In the Aruna Shanbaug judgment, the Supreme Court produced one of its finest verdicts.
The three clear, but nuanced, distinctions it made are a valuable contribution to Indian jurisprudence and have far-reaching implications for social life since each qualitatively diminishes the arbitrary behaviour of those in authority. The first refers to the extensive and thorough deliberations it offered on the nature of human life. The court examined medical literature and the accompanying ethical deliberations in bio-ethics to address the following key questions that were crucial to the case. When can one say that a person is brain-dead and in a permanent vegetative state? What are the rights of such a person? And what are the responsibilities of the care providers and of the state when a person is declared to be in a permanent vegetative state? The court provided clear guidelines on each question. This has implications not just for vulnerable persons such as Aruna, but also for the whole new area of human organ transplant that is mercifully growing. These observations meet the highest standards of global jurisprudence.
A role to further principles The second is its verdict on who is the “next friend” of Aruna — the social activist, Pinki Virani, or the nurses at King Edward Memorial (KEM) Hospital in Mumbai who were caring for Aruna. In other words, who is to decide what is in Aruna’s best interest? Should passive euthanasia be initiated, which is what Pinki Virani wanted, or should she be allowed to die naturally when her body had run its course, which is what the nurses wanted? The court, reviewing the stellar care given at KEM, gave a clear verdict that the nurses were the “next friend”. This too is a major contribution to Indian jurisprudence since it clarified the status, rights and responsibilities of a “next friend”. Brilliant.
The third is its approval of “passive euthanasia” and the stringent procedures that must be followed when such an initiative is to be undertaken.
All three elements of the Aruna Shanbaug judgment show that the higher Indian judiciary has much to contribute to the growth of ethical and legal principles in any constitutional order. On reading the judgment, I was proud of our Supreme Court.
Aruna Shanbaug has died. And in her death, what we thought was a closed case now appears to be a case that is only half done. If the first half was the judgment just discussed — which was the easy bit because it was aligned with public sentiment — the second half is to offer the full protection of the Indian Constitution to her assailant, Sohanlal Valmiki, and his extended family. This is the difficult part since it goes against the public mood that appears to have revived its hostility to him — because of media reports — for the horrific crime he committed 42 years ago. In the life of a constitutional democracy, 42 years is a long time. It is a time for evolution and a time for maturity. It is a time for error and a time for redress. It is time enough for wisdom.
A new crime After 42 years, a new crime against the Constitution is in the making. Sohanlal Valmiki is being condemned to death by starvation. Our public institutions and a complicit society that care little for the last man (don’t believe the Antyodaya stuff being talked about; he’s a Valmiki), and that are acting lawlessly, are punishing him again.
The court has to step in suo motu and intervene reversing what the public sector enterprise, NTPC Ltd., has done by dismissing Sohanlal Valmiki from his job as a daily wage labourer when his identity became known. He cycled 25 kilometres every day to earn Rs.261 a day by heaving coal. His two sons, also daily wage labourers, are now unable to find work because his identity is known. Since they are his sons, they too must be punished like Cinna the poet in Shakespeare’s Julius Caesar . The family, his wife, their sons, their wives and children — as a result of the media investigation — now face the agony of starvation and of intense livelihood insecurity. There is no work available to them.
If “passive euthanasia” was the gift of the first half of the court’s judgment, on the tragic Aruna Shanbaug case, “preventing unjust punishment” must be the gift of the second part of the court’s intervention. In a constitutional democracy, the court does not only have to adjudicate, but also has the responsibility to educate the citizen-public about the principles that underlie our constitutional order. And if that means going against the public mood, against a society and its institutions whose actions are sometimes tyrannical, then it must do so. Sohanlal Valmiki has been demonised. He committed a terrible crime, was tried, and the full force of the law was brought to bear on him. He was punished by the court. He has served his time in prison. Now, he faces double jeopardy. The Constitution must protect him and his innocent family through the Supreme Court which is the custodian of its integrity. The Supreme Court must act suo motu or live with an incomplete case. If it does, it must take responsibility for diminishing a stellar Aruna Shanbaug judgment by its inaction.
Here are the elements of the second half of the case, its afterlife so to speak. These have been culled from the investigations done by the newspapers. They need to be cross-checked. Sohanlal Valmiki was sentenced to serve a term of seven years at Yerwada jail for the ghastly crime he committed on Aruna Shanbaug. The details are known. The facts were presented before a court and he was given the term. (We will not go into the conflictual relationship between Aruna Shanbaug and Sohanlal Valmiki, as reported in the papers, but shall detail his life only after the court sentence.) His daughter died when he was in jail. His wife left him because she could not bear the burden of his crime and the public humiliation that followed. But she came back. He thinks it was fated. He could not find work in Bombay and moved back to his in-law’s village, in western Uttar Pradesh. He is tormented by the crime he committed and, within the terms of his belief systems, was reported by his family to be in a terrible emotional state when the euthanasia case was being heard. He is today very remorseful, very religious and has found a guru. He is tired of the guilt, the humiliation and the hardship, and longs for release to another life. He has a troubled relationship with his sons who have to carry the burden of his crime. His wife has asked the sons to forgive him but they cannot since he has brought the curse of illiteracy and poverty upon them. His brothers are angry with him because he was the privileged one to be taken to the metropolis of Bombay, the land of opportunity, since their father thought he was the bright one who would make good for the whole family. He found anonymity when he returned to his village and rebuilt his life, content to be the “last man” neglected by the state. With all its disadvantages, he found protection in obscurity and had accepted his fate to live out a life in a permanently deprived state till nature had run its course. His grandchildren just love him.
As the lynch mob And then Aruna died. A new story had to be told. The media was on the move. We do not know what editorial and ethical guidelines were given to the investigative reporters but, as a result, Sohanlal Valmiki was plucked from his life of obscurity and placed before the glare lights of the national media. His life was dissected, his personal details revealed, and he was transported from the zone of quasi-protection to the zone of complete insecurity.
The assailant has been found and this is what he does. Here is where he lives. These are the names of his family members. In a competitive media atmosphere, he was stripped naked before the lights. We must reflect on what this means to a man at 66 or 72 years of age, from the Valmiki community, who has been living on daily wages. Is he a simple or a cunning man? I don’t know. Is he now a vulnerable man? Yes, he is. He was dismissed from his job by NTPC even though he had done nothing wrong at work. How can we have the assailant of Aruna Shanbaug on our wage rolls, is what NTPC feels, I suppose. His sons have been unable to find work as well.
The court has to decide how to educate a society such that it stops acting as a lynch mob. It has to defend the Constitution in the second Sohanlal Valmiki case, as it did in the first Aruna Shanbaug judgment. It has to defend Sohanlal Valmiki’s rights and protect the livelihood of his family. We are a constitutional democracy, not a lynching one. It may mean going against the tide. But the court does not have to be popular. It has to be right and just. It has to intervene. The “right to life” that was so exquisitely elaborated on in the Aruna Shanbaug case will be enriched by its suo motu intervention.
(Peter Ronald deSouza is professor at the Centre for the Study of Developing Societies. The views expressed are personal.)
