Law and Society, Uncategorized

PASSIVE EUTHANASIA: AN ANALYSIS OF SUPREME COURT JUDGMENTS

“No life that breathes with human breath has ever truly longed for death”

— Alfred Tennyson

The humanist undercurrent of Indian Constitution is best realized in its supreme emphasis on the fundamental right to life and liberty. The Constituent assembly sub-committee on fundamental rights had spent hours on preparing the framework on safeguarding life and liberty of people. The idea of inviolability of right to life was so sanctimonious that most of the debate was aimed at developing a modality on how not to infringe upon individual’s life and liberty. The committee had not ventured to define the term “life” as perhaps it started with the basic premise that “life” is so fundamental a concept that a definition of life and its constituents was not required. Such a theoretical understanding is subtly put forth by H.M. Seervai as “Neither the constitution nor any law confers the right to life. The right arises from the existence of a living human body.”[1] However, a lack of definition of life and its constituents has compelled the Courts, in subsequent discourses on the question of right to life, to fall back upon a grossly inadequate premise given by Munn[2] that defined “life as something more than animal existence.” Such a simplistic definition that keeps the interpretation of the term “life” open ended, has resulted in a plethora of legal literature over a period of time.

In this context, it is pertinent to state that the very wording of Art. 21 is negative in nature. The Supreme Court in its earlier deliberations has strictly limited itself to enumerating the various constituents and facets of life that are protected under Art. 21. But since last decade, Supreme Court has tended to attribute a more positive meaning to the Art. 21 and started a discussion about the right of an individual not to live.  There is not an iota of confusion whether; a living human being has the right to life, but whether he enjoys the right to extinguish his own life?  On this issue the British authorities are very forthcoming in declaring that if a patient is in persistent vegetative state, “principle of sanctity of human life must yield to the principle of self determination.”[3] Similarly, going a step further, eminent jurist David Feldman has commented “ A trade off between length of life and quality of life is permissible”[4] In view of a whole gamut of international authorities, there has been a rising demand by various civil liberty groups in India to accord legal sanctity to a limited form of euthanasia. Whenever the topic of euthanasia came for a discussion as in P. Rathinam[5]Gian Kaur[6]and most famously in Aruna Shanbaug[7], the Supreme Court, inter alia, though recognized that right to life also means the right to a dignified life up to the point of death including a dignified procedure of death, it has not expressly accorded a legal sanctity to any form of euthanasia. Instead as in Gian Kaur[8], the Apex Court has ordered that passive euthanasia is permissible only with an enabling legislation. However, deciding on a writ filed by the Common Cause[9], the court in clear terms has declared that right to die with dignity is a fundamental right under Art. 21 and does not require any enabling legislation as a condition precedent for exercising it. Moreover, the Apex Court framed elaborate guideline how to exercise such right in the event of legislative vacuum. With this landmark judgement, does it mean that we have reached the finality of the euthanasia debate?

In order to find the answer to the above referred question, the essay tries to analyze, how over the years, the Supreme Court has developed a grand legal narrative around the concept of euthanasia; from a conservative approach in Gian Kaur[10] to bold and express support in Common Cause[11]. The first section of the essay discusses that through various Supreme Court pronouncements the interpretation of life has been progressed from a strictly negative premise to a positive and progressive premise so that right to die as subsumed under Art. 21 came to be a topic of discussion. The second section elaborates the body of law that has been developed around the concept of euthanasia by way of various Supreme Court Judgments.  The concluding section attempts a critical analysis of the Supreme Court’s stance on the issue and also a brief discussion on the probable consequences of according legal sanctity to passive euthanasia. 


EXPANSIVE INTERPRETATION OF LIFE UNDER ART. 21 FROM A NEGATIVE PREMISE TOPOSITIVE PREMISE: PAVING THE WAY FOR DISCUSSING RIGHT TO DIE

Perhaps right to life and personal liberty guaranteed under Art. 21 has been subjected to judicial test maximum number of times, more than any other fundamental right. It is because of the ambiguous wordings in which the article is phrased. For example, as stated earlier, nowhere in the constitution the term life or personal liberty is defined. Secondly, the negative wordings appear to provide a restrictive interpretation of the article. And finally, major emphasis has been laid on the phrase “due process” and its scope to delimit the right guaranteed under the article. However, as H.M. Seervai says, though the wordings of Art. 21 are negative in nature, they provide for a positive right. ‘What is that positive right’ has been the moot proposition of many judicial pronouncements. The foremost authority on the question of life under Art.21 has been A.K. Gopalan[12], in which the majority judgment opined that right to life is a substantive law and cannot exist in isolation with the other rights guaranteed under Part-III of the constitution, even though they may operate in different planes. However, right to life is conceptually different from other fundamental rights because, as stated in Paramanand Katara[13], “preservation of life is most important because if one’s life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man.” It is most important, human, fundamental, inalienable and transcendental right[14]. When the Art. 21 is read in conjunction with the preamble of the constitution which exhorts to uphold “dignity of the individual”, the only irrebuttable fact that emerges is ‘right to life must also include a life with dignity’. 

But the premise in which the right to life was put into judicial test in A.K. Goapalan[15] was very limited and perhaps the apex court as the conscience keeper of the nation was faced with a strange trade off between national security of a nascent republic and the liberal interpretation of rights of individual. The Apex Court in its wisdom had preferred a narrow interpretation of right to life to give a necessary breather to a newly formed state from receiving an early shock. However, subsequently, there has been a perceived change of paradigm in the interpretation of right to life by the Supreme Court. Such paradigm shift was more visible in the post emergency pronouncements on the question of right to life. Perhaps the Apex Court was just too eager to “wash away the self-inflicted wound” of the Habeas Corpus[16] judgment. In the later interpretations starting from the Maneka Gandhi[17] till Right to Privacy[18], the horizon of right to life has been expanded manifolds riding on the principles of protecting the inherent dignity of human life. 

There is no universal definition of human dignity. It is any quality of a person entitling him to be regarded, respected and honored by others.[19] When Munn[20] says life is something more than animal existence, the ‘something’ refers to the inherent dignity of the individual. Not long after the narrow construal of “life” in A.K. Gopalan[21], the Apex Court tended to give more emphasis on the dignity of life. Justice Krishna Iyer has remarked “Right to life is not a mere existence of life, but it must be a dignified quality of life.” Justice Iyer’s exposition was made more vocal in Maneka Gandhi[22] wherein the Apex Court declared that right to life was not a mere physical right of being alive but included within its ambit the right to live with human dignity. Copiously borrowing from R.C. Cooper[23], the Supreme Court has held that Art. 21 needs to be read with Art. 19. In Maneka Gandhi[24], for the first time, the concept of human dignity was introduced into Indian constitutionalism, which later became the raison d’etre for liberal interpretation and expansive meaning of right to life. Hence, it is a milestone event in the history of Indian constitutionalism as for the first time the restrictive interpretation of Art. 21 of the earlier Supreme Court was put aside for a more progressive and humane interpretation of Art. 21 of the constitution. The liberal interpretation was more fully observed in the subsequent cases. 

For example, Justice Bhagawati was more forthcoming in putting human dignity at a high pedestal while discussing the concept of right to life under article 21. In Francis Coralie v Union Territory of Delhi[25], Justice Bhagawati has exhorted “that right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading and expressing oneself in diverse forms freely moving about and mixing and commingling with fellow human beings.” It means that life of a person is beyond the animal existence. Everyone should be treated with equally.”  In Consumer Education and Research Centre[26], the court has held that, “The right to life with human dignity encompasses within its fold, some of the finer facets of civilization which makes life worth living.”  More recently in Right to Privacy[27]judgment, Justice D.Y. Chandrachud was very vocal in declaring “life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of individual, equality between human beings and the quest for liberty are the foundational pillars of Indian Constitution”. 

From the discussion supra, it can be easily surmised that time and again the Apex court has emphasized that human dignity is an intrinsic element of right to life under Art. 21. The imposition of a normative concept like human dignity in an otherwise negatively codified article has attributed a very positive interpretation to it. This positive interpretation, which is non-restrictive and open ended has resulted in the evolution of different strands of jurisprudence on woman rights, a grand narrative on environmental law, a legal theory on medical ethics and other emergency services and many such newer premises where judiciary has influenced legislation. One amongst the many such interpretations was whether right to life under Art. 21 gives authority to a person to extinguish his own life. 
EUTHANASIA THROUGH VARIOUS SUPREME COURT JUDGMENTS

  • RATHINAM – THE FIRST DEBATE

Since long, though there has been conscious attempt by some legislatures, by way of private member bills, to legalize euthanasia, the topic first came to be discussed in the Supreme Court in P.Rathinam[28]. In the same judgement the court has analyzed the concept of suicide through the prism of many scholarly expositions and arrived at the conclusion that “S. 309 of Indian Penal Code (IPC) was a cruel and irrational provision, and it might result in punishing a person again (doubly) who had suffered agony and would be undergoing ignominy because of his failure to commit suicide.” Copiously quoting various judgments the court was of the view that life in Art. 21 means right to live with human dignity and the same does not merely connote a life of continued drudgery. It takes within its fold “some of the finer graces of human civilization, which makes life worth living”, and that expanded concept of life would mean the ‘tradition, culture and heritage’ of the person concerned. So, when life itself becomes unworthy of living, there is no fault on the part of the individual to extinguish his life. The essence of such a reasoning is that unless the man has full control over his life, he cannot be said to be enjoying right to life. And unless he has the legal right to commit suicide, he cannot be said to have full control on his life. 

Once the court has arrived at the conclusion that S. 309 of IPC was unconstitutional when seen with reference to Art. 21 of the constitution, then as a corollary the court was faced with the question whether a desire for assisted suicide or euthanasia illegal? Though the ratio being the unconstitutionality of S. 309 of IPC, the court went on to speak, “One would be right in making a distinction logically and in principle between suicide and euthanasia, though it may be that if suicide is held to be legal, the persons pleading for legal acceptance of passive euthanasia would have a winning point. “[29] However, the court did not hold euthanasia to be legal, rather it formed an opinion that ‘the justification for allowing persons to commit suicide is not required to be played down or cut down because of any encouragement to persons pleading for legislation of mercy-killing,’ In saying so, the court was ready to acknowledge that the judgment might pave way for a spate of demand for legalizing mercy-killing through legislation.

  • GIAN KAUR – CONCEPT OF A DIGNIFIED DEATH

If P. Rathinam[30] kept the issue of euthanasia as stale-mate till 1996, Gian Kaur[31] was the first case wherein a constitution bench of the Apex Court got an opportunity to revisit the issue. The moot point of law was whether S. 306 of IPC (abetment of suicide) constitutionally valid after the ratio of P. Rathinam[32], which declared S. 309 to be unconstitutional in view of Art. 21. The logic advanced was that if right to die is subsumed under the fundamental right to life and personal liberty then abetment of suicide was nothing but an exercise in assisting the enforcement of fundamental right under Art. 21. The constitutional bench reversed the ratio of P. Rathinam[33] declaring, right to die was not included in the right to life guaranteed under Art. 21 of the constitution. In P. Rathinam[34], the division bench relying upon the findings of R.C. Cooper[35], had used the principle—’ what is true of one fundamental right is true for other fundamental rights.’ Using this principle, the Court had stated as right to express also included right not to express; right to speak also included right not to speak; similarly, right to live can be construed as right not to live also. However, in Gian Kaur[36], the constitutional bench held that rights provided under Art. 21 and rights provided under Art. 19 could not be thought to be operating in the same plane, as stated H.M. Seervai in his commentary on A.K. Gopalan[37]. The apex Court has, multiple times, declared Art. 21 as the most fundamental of all fundamental rights and posited it at a higher pedestal than other rights guaranteed under Part III of the constitution. Besides, it is also pertinent to mention that there is a basic difference between rights given under article 19 and article 21 of the Constitution in the sense that whereas the rights under Art. 19 are available only to the citizen, the rights provided under art. 21 of the constitution is available to everybody. So, drawing a parallel between the two along the principle suggested by R. C. Cooper[38] is fallacious. Rightly, in Gian Kaur[39] the logic of PRathinam[40] was shattered as H.M. Seervai in a different context has said, “Reason is the soul of a judgment, and if that reason ceases (because untenable) the judgment ceases to apply.”[41]

However, the constitutional bench was very clear on the aspect that right to life can not be translated to living life of continued drudgery and hardship. So what succour the man has when his life becomes too unbearable because of serious medical conditions? Where is the fine balance? The court for the first time discussed about medical conditions like persistent vegetative state in view of the interpretation provided by Maneka Gandhi[42], i.e. right to life with dignity. The constitutional bench held that the right to life’ including the right to live with human dignity would mean the existence of such a right up to the end of natural life. This also included the right to a dignified life up to the point of death including a dignified procedure of death. The bench held “In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out.” In fact, the court had provided the premise that, once the irreversible process of death commences, accelerating the conclusion of process of natural death, could not be interpreted as extinguishing one’s life. The court also opined that steps taken to extinguish life in case of patients with terminal illness or patients with persistent vegetative state may be interpreted as actions taken to exercise the right to life with dignity so that the period of suffering is reduced. In saying so, it is necessary to mention that the court has provided a subtle difference between suicide and euthanasia. In suicide, a person commits some overt acts which cannot come under the protection of Art. 21 as those overt acts violate the sanctity of life. On the other hand, in case of patients with persistent vegetative state, a willingness on the part of the patient or the near ones to discontinue a life saving medical equipment is not an overt act disregarding the sanctity of life; it is at best an act to spare the life of unbearable sufferings in the event of commencement of the process of death. Hence, this is not hit by Art. 21 of the constitution. Having said so, it must be understood that, the constitutional validity of euthanasia was not the moot point of law in Gian Kaur[43]. Though the constitutional bench discussed the seminal decision of Airedale[44]threadbare and in principle agreed to the ratio of that case, it was very vocal in declaring, “un-due emphasis on that aspect and particularly the reference to euthanasia cases tends to befog the real issue of the constitutionality of the provision and the crux of the matter which is determinative of the issue.”[45] Hence, the discussion on euthanasia was at best a passing reference.

  • ARUNA SHANBAUG – A STEP TOWARDS LEGALIZING PASSIVE EUTHANASIA, YET FRAUGHT WITHINTERNAL INCONSISTENCIES

PRathinam[46] and Gian Kaur[47] were decided on the constitutional validity of S. 309 of IPC. And in each judgement the court drew a parallel between attempted suicide and euthanasia. But it was in Aruna Shanbaugh[48]that the Apex Court, for the first time, was directly faced with the constitutional validity of euthanasia. When mercy killing petition on behalf of Aruna Shanbaug[49] was preferred before the Apex Court by way of a writ petition, the bench had all the liberty at their disposal, especially in view of the findings of Gian Kaur[50], to dismiss the petition. But instead of dismissing the petition under article 32 of the constitution as per the ratio of Gian Kaur[51] (i.e. in the event of right to life not including right to die, the petition could not have proved that any fundamental right was violated) the bench wished to go deep into the merits of the case because of the important issues involved. By admitting the writ petition itself, the bench started off with the view that the stand of the Apex Court on the issue of euthanasia was inconclusive.

In the Aruna Shanbaug[52], the Supreme Court accepted the view point of T.R. Andhyarujina who acted as Amicus Curiae to the Supreme Court. According to his submissions, in common law principle every person has the right to take a decision about his life free from all restraints or interferences. Every adult person of sound mind has the right to decide what shall be done with his body. T. R. Andhyarujina stated, “In the case of medical treatment, for example, a surgeon who performs an operation without the patient’s consent commits assault or battery.”[53]  This means it is entirely the prerogative of an adult patient with sound mind to refuse medical treatment.  The Apex Court in ArunaShanbaug[54] terms this as the principle of self determination or informed consent. This principle is applicable when a patient with sound mind requires the life support to be discontinued. In his submissions, T.R. Andhyarujina extrapolated the issue to a little further when he opined that, the principle of self-determination can be expressed at an earlier date before the patient becomes incompetent to communicate (enters coma or persistent vegetative state). Such an expression of self-determination is known as living will and there is no illegality if the Doctor accedes to the request of the patient for not availing treatment. Refusing medical treatment very well comes within the ambit of right to privacy. Chelameswar J. in Right to Privacy judgement has stated, “An individual’s rights to refuse life-prolonging medical treatment or terminate his life is another freedom which fall within the zone of the right of privacy.”[55]However, Aruna Shanbaug’s case was not that of informed consent or a living will. She was not able to communicate her decision because of her physical incapacitation. In such a situation, according to the Apex Court, the principle of best interest of the patient need to be observed. The moot question the principle shall be asking, whether discontinuation of life saving treatment that could have prolonged the life is in the best interest of the patient. Unlike a substituted judgement or judgement by surrogate, that is in vouge in the USA, a team of competent authority must decide that is the best interest of the patient when she or he is unable to communicate her or his opinion. Having accorded legal sanctity to concepts like “self-determination”, “living will” and “best interest of the patient”, the court for the first time went on to provide a clear distinction between active euthanasia and passive euthanasia. The bench remarked, in active euthanasia some overt act is committed to end the person’s life whereas in passive euthanasia some act which is required to preserve the person’s life is not done. The bench believed passive euthanasia was not illegal and went on to provide an elaborate procedure to decide on the cases of passive euthanasia, especially when the patient is in a persistent vegetative state and it is warranted to take a decision for the best interest of the patient. The court has put emphasis on the fact that passive euthanasia can be allowed only through a legislation as per the interpretations of Gian Kaur[56]. But is this interpretation tenable? And alternatively, when the bench agreed to the submission made by Amicus Curiae T. R. Andhyarujina that passive euthanasia not being violative of Art. 21 can be legally allowed, what was the necessity to exhort for a parliamentary legislation?

  • COMMON CAUSE – PUTTING THE DEBATE TO REST

The questions posed supra came for a threadbare discussion in a constitution bench assembled to decide the CommonCause[57] petition. The bench was verbose in holding that dignity is an integral part of the right to life guaranteed under Art. 21 of the constitution. Dignity as a concept alludes an all-encompassing definition. It refers to the intrinsic value of every human being, which needs to be respected.[58] To preserve this intrinsic value of human being, the bench held that it is essential to interpret Art. 21 in an expansive manner so that right to life with dignity has to include the smoothening process of dying when the person is in a persistent vegetative state or is living exclusively by the administration of artificial aid that prolongs the life by arresting the dignified and inevitable process of dying. Both in Gian Kaur[59] and in Common Cause[60], the Supreme Court talked about a dignified process of dying. Closely associated with the concept of dignified process of dying with respect to a terminally ill person is the issue of self-determination which was also discussed in Aruna Shanbaug[61]. As per common law, an adult person is well within individual right to refuse any medical treatment. After Right to Privacy[62] judgement, the right to privacy is a fundamental right and cannot be infringed upon without consent. However, this concept was further analysed by the bench in the prism of morality, medical ethics and state interest. Can a doctor break his Hippocratic oath which requires him to provide medical treatment and save life and not to put an end to life by not treating the patient? 

It must be understood that there is a major difference between denying treatment to a patient and withdrawing life support to a patient for whom the process of dying has already set in and the probability of recuperation from the ailment is negligible. In the later case, there is no overt act to deny medical treatment to a patient. It is a mere omission on the part of the medical practitioner after acceding to the patient’s request through modality of either a living will or surrogate judgement. It is not the case of active euthanasia that the doctor needs to do an overt act to extinguish a life of a patient. He only avoids unnecessary intrusion in the physical frame of the person, respecting his right to privacy, for the purpose of smooth exit from life. The bench opined that, sustenance of dignity and self-respect of an individual is inhered in the right of an individual pertaining to life and liberty. It is paramount for an individual to protect his dignity as an inseparable part of right to life which engulfs the dignified process of dying sans pain, suffering and most importantly sans indignity.[63] When faced with a trade-off between Doctor’s Hippocratic oath and individual’s right to self-determination, primacy of the right of the individual must be posited at a higher pedestal. Sometimes, a line of argument may surface that the state has been constitutionally mandated to provide medical treatment and to see that nobody dies because of lack of treatment. But state interest needs to be relegated to uphold the right of the individual. 

No doubt, the court was very vocal about the right of the individual for self-determination, but how shall it be achieved in case of patients who are in a persistent vegetative state or otherwise incompetent to exercise their informed consent? In such cases the court relies upon the modality of advance medial directives. Black’s law dictionary defines Advanced Medical Directive as “a legal document explaining one’s wishes about medical treatment if one becomes incompetent or unable to communicate.” There are various types of advance medical directives, but all serve the similar purpose of not subjecting a patient to unnecessary medical facilities and also designating a person who can take decision about the patient in the event of his inability to communicate. Living Will as described in Aruna Shanbaug[64] is an advance medical directive which is characterised by a document prescribing a person’s wishes regarding the medical treatment the person would want if he was unable to share his wishes with the medical care provider. The document is prepared when the patient is healthy in mind and can verbally or non-verbally express his willingness or consent. If during the course of treatment, the patient loses his ability to communicate, then the medical practitioner may resort to the directives provided in the living will. Medical power of attorney, a second form of advance medical directive, is a document which allows the patient to appoint a trusted person as his agent to take health care decisions when the patient is unable to do so. The underlying logic of such an arrangement is that the agent can interpret the patient’s decision based on their mutual knowledge and understanding. From a practical standpoint, medical directives and living wills facilitate a person’s medical care and decision making in situations when they are temporarily or permanently unable to make decisions or verbalize their decisions. By having previously documented personal wishes and preferences, the family’s and physicians’ immense decision-making burden is lightened. At the same time, patient’s autonomy and dignity are preserved by tailoring medical care based on one’s own choices regardless of mental or physical capacity.[65] The above advance directives become operable only in the event of patient’s incapacity to communicate. The court was very forthcoming in accepting the fact that in India, no legal framework exists for Advance Medical Directives other than the reference of a division bench in Aruna Shanbaug[66]to appeal to the High Court under art 226 of the Constitution. The Constitution bench in the Common Cause[67], has enumerated a detailed guideline as well as safeguards for advance medical directives. Relying upon the judgement in Vishaka[68] case, the bench has opined that in the event of legislative vacuum the court is well within its rights to provide detail guidelines in urgent matters till appropriate legislation comes into existence.  

The bench in a copious zeal to fill the legislative vacuum in the area of euthanasia, has enumerated a detailed guideline for cases where advance directive exists. The court has developed a standard operating procedure as to when advance directives become operational, who can execute those directives, what is the procedure for administering the passive euthanasia and the procedure to legally validate such act. However, court’s intervention has not been limited to only those cases for which advance directive exists, rather the essence of the Common Cause[69] judgment lies in its dealing with cases where no advance directive exists. The court has relied upon the principle of “best interest of the patient” as propounded in Aruna Shanbaug[70] and dictated that, in the event of absence of an advance directive, the procedural guideline needs to be in place. The Standard Operating Procedure in this case is exactly similar to the cases where Advance Directive exits, except for the fact that, in the later case whereas the conditions provided in the advance directive become the condition precedent for taking a decision, in the later case the treating physician has to initiate the proposal based on his own subjective understanding of the medical condition of the patient. In both cases there is a two-tier check and balance system by medical experts and a third tier of validation through judicial magistrate. A careful analysis of the guidelines suggest that the internal checks and balances envisaged by the court are in no way an obstacle for exercising the right to passive euthanasia because when the appeal of passive euthanasia is rejected at any of the stages, the patient or his relatives may appeal to the High Court under Art. 226 of the constitution and the Supreme Court has mandated that in the event of such a situation the High Court will constitute a division bench, may seek further medical opinion and take a decision keeping the best interest of the patient in mind. The bench also exhorted the High Courts to expeditiously adjudicate when such matters come to the court. 

The Common Cause[71] is a landmark judgment as far as the concept of right to die and passive euthanasia is concerned, because before this judgment, Aruna Shanbaug[72] the only authority to discuss passive euthanasia was based on a faulty assumption (that is Gian Kaur[73] accepted the view of Airdale[74] ) and also fraught with internal contradictions in the sense that on one hand it supported the view that passive euthanasia could be made legal only through legislation whereas on the other hand it went on framing a detail guideline to administer passive euthanasia. However, in the Common Cause[75] case, all confusion was dispelled in no unclear terms. The constitution bench was unanimous on the view that right to die with dignity is a fundamental right enshrined under the expansive meaning of life under Art. 21 of the constitution. By asserting right to die as a fundamental right, there is no absolute obligation of a statue to bring passive euthanasia to effect. However, as Sikri J. hopes that “the Legislature would step in at the earliest and enact a comprehensive law on ‘living will/advance directive’ so that there is a proper statutory regime to govern various aspects and nuances thereof which also take care of the apprehensions that are expressed against euthanasia.”[76]

There is another entirely different premise to analyse the concept of passive euthanasia i.e. human life and its technological interface. The all invasive technological interventions have creeped into every walk of human life, enslaving it to a massive extent. Hence, it is high time that a technological self-determination needs to be recognized.  Technological self-determination is the right to determine the extent and manner in which one will take advantage of technology. It includes right to have equal access to human enhancement and technological empowerment. An individual has the constitutional right to privacy and self-determination to opt into or opt out of technological systems. It is the duty of the state to engage individuals with technological systems as citizen having individual choices and not as subjects. Dipak Mishra CJI has stated in Common Cause[77] judgement that “In the context of health and medical care decisions, a person’s exercise of self-determination and autonomy involves the exercise of his right to decide whether and to what extent he/she is willing to submit himself/herself to medical procedures and treatments, choosing amongst the available alternative treatments or, for that matter, opting for no treatment at all which, as per his or her own understanding, is in consonance with his or her own individual aspirations and values”. The foremost international authority on the question of self-determination with reference to advance medical technology is the Airedale[78] in which Lord Goff held that the principle of sanctity of human life must yield to the principle of self -determination. If a terminally ill patient who can take informed decisions, refuses treatment or care through which his life may be prolonged, the treating physicians must give effect to his wishes. The ratio of Airedale[79] was accepted, in principle, in the Common Cause[80].
BLURRED DIFFERENCE BETWEEN ACT AND OMISSION

The Common Cause verdict has been a landmark judgement affecting the most basic of the fundamental rights guaranteed by Constitution of India—the right to life. It has changed the entire concept of life with dignity by declaring that the principle of Sanctity of Life is not inviolable and in certain circumstances the best interest of the patient overrides it. A very progressive interpretation, mostly in tune with the leading foreign authorities on the question of euthanasia, but is it bereft of internal inconsistencies?  The Constitution bench was most vociferous in declaring the premise of Aruna Shanbaug[81] as faulty and fraught with internal inconsistencies and donned the mantle of a crusader to undo the ratio of Aruna Shanbug[82]. Sadly, the Common Cause[83] judgement could not do much to remove all internal inconsistencies. Firstly, is the difference between “act” and “omission” so obvious? Chandrachud J. admits the distinction between an ‘act’ and an ‘omission’ gets blurred at times and in fact ‘omission’ may indeed amount to a positive act in some situations. He labours through lot of authorities, both Indian and foreign, to make home the point that even if the omission (of not providing life support to a terminally ill patient) amounts to death, it cannot be termed as a crime because the necessary mens rea is lacking on the part of the person conducting the passive euthanasia. The logic provided is that once the process of dying sets in, withdrawing the life support system does not mean a positive act to cause death of the person. But no medical professional can be sure about the onset of the dying process. For example, recent studies using functional magnetic resonance imaging (fMRI) show that some patients in a persistent vegetative state may be able to understand spoken words, including their own name.[84] In such a scenario, does the court have a wherewithal to understand what constitute the best interest of such a patient. Aruna Shanbaug was a classic example. She was a persistent vegetative state patient but was capable of displaying certain emotions like likeness towards certain cuisine and certain genre of music. She was given the best possible care by the medical staff of King Edward Medical College, so much so that in forty years not a single bed sore had appeared on her person. In such a case, would passive euthanasia have been for the best interest of Aruna Shanbaug?  If the staff of KEM college had not protested vehemently against the demand of passive euthanasia, would a decision taken supporting euthanasia have not been violative of the fundamental right to life of Aruna Shanbaug?

  • PALLIATIVE CARE AS AN ALTERNATIVE GETTING DISCARDED

Apart from the persistent vegetative state patients, a second category of terminally ill patients, who can communicate, may seek euthanasia, not because it was for their best interest, rather it is due to unrealistic fear of pain and suffering or the patients are under duress because of mounting medical expenses. Similarly, there may be many reasons for which a person may seek passive euthanasia, but he may not mean it every time. Chochinov et al have found that fleeting or occasional thoughts of a desire for death were common in a study of people who were terminally ill, but few patients expressed a genuine desire for death.[85] The will to live fluctuates substantially in relations to anxiety, depression and sense of wellbeing of the patient.  One rebuttal to the afore-stated argument may be that the court has prescribed a lengthy procedure of checks and balances to identify the deserving cases. Such checks and balances may not be able to screen all the non-deserving cases. 

On the other hand, proper palliative care may be sufficient enough to prevent a person from feeling any need to contemplate euthanasia. Broeckaert defines palliative sedation as “the intentional administration of sedative drugs and combinations required to reduce the consciousness of a terminally ill patient as much as necessary to adequatelyrelieve one or more refractory symptoms.”[86] From the definition the aim of palliative therapy is not to extinguish life, but to relieve the symptoms. There is no algebraic formula to take End of Life (EOL) decisions for terminally ill patients or patients in persistent vegetative state. A decision of such kind may either uphold the principle of sanctity of life (choosing palliative measures) or contemplate a dignified procedure of death (choosing the passive euthanasia)[87].  In such a queer trade-off if palliative care can provide a dignified existence of life till natural death, what may be the need for passive euthanasia? It is pertinent to revisit Aruna Shanbaug’s life story of travails and tribulations. She was not denied proper medical care at any point of time till her natural death. She had been treated as a family member by the staff of KEM College for almost four decades. So, can it be said that her journey towards her natural death was not dignified? Legalizing euthanasia may reduce the availability of palliative care. 

  • SLIPPERY SLOPE TREND OF EUTHANASIA AS A PUBLIC POLICY

A related fall out of legalizing passive euthanasia is the probability of slippery slope effect. A slippery slope argument is a consequentialist logical device in which it is asserted that a relatively small first step leads to a chain of related events culminating in some significant negative effect. With the Common Cause[88] judgement, passive euthanasia, voluntary or non-voluntary, has obtained a legal sanctity. However, many critics believe the voluntary euthanasia as a public policy may gain elasticity so much so that it will include non-voluntary euthanasia as well as involuntary euthanasia. As stated earlier the Common Cause[89] already paved way for non-voluntary euthanasia propounding the theory of the best interest of the patient. Though J A Burgess opines[90] that there is not enough evidence supporting the slippery slope argument against euthanasia, the case study of Belgium which has legalised voluntary euthanasia in 2002 shows a very grim picture. A study conducted by Sigrid Dierickx[91] et al about the incidence of euthanasia death in Belgium reveals that the number of reported euthanasia cases have increased every year from 235 in the year 2003 to 1807 in 2013. Further what was envisaged for terminally ill patients, over the years, true to the nature of slippery slope argument, the Belgian euthanasia law has got stretched to include patients who are not terminally ill and patients whose conditions are chiefly psychological in nature. To cite an example, Nancy Verhelst opted for euthanasia on the aftermath of a botched-up sex change operation in September 2013.[92] A psychological problem which ideally should have been dealt through counselling mechanism has to end in euthanasia.  Raphael Cohen-Almagor has said that doctors often would not discuss the matter of euthanasia with the family members of the patients, as they feel that it is a “medical decision” and must be made by the doctor alone. He says, “It is worrying that some physicians take upon themselves the responsibility to deliberately shorten patients’ lives without a clear indication from the patients that this is what they would want.”[93] If a news report is to be believed, “More than 100 nurses admitted to researchers that they had taken part in ‘terminations without request or consent’”[94]. Belgium is a burning example of as to how legalizing voluntary euthanasia invariably entails involuntary euthanasia. Checks and Balances provided under Common Cause[95] notwithstanding there is a distinct probability that a legislation allowing voluntary euthanasia may get diluted to include involuntary euthanasia too. The confidence reposed by the constitution bench on the guidelines may prove to be too simplistic to arrest the trend of slippery slope, if it sets in.

  • AN ISSUE FOR THE RICH

Chandrachud J. has discussed extensively on the economy of euthanasia. Quoting S. Nagral, he opines that euthanasia/active euthanasia may become “an instrument of cost containment.”[96] He has quoted S. Nagral extensively wherein the later has advocated that the costly medical care is a relevant fact for the proposed legitimatization of passive euthanasia. However, the stark reality is that euthanasia is an issue of the rich. The poor are rarely put in a life-support system. Sikri J. also discusses the economy of euthanasia and poses two questions: “First, because of rampant poverty where majority of the persons are not able to afford health services, should they be forced to spend on medical treatment beyond their means and in the process compelling them to sell their house property, household things and other assets which may be means of livelihood. Secondly, when there are limited medical facilities available, should a major part thereof be consumed on those patients who have no chances of recovery?”[97]. The first question put by Sikri J. warrants a bit elaboration. It cogently juxtaposes cost of medical care against poverty. He seems to opine that there is no meaning in forcing the poor to spend on medical treatment where the chance of recovery is negligible. Such a view is very dangerous in the sense that it does recognize the exorbitant cost of advance medical treatment but fails to recognize that it is the duty of the state to provide adequate and all advanced medical care to the person needing it. If the state performs its constitutionally mandated duty to provide necessary medical facility to the poor including affordable palliative therapy to the terminally ill patients, may be the poor would not be compelled to sell their house property, household things and other assets which may be means of livelihood. Second issue is also very dangerous in the sense that it may entail a point of view that if limited medical facility is available then there is no point to get those facility consumed on those patients who have no chance of recovery.  Such a proposition is bound to violate Art. 14 of the constitution. Despite the ardent logic provided by Sikri J., quoting P.R. Ward, about the interplay of economic perspective and ethical perspective in deciding the question of euthanasia, it needs to be understood that if the government hospitals are ill equipped then it is the responsibility of the state to equip them with quality man and technological power so that adequate medical facility should not remain limited to only the privileged class. A counter logic that ‘because of inadequacy of health care facilities, euthanasia should be legalized’ is highly unethical to say the least. Adopting such a logic may yield unwarranted and undesired results. Sushila Rao in her seminal essay states, “In the absence of adequate medical insurance, specialized treatments like ventilator support, kidney dialysis, and expensive lifesaving drugs administered in private hospitals can turn middle-class families into virtual paupers. Poorly equipped government hospitals simply do not have enough life-support machines compared to the number of patients who need them…. This also leads to the inevitable possibility of a comatose patient’s family and relatives potentially exploiting the euthanasia law to benefit from a premature death, by way of inheritance, etc.”[98]

Similar is the fate of the provision of advance medical directives in the form of a living will. The privilege of living will can be exercised only by the educated people. A society riddled with ignorance, illiteracy coupled with widespread poverty cannot facilitate the concept of advance medical directives or living will to every member of the society. So passive euthanasia may remain a topic of discussion or a debate only for the elite. 

  • LOOKING FROM MEDICAL PRACTITIONER’S PERSPECTIVE

The judgement needs to be seen from a medical practitioner’s point of view also. The bench is unanimous on the aspect that right to life also includes a right to die with dignity i.e. to lead a dignified life to the end. The court discusses the difference between the omission and intentional act and declares passive euthanasia does not require the doctor to extinguish a life, rather facilitate the death process by withdrawing the system that prolongs the life. As Dr. Shah Alam Khan, Dept. of Orthopedics, New Delhi, says “Thus, for many of us who treat terminally sick patients, the judgement appears blemished as it bestows death (through passive euthanasia) upon some while ‘actively’ denies it to others.”[99]  Secondly, the court allowed passive euthanasia for terminally ill patients or patients with a persistent vegetative state. However, the spectrum of a medical condition like “terminal illness” or “Persistent Vegetative State” is very broad and every case need not elicit as emotive response as that of Aruna Shanbaug[100] case. As a result, there is possibility of misuse of the provision of passive euthanasia by doctors, kin and even by the patients. It is pertinent to note that in western countries, wherever euthanasia is legally permissible, it is administered by hospice and palliative experts. However, in India, the system of hospice is non-existent. This fact was ignored by the bench while formulating a detail guideline towards administration of passive euthanasia. 

  • PROCEDURAL CUMBERSOMENESS AND JUDICIAL FORAY INTO LEGISLATIVE SPHERE

Finally, taking shelter under the Vishaka[101] judgment, the court has framed elaborate guidelines for implementing passive euthanasia. The guidelines are unnecessarily complicated and time consuming to implement. Though validation by high court as a requirement of passive euthanasia has been removed, the court has interjected another judicial intervention through a judicial magistrate of first class who will be having key role in registering as well as executing the advance directives. Such cumbersome procedure ought to bring unnecessary delay in the decision-making process about euthanasia. In case of a terminally ill person, when the time is paramount, the lengthy process is bound to put the family members of the patient in unimaginable agony and uncertainty. At this juncture it appears to be relevant to discuss on the need of judicial legislation pending a law framed by the legislature. Indian Constitution has clearly demarcated the role of executive, legislative and judicial organs of the state. Though certain level of overlap is always present, judiciary acting like a legislative body should be the last resort, to uphold a fundamental right. A routinised judicial legislation is violative of the concept of separation of power provided in the constitution. The 241st report of the law commission has already suggested for legalizing a form of passive euthanasia. The court after according legal sanctity to passive euthanasia, could possibly have waited for the legislature to frame an appropriate law, instead of framing a detail procedure for administering euthanasia. T

THE LOGICAL AFTERMATH MAY BE DANGEROUS

What is the logical aftermath of this judgment? A careful perusal of the constitution bench verdicts in last one year (especially Right to Privacy[102] judgement and now Common Cause[103] judgement) shows that the Apex Court has been too eager to be a crusader for upholding the individual rights when it is juxtaposed against the state interest. Faizan Mustafa commenting on the Common Cause[104] judgement has opined in a blog “The best part of the judgement is that it has taken human dignity, autonomy and self-determination to such a level that the government should start worrying about the impending Aadhar verdict, particularly since the same five judges are hearing the Aadhar matter and have issued an interim order which has indefinitely extended the deadline of linking of Aadhar with PAN and mobile till the judgement is delivered by them.”[105] If the triumph of individual’s right of self -determination continues, will the buck stop at passive euthanasia alone? The courts in the three verdicts related to euthanasia have very clearly stated that active euthanasia per se is not legal in India. But as Sushila Rao comments, “The rights declared in Common Cause case extends to active euthanasia in circumscribed circumstances.”[106] The Active versus Passive euthanasia distinction is based on the dichotomy of intention versus causation of death. Chandrachud J., as stated earlier also, has elaborated on the difference between omission and act. Notwithstanding the fact that difference between omission and act gets blurred more often that not as discussed supra, the artificial distinction between the two is ethically not sustainable. Lady Hale in Nicklinson v. Ministry of Justice[107] has stated that “Why does active assistance give rise to moral corruption on the part of the assister (or, for that matter, society as a whole), but passive assistance [does] not?”

The court was very forthcoming in accepting the fact that right to life also includes the right to die with dignity. In this premise, one may look at the Diane Pretty[108] case of U.K. Diane Pretty, though mentally capable of taking decisions, was suffering from motor neuron disease and was paralyzed neck down, had little decipherable speech and was fed from a tube. She required an assistance to effectuate a dignified and bearable death, but her request was tuned down by the House of Lords and later by European Court of Human Rights. So, in short, Diane Pretty, who required assistance to access a recognized fundamental right was denied such assistance as active euthanasia was not legal. No doubt Diane Pretty had exasperated “I feel, I have no rights”. The dichotomy of active and passive euthanasia is handiwork of the court and not necessarily valid. As Suhsila Rao says, “To be clear, these inherent contradictions are the inevitable outcome of fragmented rule-making by courts hamstrung by the lack of a comprehensive and coherent legislative and policy framework. Active versus Passive Euthanasia distinction is an elaborate and flawed judicial construct arguably necessitated by overarching policy concerns, namely, potential for abuse by unscrupulous individuals; the spectre of criminal prosecution of benign doctors and families; and the exercise of judicial restraint on a sensitive issue that warrants legislation embodying the democratic will.”[109] Once right to die with dignity is established as a fundamental right, there should not be an impediment for a person who needs assistance to exercise such right. With the legalization of passive euthanasia, the day is not far when the legal status of active euthanasia and physician assisted suicide will be discussed. 


CONCLUSION

The criticisms notwithstanding the stance of the Apex Court on the issue of right to die with dignity in general and euthanasia, in particular, has been consistent with the expansive interpretation of right to life guaranteed under article 21 of the constitution. The fundamental rights guaranteed under the constitution are the extensions of the natural rights of the person and natural right of a person for self- determination needs to be held in highest esteem whilst viewed under the prism of right to life. Before the Common Cause verdict, many legal literatures in India like the Law Commission reports (196th and 241st) have recommended for legal sanctity to passive euthanasia with necessary safe guards. The Medical Treatment of Terminally Ill Patients bill 2013 also recognized the right to self-determination and living will in it, though it is yet to be passed by the parliament. In view of huge legal background to the issue of euthanasia, especially after the Common Cause[110] verdict, it is high time that the legislature frames appropriate legislation with necessary safeguards so that while the individual’s right to self determination is accorded the highest status, it is not misused by unscrupulous elements. Judiciary having shown the way, it is the time that legislature takes up the issue henceforth to a logical conclusion. 


[1] H.M. Seervai, Constitutional law of India (Volume I, Fourth Edition, Silver Jubilee Edition, Universal Law Publication Co. Pvt. Ltd., P. 11.32-33 Page 989)

[2] Munn v Illinois 24 L ED 77; 94 US 113 [1877]

[3] Airedale National Health Service Trust v. Bland [1993] AC 789

[4] David Feldman: Civil Liberties & Human Rights in England & Wales

[5] P. Rathinam v Union of India [1994] SCC 394

[6] Gian Kaur v State of Punjab [1996] SCC (2) 648, [1996] AIR 946

[7] Aruna Ramachandra Shanbaug v Union of India, [2011] 4 SCC 454

[8] Gian Kaur (n 6)

[9]  Common Cause (A Regd. Society) v Union of India and Another [Writ Petition (Civil) No. 215 of 2005]

[10] Gian Kaur ( n 6)

[11] Common Cause ( n 9 )

[12] A.K. Gopalan v The State of Madras [1950] SCR 88

[13] Pt. Paramanda Katra v Union of India 1989 AIR 2039, 1989 SCR (3) 997

[14] Indian Bar Review, Vol. XIX, 1992, P. 100

[15] A.K. Gopalan (n 12)

[16] A.D.M. Jabalpur v Shivkant Shukla (The “Habeas Corpus Case”) [1976] Supp. S.C.R. 172, [’76] A.SC. 1207

[17] Maneka Gandhi v Union of India [1978] AIR 597, [1978] SCR (2) 621

[18] Justice K. S. Puttaswamy (Retd.) and Anr. v Union of India And Ors WRIT PETITION (CIVIL) NO 494 OF 2012

[19] Ravi Rajan,’ Interrogating the Conceptualization of Human Dignity: A Human Rights Perspective’ Social Action Journal, Vol. 65, No. 03, July-Sept. 2015, ISSN No. 0037-7627, P. 26

[20] Munn (n 2)

[21] A.K. Gopalan (n 12)

[22] Maneka Gandhi (n 17)

[23] Rustom Cavasjee Cooper v Union of India 1970 AIR 564, 1970 SCR (3) 530

[24] Maneka Gandhi (n 17)

[25] Francis Coralie Mullin v The Administrator 1981 AIR 746, 1981 SCR (2) 516

[26] Consumer Education & Research v Union of India & Others 1995 AIR 922, 1995 SCC (3) 42

[27] K. S. Puttaswamy (n 18)

[28] P. Rathinam (n 5)

[29] P. Rathinam (n 5)

[30] P. Rathinam (n 5)

[31] Gian Kaur (n 6)

[32] P. Rathinam (n 5)

[33] ibid

[34] ibid

[35] Rustom Cavasjee Cooper (n 23)

[36] Gian Kaur (n 6)

[37] A.K. Gopalan (n 12)

[38] Rustom Cavasjee Cooper (n 23)

[39] Gian Kaur (n 6)

[40] PRathinam (n 5)

[41] H.M. Seervai (n 1)

[42] Maneka Gandhi (n 17)

[43] Gian Kaur (n 6)

[44] Airedale National Health Service Trust (n 3)

[45] Gian Kaur (n 6)

[46] P. Rathinam (n 5)

[47] Gian Kaur (n 6)

[48] Aruna Ramachandra Shanbaug (n 7)

[49] ibid

[50] Gian Kaur (n 6)

[51] ibid

[52] Aruna Ramachandra Shanbaug (n 7)

[53] ibid

[54] ibid

[55] K. S. Puttaswamy (n 18)

[56] Gian Kaur (n 6)

[57] Common Cause (n 9)

[58] MNagraj

[59] Gian Kaur (n 6)

[60] Common Cause (n 9)

[61] Aruna Ramachandra Shanbaug (n 7)

[62] K. S. Puttaswamy (n 18)

[63] Common Cause (n 9)

[64] Aruna Ramachandra Shanbaug (n 7)

[65] https://www.medicinenet.com/advance_medical_directives/article.htm

[66] Aruna Ramachandra Shanbaug (n 7)

[67] Common Cause (n 9)

[68] Vishaka v State of Rajasthan, AIR 1997 SC 3011

[69] Common Cause (n 9)

[70] Aruna Ramachandra Shanbaug (n 7)

[71] Common Cause (n 9)

[72] Aruna Ramachandra Shanbaug (n 7)

[73] Gian Kaur (n 6)

[74] Airedale National Health Service Trust (n 3)

[75] Common Cause (n 9)

[76] Common Cause (n 9)

[77] Common Cause (n 9)

[78] Airedale National Health Service Trust (n 3)

[79] ibid

[80] Common Cause (n 9)

[81] Aruna Ramachandra Shanbaug (n 7)

[82] Aruna Ramachandra Shanbaug (n 7)

[83] Common Cause (n 9)

[84] H.B. Di et al., “Cerebral Response to Patient’s Own Name in the Vegetative and Minimally Conscious States,” Neurology 68(12) (2007):895–9

[85] Chochinov HM, Tataryn D, Clinch JJ, Dudgeon D. Will to live in the terminally ill. Lancet 1999; 354: 816-819

[86] Broeckaert B Am J Bioeth. 2011 Jun; 11(6):62-4.

[87] “Learning to reason clearly by understanding logical fallacies”. makethestand.com. July 19, 2007. Archived from the original on February 20, 2012. Retrieved February 20, 2012.

[88] Common Cause (n 9)

[89] Common Cause (n 9)

[90] “The Great Slippery-Slope Argument” J A Burgess, Journal of medical ethics 1993; 19: 169-174

[91] Sigrid Dierickx, MSc, Luc Deliens, PhD, Joachim Cohen, PhD, and Kenneth Chambaere, PhD, “Euthanasia in Belgium: trends in reported cases between 2003 and 2013” , CMAJ. 2016 Nov 1; 188(16): E407–E414. Published online 2016 Sep 12. doi:  10.1503/cmaj.160202

[92] Waterfield Bruno. “Belgian killed by euthanasia after botched up sex operation”. The Telegraph. 01 October 2013, Available at https://www.telegraph.co.uk/news/worldnews/europe/belgium/10346616/Belgian-killed-by-euthanasia-after-a-botched-sex-change-operation.html

[93] Cohen-Almagor R., Belgian Euthanasia Law: a critical analysis, J Med Ethics 2009; 35(7): 436–9

[94]  Caldwell Simon. “Warning to Britain as almost half of Belgium’s euthanasia nurses admit to killing without consent”. Mailonline. 10th June 2010. Available at http://www.dailymail.co.uk/news/article-1285423/Half-Belgiums-euthanasia-nurses-admit-killing-consent.html

[95] Common Cause (n 9)

[96] S Nagral, “Euthanasia: Cost Factor is a Worry”, The Times of India 19th June 2011, available at http://www.timesofindia.com/home/sunday/Euthanasia-cost-factor-is-aworry/articleshow/7690155.cms

[97] Common Cause (n 9)

[98] Sushila Rao: Economic and Political Weekly, Vol. 46, No. 18 (April 30-May 6, 2011)

[99] Khan Shah Alam. “Before hailing SC verdict on passive euthanasia, we must first address its flaws”. The Wire. 01 April 2018. Available at https://thewire.in/law/before-hailing-sc-verdict-on-passive-euthanasia-we-must-first-address-its-flaws

[100] Aruna Ramachandra Shanbaug (n 7)

[101] Vishaka (n 76)

[102] K. S. Puttaswamy (n 18) 

[103] Common Cause (n 9)

[104] ibid

[105] Mustafa Faizan. “Is the Right to Die an Issue for the Poor?” The Wire. 23 March 2018. Available at https://thewire.in/law/is-the-right-to-die-an-issue-for-the-poor

[106] Rao Sushila. “Is active Euthanasia the next step? The Hindu 16 March 2018. Available at “http://www.thehindu.com/opinion/op-ed/is-active-euthanasia-the-next-step/article23263826.ece

[107] R (Nicklinson) v Ministry of Justice [2014] UKSC 38

[108] Pretty v United Kingdom, (2346/02) [2002] ECHR 423 (29 April 2002)

[109] Rao Sushila (n 114)

[110] Common Cause (n 9)

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