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Anshul is a Political Science and Law graduate from the University of Delhi. He is interested in political, legal and policy developments and frequently writes on related themes. You can contact him on anshulkumarpandey [at] gmail [dot] com.

Tuesday, May 31, 2016

The Darkest Hour In Indian Judicial History - When The Supreme Court Surrendered Its Autonomy During Emergency

This was published in Indiatimes

Today, most Indians have an implicit faith in the Supreme Court righting any wrongs done to any citizen by the government. But there was a dark period during the Emergency (1975-77) when even the Supreme Court bowed down to the diktats of the government and robbed the citizens of the country of their final hope of grievance redressal.

What was the case

ADM Jabalpur v. Shiv Kant Shukla, or the Habeas Corpus case as it came to be known, was a blot on the judiciary. No citizen had any right to move to the courts against any arbitrary action by the government, which resulted in the loss of his/her liberty or even life.

Four of the five judges on the Supreme Court bench came to this conclusion at a time when Mrs. Gandhi's emergency regime was rounding up opposition political figures, trade unionists, student leaders, civil society activists etc. and throwing them into jail for their crime of speaking up against the brutal emergency regime. This violated the most fundamental principles of democracy with impunity.

How it led to the making of draconian law

Chief Justice A N Ray, beholden to Mrs. Gandhi for his appointment as the Chief Justice after superseding other senior judges, chose to disregard the unanimous conclusion advanced by all the other high courts of the country on the same question. They all agreed that, even in the darkest period of political turmoil, a citizen could approach the high courts under Art. 226 of the Constitution for appropriate remedy through writ jurisdiction. CJI Ray chose to overrule all those judgments and closed the gate of the courts to the ordinary citizen of the country demanding justice in very unjust times.

The Judge who didn't budge 

Justice H R Khanna, the lone dissenting judge on the Supreme Court bench that decided ADM Jabalpur, paid the price for his dissent when he was superseded by Justice M H Beg for the post of Chief Justice. 

What's Habeas Corpus

The phrase "Habeas Corpus" means "have the body" and is usually used to challenge illegal detention by the government. Its roots can be traced back to the Magna Carta of England in 1215. When the SC decided to rob the citizens of the remedy through Habeas Corpus, it not only dealt a blow to the principles enshrined in our constitution, but also positioned itself against a legal principle dating back more than 750 years and recognised by all civilised democracies around the world.
How the case unfolded

Mr. Shanti Bhushan, Mr. Ram Jethmalani, Mr. Soli Sorabjee and Mr. Anil Divan argued for the detainees. The government was represented by Attorney General Mr. Niren De. The Attorney General argued that the detainees had no right to move to the court under a writ of Habeas Corpus as all fundamental rights including Article 21 of the constitution were suspended during the emergency. This lead Justice Khanna to ask, "Article 21 also contains life. Would government arguments extend to it also?"

The Attorney General replied, "Even if life was to be taken illegally during the Emergency, the courts are helpless".

The Attorney General would later justify his outrageous defense of the Emergency with these words, "I wanted the robes to rage against that violent view I propounded and come down on such Emergency inhumanity. But, to my surprise, barring Khanna, the other justices heard but did not furiously resist. I felt sad as a jurist but found success as Counsel." 

The Habeas Corpus case has been dubbed ”the biggest blow to the Supreme Court – by the Supreme Court” by the People's Union for Civil Liberties. Justice V R Krishna Iyer, an eminent jurist, called the judgment a disgrace at par with an American judgment that ruled that Negroes were slaves to be owned, not humans who could own. H M Seervai, another eminent jurist, said that through the judgment, the four Supreme Court justices had propounded the maxim "lawlessness be thou our law". 

As for Justice Khanna and his role during the gloomy days of the Emergency, these words from an editorial by the New York Times are more than enough to sum up the tale of one of the darkest cases in India's judicial history:

If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H.R. Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the Court’s decision upholding the right of Prime Minister Indira Gandhi’s Government to imprison political opponents at will and without court hearings... The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society, and the Indian Supreme Court’s decision appears close to utter surrender.

Friday, May 13, 2016

Everything You Need To Know About Aruna Shanbaug, Whose Case Led To India's Euthanasia Debate

This was published in Indiatimes

At some point in your life, through friends, popular media or your school or college, you must have come across the term "mercy killing". The legal term for mercy killing is euthanasia and the consequences of legalising it, have over time, become a heated debate among India's intellectual, political and legal circles. The case that led to this heated debate was that of Aruna Ramchandra Shanbaug v. Union of India.

Aruna Ramchandra Shanbaug was a nurse in the King Edwards Memorial Hospital in Mumbai when she was assaulted by a sweeper of the same hospital while changing her clothes in the hospital basement. During the assault, she was tied with a dog chain around her neck, which cut off oxygen supply from her brain and rendered her in a permanent vegetative state for the next 42 years.

From the day of the assault till the day she died, Aruna could only survive on mashed food. She could not move her hands or legs, could not talk or perform the basic functions of a human being. Journalist-Activist Pinky Virani, who had published a book regarding her case titled Aruna's Story, filed a writ petition under Article 32 before the Supreme Court of India, asking for the legalisation of euthanasia so that Aruna's continued suffering could be terminated by withdrawing medical support. She contended that the patient had been in a permanent vegetative state for the past many years and did not have any chance of recovery at all.

The Supreme Court accepted the petition and constituted a medical board to report back on Aruna's health and medical condition. The medical board, comprising three eminent doctors, reported that the patient was not brain dead and responded to some situations in her own way. They felt that there was no need for euthanasia in the case.

The staff at KEM Hospital and the Bombay Municipal Corporation filed their counter-petitions in the case, opposing euthanasia for Aruna. The nurses at KEM Hospital were quite happy to look after the patient and they had been doing that for years before petitioner Pinky Virani emerged on the scene. 

The court, while delivering its judgment, distinguished between active and passive euthanasia. Active euthanasia means killing a person through the use of lethal substance or force, and passive euthanasia means withdrawing or discontinuing medical support necessary for the continuation of life. The court rejected the plea for euthanasia for Aruna Shanbaug but legalised passive euthanasia in the country.

The reason any debate around euthanasia generates such a heated discussion is because while our constitution recognises the right to life with dignity, it does not recognise the right to die. Therefore, a debate regarding mercy killing is just not a debate regarding the legality of such a wish, but is also a debate about the morality and ethics of such an act. With the concept of euthanasia, law enters that complex territory of medical ethics which has even divided the medical fraternity sharply in the recent past.

Passive euthanasia did not remain legalised for long in India. In Common Cause v. Union of India, it was urged that the judgment of Aruna Ramchandra Shanbaug v Union of India was decided based on incorrect interpretation of the constitution bench's judgment in Gian Kaur v State of Punjab, and therefore it was referred to a larger constitutional bench for review and final judgment.

Aruna Shanbaug died in May 2015, but her case helped in shedding light on an extremely complex issue of medical ethics and law. Euthanasia is currently legal in the Netherlands, Switzerland and the United States. Will India join the list?

We'll have to wait and watch.