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JUSTICE DERAILED

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Aruna’s molester was convicted for assault and robbery and not rape, helping him walk free after a seven-year sentence. The punishment he got did not match the brutality of his crime.

By Ramesh Menon


When she went about her work as a vivacious and energetic nurse in King Edward Memorial Hospital in Mumbai, Aruna Shanbaug would have never imagined that she would trigger a legal and ethical debate about euthanasia in India. The inexplicable saga of her tragic life hit the headlines last fortnight as she passed away. She had been in a coma for 42 painful years. As she battled pneumonia, nurses who had lovingly tended to her all these years, suspected her end was near as they wheeled the fragile 66-year-old into the ICU.

Aruna slipped into a brain-dead vegetative state on November 27, 1973, after sweeper Sohanlal Bhartha Walmiki in the same hospital sodomized her and threw a dog chain around her neck to silence her screams. The resulting asphyxiation cut off oxygen supply to her brain, leading to coma. She was found in a pool of blood the next day by another cleaner at the hospital. He stole some of her belongings before fleeing.

Hoping to keep the news of the rape under wraps, a senior official of KEM Hospital instructed that details should not be divulged. The police registered a case of robbery as rape was not mentioned.

Like thousands of middle-class girls in India, Aruna also had dreams of building a career and contributing to her family in-come. That is why she moved from Haldipur, a small coastal village, to Mumbai. But in those few minutes after she was violated, it was all over.

SOCIAL REJECTION

Hoping to keep the news of the rape under wraps, a senior official of KEM Hospital instructed that details should not be divulged as she would be socially rejected. Besides, it would hamper her marriage to a doctor she had recently been engaged to. The marriage was just a month away. The police registered a case of robbery as rape was not mentioned. Soon, they hunted down Walmiki.

He was convicted for assault and robbery and was awarded a seven-year sentence. He was not convicted for rape, sexual molestation and unnatural sex, which would have attracted at least 10 years. The state also did not contest the judgment or ask for the punishment to be made more severe. In 1980, Walmiki walked free after his sentence. Today, no one knows where he is. Some reports said that he got a job in a Delhi hospital. There is an increasing demand in India that names and photos of rapists should be put up on websites so that future employers will be alerted. 

There are so many narratives in this tragic story which expose the hypocrisy that we all tolerate and encourage. Here was a story that stirred a valid legal debate and aroused the conscience of the country. Here was a case which profoundly went to shape whatever laws on euthanasia India ever had.

END MISERY

Author and journalist Pinki Virani, who clo-sely followed the tragedy, wrote a touching biography of Aruna as she found herself emotionally involved in the saga of her life.

In 2011, she filed a petition in the Supreme Court pleading that Aruna’s misery would come to an end if the hospital was ordered to stop force-feeding her and allowed her to die peacefully. She filed this when Aruna was 60 and had been in a coma for three decades.
Delivering a 110-page judgment, Justices Markandey Katju and Gyan Sudha Misra ruled that in cases of irreversible illness, passive euthanasia could be allowed after a thorough medical examination. Passive euthanasia allows a patient to die by limiting medical intervention or withdrawing artificial life support. Active euthanasia on the other hand, would mean administering lethal substances to quickly end life.

The judges found little evidence of Aruna coming out of the persistent vegetative state that she was in and said that she would in all probability not come out of it. They left it to the hospital to decide if they should withdraw her life support.

The hospital staff did not take kindly to Virani’s plea, saying that they were looking after her and would continue to do so diligently. One of the narratives in this story is their devotion to work all these years. There were almost 10 nurses looking after her everyday. Virani had argued that there was no proof of Aruna’s awareness of anything that happened around her.

NEW DELHI, DEC  8:- Policemen run along with driver Shiv Kumar Yadav (C) who is accused of a rape outside a court in New Delhi December 8, 2014. U.S. online ride-hailing service Uber has been banned from operating in the Indian capital after a female passenger accused one of its drivers of rape, a case that has reignited a debate about the safety of women in the South Asian nation. REUTERS/UNI PHOTO-16R

 

Shiv Kumar Yadav, accused in the Uber rape case in December 2014




 

It was only the 2013 Criminal Law (Amendment) Act that finally broadened the definition of rape in India. It included oral, anal and urethral penetration. Earlier, it was limited to peno-vaginal penetration. This came about after the public outcry against the brutal gang rape and torture of a para-medical intern in Delhi in 2012.

Law on euthanasia

In India, abetment to suicide (Section 306 IPC) and attempt to suicide (Section 309) are both criminal offences. This is in contrast to many countries such as the US where attempt to suicide is not a crime.

The Constitution Bench of the Supreme Court in the Gian Kaur vs State of Punjab, 1996(2) SCC 648, held that both euthanasia and assisted suicide are not lawful in India. The court held that the right to life under Article 21 of the constitution does not include the right to die. It observed that euthanasia could be made lawful only by legislation. That decision overruled a two-judge Bench decision of the apex court in the P Rathinam vs Union of India, 1994 (3) SCC 394.

In the Aruna Shanbaug case, with regard to attempt to suicide, the court observed: “We are of the opinion that although Section 309 has been held to be constitutionally valid in Gian Kaur’s case, 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. We therefore recommend to parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code.”

The court held: “…there is no statutory provision in our country as to the legal procedure for withdrawing life support to a person in a persistent vegetative state or who is otherwise incompetent to take a decision in this connection…. this Hon’ble Court lays down the law in this connection which will continue to be the law until parliament makes a law on the subject.

  • 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.
  • 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.”

But in Common Cause vs the Union of India order dated February 25, 2014, three years after the judgment in the Aruna Shanbaug case, the three-judge bench disagreed with the observation and interpretation made in the Aruna Shanbaug case, which upholds the validity of passive euthanasia. The Bench again referred to the Gian Kaur case. In that case, the subject matter of reference before the Constitution Bench was the interpretation of Article 21 relating to the constitutional validity of Sections 306 and 309, wherein, it was held that “right to life” under Article 21 does not include “right to die”. While affirming the above view, the Bench also observed that “right to live with dignity” includes “right to die with dignity”. However, this still did not conclude if euthanasia be active or passive. The only judgment in this regard is Aruna Shanbaug, which upholds the validity of passive euthanasia and lays down an elaborate procedure for executing the same.

—Shailendra Singh


Medical mercy

Author Pinky Virani talks about the suffering of Aruna Shanbaug

Aruna Shanbaug died on November 27, 1973, in the very place where she worked— sodomized, choked with a dog-chain and comatose. Her death certificate, though, will say she died in May 2015. What of the
time in between?

09SM_VIRANI_801721f jpeg

Pinky Virani

I am quite certain this is what Hell must feel like. And those who do not agree may like to practise the following for just a month. Locked in a room on a bed without any movement and frequently no catheter to catch your body wastes. No sunlight. No fresh air. No medical interventions by municipal doctors, which means no consistently administered old drugs, never mind new medicines which have become available as palliative care for patients in persistent vegetative states.

It was left to nurses and ayahs to unstintingly do what they are best at. And yes, this pain-wracked and traumatized woman was also left blind, dumb and largely deaf. Not Hell? Not what my poor Aruna was put through every day, every night in that one room from 1973 to 2015?
And yet, this very woman, in the last years of her hellish life, gave India the gift of a landmark law, Passive Euthanasia Law. The Supreme Court laid down this law in 2011 and in 2014, the government endorsed it. Aruna left this gift for all Indians in her condition so that they need not suffer the way she did.
Tragically, she need not have. The very law she brought in was applicable to her too. What should have been done, as per internationally prescribed standards, was to taper off the liquid feed given to her, slow down the medicines and over a period of 15-20 days, allow the patient to ease into a final rest. In Aruna’s case, the death certificate will likely state that she “died of natural causes”. This, too, can be the quality of medical mercy.

(The writer had filed a petition in 2009 which eventually led to the delivery of the passive euthanasia judgement)


Name and shame law

After the rape and murder of Megan Kanka, a seven-year-old girl by her neighbor, Jesse Timmendequas, in the US in 1994, there was a public outcry.

Investigators discovered that Timmendequas had had two previous convictions for sexually assaulting young girls. In fact, he had pleaded guilty of sexually assaulting a five-year-old girl earlier. He was awarded a suspended sentence but after failing to go for counseling, he was sent for nine months to Middlesex Adult Correctional Center.

megan-kanka-a34cf66eaa02bbf0 name

Megan Kanka (left), Jesse Timmendequas (right)




In the second case, when he pleaded guilty of assaulting a seven-year-old girl, he was sentenced to prison for six years. A therapist who was dealing with him had predicted that he would eventually go to commit another sex crime. But no one listened. It resulted in the rape and murder of Megan. This time, the court sentenced him to death.

This tragic case led to the formation of Megan’s Law, an informal name for law enforcement authorities to make information available to the public regarding registered sex offenders. The offender’s name, photo, address, incarceration date, and nature of crime are put up in the public domain. It can be carried on websites, published in newspapers, distributed in pamphlets or spread through other means.

Megan’s Law is known as the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 1994. It requires persons convicted of sex crimes against children to notify local law enforcement of any change of address or employment after release from prison or psychiatric facility. The notification requirement may be imposed for a fixed period of time. It can be 10 years or more. Will Aruna’s death nudge the government to introduce similar “name and shame” laws in India? It is time it did.

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