulted on the night of November 27, 1973 by a ward boy. He sodomised Aruna after strangling her with a dog chain. The attack left Aruna blind, paralysed and speechless and she went into a coma from which she has never come out. She is cared for by KEM hospital nurses and doctors. The woman does not want to live any more. The doctors have told her that there is no chance of any improvement in her state. Her next friend (a legal term used for a person speaking on behalf of someone who is incapacitated) describes Shanbaug: “her bones are brittle. Her skin is like ‘Paper Mache’ stretched over a skeleton. Her wrists are twisted inwards; her fingers are bent and fisted towards her palms, resulting in growing nails tearing into the flesh very often. Her teeth are decayed and giving her immense pain. Food is completely mashed and given to her in semisolid form. She chokes on liquids and is in a persistent vegetative state.” So, she, through her ‘next friend’ Pinki Virani, decided to move the SC with a plea to direct the KEM Hospital not to force feed her. And on 16th December 2009, the Supreme Court of India admitted the woman’s plea to end her life. The Supreme Court bench compromising Chief Justice K G Balakrishnan and Justices A K Ganguly and B S Chauhan agreed to examine the merits of the petition and sought responses from the Union Government, Commissioner of Mumbai Police and Dean of KEM Hospital.

On 24th January 2011, the Supreme Court of India responded to the plea for euthanasia filed by Aruna’s friend journalist Pinki Virani, by setting up a medical panel to examine her. The three-member medical committee subsequently set up under the Supreme Court’s directive, checked upon Aruna and concluded that she met “most of the criteria of being in a permanent vegetative state”. However, it turned down the mercy killing petition on 7th March, 2011. The court, in its landmark judgement, however allowed passive euthanasia in India. While rejecting Pinki Virani’s plea for Aruna Shanbaug’s euthanasia, the court laid out guidelines for passive euthanasia. According to these guidelines, passive euthanasia involves the withdrawing of treatment or food that would allow the patient to live ((Supra note 19)).

Lastly the Court dismissed the petition filed on behalf Shanbaug and observed that passive euthanasia is permissible under supervision of law in exceptional circumstances but active euthanasia is not permitted under the law. The court also recommended to decriminalized attempt to suicide by erasing the punishment provided in Indian Penal Code.

The Court in this connection has laid down the guidelines which will continue to be the law until Parliament makes a law on this point ((Supra note 20)).

  1. A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.
  2. Hence, even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned as laid down in Airedale’s ((1993(1) All ER 821 (HL).))case as this is even more necessary in our country as we cannot rule out the possibility of mischief being done by relatives or others for inheriting the property of the patient.

In this case question comes before the Court is under which provision of the law the Court can grant approval for withdrawing life support to an incompetent person. Then the Court held that it is the High Court under Article 226 of the Constitution which can grant approval for withdrawal of life support to such an incompetent person. The High Court under Article 226 of the Constitution is not only entitled to issue writs, but is also entitled to issue directions or orders.

According to the instant case, when such an application is filed the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. Before doing so the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit. Preferably one of the three doctors should be a neurologist; one should be a psychiatrist, and the third a physician ((Supra note 20)).

The committee of three doctors nominated by the Bench should carefully examine the patient and also consult the record of the patient as well as taking the views of the hospital staff and submit its report to the High Court Bench.

After hearing the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, the High Court bench should give its verdict. The above procedure should be followed all over India until Parliament makes legislation on this subject.

The High Court should give its decision assigning specific reasons in accordance with the principle of ‘best interest of the patient’ laid down by the House of Lords in Airedale’s case ((1993(1) All ER 821 (HL).)).

THE EUTHANASIA BILL

A bill proposing legalisation of euthanasia was introduced in the Lok Sabha as “The Euthanasia (Permissionand Regulation) Bill, 2007” (hereinafter, “The Bill”] ((The Euthanasia (Permission and Regulation) Bill, 2007, No. 55. If passed, the bill would provide for a compassionate, humane and painless termination of the life of an individual who are permanently invalid or bedridden because of an incurable disease. Chandrappan (who moved the bill in the house) says, “If there is no hope of recovery for a patient, it is only humane to allow him to put an end to his pain and agony in a dignified manner.”)). Thestatement of objects and reasons states that in cases ofpersons with “no hope of recovery”, active euthanasia gives away out and that it is a better alternative “than committingsuicide, which is an offence under the present penal provisions”.

The bill goes on to state that “before making euthanasia legal, sufficient checks and balances at the institutional level are necessary to ensure that the system is not misused by unscrupulous elements” ((Statement of Objects and Reasons)).

Additionally, it has to be ensured thatthe “life of the patient is taken only after due process has been adhered to and in a humane and compassionate manner in the presence of family members and elected representatives” ((Statement of Objects and Reasons)).The bill states that:

a person who is completely invalid and/or bedridden or who cannot carry out his daily chores without regular assistance, can either himself or through persons authorised by him have the option to file an application for euthanasia (an instance of active euthanasia) with the civil surgeon or the Chief Medical Officer (CMO) of the district government hospital” ((Statement of Objects and Reasons)).

The CMO is to thereafter place the application before a medical board which will then examine the actual condition of the patient. A certificate recommending the patient’s case for euthanasia will be issued in the event the board is convinced of the non-curable nature of the disease ((K.P.M. Basheer, Legalize Euthanasia, Says Panel, THE HINDU, Jan. 8, 2009, http://www.thehindu.com/todays-paper/tp-national/tp-kerala/ article370554.ece.)).  The major objection to the bill was that such authority legitimately provided to the act performed by a physician would make murder of the patient all the more convenient for the physician. This was rebutted by the argument that a skilled physician always knows the ways of killing the patient without leaving a trace. The bill has subsequently lapsed ((See Status of the Bill at http://164.100.47.4/newlsbios_search/Default.aspx.)).The 2007 bill took, and rightly so, a proactive attitude towards active euthanasia, rendering solace to terminally ill patients ((Supra note 21)).

THE LAW COMMISSION OF INDIA RECOMMENDATIONS

The Law Commission in its 42nd Report ((Available at http://lawcommissionofindia.nic.in/1-50/Report42.pdf))recommended the repeal of section 309 of India Penal Code. The Indian Penal Code (Amendment) Bill, 1978, as passed by the Rajya Sabha, accordingly provided for omission of section 309. Unfortunately, before it could be passed by the Lok Sabha, the Lok Sabha was dissolved and the Bill lapsed.

The Later the Law Commission in its 210th Report ((Available at http://lawcommissionofindia.nic.in/reports/report210.pdf))submitted that attempt to suicide may be regarded more as a manifestation of a diseased condition of mind deserving treatment and care rather than an offence to be visited with punishment. The Supreme Court in GianKaur focused on constitutionality of section 309. It did not go into the wisdom of retaining or continuing the same in the statute. The Commission has resolved to recommend to the Government to initiate steps for repeal of the anachronistic law contained in section 309, IPC, which would relieve the distressed of his suffering.

This 196th Report ((Available at http://lawcommissionofindia.nic.in/reports/rep196.pdf))of the Law Commission on ‘Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners)’ is one of the most important subjects ever undertaken by the Law Commission of India for a comprehensive study.

This Report is relating to the law applicable to terminally ill patients (including patients in persistent vegetative state) who desire to die a natural death without going through modern Life Support Measures like artificial ventilation and artificial supply of food.

The Commission has given the following recommendations ((Supra note 20)):

  1. Obviously, the first thing that is to be declared is that every ‘competent patient’, who is suffering from terminal illness has a right to refuse medical treatment (as defined i.e. including artificial nutrition and respiration) or the starting or continuation of such treatment which has already been started. If such informed decision is taken by the competent patient, it is binding on the doctor. At the same time, the doctor must be satisfied that the decision is made by a competent patient and that it is an informed decision. Such informed decision must be one taken by the competent patient independently, all by himself i.e. without undue pressure or influence from others.

It must also be made clear that the doctor, notwithstanding the withholding or withdrawal of treatment, is entitled to administer palliative care i.e. to relieve pain or suffering or discomfort or emotional and psychological suffering to the incompetent patient (who is conscious) and also to the competent patient who has refused medical treatment.

  1. We propose to provide that the doctor shall not withhold or withdraw treatment unless he has obtained opinion of a body of three expert medical practitioners from a panel prepared by high ranking Authority. We also propose another important caution, namely, that the decision to withhold or withdraw must be based on guidelines issued by the Medical Council of India as to the circumstances under which medical treatment in regard to the particular illness or disease, could be withdrawn or withheld.

In addition, it is proposed that, in the case of competent as well as incompetent patients, a Register must be maintained by doctors who propose withholding or withdrawing treatment. The decision as well as the decision-making process must be noted in the Register. The Register to be maintained by the doctor must contain the reasons as to why the doctor thinks the patient is competent or incompetent, as to why he thinks that the patient’s decision in an informed decision or not, as to the view of the experts the doctor has consulted in the case of incompetent patients and competent patients who have not taken an informed decision, what is in their best interests, the name, sex, age etc. of the patient. He must keep the identity of the patient and other particulars confidential. Once the above Register is duly maintained, the doctor must inform the patient (if he is conscious), or his or her parents or relatives before withdrawing or withholding medical treatment.

If the above procedures are followed, the medical practitioner can withhold or withdraw medical treatment to a terminally ill patient. Otherwise, he cannot withhold or withdraw the treatment.

  1. A patient who takes a decision for withdrawal or withholding medical treatment has to be protected from prosecution for the offence of ‘attempt to commit suicide’ under sec. 309 of the Indian Penal Code, 1860. This provision is by way of abundant caution because it is our view that the very provisions are not attracted and the common law also says that a patient is entitled to allow nature to take its own course and if he does so, he commits no offence.

Likewise, the doctors have to be protected if they are prosecuted for ‘abetment of suicide’ under sections 305, 306 of the Penal Code, 1860 or of culpable homicide not amounting to murder under sec. 299 read with sec. 304 of the Penal Code, 1860 when they take decisions to withhold or withdraw life support and in the best interests of incompetent patients and also in the case of competent patients who have not taken an informed decision. The hospital authorities should also get the protection. This provision is also by way of abundant caution and in fact the doctors are not guilty of any of these offences under the above sections read with sections 76 and 79 of the Indian Penal Code as of today. Their action clearly falls under the exceptions in the Indian Penal Code, 1860.

We are also of the view that the doctors must be protected if civil and criminal actions are instituted against them. We, therefore, propose that if the medical practitioner acts in accordance with the provisions of the Act while withholding or withdrawing medical treatment, his action shall be deemed to be ‘lawful’.

  1. We have therefore thought it fit to provide an enabling provision under which the patients, parents, relatives, next friend or doctors or hospitals can move a Division Bench of the High Court for a declaration that the proposed action of continuing or withholding or withdrawing medical treatment be declared ‘lawful’ or ‘unlawful’. As time is essence, the High Court must decide such cases at the earliest and within thirty days. Once the High Court gives a declaration that the action of withholding or withdrawing medical treatment proposed by the doctors is ‘lawful’, it will be binding in subsequent civil or criminal proceedings between same parties in relation to the same patient. We made it clear that it is not necessary to move the High Court in every case. Where the action to withhold or withdraw treatment is taken without resort to Court, it will be deemed ‘lawful’ if the provisions of the Act have been followed and it will be a good defence in subsequent civil or criminal proceedings to rely on the provisions of the Act.
  2. It is internationally recognized that the identity of the patient, doctors, hospitals, experts be kept confidential. Hence, we have proposed that in the Court proceedings, these persons or bodies will be described by letters drawn from the English alphabet and none, including the media, can disclose or publish their names. Disclosure of identity is not permitted even after the case is disposed of.
  3. The Medical Council of India must prepare and publish Guidelines in respect of withholding or withdrawing medical treatment. The said Council may consult other expert bodies in critical care medicine and publish their guidelines in the Central Gazette or on the website of the Medical Council of India.

ARGUMENTS IN FAVOUR OF LEGALIZING EUTHANASIA

From Ram’s jalasamadhi to Mahatma Gandhi and Vinoba Bhave’s fast till death (in which Bhave died), euthanasia existed in Indian society. The judiciary has also viewed euthanasia from a sympathetic angle, which is evident from the observation of the various judges in cases dealing with right to suicide.

  1. The major argument in favour of allowing exercise of right to die is that, it is a way to end extreme unbearable pain caused due to disease, infirmity of body or mind or some incurable ailment ((Supra note 3)).
  2. Exercising the right to die provides a way of relief when a person’s quality of life is low. Doesn’t modern technology keep people alive who would have died in the past? Should people be forced to stay alive being “hooked up” to machines? It also causes physical, emotional and financial stress on the relatives and family members of the dying patient. Neither the law nor medical ethics requires that “everything be done” artificially to keep a person alive. Comprehensive and compassionate end-of life care includes the promotion of comfort and the relief of pain, and at times, foregoing life-sustaining treatments. In cases of terminal illness the medical professionals do not prolong the life of a person; instead they prolong the death of that person ((Supra note 40)).
  3. Some argue that, if option to die in case of people facing terminal illness is allowed, family members may save on unproductive medical expenses. It may free up medical funds of the state to help other needy people. In a country like India where millions of people live below the poverty line and cannot afford any expenses on medical treatment and may die due to non affordability and non availability of medical help, given the paucity of state funds for public health facilities; the funds thus freed may be utilized to save lives of these poor and needy persons ((Supra note 3)).
  4. Another argument is that recognition of right to die is a case of freedom of choice or individual liberty. Constitution guarantees the fundamental rights and freedoms to people where the positive right includes the negative right. For example, the freedom of speech carries along with it the freedom not to speak. The right to carry on business includes the right to close down the business; in similar manner, the right to live should include within it- the right not to live. People should not be forced to stay alive. It is the right of an individual to make a choice, whether to live or not to live i.e. right to die ((Supra note 40)).

ARGUMENTS AGAINST LEGALIZING EUTHANASIA

  1. There is an intense opposition from the religious groups and people from the legal and medical profession. According to them it is not granting ‘right to die’ rather it should be called ‘right to kill’ ((Supra note 3)).
  2. Allowing Euthanasia devalues human dignity and will offend the principle of sanctity of life. Euthanasia will leave sick, disabled or vulnerable people with less protection than the rest of the population and could even be seen as providing a “cloak for murder”.
  3. Today, advanced medical research is constantly being made in the treatment of pain and diseases. Accepting incurability of diseases will be underestimating medical science. Many diseases which had no cure in the past are curable and controllable today with the help of research in medical field ((Supra note 40)).
  4. Where euthanasia has been first been legalized for only terminally ill people, later on it may become non-voluntarily. In countries where assisted suicide is allowed, it has moved into mercy killings of deformed babies, and into allowing mentally ill people to kill themselves rather than seek treatment ((Supra note 3)).
  5. It is usually believed that, patients with terminal illness have only two options: either to die slowly in unrelieved suffering orexercise their right to die. However, there is a middle way, that of creative and compassionate caring. Research in Palliativemedicine shows that virtually all unpleasant symptoms and chronic pain experienced in terminal illness can be either relievedor substantially controlled ((Supra note 40)).

A patient with a terminal illness is vulnerable. He lacks the knowledge and skills to alleviate his own symptoms, and may wellbe suffering from fear about the future and anxiety about the effect his illness is having on others. Patients who on admissionsay ‘let me die’ usually after effective symptom relief are most grateful that their request was not acceded to. Losing theopportunity of caring for vulnerable people denies us an essential part of our humanity. The answer is not to change the law, butrather to improve our standards of care ((Supra note 40)).Allowing the exercise of right to die would put emotional, financial and psychological pressure on patients, especially ondisabled persons, to choose to die rather than be a burden on their families ((Supra note 3)).

  1. Physicians and other medical care people should not be involved in directly causing death. It creates incentives to do lessmedical research and to save money on medical care by offering people poison pills. There is no way to control assisted suicideonce you make it legal. In a country like India where poverty and corruption is rampant, there is no foolproof way to write thelaw without opening it to abuse.

Thus, opponents strongly argue that euthanasia should be allowed only in rarest of the rarecases. If this is not done then surely it will lead to its abuse.

SUGGESTIONS AND RECOMMENDATIONS

The risk and fear of misuse and abuse could be done away with proper safeguards and specific guidelines. Though in this regard the 196th Law Commission Reportand the guidelines given in the Aruna’scase are there and guidelines will continue to be the law until Parliament makes a law on this point. In spite of those some suggestions are given below to check the misuse ((Supra note 5)):

  1. The circumstances in which it would be lawful for a medical practitioner to cease or to authorize the cessation of life-sustaining treatment of a patient who has no spontaneous respiratory and circulatory functions or whose brainstem does not register any impulses.
  2. A euthanasia request should come from a patient suffering from unbearable pain from an incurable condition, the physician must follow certain ‘due care’ criterion. He must –

(i) Be convinced that request was voluntary, well consider and lasting.

(ii) Be convinced that the patient was facing unremitting and unbearable suffering.

(iii) Have informed the patient about his situation and prospects.

(iv) Have reached the firm conclusion with the patient that there was no reasonable alternative solution.

  1. The right of medical practitioner responsible for the treatment of a terminally ill patient to increase the dosage of medication, with the object of relieving pain and distress, even if the secondary effect of this may be to hasten the patient’s death.
  2. Terminate life should be in a medically appropriate fashion. Like that the practice is to administer an injection to render the patient comatose, followed by a second injection to stop heart.
  3. A person who is going to die;

(i) Must completely understand what will happen.

(ii) Must know about all other kinds of treatment.

(iii) Must freely repeat their wish to die over a period of time.

(iv) Must be suffering from something that will not stop or go away.

  1. Whether it would be lawful for a medical practitioner to act on the request of a well informed, mentally competent and terminally ill patient to end his/her suffering by administering or providing a lethal agent.
  2. There should be an explicit and repeated request by the patient which leaves no reason for doubt concerning his desire to die; mental and physical suffering of the patient must be very severe with no prospect of relief.
  3. The circumstances in which a Court may order the cessation of medical treatment or the performance of any medical procedure which would lead to the termination of a patient’s life.
  4. A quasi-judicial officer be appointed by the appropriate authority under the proposed statute to supervise all cases of euthanasia within a feasible territory.

Such officer must be reasonably well versed with the medical science. Any doctor who feels that his patient’s request to die should be fulfilled would report such a case to the said supervising officer. The supervisor would then interview the patient to satisfy himself whether the request is free, voluntary and persistent. The supervisor would also then refer the case to a minimum of two other experienced doctors to get their opinion on the case. If both the doctors so referred feel that the patient is beyond recovery, that there is no alternate treatment available and that death would be a more suitable option for him then the supervisor would inform the patient’s relatives about the patient’s request and the doctor’s opinion. Finally the supervisor would issue a certificate allowing the doctor to let the patient die.

  1. When the patient is dead, a coroner must look at the body and check the facts of the case. If case is not found for euthanasia, penal proceeding may be initiated. Though the procedure outlined above may seem cumbersome. The above mentioned safeguards are necessary to minimize the chances of misuse of the right of euthanasia.

Moreover, in a country like India where there is tremendous pressure on the availablemedical facilities, euthanasia is all the more necessary for the maximum utilization of thelimited facilities.

CONCLUSION

From the above discussion we can conclude that no such law could be guaranteed to be free of the possibility, if not the likelihood, of abuse, chiefly centered on the lives of other sick persons who did not want their lives taken. An especially dangerous aspect is that such abuse may be easily made undetectable. Thus although mercy killing appears to be morally justifiable, its fool-proof practical applicability seems near to impossible. It may be acknowledged that there are individual cases in which euthanasia may be seen by some to be appropriate. But individual cases cannot reasonably establish the foundation of a policy which would have such serious and widespread repercussions. Moreover, dying is not only a personal or individual affair and the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole ((Supra note 3)).

Thus, while deciding the debate on right to die, the conflict between the principle of sanctity of life and the rights of self determination and dignity of a human being needs to be resolved. Rather than allowing right to die as a general rule by legalizing euthanasia, it may be allowed as necessary exception only in rarest of rare cases, in passive form in appropriate cases where the individual is dying and gives informed consent or where he or she cannot give consent and as per the genuine medical opinion, the death is near and certain and, to withdraw the life support system is in the best interest of the patient and by recent decision in Aruna Shanbaug case ((Supra note 1))the SC has taken step in right direction and now it is the turn of government and the HCs to follow the guidelines given by the court ((Supra note 3)).

The ethics of euthanasia, being value debate, still remains as a debatable issue. Just like other value debates, it also seems to be never ending. Since the law follows ethics in most of cases, the dilemma in the field of euthanasia can also be seen in the laws of different countries. The Netherlands’ legislation in this regard is one of the most comprehensive legislation for two obvious reasons. On the one hand, it lays down the essential criteria to be complied with before conducting euthanasia and on the other hand, it provides checks and balances by establishing Review Committees. Therefore euthanasia is not conferred as a matter of right to the patient, but has been made as an exception to the liability of the doctor in the Dutch law ((Supra note 2)).

Indian judiciary, on the other hand, has always been in confusing state of mind on the issue of euthanasia. In Maruti Shripati Dubal and P. Rathinam, the court held that suicide is permissible and euthanasia, in whatever circumstances, would amount to homicide, and therefore not permissible. The Supreme Court, in Gian Kaur, recognized the legality of the passive euthanasia, but could not conclusively decide on the issue of passive euthanasia. More importantly, focus of all these cases were on suicide and abatement to suicide, and not on euthanasia.

At last while legislative reforms are awaited, in this regard in India, one needs to look in to the impact of the defences available to the doctors under IPC. Sections 76, 81 and 88 of IPC are sufficient enough to provide defense to the doctors conducting euthanasia in good faith. While there exists no doubt on the permissibility of passive euthanasia, the active euthanasia, if conducted to avoid greater harm, would be entitled to legal protection under section 81. On this point the Indian position is not very much dissimilar to that of Dutch position. While the Netherlands’ position is clearer due to the specific legislation, Indian position remains unclear in the absence of legislation. But in Aruna Ramchandra Shanbaug v. Union of India ((Supra note 1))the Apex court of India rejected a plea for its use on a woman in a vegetative state but issued guidelines allowing for the use of ‘passive’ euthanasia for terminally ill patients through the withholding treatment.

The ultimate outcome of this debate remains uncertain. It must, however, be remembered that an acrobatic argument that acknowledges technological advances but dismisses the evolving ethical issues, which pose uncomfortable, and disturbing questions is unfair to the community of patients ((Supra note 21)).

 

Whether, porn sites should be banned completely in India?

Central Government informed the Supreme Court that, it is impossible for them to block the access to all the porn sites in India. However, it was informed that, the government will block all those sites which are displaying or featuring the abuse of children.

Even if you ban a website, it is possible that, on the next day a new site will come up with the same contents of the blocked website. Hence, in the era of advanced internet and software technologies, it is highly difficult to block all those websites, which are having pornographic content.

Recently, based on a circular from the central government, the Internet service providers (ISP’s) in India blocked 857 porn sites in India with effect from August 1, 2015. Such a movement was highly criticised in various social media.

As a result, telecom ministry decided to block only those websites, which contains pornographic contents of children. It was also informed by the Central Government that, government would not interfere in the personal liberty of citizen, on whether to watch porn or not. However, it is up to the individual to decide that, whether, they should visit those porn sites and watch porn.

Whether, porn should be banned completely in India? What is your opinion? Looking forward to your thoughts…

BMW hit and run case, bail granted to Vismay Shah

Supreme Court granted bail to the convict, Mr. Vismay Shah of famous BMW Hit and run case. The BMW hit and run case occurred on February 23, 2013, where two youth lost their lives in Vastrapur area. Earlier Mr. Vismay Shah was sentenced to five years imprisonment by an Ahmedabad court, in the Hit and run case.

While considering the application for bail, the Bench of Supreme Court consisting of Chief Justice H L Dattu took note of the fact that Mr. Vismay Shah was young and had already spent more than 13 months in jail. Further, the apex court directed the High Court to expeditiously hear Mr. Vismay Shah appeal against his conviction.

Mr. Vismay Shah in his appeal before the High Court, challenged the trial court’s recent judgment convicting him under Section 304 (culpable homicide not amounting to murder) of the Indian Penal Code. The Ahmedabad court had also ordered Vismay to pay Rs 5 lakh in compensation to each of the two affected families, and slapped a fine of Rs 25,000 on him.

What is Section 304, Indian Penal Code (IPC)?

Section 304, Indian Penal Codes speaks about the Punishment for culpable homicide not amounting to murder. By virtue of Section 304, whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term, which may extend to ten years. Such person shall also be liable to fine;

  1. if the act by which the death is caused is done with the intention of causing death, or
  2. of causing such bodily injury as is likely to cause death, or
  3. with imprisonment of either description for a term which may extend to ten years, or
  4. with fine, or
  5. with both,

if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

DOT ordered to ban porn sites in India

Most of the websites which are delivering pornographic contents are at present in accessible in India, on several Internet Service Providers (ISP’s). With effect from August 1, 2015 most of the internet service providers are displaying either a blank page or “Directory does not exist”.

Some browser displayed even the message “Your requested URL has been blocked as per the directions received from Department of Telecommunications, Government of India” when attempting to access a porn site.

Earlier, in the month of July, 2015 Supreme Court declined to pass an interim order to block porn sites in India. While hearing a Public Interest Litigation (PIL) filed by an advocate, asking to ban porn sites in India, it was observed by the apex court that, “how can you stop me from watching it within the four walls of my room?”

In the said case, court further observed that, blocking a porn website being watched at home would be a violation of Right to personal liberty as guaranteed under Article 21 of the Indian Constitution.

The petition which is asking for a web filter to censor any obscene content (obscenity is wider than pornography) was on a presumption that the consumption of pornography incites and causes sexual violence to women.

Google secures Indian Patent [for annotations associated with video files]

Internet giant Google secured an Indian Patent for an invention regarding a method and system for transferring annotations associated with video files.

Earlier in the year 2009, Google filed the Patent Application for Annotation Framework for Video, as a national phase application under the Patent Cooperation Treaty (PCT). Accordingly, the application was examined under the Sections 12 and 13 of the Indian Patent Act, 1970.

Google in its application claimed that, annotations provide a mechanism for supplementing video with useful information and can contain, for example, metadata describing content of the video, subtitles, or additional audio tracks.

These annotations can be of various data types, including text, audio, graphics, or other forms. To make their content meaningful, annotations are typically associated with a particular video, or with a particular portion of a video.

Section 12 of the Indian Patent Act, 1970 speaks about the Examination of Patents. By virtue of Section 12, when a request for examination has been made in respect of an application for a patent in the prescribed manner to an examiner for making a report to him in respect of the following matters, namely;

  1. whether the application and the specification and other documents relating thereto are in accordance with the requirements of this Act and of any rules made thereunder;
  2. whether there is any lawful ground of objection to the grant of the patent under this Act in pursuance of the application;
  3. the result of investigations made under section 13; and
  4. any other matter which may be prescribed.

Section 13 of the Indian Patent Act, 1970 speaks about the Search for anticipation by previous publication and by prior claim. By virtue of Section 13, the examiner to whom an application for a patent is referred under section 12 shall make investigation for the purpose of ascertaining whether the invention so far as claimed in any claim of the complete specification;

  1. has been anticipated by publication before the date of filing of the applicant’s complete specification in any specification filed in pursuance of an application for a patent made in India and dated on or after the 1st day of January, 1912;
  2. is claimed in any claim of any other complete specification published on or after the date of filing of the applicant’s complete specification, being a specification filed in pursuance of an application for a patent made in India and dated before or claiming the priority date earlier than that date.

 

Source: financial express

Net neutrality report upholds key principles

Department of Telecom after meeting over 45 organisations including Facebook, Google, Flipkart, Amazon, Paytm, Viber and Skype and telecom service providers and after obtaining views from the general public has released its report on net neutrality in India. Major recommendations of the report are as follows;

The Committee unhesitatingly recommends “the core principles of Net Neutrality must be adhered to.”

The international best practices along with core principles of Net Neutrality will help in formulating India specific Net Neutrality approach. India should take a rational approach and initiate action in making an objective policy, specific to the needs of our country. The timing for this is apt, taking into consideration the exponential growth of content and applications on the Internet.

Innovation and infrastructure have both to be promoted simultaneously and neither can spread without the other. The endeavor in policy approach should be to identify and eliminate actions that inhibit the innovation abilities inherent in an open Internet or severely inhibit investment in infrastructure.

The primary goals of public policy in the context of Net Neutrality should be directed towards achievement of developmental aims of the country by facilitating “Affordable Broadband”, “Quality Broadband” and “Universal Broadband” for its citizens.

User rights on the Internet need to be ensured so that TSPs/ISPs do not restrict the ability of the user to send, receive, display, use, post any legal content, application or service on the Internet, or restrict any kind of lawful Internet activity or use.

OTT application services have been traditionally available in the market for some time and such services enhance consumer welfare and increase productivity. Therefore, such services should be actively encouraged and any impediments in expansion and growth of OTT application services should be removed.

There should be a separation of “application layer” from “network layer” as application services are delivered over a licensed network.

Specific OTT communication services dealing with messaging should not be interfered with through regulatory instruments.

In case of VoIP OTT communication services, there exists a regulatory arbitrage wherein such services also bypass the existing licensing and regulatory regime creating a non-level playing field between TSPs and OTT providers both competing for the same service provision. Public policy response requires that regulatory arbitrage does not dictate winners and losers in a competitive market for service provision.

The existence of a pricing arbitrage in VoIP OTT communication services requires a graduated and calibrated public policy response. In case of OTT VoIP international calling services, a liberal approach may be adopted. However, in case of domestic calls (local and national), communication services by TSPs and OTT communication services may be treated similarly from a regulatory angle for the present. The nature of regulatory similarity, the calibration of regulatory response and its phasing can be appropriately determined after public consultations and TRAI’s recommendations to this effect.

For OTT application services, there is no case for prescribing regulatory oversight similar to conventional communication services.

Legitimate traffic management practices may be allowed but should be “tested” against the core principles of Net Neutrality. a. General criteria against which these practices can be tested are as follows: a) TSPs/ISPs should make adequate disclosures to the users about their traffic management policies, tools and intervention practices to maintain transparency and allow users to make informed choices. b). Unreasonable traffic management, exploitative or anti-competitive in nature may not be permitted. c). In general, for legitimate network management, application-agnostic control may be used. However, application-specific control withinthe “Internet traffic” class may not be permitted. d). Traffic management practices like DPI should not be used for unlawful access to the type and contents of an application in an IP packet. e). Improper (Paid or otherwise) Prioritization may not be permitted. f). Application-agnostic congestion control being a legitimate requirementcannot be considered to be against Net Neutrality. However application-specific control within the “Internet traffic” class may be against the principles of Net Neutrality. g). Mechanism to minimize frivolous complaints will be desirable.

Traffic management is complex and specialized field and enough capacity building is needed before undertaking such an exercise.

CDN is an arrangement of management of content as a business strategy and does not interfere with others business. Making available one provider’s CDN to others on commercial terms is a normal commercial activity. It should at best be covered under law related to unfair trade practice.

Managed services are a necessary requirement for businesses and enterprises, and suitable exceptions may be made for the treatment of such services in the Net Neutrality context.

This Committee refrains from making any specific recommendation on search-neutrality, however, flags this issue as a concern for public policy.

Tariff plans offered by TSPs/ISPs must conform to the principles of Net Neutrality set forth in guidelines issued by the Government as Licensor. TRAI may examine the tariff filings made by TSPs/ISPs to determine whether the tariff plan conforms to the principles of Net Neutrality.

Content and application providers cannot be permitted to act as gatekeepers and use network operations to extract value in violation of core principles of Net Neutrality, even if it is for an ostensible public purpose.

A clause, requiring licensee to adhere to the core principles of Net Neutrality, as specified by guidelines issued by the licensor from time to time, should be incorporated in the license conditions of TSP/ISPs. The guidelines can describe the principles and conditions of Net Neutrality in detail and provide applicable criteria to test any violation of the principles of Net Neutrality.

New legislation, whenever planned for replacing the existing legal framework, must incorporate principles of Net Neutrality. Till such time as an appropriate legal framework is enacted, interim provisions enforceable through licensing conditions as suggested by the Committee may be the way forward.

National security is paramount, regardless of treatment of Net Neutrality. The measures to ensure compliance of security related requirements from OTT service providers, need to be worked out through inter-ministerial consultations.

Suggested enforcement process is as follows: (i) Core principles of Net Neutrality may be made part of License conditions and the Licensor may issue guidelines from time to time as learning process matures. (ii) Since Net Neutrality related cases would require specialized expertise, a cell in the DoT HQ may be set up to deal with such cases. In case of violations, the existing prescribed procedure may be followed. This would involve two stage process of review and appeal to ensure that decisions are objective, transparent and just. (iii) Tariff shall be regulated by TRAI as at present. Whenever a new tariff is introduced it should be tested against the principles of Net Neutrality. Post implementation, complaint regarding a tariff violating principle of Net Neutrality may be dealt with by DoT. (iv) Net Neutrality issues arising out of traffic management would have reporting and auditing requirements, which may be performed and enforced by DoT. (v) QoS issues fall within the jurisdiction of TRAI. Similarly reporting related to transparency requirements will need to be dealt with by TRAI. TRAI may take steps as deemed fit.

Enforcing Net Neutrality principle is a new idea and may throw up many questions and problems as we go along. For this purpose, an oversight process may be set up by the government to advise on policies and processes, review guidelines, reporting and auditing procedures and enforcement of rules.

Capacity building through training, institution building and active engagement with stakeholders is essential. In order to deal with the complexities of the new digital world, a think-tank with best talent may also be set up.

CSK and Rajasthan Royals banned from IPL for two years

Chennai Super Kings (CSK) and Rajasthan Royals (RR) were suspended for two years from the Indian Premier League (IPL) by the panel appointed by the Supreme Court of India. Earlier Supreme Court appointed a panel to address the issue IPL sport fixing and betting scandal.

Panel headed by Justice RM Lodha, in its verdict, which suspended two former champions Chennai Super Kings (CSK), and Rajasthan Royals (RR) of Indian Premier League (IPL), also suspended, Mr. Gurunath Meiyappan and Mr. Raj Kundra from any type of cricket matches for life after they were found guilty of betting in the T20 tournament.

Mr. Gurunath Meiyappan is the son-in-law of current ICC Chief, N. Srinivasan. Mr. Gurunath Meiyappan was the Team Principal of Chennai Super Kings (CSK), and Mr. Raj Kundra was the co-owner of Rajasthan Royals (RR).

Panel observed that, Meiyappan is involved in the sport fixing and betting scandal, and his conduct affected image of BCCI, the Indian Premier League (IPL) and the game of Cricket (Twenty 20/T20). Panel also observed that, Raj Kundra was placing bets through a known punter and was constantly in touch with bookies. Rajasthan Royals have damaged the faith of BCCI and the sport, Mr. Raj Kundra is found guilty of misconduct.

Earlier, Supreme Court had held that the allegation of betting against Meiyappan and Kundra stood proved and set up the three-member committee of its retired judges to determine the punishment for Meiyappan, who was the Chennai Super Kings (CSK) team Principal and Kundra, the co-owner of Rajasthan Royals (RR).

Rajasthan Royals (RR) won the inaugural event in 2008 under the captaincy of Australian spin legend Shane Warne, and Chennai Super Kings (CSK) are also the most successful team in the Indian Premier League (IPL), having won the tournament in 2010 and 2011, and finished runners-up in 2008, 2012, 2013 and 2015. Indian cricket team skipper Mahendra Singh Dhoni (MS Dhoni) was the Caption for Chennai Super Kings (CSK) for all the IPL season.

Kerala pacer and former Indian fast bowler Sreesanth was a part of Rajasthan Royals, where a case is pending against Sreesanth before the Court at Delhi for alleged sport fixing in the 2013 Indian Premier League (IPL). Said case is posted to July 15, 2015 for framing charges in the 2013 Indian Premier League (IPL).

Premam Movie: Two arrested for circulating Pirated CD

While conducting a raid in Thiruvananthapuram, Kollam districts of South Indian State Kerala, the anti-piracy department of Kerala Police arrested two persons for sale and circulation of pirated CD’s of latest Super Hit Malayalam Movie Premam.

Further, five were booked for similar offence. Poonthura Police filed cases against Rio DVD Collections, Fox CD’s, Rainbow etc. for circulating and distributing the pirated CD’s of latest movies.

During the raid anti-piracy department not only seized the pirated CD’s of Malayalam Movie Premam, but also the pirated CD’s of other movies and hard disc and computer which was used to copy the same.

Further, it was also informed that, authorities will be taking necessary action against all those who have uploaded the pirated version of the Malayalam Movie Premam.

As per reports, producer Anwar Rasheed, has decided to quit being part of any film-based associations after he received cold response from the authorities of anti-piracy cell as well as several film associations over the piracy issue concerning his latest film Premam.

Anwar Rasheed had reportedly approached several film associations as well as the anti-piracy cell after the censor copy of Premam was leaked online. But, unfortunately the response which the producer received were not satisfying enough and thereby as a protest, he has decided to resign from all the film associations.

The film Premam stars Nivin Pauly, Madonna Sebastian, Sai Pallavi, and Anupama Parameshwaran in the lead roles along with a supporting cast consisting of Shabareesh Varma, Krishna Shankar, Vinay Forrt, Soubin Sahir, Bonikuttan and Deepak Nathan in important roles. Film is written, edited, and directed by Alphonse Putharen.

No personal information even if she is your wife, Rules Karnataka High Court

While considering an application under the provisions of Right to Information Act, seeking certain information relating to the passport issued to his wife by the Regional Passport Officer, Passport officer rejects husband’s RTI application, and informed the applicant that, the info cannot be furnished. Such information is not liable to be disclosed in view of the provision of Section 8(1)(j) of the Right to Information Act which prohibits it.

After his appeal was rejected by the first appellate authority, the Joint Secretary, Ministry of External Affairs, applicant had appealed the Central Information Commissioner, and had approached the High Court. The High Court in its order noted that even if that issue of appeal before the Central Information Commissioner is kept aside, the Passport Officer was right in his stand. “The reasons indicated are justified in view of the provisions contained in the Right to Information Act. Hence, the same does not call for interference.”

Section 8(1) (j) in the Right to Information Act, 2005

Information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.