Tuesday, April 26, 2011

Lok pal bill:How to go about it by Mr S. Lakshma Reddy, Advocate, High Court of A.P.

Drafting lok pal bill: how to go about?

corruption like monopoly price hike and inflation is a cancerous growth: Corruption in any form distorts law,contracts, the natural public and private household budgets,market prices and incomes and in effect affecting and distorting the savings and investments and growth rates.It poses a threat to the orderly growth and political stability of the country.Every effort is needed to remove/ minimise, if necessary with heavy criminal liabilities and punishments and without sparing any "public body" and lokpal bill should work toward that direction but within the seperation of powers legal structure to protect the system and citizens

Public rights and protecction of public interest should have corresponding legal remedies: Public right, public interest,in contrast with private rights and interests are provided with totally inadequate legal remdies in our legal system.the supreme court has devised what is called public interest litigation in cases of violations of public rights/interest resulting in public injury and coruption in high places and abuse of governmental or public powers for political or private gain and also in case of deprived sections to enforce the rights in their favour because of poverty and similiar resons.But with it is a rising trend of complaints of corruption and misuse of judicial power by some judges is also being heard and with it the deamnd for judicial accountability.

Govt Lokpal bill 2010(http://ibnlive.in.com/news/lokpal-bill-to-cover-pm/135533-3.html):The proposed govt lokpal bill 2010 is inherently defective and does not serve tne purpose of protecting the public interest or prevention of curruption in public life, rather increase the same and likely to abused affecting the direction and growth prospects of country.

Political party heads as main sources of coruption in public life:National commission 2001 report exemting the PM point blank from the perview of lokpal is also not a good idea taking the historical global experence.The mode of selection and appointment and removal proposed in lokpal bill is also wrong without sense of purpose and direction.The prior sanction of speaker is abnoxious except against arrest while in session.The vice president, priminister,opposition leader etc as members of committie is repugnant to the idea of pevention of corruption in public life as the persons holding such offices are the main source of corruption and is the reason for the bill since they are the holders of office of political party heads and governmental bodies both legislative and excetive heads in our system of constitutional governance.
We need an altogether new direction on the lines of personal seperation of powers advocated by montesque applied to indian conditions as a part of bringing about uniformity with leading progressive constitutional practices like in US , in an environment of india playing an important role in globalized economic and political world.
The first principle to be remembered is that no two powers to be entrusted to the same body of person over the same subject matter and it should be applicable lokpals.

Recent public anger and Anna Hazare:The complaints that the governments wants to protect corrupt on political grounds than punish and punish only those who are not towing the line of ruling party in power and incase of compromise with opposition to suppress the complainants and votaries of public interest and therefore the credibility deficit, goloring complaints of discontent against the government handling corruption in high places and public interest complaints before the courts and distrust against all political parties have found their expresion in recent public anger protests under the leadeship of Anna hazare.

Younger generation:Are the priminister, sonia gandhi, opposition leaders and political party heads in states and centre are really honest in their public statments to go with AnnaHazare in lokpal bill? and if so which direction? to frustrate it or to operationase it to its desired purpose?. Public and younger generation have become more vigilant to assert the democratic reforms towards transperancy and accountability, to syncronise the country legal system with the new global challenges and oppututnies for their own survival and for that are ready to use the new tools of social networking.

Three problems and possible solution:There are three problems afflicting our constitutional and legal system touching corruption in public life.
1.Lack of independance and autonomy to investigation and prosecution agencies like CBI,CVC and ED etc from political executive.
2. lack of seperate appropriate speedy independant judicial machinary to protect public interest matters including the prevention of corruption in public life and by public servants. 
3. Executive heads combining in themselves both legislative and executive powers and also heads of political parties under the constitution which is breeding the corruption and lack of transparency in public life.The executive control over the police in all its functions is reminiscent of british colonioal legacy not consistenet with democratic system of governnce with protection of citizens from arbitrary and tyrannical exercise of power with little constitutional remedies ineffective in the face of such power.

Read more at http://www.goforthelaw.com/index.php/browsearticles/loadarticleview/144.html

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Monday, April 18, 2011

Public interest under challenge from vested interests by Prof. Madabhushi Sridhar, Professor, NALSAR

When more than 40 crore people living below poverty line do not afford or access or care to seek right to life in Supreme Court of India, Mr. Ratan Tata, $73 bn worth Tata group chief, is seeking to enforce his right to life! He complains that his right to privacy is being violated. He is asking apex court to direct an iron veil of secrecy around Radia Tapes to stop from further publication. It is his privacy! This nation need not know it! It is not about his private conversation with his wife or other family members. His lobbyist-in-chief Mrs. Niira Radia’s  talk with famous journalists, news anchors, MPs, leaders, bureaucrats about politics, business, leadership, coalition, cabinet berths, portfolios, 2G spectrum, Raja, DMK, Congress and so on is private affair according to him. Every bit of it is a private corporate matter or privileged communication, and thus part of his ‘private life’ & right to life. If these secrets are not kept secret, it is difficult for big to survive. It spells end of life. The apex court has to protect that right to life by securing these as secrets!

It is nation’s right to know, as integral part of Articles 21 & 19, which the Supreme Court upheld several times.. If transcripts of 5,851 intercepts do not see the light of the day, that day will be the end of life for rule of law.When three Estates and the Fourth was also figured in the revealing tapes, it was the Fifth Estate, including netizen with the web technology that really exercised freedom of expression and kept the issue in lime light to serve the right to know of India.
After due authorization from the Home Ministry the Indian Income Tax department tapped Radia's phone lines for 300 days in 2008-2009 as part of their investigations into possible money laundering, restricted financial practices, and tax evasion. The tapes revealed that Radia had frequent conversations with politicians, A. Raja, former Telecommunication and IT Minister, Kanimozhi, Rajya Sabha MP, Journalists, Barkha Dutt, Group editor, English news, NDTV, M.K. Venu, senior business journalist, Prabhu Chawla, editor of India Today magazine, Rajdeep Sardesai, Shankar Aiyar, then with India Today Group, Vir Sanghvi, HT advisory editorial director, Industry Heads, Ratan Tata, Tata Group, Tarun Das, former CII head, (Mention of) Mukesh Ambani, Reliance Industries, and Ranjan Bhattacharya  (foster son-in-law of former prime minister Atal Behari Vajpayee), Suhel Seth, management guru and columnist.
In one of the tapes, an unidentified interlocutor asks Ms Radia, whose clients include both Mr. Tata and Mukesh Ambani, why “you people [i.e. the Mukesh Ambani group] are supporting [Raja] like anything ... when the younger brother [Anil Ambani] is the biggest beneficiary of the so called spectrum allocation”. “Issue bahut complex hai,” Ms Radia replies. “ Mere client Tatas bhi beneficiary rahein hain (my client, the Tatas, have also been a beneficiary).” [1]
There was another crucial conversation between Ratnam, Chartered Accountant of Tamil Nadu Chief Minister M. Karunanidhi’s third wife Rajathiammal, Rajathiammal herself and Niira Radia, on June 13, 2010, more than three weeks after the UPA II Cabinet had been formed and A.Raja had been successfully planted as the Telecom Minister and Dayanidhi Maran, was kept out, as desired by Ratan Tata and also Mukesh Ambani, as conversations of Radia with others clearly indicated.[2]
It is also reported that Tata through Voltas (a Tata group organization) is in touch with Niira Radia and Ratnam, CA of (Rajathi)Ammal, wife of (Chief Minister) M.Karunanidhi,. They are apparently going to construct a building in Chennai on a land controlled by “TRIL” (Tata Realty and Infrastructure ltd.) with the Karunanidhi family as a payoff to DMK for keeping Maran out of Telecom (ministry).
Privacy for whom?
Privacy is a right for private persons and also for private affairs of public persons. It is illegal, illogical and unreasonable for public persons to claim privacy for their public activities such as governance, policy making, industry, corporation, formation of ministry and politics. Privacy should not be mistaken with secret business operations causing harm to public institutions. Once a crime is committed, the suspicious persons need to be interrogated or investigated. Those suspected or involved cannot claim privacy and ask for protection of their identity, criminal secrets as privacy as part of right to life. Secret lobbying behind 2G spectrum corruption has to be probed into. Looking into authorized recorded tapes is a required and legitimate process and if it reveals the conversation of big people with political lobbyists, which insist on somebody to be made Telcom minister or not to be made. If these tapes are blocked, the rich and powerful brokers would get emboldened to adjust the deals to escape from the long hands of law. Right to privacy is not secrecy or facility for hiding unethical deals and cornering state wealth through manipulations. If criminals or suspects seek this right no crime could be probed anywhere in the world.

If Tata, Burkha Dutt, Vir Singhvi and others who figured in Radia tapes and Radia herself feel defamed by these revelations, they can test their right to reputation by suing publishers. Certainly they do not have Article 21 protection here. That right is available for victims of crime but not to criminals or their helpers.

Read more at http://www.goforthelaw.com/index.php/browsearticles/loadarticleview/141.html

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Sunday, April 17, 2011

Who makes law for us, Union Cabinet or Union Carbide? by Follow Prof. Madabhushi Sridhar, Professor, NALSAR

Who makes law for this country? Is it the MPs lobby in Parliament or MNC lobby of US nuclear reactor industry? Who will decide ultimately the shape of the Bill to be introduced in Parliament of India? Is it Union Cabinet or Union Carbide? Who will be consulted for shaping the policy? Is it people of India or business people of US?

No consultation with the people

First of all, WE, THE PEOPLE, so called ultimate sovereigns of India since August 15, 1947 after getting liberated from East India Company Rule, should have been consulted as any ‘hazardous and inherently dangerous’ activity that would harm the people while it might fill the Swiss accounts of corrupt politicians and pockets of bribe loving bureaucrats. Every body except invisible environment and unidentified individuals will be happy with the deals and dealers dealing with purchasable leaders. There is no initial consultation process before making the Civil Liability for Nuclear Damage Bill of such nature which victimizes people, their government and offers in gold plate the immunity to makers of genocide technologies such as the machinery of UCC in Bhopal. The Bill is drafted somewhere on the tables of bureaucrats under the directions of UPA II bosses and PMO, whose patriotic fervor has to be doubted now. Then it was a top secret for a long time, until it is exploded with leaks and breaks. Left parties generated hue and cry about the bad law. The BJP also joined it. The Union Government headed by UPA II has been forced to send the Bill for the consideration of Parliamentary Standing Committee on Science and Technology headed by neither a scientist nor a technologist, but by Mr. T. Subbarami Reddy, a former civil contractor of Andhra Pradesh who executed the massive Nagarjun Sagar Dam and faced serious charges of corruption. It is difficult to believe whether this former contractor turned politician understood the terrible implications of the bill which was further diluted by his committee.

Executive overtakes Legislature

Even when the PSC was considering the Bill clause by clause, the Manmohan Government did not hesitate to please the US lobby by deleting clause 17(b) the only provision which might trouble the nuclear technology supplier, from the draft Bill. There was a public outcry with ‘timely injustice’ to Bhopal victims through the judgment of Criminal Court awarding mild punishment to the managers of genocide leaving out those who caused it from foreign territory. This made the people to grow suspicious about the pro-US-industry commitments of Indian Union. In response, the criticism-bitten- Government announces that they would not delete that clause. Then the Department of Atomic Energy presents a list of suggestions including a recommendation to delete clause 17(b). All our future interests of Atomic Energy are entrusted to management of this department which caters to the needs of US Industry, a shame indeed.

Follow Prof. Madabhushi Sridhar, Professor, NALSAR at http://madabhushi.goforthelaw.com

Saturday, April 16, 2011

The Plight of Right to Education: Short of Schools & Teachers by Prof. Madabhushi Sridhar, Professor, NALSAR

(UTF Founder General Secretary Appari Venkataswamy Memorial Lecture 3.4.2011)
Good news is that 2011 census show an increase in literacy rate, but nation is still to worry as 81 lakh of its future generation are out of school.  Releasing the achievements in the first year of implementation of The Right of Children to Free and Compulsory Education Act, 2009, Human Resource Development Minister Kapil Sibal said 81 lakh children out of school was a matter of great concern.
The Children Rights and You, CRY reported that 17282 eligible habitations in India do not have a primary school within one kilo metre of the habitation. Within the sphere of infrastructure, 1, 48, 696 government schools in India are without a building, 165742 schools without drinking water, and 4, 55, 561 schools without toilets. 1, 14, 531 primary schools are single-teacher schools.

Translating a directive principle of state policy (Article 45) into a fundamental right (Article 21A) and then to statutory guarantee to right to education (RTE Act 2009) took, unfortunately, several decades. Provision of free and compulsory education to all children until they complete the age of 14 years is mandated under Article 45,  a Directive Principle of State policy of the Constitution. In the endeavor to increase enrolment and achieve Universal Elementary Education UEE, the state governments have abolished tuition fees in Government schools run by local bodies and private aided institutions.  Right to education is not stated expressly as a fundamental right in Part III. Supreme Court has not followed the rule that unless a right is expressly stated as a fundamental right, it cannot be treated as one. Freedom of press is not expressly mentioned in part III, yet it has been read into and inferred from the freedom of speech and expression and from Article 21 more particularly, sprung up a whole lot of human rights jurisprudence[1].
Right of the People or Duty of the State?
What we got ultimately through the Constitutional and Statutory ‘guarantee’ of right to education, in 2009?  Right to education was not included in the guaranteed list of fundamental rights in Part III. The members of Constituent Assembly thought that the Governments would take the guidance from these Directives and fulfill their obligations towards the people. Article 45 made it mandatory for the Government impart education freely to all children up to 14 years within ten years from the commencement of the Constitution. But the first national Governments did not give any priority to this mandate. The country passed through the decade without any progress in providing education as per Article 45 and then several such decades passed off till 1993, when the Supreme Court questioned the executive about it. Justice Jeevan Reddy rightly said it was no more a directive but a right, and got consolidated into fundamental right with passage of time. It is good to hear that after forty three years the Supreme Court called it Fundamental Right but who will execute it?  Judiciary has expanded the scope of Article 21 by leaps and bounds to secure the quality of Indian living beings.  It includes within its realm, the right to know through education. But again it’s just rhetoric and does not mean any thing more than that, if not supported by a strong executive will and legal mechanism.
Limiting the rights by law and practice
Feeling uncomfortable with the judicial admonition of executive apathy regarding the right to education, the executive Government started ‘limiting’ that theoretic right.  The limitation was clear and visible with 86th amendment in 2002 where it mandated that state shall provide free and compulsory education to “all” children of the age of six to fourteen years in such manner as the State may, by law, provide.  First of all it is not for all children, secondly Government shirked its responsibility towards children of age 0-6 or effectively 2-6 years and 14 to 18 years, and thirdly the manner is determined by the law to be made, which means further shrinking of right. It is strange that the constitutional guarantee of a fundamental right provides within itself enormous power to state to limit that right besides eliminating children of age group from 3-6 and 14 to 18 years.
This is the back ground of Right to Education enactment in 2009, which was not implemented till 2010. The Government chose April 1, 2010 to announce its implementation without any positive change in the situation as to provision of facilities to give education to poor people.
Not even notified!
Disputing earlier figures that only six out of 28 states notified the Act, and presenting a positive note of implementation of the 2009 enactment, the HRD Minister announced that as many as 15 States had notified the Rules. In India officially 13 states, according NGOs 22 states did not initiate process of implementation. After one full academic year is passed by April 1, 2011, only six states and seven Union Territories notified the Act and made rules that too in the last quarter of the year.  Those six states are Sikkim, Orissa, Manipur, Arunachal Pradesh, Andhra Pradesh and Rajasthan. The Government of Andhra Pradesh took at least 10 months to notify the rules (on 22.2.2011). State-specific rules are critical because they outline commitments of state governments on standards they will ensure and details of how they will implement the RTE Act. One year is not a small time and much could have been achieved. Notification of the rules means a financial commitment and employment of other resources to make the legislation a right.
Only 11 states constituted State Commissions for Protection of Child Rights, while 28 States adopted the policy of eight year elementary education. Andhra Pradesh has notified in February, and nine other states notified thereafter.  There was a policy of no detention (failing) in 27 States, 28 states had banned corporal punishment and 26 had done away with board examination up to the elementary level. Several States had also banned private tuition, screening procedure and capitation fee[2]. Another meritorious achievement presented by the minister is that a huge number of children were now enrolled in schools – 13 crore at the primary level and another five crore at the upper primary level. Girl enrolment was 48 per cent. The NGOs question the authenticity of these figures saying that there are several lakhs of children out of school working in fields and factories.
India’s primary education scene looks not particularly alarming on paper. The gross enrolment ratio (GER) from Class I to VIII was 94.9 percent and from Class I to XII, 77 percent. But hiding behind the GER is the sheer number of children who do not attend, or those who drop out. The GER does not take into account the numbers of those who actually attend school, and how many drop out. Government schools lose 25% of their students by Grade V, and almost half (46%) by Grade VIII. 80,43,889 children in the 6-14 age group fall into the ‘never enrolled’ category, and are out of school. 

Lack of awareness

Follow Prof. Madabhushi Sridhar, Professor, Nalsar at http://madabhushi.goforthelaw.com/

[1] B.P. Jeevan Reddy, J., in Unnikrishnan Case para 132.
[2] Aarti Dhar, 8 million children still out of school, The Hindu, April 2, 2011

Friday, April 15, 2011

Stifling voice of complainants impede anti-bribe fight by Prof. Madabhushi Sridhar, Professor, Nalsar

As the Union Government conceded the demands of fasting civil society leader Anna Hazare to constitute a joint drafting committee with equal participation to Government and civil society, there is a hope that an effective draft of Lokpal would emerge which facilitate easy and free complaining process and quick investigation leading to prosecution of corrupt in high places.

Most important factor to seriously attend to is the threat of imposing fines and jail terms for bringing complaints which will be an ante-thesis to fight gratification cancer. The Government’s Lokpal Bill 2010 is not just a strange embodiment of powerlessness but also possesses a hidden interest in blocking the complaints with penal threat. Being draconian against ‘complainants’ and ineffective against corrupt, the bill rises serious suspicions about dubious intentions of the law makers and that is why there is a nation wide response to the anti-corruption agitation led by Anna Hazare.  It is undemocratic and against basic tenets of equity and criminal justice to entrust tribunal with power of summary trial to penalize the citizen for raising voice against the bribery of public servants. The drafting committee should avoid two inherent defects- being weak against corrupt and strong against the voice of complainant, which defeat the purpose of the law. It is highly unbecoming for a Government, being in the thick of scams, to push such a bill, after 45 years of most frustrating wait of the people.

It is a contradiction to empower Lokpal to penalize complainant without giving it such power against proved corrupt public official.  The unreasonable Section 21(3) of the bill enables Lokpal to punish the complainant if ‘complaint is false and made with mala fide intention to harass the functionary’. Section 21(4) has provided that Lokpal could summarily try and punish such complainants with a minimum of one year imprisonment which may go up to three years, imposition of penalty up to Rs. 50,000 and compensate public functionary out of the fine amount. 

Nowhere in the world had any system of criminal justice punished a complainant for lodging a complaint if that turns out to be false. If the system does not facilitate the information and complaints into legal course of action, law could never take its course. If the complaint proved to be malicious and that led to prosecution of innocent the remedy available under the traditional law systems is action in a civil court under law of torts for the wrong called ‘malicious prosecution’, leading to a decree for payment of compensation for proved loss. If some one maliciously fabricates false evidence or gives false witness leading to capital punishment or imprisonment of innocent accused, he can be sentenced with severe punishment under Penal Code. 

Immunity for Bribe-giver complainant

Neither IPC, nor Prevention of Corruption Act PCA (1947 and 1988) provided punishment for complainant. Instead, two enactments against bribe provided immunity to bribe-giver from prosecution based on the statement (S 24 of 1988 Act). The hundred-and-fifty-year old Indian Penal Code was the basic tool for combating corruption in public life. A chapter in IPC on ‘offences by public servants’ consisting of sections 161 to 165 provided a legal framework to prosecute corrupt public servants. Post Second World War scenario of corruption was serious, as unscrupulous elements exploited shortages of law to siphon off huge amounts of public money. The Prevention of Corruption Act 1947 was a drastic legal measure to fight evil of bribery. Without redefining ‘public servant’ and other IPC offences, this law added a new offence ‘criminal misconduct in discharge of official duty’ with stipulation of enhanced punishment from minimum of 1 year to maximum 7 years.  

Provision of immunity to bribe-giver was considered necessary as he might have been forced by circumstances. If this immunity was not provided, all complainants would become liable for punishment, which would deter them from giving complaints against any corrupt public official. When PCA 1988 replaced its earlier version of 1947, the provisions of immunity to bribe giver were retained. This fact is mentioned in paragraph 3.1.3 and 3.2 of Fourth Report of Second Administrative Reforms Commission, chaired by Mr. Veerappa Moily, the then Union Law Minister, under title “Ethics in Governance”, submitted to the UPA Government in January 2007. It is bit of shame that the same Government moves the bill with a deterrent punishment threat to complainant, in utter breach of its own report. Though Jan Lokpal vehemently opposed the jail term to complainant, it favoured financial penalties, which also has deterrent effect. When substantial criminal law offers immunity there is no reason to threaten the complainant.

As the Lokpal is expected to be watchdog over the integrity of Ministers and Members of Parliament, there is a need to strengthen complainant against politically strong and powerful office holders against whom the complaint is made. There is every possibility that the corrupt leaders and bureaucrats of ganging up and disprove the allegations made by complainant, who does not have any equipment or infrastructure to prove the corruption. The Ministers or MPs would have total control over the men and machinery where the corruption occurred and it would be almost impossible for the complainant to prove it. While under anti-corruption law the state takes responsibility to prove charge of corruption against the accused public servant, Lokpal burdens the complainant to prove it with a threat of penalty.

Shifting the burden to accused

If public servant is proved to have accepted any gratification, this law provided that ‘it shall be presumed that the public servant accepted such gratification as a motive or reward under section 161 of IPC (now Section 7 of Prevention of Corruption Act, 1988). This is a very significant presumption that shifted burden of proof to the accused to convince that he was not guilty, unlike the general law where prosecution has to prove the guilt of accused.  While the bill provided one year time frame to investigate and prosecute, it gives power to try ‘complainant’ summarily, which is another baffling provision that terrorize the reporting against bribery.

There are some more meaningless and format based restrictions which discourage complaints. Section 12(2) seeks filing of memorandum of allegations only in a prescribed form, with fee and deposit of an amount of money as mandated. The complainant has to submit the certificate of deposit also. Only exception provided is that a person in any jail or place of custody or in any asylum or other place for insane persons. Their letters will be considered as memorandum of allegations though not in prescribed form.


Another draconian provision of the Bill is that Lokpal can punish with six months of imprisonment any person who intentionally offers insult against Lokpal or members of it while verifying the complaint. (Section 19) The bill does not use expressions like contempt of defamation, but penalizes ‘insult’ without defining what it is.

The drafting committee should keep in mind that entire nation now woke up to watch how the provisions of the bill are evolving and avoid all unreasonable provisions which weaken complaining mechanism. 

Follow Prof. Madabhushi Sridhar, Professor, Nalsar at http://madabhushi.goforthelaw.com

Thursday, April 14, 2011

The Law of Life and Death: Passive Euthanasia by Prof. Madabhushi Sridhar, Professor, NALSAR

To lay down law of life and death, the Supreme Court took the opportunity provided by Pinky Virani in her writ petition seeking permission to end life of terminally ill Aruna Shanbauh, a rape victim lying in vegetative state for 37 years. Disallowing the petition, which means allowing prolonging life of Aruna, the Supreme Court said passive euthanasia could be permitted only when the High Court offers a considered opinion. It also visualized legalizing of passive euthanasia. This reminds that our Parliament is yet to fulfill obligation of enacting a code for terminally ill people like Aruna. Union Law and Justice Minister M. Veerappa Moily went on record saying that the government was examining whether a fresh legislation was required to permit passive euthanasia. The bench of Justices Markandey Katju and Gyan Sudha Misra clarified that until Parliament enacts a law, its judgment on active and passive euthanasia will be in force.

Passive or active euthanasia
The bench explained the terms: “Passive euthanasia would occur when medical treatment is withheld or withdrawn leading to the death of a terminally ill person. Active euthanasia is generally referred to a state where a patient is given a lethal injection or through any other method allowed to die in presence of doctors, while passive euthanasia involves withdrawing the life support system from a patient…. passive euthanasia can be voluntary and non-voluntary. It is voluntary if the patient requests mercy killing”.
The court explained the difference between voluntary and non-voluntary euthanasia. Euthanasia conducted with the consent of the patient is “voluntary euthanasia”, which is legal in Belgium, Luxembourg, the Netherlands, Switzerland, and the U.S. states of Oregon and Washington. When the patient brings about his or her own death with the assistance of a physician, the term “assisted suicide” is used. If euthanasia is carried out on a patient, who is not in a condition to express his or her desire to die, it is called non-voluntary euthanasia. Examples include child euthanasia, which is illegal worldwide but decriminalized under certain specific circumstances in the Netherlands under the Groningen Protocol. In Colombia, the Supreme Court ruled in favor of mercy killing in 1997 and recommended removing penalties over it, but Colombian Congress did not pass any guidelines. If three or four members of family agree, it is legal in Albania. In 1995, Australia’s Northern Territory had approved a euthanasia bill. It went into effect in 1996, but the Australian Parliament overturned the bill the next year. Both forms of euthanasia are illegal in Switzerland; assisted suicide is penalized only if it is carried out “from selfish motives”.   Ireland opposed active contribution for ending the life while legalized removal of life support systems.  In Mexico, active euthanasia is illegal but since 2008 the law allows the terminally ill to refuse medication or further medical treatment to extend life. Though active euthanasia remained illegal in Norway, it has softened penalties if a caregiver takes the life of someone who is “hopelessly sick” and consents to the act.  The Supreme Court of India has allowed passive euthanasia under “exceptional circumstances” it has made clear that active euthanasia is illegal.

Referring to the contentions, Justice Katju wrote: “There is no statutory provision in our country as to the legal procedure for withdrawing life support to a person in PVS or who is otherwise incompetent to take a decision. We agree with [senior counsel] Mr. T.R. Andhyarujina that passive euthanasia should be permitted in our country in certain situations, and we disagree with the learned Attorney General [G.E. Vahanvati] that it should never be permitted.”

Next Friend
Deciding who ‘next friend’ is, the Court held:  “Aruna Shanbaug's parents are dead and other close relatives have not been interested in her ever since she had the unfortunate assault on her. It is the KEM Hospital staff  who have been amazingly caring for her day and night for so many long years, who really are her next friends, and not Ms. Pinky Virani, who has only visited her on a few occasions and written a book on her. Hence it is for the KEM Hospital staff to take that decision. The KEM hospital staff has clearly expressed their wish that Aruna Shanbaug should be allowed to live.”

Who decides?
While laying down the principles under which the passive euthanasia could be allowed, the Bench did not leave the issue to the relatives or next friends or medical experts’ team but, rightly preferred the High Court to decide it with judicious application of mind.  The Bench suggested the High Court could pass suitable orders on the application filed by the near relatives or next friend or the doctors/hospital staff praying for permission to withdraw the life support to an incompetent person. The High Court should seek the opinion of a committee of three reputed doctors to be nominated by it. The committee 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 which should appropriate orders on the application seeking withdrawal of life support.

Read more at http://www.goforthelaw.com/index.php/browsearticles/loadarticleview/137.html

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