Voice from the Rooftop

Blog of Vincent Augustine D'Souza

Tag: supreme court bench

Consenting adults and law

There are people who say what consenting adults do in private should not be covered by law. This is mainly in reference to Section 377 of IPC which is under litigation in Supreme Court.

By that logic prostitution, sale and purchase of narcotics and psychotropic substances and illicit liquor, corruption, polygamy, transmission of pornographic material and many others matters that take place between consulting adults will be out of the scope of law. Drug traffickers can claim they have right to life and liberty to sell heroin, marijuana and such things to consenting adults in private and they have right to equality. The state will have no right to legislate on marriage, divorce, alimony and child custody. Also concubinage, live-in relationship and palimony will be out of the legal purview.

What happens if a man who is married does not reveal his marital status and marries another woman? What happens if a woman has sex with a man because he promises her something and later he does not keep his promise?

What about doctors and parents who after sex determination test terminate the pregnancy of a foetus knowing it is female? India’s sex ratio is going down. Medical termination of pregnancy is not a crime. Female foeticide is a crime.

Some blame Thomas Macaulay for everything what they claim is wrong with India including Section 377 of IPC. Thomas Macaulay came to India in 1834 and left India in 1838. IPC was promulgated in 1860.

Some give examples of Khajuraho and Ajanta-Ellora as examples of Indian culture and civilization. It is like saying Jarawa women who do not cover their breasts as representative of all Indian women. Khajuraho and Ajanta-Ellora are exceptions. If what they show is a sample of what is Indian then all temples would have shown them.

A vociferous minority supported by sections of media attacks people who stand for heterosexuality. Those who speak of freedom of speech criticize Ghulam Nabi Azad and Baba Ramdev when they exercise their freedom of speech.

Some wrongly speak of gays and lesbians being married and having children. They are bisexuals. There is nothing hereditary being gay. If someone is gay he would not have had children.

It is not for judges to declare what should be the law. Their job is to deliver judgment as per law. Judges who cross their limits do lot of damage.

It is wrong to call gays and lesbians a minority. Minorities are either ethnic, or religious or linguistic. All types of criminals can claim they are a minority. Terrorists can claim they are a minority doing a noble job but misunderstood by the majority. Bandits can claim they are a minority.

If Supreme Court judges do not know what is sex according to order of nature it is penile vaginal intercourse. Terms like unnatural sex have definite meanings acquired over the years. It is not for judges to change the meanings. It is for legislatures to change the law.

The government of India wants to run with the hare and hunt with the hound. On 23/2/2012 Additional Solicitor General P. P. Malhotra told the Supreme Court Bench comprising Justices G. S. Singhvi and J. S. Mukhyopadhyay “The issue whether to retain or not to retain Section 377 IPC was considered by the Law Commission of India in its 42nd report and it observed that Indian society by and large disapproves of homosexuality and disapproval was strong enough to justify it being treated as a criminal offence even when adults indulge in it in private.” About privacy he said “Whose privacy is being disturbed? Nobody’s privacy is being disturbed. Privacy is not an absolute right and is always subject to restriction. It is an offence.” Then home ministry came out with a press release that the government is neutral on the issue. It had asked Attorney General to assist the Supreme Court. May be if Shahi Imam or head of Darul Uloom wants to retain Section 377 as it is the government will take a stand in favour of retention.

Passive Euthanasia

On 7/3/2011 the Supreme Court bench consisting Justices Markandey Katju and Gyansudha Misra dismissed Pinki Virani’s petition to end Aruna Shanbaug’s life. The matter should have ended there. But the bench commended Pinki Virani for her “compassion” and said passive euthanasia is permissible on a case-by-case basis. Pinki Virani deserved to be condemned for trying to end a life. The decision on passive euthanasia is valid till Parliament makes a law on euthanasia. It is for the legislature to make law and judiciary should not encroach on legislature’s domain.

KEM nurses were happy. They distributed sweets and shouted slogans against Pinki Virani.

The Supreme Court laid down guidelines for allowing passive euthanasia.

1) Every High Court to have a special two-judge bench.

2) The bench to nominate a committee of three doctors in every city.

3) The committee to examine the patient and consult the hospital staff and submit report to the High Court Bench.

4) The bench to issue notices to the State and close relatives or next friend of the patient.

5) After hearing them the bench to give its verdict.

Our courts are busy with many cases and lakhs of cases are pending in courts. Cases drag on for years. Cases of passive euthanasia will put additional burden on High Courts. Sikkim High Court has two judges. Both judges will be members of special bench.

What happens when there is disagreement among close relatives of the patient? A woman is sick. Her husband wants her dead. He has been living in adultery for the past eight years and has fathered two children. Her parents and brother want her alive and are ready to bear the expenses. Whose will should prevail?

What if there is difference among doctors? Two doctors want the patient dead, one wants alive or two want the patient alive, one wants dead? Will it be by majority opinion? What if one wants dead, another alive and the third has no opinion?

Some talk of right to life with dignity. What is life with dignity?

Is the life of a murderer, rapist, molester, abductor, drug trafficker, human trafficker, hijacker, kidnapper, pirate, bandit, blackmailer, fraudster a life with dignity?

Is the life of a woman who defends her molester or rapist husband or abets him in rape or molestation a life with dignity?

Is the life of a corrupt politician, bureaucrat, judge, policeman or policewoman, prosecutor, tax official, government employee, journalist a life with dignity?

Is the life of a prostitute or callgirl a life with dignity? Is the life of a man who has sex with a prostitute or callgirl a life with dignity? Is the life of a criminal who forces women into prostitution a life with dignity? Is the life of a pimp or procurer a life with dignity?

Is the life of an industrialist who borrows hundreds or thousands of crores of rupees from a public sector bank and defaults a life with dignity?

Is the life of a person who leaks question papers and puts lakhs of students to give re-exams a life with dignity?

Is the life of a swindler a life with dignity?

Is the life of a lawyer who engages in character assassination during a trial a life with dignity?

Is the life of a man who has sex with a woman and when she gives birth to his son sends the woman out and sends the child to an orphanage a life with dignity?

A person is more than his/her brain. Brain death is not death. As long as there is heart beat the person is alive. Heart is symbolic of the person. We say “Hearty congratulations”, “From the bottom of my heart”, “kind-hearted person”, “heartless man” etc. It was wrong to define brain death as death. Organ transplants have resulted in changes of personalities.

What is permanent vegetative state? If a person can react to sound, make some noise, swallow food, is it permanent vegetative state? In England, 43% of patients who were said to be in vegetative state have recovered and led a normal life.

Living will should mean something written. It can not be presumed to be what the person would have preferred. If there is nothing written, the person should live.

Aruna Shanbaug and Right to live

Aruna Shanbaug was a nurse in KEM Hospital. In 1973 Sohanlal Walmiki, a sweeper, sodomised her and strangled her with a dog chain. This cut off air supply to her brain. Since then she is in a vegetative state in the hospital. In 1974 Sohanlal Walmiki was found guilty of “sodomy and attempt to commit murder” and sentenced to seven years imprisonment.

For 36 years Aruna Shanbaug has suffered. Her family has abandoned her.

On 16/12/2009 Pinki Virani, a social activist, acting on behalf of Aruna Shanbaug, moved a petition in the Supreme Court saying “It will be an act of mercy to stop giving mashed food and end the life of Aruna Shanbaug who has been immobile for 36 years in a hospital.

The petitioner is kept in this persistent vegetative state by the hospital authorities by feeding her mashed food, which she can hardly digest. She can not speak, hear or see, there is no element of human life in her body.”

The Supreme Court Bench observed that “Law of the country does not permit a person to die.”

But lawyer Shekar Nalpade said “Aruna Shanbaug can not be said to exist in the sense of human beings are supposed to live. It is only on account of the mashed food being put into her mouth that there is a facade of life which is totally devoid of any human element.”

The Supreme Court sought response from the Centre.

The issue was discussed on NDTV 24×7 on 16/12/2009 and on Headlines Today and CNN-IBN on 17/12/2009. Babu Joseph, spokesman of Catholic Bishops’ Conference of India, was present on all three channels. He said who are we to decide and it is for God to take away life. Dr. Deviprasad Shetty from Bangalore said five years later we may be able to find a cure and then what? Rani Jethmalani on NDTV 24×7 and Headlines Today and Flavia Agnes on CNN-IBN wanted Aruna Shanbaug to be allowed to die. They wanted her misery to end. Pinky Anand on Headlines Today wanted Aruna Shanbaug to live. There were other panellists who expressed their opinions.

Right to live with dignity is a vague concept. It can mean many things to many people. There is right to live. There is no right to die.

There will be people who say people with physical disabilities, mental retardation, old age, incurable sickness, homelessness, malnourishment etc are unable to live with dignity. We do not know where it will end.

Right to live with dignity is a euphemism for right to die which many times becomes duty to die.

If someone is in a vegetative state it does not mean we should put that person to death. Our knowledge about human body and sicknesses has increased over the years. Many diseased which were incurable at one time are curable now. Today we do not know how to bring back someone from vegetative state to normal state. It is possible that after some years we will know the answer and cure Aruna Shanbaug.

Nurses have taken care of her and for them she is not a vegetable but a victim. Ending the life of a victim for no fault of hers is cruel.

Aruna Shanbaug has not asked for her death or stop of food supply. Pinki Virani is not family member or relative of Aruna Shanbaug.

Aruna Shanbaug is not on life support system. She is not tube fed. She gets mashed food. Stopping giving mashed food to her will lead to death by starvation which will last several days which is cruel.

No one lives for ever. A time comes when a person had to die. A day Aruna Shanbaug will die. Let her live till that day.

Pinki Virani wrote a book about Aruna Shanbaug in which she mentioned sodomy as rape. It is misinformation. The book was written some years ago. How did she suddenly remember Aruna Shanbaug?

Aruna Shanbaug’s case is different from people going on fast unto death for some political reason for Jains going on santara. They are conscious of what they are doing.

Pinki Virani should try to change the law and make attempted murder punishable by death so that criminals who make the life of someone miserable by their act die rather than victims who suffer.

If you love a person you want him or her to live. You do not want to put to death that person. You will think how his or her life can be made better.

Meanwhile well-wishers of Aruna Shanbaug can pray that she becomes a normal person again. Miracles do happen.

Aruna Shanbaug and Supreme Court

Voice from the Rooftop | Vincent Augustine D'Souza © 2005-2016 Frontier Theme