IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NOS.7421-7422 OF 2008

SHEHAMMAL … PETITIONER
Vs.
HASAN KHANI RAWTHER & ORS. … RESPONDENTS

WITH

SLP(C)NOS.14303-14304 OF 2008

J U D G M E N T

ALTAMAS KABIR, J.

1. Special Leave Petition (Civil) Nos.7421-7422 of 2008 filed by one Shehammal and Special Leave Petition (Civil) Nos.14303-14304 of 2008 filed by one Amina and others, both directed against the final judgment and order dated 18.10.2007 passed by the Kerala High Court in R.F.A.No.75 of 2004 (B) and R.F.A.No.491 of 2006, have been taken up together for final disposal. The parties to the aforesaid SLPs, except for the Respondent No.6, Hassankhan, are siblings. While the petitioner in SLP(C)Nos.7421-7422 of 2008 is the daughter of Late Meeralava Rawther, the Respondent No.1, Hassan Khani Rawther, and the Respondent Nos.2 and 5 are the sons and the Respondent Nos.3 and 4 are the daughters of the said Meeralava Rawther. The Respondent No.6, Hassankhan, is a purchaser of the shares of the Respondent Nos.2 and 5, both heirs of Late Meeralava Rawther. The remaining respondents are the legal heirs of Muhammed Rawther, the second respondent before the High Court. The petitioner in SLP(C)Nos.7421-7422 of 2008 is the plaintiff in O.S.No.169 of 1994 and the third defendant in O.S.No.171 of 1992, filed by Hassan Khani Rawther, is the Respondent No.1 in all the four SLPs.

2. Meeralava Rawther died in 1986, leaving behind him surviving three sons and three daughters, as his legal heirs. At the time of his death he possessed 1.70 acres of land in Survey No.133/1B of Thodupuzha village, which he had acquired on the basis of a partition effected in the family of deceased Meeralava Rawther in 1953 by virtue of Deed No.4124 of Thodupuzha, Sub-Registrars Office. Meeralava Rawther and his family members, being Mohammedans, they are entitled to succeed to the estate of the deceased in specific shares as tenants in common. Since Meeralava Rawther had three sons and three daughters, the sons were entitled to a 2/9th share in the estate of the deceased, while the daughters were each entitled to a 1/9th share thereof.

3. It is the specific case of the parties that Meeralava Rawther helped all his children to settle down in life. The youngest son, Hassan Khani Rawther, the Respondent No.1, was a Government employee and was staying with him even after his marriage, while all the other children moved out from the family house, either at the time of marriage, or soon, thereafter. The case made out by the Respondent No.1 is that when each of his children left the family house Meeralava Rawther used to get them to execute Deeds of Relinquishment, whereby, on the receipt of some consideration, each of them relinquished their respective claim to the properties belonging to Meeralava Rawther. The Respondent No.1, Hassan Khani Rawther, was the only one of Meeralava Rawther’s legal heirs who was not required by his father to execute such a deed.

4. Meeralava Rawther died intestate in 1986 leaving 1.70 acres of land as his estate. On 31st March, 1992, the Respondent No.1, Hassan Khani Rawther filed O.S.No.171 of 1992 before the Court of Subordinate Judge, Thodupuzha, seeking declaration of title, possession and injunction in respect of the said 1.70 acres of land, basing his claim on an oral gift alleged to have been made in his favour by Meeralava Rawther in 1982.

5. On 6th April, 1992, the Respondent No.2, Muhammed Rawther, one of the brothers, filed O.S.No.90 of 1992 before the Court of Munsif, Thodupuzha, praying for injunction against his brother, Hassan Khani Rawther, in respect of the suit property. The said suit was subsequently transferred to the Court of Subordinate Judge, Thodupuzha, and was renumbered as O.S.No.168 of 1994.

6. On the basis of her claim to a 1/9th share in the estate of Late Meeralava Rawther the petitioner, Shehammal filed O.S.No.126 of 1992 on 25th May, 1992, seeking partition of the plaint properties comprising the same 1.70 acres of land in respect of which the other two suits had been filed. The said suit was also subsequently transferred to the Court of Subordinate Judge, Thodupuzha, and was renumbered as O.S.No.169 of 1994 and was jointly taken up for trial along with O.S.No.171 of 1992. By a common judgment dated 15.11.1996, the learned Trial Judge dismissed O.S.No.171 of 1992 filed by the Respondent No.1, for want of evidence. O.S.No.169 of 1994 filed by Shehammal was decreed and in view of the findings recorded in O.S.No.169 of 1994, the trial court dismissed O.S.No.168 of 1994 filed by Muhammed Rawther, the Respondent No.2 herein. A subsequent application filed by the plaintiff in O.S.No.171 of 1992 for restoration of the said suit and another application for setting aside the decree in O.S.No.169 of 1994, were dismissed by the trial court.

7. The Respondent No.1 herein, Hassan Khani Rawther, moved the High Court by way of C.M.A.Nos.191 of 2000 and 247 of 2000 and the High Court by its judgment dated 17.1.2003 set aside the decree in O.S.Nos.171 of 1992 and 169 of 1994 and directed the trial court to take back O.S.Nos.171 of 1992 and 169 of 1994 to file and to dispose of the same on merits. On remand, the learned Subordinate Judge dismissed O.S.No.171 of 1992, disbelieving the story of oral gift propounded by the Respondent No.1. The matter was again taken to the High Court against the order of the learned Subordinate Judge. The Respondent No.1 filed R.F.A.Nos.75 of 2004 and 491 of 2006 in the Kerala High Court and the same were allowed by the learned Single Judge holding that even if the plaintiff failed to prove the oral gift in his favour, he could not be non-suited, since he alone was having the rights over the assets of Meeralava Rawther in view of the various Deeds of Relinquishment executed by the other sons and daughters of Meeralava Rawther.

8. Being aggrieved by the judgment of reversal passed by the learned Single Judge of the High Court, the petitioners herein in the four Special Leave Petitions have questioned the validity of the said judgment.

9. Appearing for the Petitioners in both the SLPs, Mr. M.T. George, learned Advocate, submitted that the impugned judgment of the High Court was based on an erroneous understanding of the law relating to relinquishment of right in a property by a Mohammedan. It was submitted that the High Court had failed to truly understand the concept of spes successionis which has been referred to in paragraph 54 of Mulla’s “Principles of Mahomedan Law”, which categorically indicates that a Muslim is not entitled in law to relinquish an expected share in a property. Mr. George submitted that the said doctrine was based on the concept that the Mohammedan Law did not contemplate inheritance by way of expectancy during the life time of the owner and that inheritance opened to the legal heirs only after the death of an individual when right to the property of the legal heirs descended in specific shares. Accordingly, all the Deeds of Relinquishment executed by the siblings, except for the Respondent No.1, were void and were not capable of being acted upon. Accordingly, when succession opened to the legal heirs of Meeralava Rawther on his death, each one of them succeeded to a specified share in his estate.

10. It was also submitted that as a result, the finding of the High Court in R.F.A.No.491 of 2006 that even if the story of oral gift set up by the plaintiff was disbelieved, he would still be entitled to succeed to the entire estate of the deceased, on account of the Deeds of Relinquishment executed by the other legal heirs of Meeralava Rawther, was erroneous and was liable to be set aside. Mr. George contended that the High Court wrongly interpreted the decision of this Court in the case of Gulam Abbas Vs. Haji Kayyum Ali & Ors. [AIR 1973 SC 554]. In the said decision, this Court held that the applicability of the Doctrine of Renunciation of an expectant right depended upon the surrounding circumstances and the conduct of the parties when such a renunciation/relinquishment was made. It was further held that if the expectant heir received consideration for renouncing his expectant share in the property and conducted himself in a manner so as to mislead the owner of the property from disposing of the same during his life time, the expectant heir could be debarred from setting up his right to what he was entitled. Mr. George submitted that the High Court overlooked the fact that this Court had held that mere execution of a document was not sufficient to prevent the legal heirs from claiming their respective shares in the parental property.

11. Mr. George submitted that apart form the above, the High Court allowed itself to be misled into accepting a “family arrangement” when such a contingency did not arise. The transactions involving the separate Deeds of Relinquishment executed by each of the heirs of Meeralava Rawther, constituted an individual act and could not be construed to be a family arrangement. Mr. George submitted that even if the story made out on behalf of the Respondent No.1, that Meeralava Rawther made each of his children execute Deeds of Relinquishment on their leaving the family house, is accepted, the same cannot by any stretch of imagination be said to be a family arrangement which had been accepted by all the legal heirs of Meeralava Rawther. Thus, misled into accepting a concept of “family arrangement”, the High Court erroneously relied on the decision of the Allahabad High Court in Latafat Hussain Vs. Bidayat Hussain [AIR 1936 All. 573], Kochunni Kochu Vs. Kunju Pillai (1956 Trav – Co 217, Thayyullathil Kunhikannan Vs Thayyullathil Kalliani And Ors. [AIR 1990 Kerala 226] and Hameed Vs Jameela (2004 (1) KLT 586), where it had been uniformly held that when there is a family arrangement binding on the parties, it would operate as estoppel by preventing the parties from resiling from the same or trying to revoke it after having taken advantage of such arrangement. Mr. George submitted that having regard to the doctrine of spes successionis, the concept of estoppel could not be applied to Muslims on account of the fact that the law of inheritance applicable to Muslims is derived from the Quran, which specifies specific shares to those entitled to inheritance and the execution of a document is not sufficient to bar such inheritance. Accordingly, renunciation by an expectant heir in the life time of his ancestor is not valid or enforceable against him after the vesting of the inheritance. Mr. George reiterated that the Deeds of Relinquishment between A2 to A6 could not be treated as a “family arrangement” since all the members of the family were not parties to the said Deeds and his position not having altered in any way, the Respondent No.1 is not entitled to claim exclusion of the other heirs of Late Meeralava Rawther from his estate.

12. In this regard, Mr. George also drew our attention to Section 6 of the Transfer of Property Act, 1882, where the concept of spes successionis has been incorporated. It was pointed out that Clause (a) of Section 6 is in pari materia with the doctrine of spes successionis, as incorporated in paragraph 54 of Mulla’s “Principles of Mahomedan Law” and provides that the chance of a person succeeding to an estate cannot be transferred.

13. In view of his aforesaid submissions, Mr. George submitted that the impugned judgment and decree of the High Court was liable to be set aside and that of the learned Subordinate Judge was liable to be restored.

14. Mr. V. Giri, learned Advocate, who appeared for the Respondent No.1, urged that in view of the three-Judge Bench decision in Gulam Abbas’s case (supra), it was not open to the Petitioner to claim that the Doctrine of Estoppel would not be applicable in the facts of this case. Mr. Giri submitted that the view expressed in Gulam Abbas’s case (supra) had earlier been expressed by other High Courts to which reference has been made hereinbefore. He urged that all the Courts had taken a consistent view that having relinquished his right to further inheritance, a legal heir could not claim a share in the property once inheritance opened on the death of the owner of the property.

15. Mr. Giri contended that any decision to the contrary would offend the provisions of Section 23 of the Indian Contract Act, 1872, as being opposed to public policy. Mr. Giri urged that the principles of Mahomedan law in relation to the law as incorporated in the Transfer of Property Act and the Indian Contract Act, had been considered in great detail by the three-Judge Bench in Gulam Abbas’s case (supra). Learned counsel pointed out that on a conjoint reading of Section 6 of the Transfer of Property Act and paragraph 54 of Mulla’s “Principles of Mahomedan Law” it would be quite evident that what was sought to be protected was the right of a Mohammedan to the chance of future succession to an estate. Learned counsel submitted that neither of the two provisions takes into consideration a situation where a right of spes successionis is transferred for a consideration. Mr. Giri submitted that in Gulam Abbas’s case (supra) the said question was one of the important questions which fell for consideration, since it had a direct bearing on the question in the light of Section 23 of the Indian Contract Act, 1872. Mr. Giri submitted that the bar to a transfer of a right of spes successionis is not an absolute bar and would be dependent on circumstances such as receipt of consideration or compensation for relinquishment of such expectant right in future. Mr. Giri urged that the Special Leave Petitions were wholly misconceived and were liable to be dismissed.

16. From the submissions made on behalf of the respective parties and the facts of the case, three questions of importance emerge for decision, namely:-

(i) Whether in view of the doctrine of spes successionis, as embodied in Section 6 of the Transfer of Property Act, 1882, and in paragraph 54 of Mulla’s “Principles of Mahomedan Law”, a Deed of Relinquishment executed by an expectant heir could operate as estoppel to a claim that may be set up by the Executor of such Deed after inheritance opens on the death of the owner of the property?

(ii) Whether on execution of a Deed of Relinquishment after having received remuneration for such future share, the expectant heir could be estopped from claiming a share in the inheritance?

(iii) Can a Mohammedan by means of a Family Settlement relinquish his right of spes successionis when he had still not acquired a right in the property?

17. Chapter VI of Mulla’s “Principles of Mahomedan Law” deals with the general rules of inheritance under Mohammedan law. Paragraph 54 which falls within the said Chapter relates to the concept of transfer of spes successionis which has also been termed as “renunciation of a chance of succession”. The said paragraph provides that the chance of a Mohammedan heir–apparent succeeding to an estate cannot be said to be the subject of a valid transfer or release. The same is included in Section 6 of the Transfer of Property Act and the relevant portion thereof, namely, clause (a) is extracted below :-

“6. What may be transferred.- Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.

(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.”

The provisions of Section 6(a) have to be read along with Section 2 of the Act, which provides for repeal of Acts and saving of certain enactments, incidents, rights, liabilities etc. It specifically provides that nothing in Chapter II, in which Section 6 finds place, shall be deemed to affect any rule of Mohammedan Law.

18. Inspite of the aforesaid provisions, both of the general law and the personal law, the Courts have held that the fetters imposed under the aforesaid provisions are capable of being removed in certain situations. Two examples in this regard are –

(i) When an expectant heir willfully does something which has the effect of attracting the provisions of Section 115 of the Evidence Act, is he estopped from claiming the benefit of the doctrine of spes successionis, as provided for under Section 6(a) of the Transfer of Property Act, 1882, and also under the Mohammedan Law as embodied in paragraph 54 of Mulla’s “Principles of Mahomedan Law”?

(ii) When a Mohammedan becomes a party to a family arrangement, does it also entail that he gives up his right of spes successionis.

The answer to the said two propositions is also the answer to the questions formulated hereinbefore in paragraph 16.

19. The Mohammedan Law enjoins in clear and unequivocal terms that a chance of a Mohammedan heir-apparent succeeding to an estate cannot be the subject of a valid transfer or release. Section 6(a) of the Transfer of Property Act was enacted in deference to the customary law and law of inheritance prevailing among Mohammedans.

20. As opposed to the above, are the general principles of estoppel as contained in Section 115 of the Evidence Act and the doctrine of relinquishment in respect of a future share in property. Both the said principles contemplated a situation where an expectant heir conducts himself and/or performs certain acts which makes the two aforesaid principles applicable inspite of the clear concept of relinquishment as far as Mohammedan Law is concerned, as incorporated in Section 54 of Mulla’s “Principles of Mahomedan Law”. Great reliance has been placed by both the parties on the decision in Gulam Abbas’s case (supra).

While dealing with a similar situation, this Court watered down the concept that the chance of a Mohammedan heir apparent succeeding to an estate cannot be the subject of a valid transfer on lease and held that renunciation of an expectancy in respect of a future share in a property in a case where the concerned party himself chose to depart from the earlier views, was not only possible, but legally valid. Referring to various authorities, including Ameer Ali’s “Mohammedan Law”, this Court observed that “renunciation implies the yielding up of a right already vested”. It was observed in the facts of that case that during the lifetime of the mother, the daughters had no right of inheritance. Citing the decision in the case of Mt. Khannum Jan vs. Mt. Jan Bibi [(1827) 4 SDA 210] it was held that renunciation implies the yielding up of a right already vested. Accordingly, renunciation during the mother’s lifetime of the daughters’ shares would be null and void on the ground that an inchoate right is not capable of being transferred as such right was yet to crystallise. This Court also held that “under the Muslim Law an expectant heir may, nevertheless, be part of a course of conduct which may create an estoppel against claiming the right at a time when the right of inheritance has accrued”. It was observed by the learned Judges that the Contract Act and the Evidence Act would not strictly apply since they did not involve questions arising out of Mohammedan Law. This Court accordingly held that the renunciation of a supposed right, based upon an expectancy, could not, by any test be considered “prohibited”.

21. This Court ultimately held that the binding force of the renunciation of a supposed right, would depend upon the attendant circumstances and the whole course of conduct of which it formed a part. In other words, the principle of an equitable estoppel far from being opposed to any principle of Mohammedan Law, is really in complete harmony with it.

22. On the question of family arrangement, this Court observed that though arrangements arrived at in order to avoid future disputes in the family may not technically be a settlement, a broad concept of a family settlement could not be the answer to the doctrine of spes successionis.

23. There is little doubt that ordinarily there cannot be a transfer of spes successionis, but in the exceptions pointed out by this Court in Gulam Abbas’s case (supra), the same can be avoided either by the execution of a family settlement or by accepting consideration for a future share. It could then operate as estoppel against the expectant heir to claim any share in the estate of the deceased on account of the doctrine of spes successionis. While dealing with the various decisions on the subject, which all seem to support the view taken by the learned Judges, reference was made to the decision of Chief Justice Suleman of the Allahabad High Court in the case of Latafat Hussain Vs. Hidayat Hussain [AIR 1936 All 573], where the question of arrangement between the husband and wife in the nature of a family settlement, which was binding on the parties, was held to be correct in view of the fact that a presumption would have to be drawn that if such family arrangement had not been made, the husband could not have executed a deed of Wakf if the wife had not relinquished her claim to inheritance. It is true that in the case of Mt. Khannum Jan (supra), it had been held by this Court that renunciation implied the yielding up of a right already vested or desisting from prosecuting a claim maintainable against another, and such renunciation during the lifetime of the mother of the shares of the daughters was null and void since it entailed the giving up of something which had not yet come into existence.

24. The High Court after considering the aforesaid views of the different jurists and the decision in connection with the doctrine of relinquishment came to a finding that even if the provisions of the doctrine of spes successionis were to apply, by their very conduct the Petitioners were estopped from claiming the benefit of the said doctrine. In this context, we may refer to yet another principle of Mohammedan Law which is contained in the concept of Wills under the Mohammedan Law. Paragraph 118 of Mulla’s “Principles of Mahomedan Law” embodies the concept of the limit of testamentary power by a Mohammedan. It records that a Mohammedan cannot by Will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of one-third cannot take effect unless the heirs consent thereto after the death of the testator. The said principle of testamentary disposition of property has been the subject matter of various decisions rendered by this Court from time to time and it has been consistently stated and reaffirmed that a testamentary disposition by a Mohammedan is binding upon the heirs if the heirs consent to the disposition of the entire property and such consent could either be express or implied. Thus, a Mohammedan may also make a disposition of his entire property if all the heirs signified their consent to the same. In other words, the general principle that a Mohammedan cannot by Will dispose of more than a third of his estate after payment of funeral expenses and debts is capable of being avoided by the consent of all the heirs. In effect, the same also amounts to a right of relinquishment of future inheritance which is on the one hand forbidden and on the other accepted in the case of testamentary disposition. Having accepted the consideration for having relinquished a future claim or share in the estate of the deceased, it would be against public policy if such a claimant be allowed the benefit of the doctrine of spes successionis. In such cases, we have no doubt in our mind that the principle of estoppel would be attracted.

25. We are, however, not inclined to accept that the methodology resorted to by Meeralava Rawther can strictly be said to be a family arrangement. A family arrangement would necessarily mean a decision arrived at jointly by the members of a family and not between two individuals belonging to the family. The five deeds of relinquishment executed by the five sons and daughters of Meeralava Rawther constitute individual agreements entered into between Meeralava Rawther and the expectant heirs. However, notwithstanding the above, as we have held hereinbefore, the doctrine of estoppel is attracted so as to prevent a person from receiving an advantage for giving up of his/her rights and yet claiming the same right subsequently. In our view, being opposed to public policy, the heir expectant would be estopped under the general law from claiming a share in the property of the deceased, as was held in Gulam Abbas’s case (supra).

26. We are not, therefore, inclined to entertain the Special Leave Petitions and the same are accordingly dismissed, but without any order as to costs.

……………………………………………………J.
(ALTAMAS KABIR)
……………………………………………………J.
(CYRIAC JOSEPH)
……………………………………………………J. (SURINDER SINGH NIJJAR)

New Delhi
Dated: 02.08.2011

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This Second Appeal is focussed as against the judgment and decree dated 04.03.2010 passed in A.S.No.4 of 2009 on the file of the Subordinate Judges Court, Vaniyambadi, Vellore District, confirming the judgment and decree dated 11.11.2005 in O.S.No.24 of 1996 on the file of the Principal District Munsif Court, Ambur, Vellore District.

For appellants : Mr.T.R.Rajagopalan,Sr.Counsel
for Mr.T.R.Rajaraman
For Respondents : Mr.M.S.Krishnan, Sr.Counsel
for Mr.K.G.Vasudevan

JUDGMENT

This Second appeal is focussed by D5, D10 to D14, and LRs of deceased D4/V.Damodaran animadverting upon the judgment and decree dated 04.03.2010 passed in A.S.No.4 of 2009 by the Subordinate Judges Court, Vaniyambadi, Vellore District, confirming the judgment and decree of the Principal District Munsif Court, Ambur, Vellore District in O.S.No.24 of 1996. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.

2. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:

(a) The first respondent herein and the deceased Dhanalakshmi Ammal filed the suit seeking the following reliefs as against several defendants, including the appellants herein in this Second Appeal:

“(i) To declare the absolute title of the plaintiffs to the suit property;

(ii) To restrain the defendants by means of permanent injunction in any manner, either by themselves or through their men, agents and representatives or assignees with the plaintiff’s peaceful possession and enjoyment of the suit property and from alienating the suit property or any portion thereof in favour of any one;

(b) alternatively in the event of this Hon’ble Court holding that the defendants are in possession directing the defendants to deliver possession of the property detailed in the schedule hereunder to the plaintiff (Amended as per order in IA No.372/2000 dt.2.3.2001); and
(iii) for costs.”
(extracted as such)

2. Ultimately the trial Court decreed the suit without giving opportunity of adducing evidence by the contesting defendants who are the purchasers pendente lite, as against which appeal was filed for nothing but to be dismissed by the appellate Court.

3. Being aggrieved by and dissatisfied with the same, the defendants/appellants herein filed this Second Appeal on various grounds inter alia to the effect that the Courts below failed to give due opportunity to the appellants/defendants to contest the matter by adducing evidence, even though the original plaintiffs impleaded the appellants herein as defendants in the suit consequent upon the fact of they having purchased the suit property pendente lite.

4. After hearing both sides, I framed the following substantial question of law:
Whether the Courts below were justified in preventing the appellants/defendants who are the pendente lite purchasers of the suit property from contesting the suit on merits, after they having been impleaded as parties at the instance of the plaintiffs themselves and that too after the trial Court having framed issues based on the written statement filed by the appellants/defendants herein?

5. The nitty-gritty and the gist and kernel of the arguments as put forth by the learned Senior Counsel for the respondents/plaintiffs would run thus:

(a) There are catena of decisions of the Hon’ble Apex Court that pendente lite purchasers are having no right to set up any independent case of their own and that they are bound by the ultimate decision.

(b) Simply because the plaintiffs thought fit to implead the purchasers pendente lite for the purpose of avoiding future litigation, that it does not mean that the plaintiffs are estopped from contending that such pendente lite purchasers are having no right to contest the matter and adduce evidence.

(c) Both the Courts below appropriately and appositely, convincingly and correctly rejected the endeavour of the purchasers pendente lite to cross examine the plaintiffs’ witness and to adduce evidence, warranting no interference in the Second Appeal.

6. Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiffs, the learned Senior Counsel for the appellants/defendants herein would advance his arguments, which could tersely and briefly be set out thus:

(a) The plaintiffs voluntarily impleaded the appellants/ defendants on the ground that they pending litigation purchased the suit property and in such a case, it would be too late in the day on their part to veer round and take a plea having a volte face that the appellants/defendants are having no right to contest the matter.

(b) If at all their stand was that the appellants/defendants were having no locus standi to contest the matter, then they should not have even impleaded them as parties.

Accordingly the learned Senior Counsel for the appellants/defendants would pray for setting aside the judgments and decrees of both the Courts below and for remanding the matter back to the trial Court for giving opportunity to the appellants/defendants to cross examine the witnesses on the plaintiffs’ side and also to adduce rebuttal evidence.

7. A re’sume’ of facts which are admitted or atleast undeniable for proper discussion would run thus:
According to the case of the plaintiffs, the suit property which is an immovable property measuring an extent of 1.32 acre was originally purchased by one Jayarama Reddy, the propositus of the plaintiffs in the name of his brother-in-law Chinnamma Reddy purely for the purpose of preventing Jayarama Reddy’s brother from making any claim over the suit property; in stricto sensu the suit property was treated as the property of Jayarama Reddy only; accordingly after the death of Jayarama Reddy, it devolved upon the plaintiffs who on coming to know of the fact that the legal heirs of Chinnamma Reddy were trying to alienate the suit property, filed the suit.

8. Indubitably and indisputably, unarguably and unassailably, the fact remains that during the pendency of the suit the original defendants 1, 2 and 3 without filing written statement, however after litigating in the I.A. left the litigative contest as such and sold the suit property in favour of D4, D5 and D6, who were none but the persons in receipt of pre-suit notice issued by the plaintiffs that they should not purchase the property. The plaintiffs, according to the learned Senior Counsel for the plaintiffs, by way of abundanti cautela added the purchasers pendente lite of the suit properties also as parties so as to avoid future unnecessary prolongation of the litigation and in no way the former recognised in the latter any right to contest the matter on merits.

9. It so happened that after impleadment of the purchasers of the suit property pendente lite, they were allowed to file written statement. Whereupon issues and additional issues were framed. During trial, on the plaintiffs’ side, P.W.1 was examined and Exs.A1 to A58 were marked.

10. At that juncture, the plaintiffs filed I.A.No.503 of 2005 with the prayer to Court, to prevent the newly added defendants i.e., the purchasers pendente lite from cross examining P.W.1 as well as adducing rebuttal evidence and such an application was allowed and ultimately the judgment was passed in favour of the plaintiffs as against which alone appeal was filed for nothing but to be dismissed, paving the way for the filing of this Second Appeal.

11. By way of buttressing and fortifying the contentions on the side of the plaintiffs, the learned Senior Counsel for the plaintiffs cited the following decisions of the Hon’ble Apex Court:

(i) (1997) 5 SCC 476 [Dhanna Singh and others]; an excerpt from it would run thus:
“5. The undisputed fact is that in the plaint the plaintiff respondent had already sought for a relief of injunction of alienation, yet the alienation came to be made. Apart from the doctrine of lis pendens under Section 52 of the T.P.Act, the subsequent purchaser does not get any right to lead to any evidence, as he stepped into the shoes of the first defendant, who had given up the right to lead evidence. In view of these circumstances, he does not get any right to lead any evidence.”

(ii) (2006) 13 SCC 608 [Sanjat Verma v. Manik Roy and others]; an excerpt from it would run thus:
“10. Bibi Zubaida Khatoon case on which learned counsel for the respondents had placed reliance in fact goes against the stand of the respondents. Though a casual reading of para 9 supports the stand taken by the respondents, it is to be noted that the factual position was entirely different. In fact a cross-suit had been filed in the suit in that case. The respondents being transferees pendente lite without leave of the court cannot as of right seek impleadment in the suit which was in the instant case pending for a very long time. In fact in para 10 of the judgment this Court has held that there is absolutely no rule that the transferee pendente lite without leave of the court should in all cases contest the pending suit…..”

12. Whereas, the learned Senior Counsel for the appellants/defendants cited the following decisions in support of his contentions:

(i) AIR 1958 SC 394 [Saila Bala Dassi v. Sm.Nirmala Sundari Dassi and another]; an excerpt from it would run thus:

“9. It remains to consider whether, on the merits, there should be an order in favour of the appellant. Of that, we have no doubt whatsoever. The proceedings in which she seeks to intervene arise in execution of a mortgage decree. She has purchased the properties comprised in the decree for Rs 60,000 under a covenant that they are free from encumbrances. And after her purchase, the first respondent has started proceedings for sale of the properties, nearly 18 years after the decree had been passed. The appellant maintains that the execution proceedings are barred by limitation, and desires to be heard on that question. It is true that P.B. Mukharji, J., has rejected this contention, but a reading of his judgment shows and that is what he himself observes that there are substantial questions of law calling for decision. Even apart from the plea of limitation, there is also a question as to the amount payable in discharge and satisfaction of the decree obtained by the first respondent in Suit No. 158 of 1935. Both the respondents claim that they have settled it at Rs 17,670. But it is stated for the appellant that under the decree which is sought to be executed the amount recoverable for principal and interest will not exceed Rs 6000. In the affidavit of Sanjit Kumar Ghose dated December 20, 1956, filed on behalf of the first respondent, particulars are given as to how the sum of Rs 17,670 was made up. It will be seen therefrom that a sum of Rs 7200 is claimed for interest upto March 8, 1956, calculating it not at the rate provided in the final decree but at the contract rate. Then a sum of Rs 5000 is included as for costs incurred by the mortgagee in suits other than Suit No. 158 of 1935 and in proceedings connected therewith. The appellant contends that the properties in her hands could, under no circumstances, be made liable for this amount. A sum of Rs 1750 is agreed to be paid for costs in the sale reference, in the proceedings before P.B. Mukharji, J., and in Appeal No. 152 of 1955. Asks the appellant, where is the settlement in this, and how can it bind me? It is obvious that there are several substantial questions arising for determination in which the appellant as purchaser of the properties is vitally interested, and indeed is the only person interested. As a purchaser pendente lite, she will be bound by the proceedings taken by the first respondent in execution of her decree, and justice requires that she should be given an opportunity to protect her rights.”

(ii) AIR 1983 SC 124 [Khemchand Shankar Choudhary and another v. Vishnu Hari Patil and others]; an excerpt from it would run thus:
“6. Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in an immovable property which is the subject-matter of a suit from any of the parties to the suit will be bound insofar as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded as a party and to be heard, he has got to be so impleaded and heard. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an Official Receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an Official Receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary or final. If they apply to the court to be impleaded as parties they cannot be turned out. The Collector who has to effect partition of an estate under Section 54 of the Code of Civil Procedure has no doubt to divide it in accordance with the decree sent to him. But if a party to such a decree dies leaving some heirs about whose interest there is no dispute should he fold up his hands and return the papers to the civil court? He need not do so. He may proceed to allot the share of the deceased party to his heirs. Similarly he may, when there is no dispute, allot the share of a deceased party in favour of his legatees. In the case of insolvency of a party, the Official Receiver may be allotted the share of the insolvent. In the case of transferees pendente lite also, if there is no dispute, the Collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject-matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also do so. Such a construction of Section 54 of the Code of Civil Procedure advances the cause of justice. Otherwise in every case where a party dies, or where a party is adjudicated as an insolvent or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the civil court even though there may be no dispute about the succession, devolution or transfer of interest. In any such case where there is no dispute if the Collector makes an equitable partition taking into consideration the interests of all concerned including those on whom any interest in the subject-matter has devolved, he would neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the other hand, it would be in conformity with the intention of the legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares .

(iii) 2004(1) CTC 549 [Raj Kumar v. Sardari Lal and others]; an excerpt from it would run thus:
“10.The law laid down by a four-Judge Bench of this Court in Saila Bala Dassi v. Nirmala Sundari Dassi1 is apt for resolving the issue arising for decision herein. A transferee of property from the defendant during the pendency of the suit sought himself to be brought on record at the stage of appeal. The High Court dismissed the application as it was pressed only by reference to Order 22 Rule 10 CPC and it was conceded by the applicant that, not being a person who had obtained a transfer pending appeal, he was not covered within the scope of Order 22 Rule 10. In an appeal preferred by such transferee, this Court upheld the view of the High Court that a transferee prior to the filing of the appeal could not be brought on record in appeal by reference to Order 22 Rule 10 CPC. However, the Court held that an appeal is a proceeding for the purpose of Section 146 and further, the expression claiming under is wide enough to include cases of devolution and assignment mentioned in Order 22 Rule 10. Whoever is entitled to be but has not been brought on record under Order 22 Rule 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code. A person having acquired an interest in suit property during the pendency of the suit and seeking to be brought on record at the stage of the appeal can do so by reference to Section 146 CPC which provision being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. Their Lordships held that being a purchaser pendente lite, a person will be bound by the proceedings taken by the successful party in execution of decree and justice requires that such purchaser should be given an opportunity to protect his rights.

(iv) AIR 2005 SC 2209 [Amit Kumar Shaw and another vs. Farida Khatoon and another]; an excerpt from it would run thus:
“16. The doctrine of lis pendens applies only where the lis is pending before a court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject-matter of the suit is substantial and not just peripheral. A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interested in the litigation, where the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party, under Order 22 Rule 10 an alienee pendente lite may be joined as party. As already noticed, the court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. The court has held that a transferee pendente lite of an interest in immovable property is a representative-in-interest of the party from whom he has acquired that interest. He is entitled to be impleaded in the suit or other proceedings where his predecessor-in-interest is made a party to the litigation; he is entitled to be heard in the matter on the merits of the case.”

(v) 2007(2) CTC 562 [Sanjay Verma v. Manik Roy and others]; an excerpt from it would run thus:
10. Bibi Zubaida Khatoon case1 on which learned counsel for the respondents had placed reliance in fact goes against the stand of the respondents. Though a casual reading of para 9 supports the stand taken by the respondents, it is to be noted that the factual position was entirely different. In fact a cross-suit had been filed in the suit in that case. The respondents being transferees pendente lite without leave of the court cannot as of right seek impleadment in the suit which was in the instant case pending for a very long time. In fact in para 10 of the judgment this Court has held that there is absolutely no rule that the transferee pendente lite without leave of the court should in all cases contest the pending suit. In Sarvinder Singh v. Dalip Singh2 it was observed in para 6 as follows: (SCC pp.541-42, para 6)

6. Section 52 of the Transfer of Property Act envisages that:

During the pendency in any court having authority within the limits of India … of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.

It would, therefore, be clear that the defendants in the suit were prohibited by operation of Section 52 to deal with the property and could not transfer or otherwise deal with it in any way affecting the rights of the appellant except with the order or authority of the court. Admittedly, the authority or order of the court had not been obtained for alienation of those properties. Therefore, the alienation obviously would be hit by the doctrine of lis pendens by operation of Section 52. Under these circumstances, the respondents cannot be considered to be either necessary or proper parties to the suit.

11. In Dhurandhar Prasad Singh v. Jai Prakash University it was noted as follows: (SCC pp.541-42, para 7)
7. Under Rule 10 Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against persons upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, as pointed out by Their Lordships of the Judicial Committee in Moti Lal v. Karrabuldin he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, as Lord Kingsdown of the Judicial Committee said in Prannath Roy Chowdry v. Rookea Begum, a cause of action is not prolonged by mere transfer of the title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings.

(vi) The decision of this Court was reported in 2011(1) LW 727 [V.L.Dhandapani v. Revathy Ramachandran and others]; an excerpt from it would run thus:
“13. In one line of decisions by the Supreme Court, it has been held that the transferee pendente lite has got substantial interest in the subject matter of the case and hence his presence is necessary and so he has to be impleaded as a party. In another set of decisions by the Apex Court cited on behalf of the 6th respondent it has been held that the transferee pendente lite need not be included as a party to the suit in the absence of leave of the Court for transfer of the property during its pendency and that such purchaser can neither be termed as a necessary party nor proper party. In view of the above said position, I deem it fit to refer the matter to a larger bench for deciding the legal issue to be followed by Courts.
14. The issue to be decided:
“Whether the transferee pendente lite is entitled to be impleaded in the suit?”

15. In view of the above, the registry is directed to place the matter before My Lord, the Honourable the Chief Justice for referring the same to a larger Bench for decision.”

13. A mere poring over and perusal of those judgments would unambiguously and unequivocally highlight and spotlight the fact that no doubt a learned single Judge of this Court at one point of time felt that there are two lines of judgments, one to the effect that a pendente lite purchaser is having a right to get impleaded in the suit and contest the matter on merits and another to the effect that a pendente lite purchaser is alien to the proceedings and he is bound by the decision. This case in view of its peculiar factual scenario has not got itself caught in the cross fire of such conflicting views.

14. Here it is quite obvious and axiomatic that the purchasers never filed any application to get themselves impleaded as parties to the proceedings; whereas, admittedly the plaintiffs took steps to implead them; Of course, according to them even though the appellants/defendants had no legs to stand in the legal proceedings in the suit, yet the plaintiffs wanted to avoid future unnecessary litigation and with that motive such impleadment resulted. However, there is nothing on record to indicate and exemplify that the Court while allowing the I.A. for impleadment passed any order to the effect that the appellants/defendants here, were added in the suit only for the limited purpose of naming them as formal parties so as to avoid future litigation. The plaintiffs wrongly assumed as though the course adopted by them, was the line of least resistance, forgetting for the moment that they cannot approbate and reprobate.

15. Adding fuel to the fire, the trial Court with the connivance of the plaintiffs’ so to say without any objection from the plaintiffs, allowed the written statement to be filed by the appellants/defendants and issues and additional issues were framed by it and the matter was posted for trial. My mind is redolent and reminiscent of the following maxim: Consensus Tollit Errorem The acquiescence of a party who might take advantage of an error obviates its effect and the relevant portion from Broom’s Legal Maxims, Tenth Edition is extracted hereunder for ready reference:

“When applied to the proceedings in an action, waiver may be defined to be the doing something after an irregularity committed, and with a knowledge of such irregularity, where the irregularity might have been corrected before the act was done; and it is essential to distinguish a proceeding which is merely irregular from one which is completely defective and void. In that latter case the proceeding is a nullity, which cannot be waived by any laches or subsequent proceedings of the opposite property.

Where, however, an irregularity has been committed, and where the opposite party knows of the irregularity, it is a fixed rule observed by all the Courts in this country, that he should come in the first instance to avail himself of it, and not allow the other party to proceed to incur expense. “It is not reasonable afterwards to allow the party to complain of that irregularity, of which, if he had availed himself in the first instance, all that expense would have been rendered unnecessary” (e); and therefore, if a party, after any such irregularity has taken place, consents to a proceeding which, by insisting on the irregularity, he might have prevented, he waives all exceptions to the irregularity (f). This is a doctrine long established and well known, and extends so far, that a person may be materially affected in a subsequent criminal prosecution by proceedings to the irregularity of which he has, by his silence, waived objection (g).

It may appear in some measure superfluous to add, that the consent which cures error in legal proceedings, may be implied as well as expressed: for instance– where, at the trial of a cause, a proposal was made by the judge in the presence of the counsel on both sides, who made no objection, that the jury should assess the damages contingently, with leave to the plaintiff to move enter a verdict for the amount found by the jury, it was held that both parties were bound by the proposal, and that the plaintiff’s counsel was not therefore at liberty to move for a new trial on the ground of misdirection (h), for qui tacet consentire videtur (i), the silence of counsel implied their assent to the course adopted by the judge, and “a man who does not speak when he ought shall not be heard when he desires to speak”(k)”

Only at the stage of cross examining P.W.1 the plaintiff got awakened and filed the I.A. so as to prevent the defendants from cross examining P.W.1 and for adducing rebuttal evidence by the newly added parties. No doubt there is no estoppel against law. Not to put too fine a point on it, here the method and manner in which the proceedings went on before the trial Court would pellucidly and palpably make the point clear that the appellants/defendants were added in the suit only for the purpose of giving opportunity to them to litigate on merits.

16. The learned Senior Counsel for the plaintiffs by narrating the relevant facts would submit that absolutely there is no merit in the contentions of the appellants/defendants and that they had no personal knowledge about the benami transaction which emerged between Jayarama Reddy and his brother-in-law Chinnamma Reddy. He would also hasten to add that as of now the appellants/defendants are also having no locus standi to proceed with the matter, because they in turn parted with the entire suit property in favour of various other persons; as such they are having no legal or moral stand to proceed with the matter; if the matter is remanded, then that would amount to prolongation of the litigation. He would also submit that in the long longevity of this litigation, the first respondent/plaintiff has actually become an octogenarian and he has been litigating for three generations without reaping any fruits and as such he would oppose the move for remanding the matter back to the trial Court for giving opportunity to the appellants.

17. I would also like to hark back to the decision of the Madurai Bench of this Court rendered by me on 14.12.2006 in S.A.No.518 of 1996; certain excerpts from it would run thus:
“27. At this juncture, I may proceed to lay down as a general rule that whenever a party after effecting transfer pendente lite simply agrees to the claim of the other side without taking the transferee pendente lite into confidence or making adequate provisions to safeguard the interest of such transferee pendente lite, such act should be termed as only a collusive act.
28. The question may arise as to how the other party to the litigation who was not a party to the transfer pendente lite could be imputed with knowledge and ultimately with collusive state of mind. Normal course of occurrences alone is the sole test. The transferor pendente lite invariably does make the transfer with some specific purposes and more specifically as against the opposite side in the litigation and if such a person all of a sudden turns turtle by having a volte fact and submits to the claim of his enemy in the litigative battle that is the opposite party, naturally the role of the opposite party could rightly be inferred in it and ultimately, bringing about a non-adjudicatory judgment.”

18. Even though the facts and circumstances of that case are different from the factual scenario of this case, yet I had the opportunity of referring to the doctrine of lis pendens and also the duty of the seller of the property pendente lite.

19. The factual circumstances in this case would display and demonstrate that the original defendants did not file any written statement and they did not contest the matter; so to say, after initially contesting the injunction application, they left the matter holus bolus. They did not choose to safeguard the interest of the purchasers pendente lite, namely the appellants herein. It is not a case where the vendor’s pendente lite, contested the matter and that the subsequent purchasers pendente lite are trying to improve upon the case of their vendors by filing additional written statement or by adducing more evidence etc. But this is a singularly singular case in which the plaintiffs themselves added the purchasers pendente lite and allowed them to file written statement and whereupon the issues were framed by the trial Court and only thereafter the plaintiffs did choose to file the said I.A. for preventing the appellants/defendants, so to say the purchasers pendente lite from cross-examining P.W.1 and adducing rebuttal evidence.

20. The decisions of the Hon’be Apex Court reported in 2004 (1) CTC 549 [Raj Kumar v. Sardari Lal and others] and AIR 2005 SC 2209 [Amit Kumar Shaw and another vs. Farida Khatoon and another] supra would, in my considered view, come to the rescue of the appellants herein. The said decisions would unambiguously and unequivocally highlight and spotlight that such purchasers pendente lite are having a right to contest the matter on merits even after getting the ex parte decree and judgment set aside as against their vendor. In fact here the plaintiffs themselves paved the way for the purchasers pendente lite to contest the matter on merits and in such a case I am of the considered view that the decision cited on the side of the plaintiffs would not in any way prevent the appellants/defendants from contesting the matter on merits. The trial Court went off on a tangent and decided the lis, without referring to all the relevant precedents and the factual circumstances; and it simply prevented the defendants from contesting the matter on merits. There is no quick fix and also there are no two ways about it, in disposing the matter without adhering to the maxim “audi alteram partem No man shall be condemned unheard.” No doubt, I am fully aware of the fact that this is a long pending matter and in such a case if the matter is remitted back to the trial Court, it would take further time for the litigation to get concluded. The first appellate Court being the last Court of facts, on considering the facts and circumstances of the case could have given opportunity to cross examine the plaintiffs’ witness and also could have given opportunity to the defendants concerned to adduce evidence, but it failed to do so. Hence, remanding the matter to the first appellate Court which happened to be the last Court of facts would to some extent curtail further time of the litigation and with that intention I would like remand the matter back to the first appellate Court with the following direction:

The first appellate Court shall give due opportunity to the appellants/defendants to cross examine P.W.1 and also give further opportunity to the plaintiffs to adduce additional evidence both oral and documentary, if any. The defendants also shall be given opportunity to adduce oral and documentary evidence. Endeavour shall be taken by the appellate Court to see that the entire process is completed on day to day basis and judgment delivered on merits within a period of two months from the date of receipt of the records.

21. Both parties shall appear before the first appellate Court on 27.06.2011.

22. Wherefore, the substantial question of law is answered to the effect that both the Courts below were not justified in preventing the appellants/defendants from participating in the proceedings and contesting the matter on merits and accordingly the Second Appeal is allowed setting aside the judgments and decrees of both the Courts below and the matter is remitted back to the first appellate Court as set out supra. No costs. Consequently, connected miscellaneous petition is closed.

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IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 115 OF 2009
Aruna Ramchandra Shanbaug .. Petitioner
versus
Union of India and others .. Respondents

J U D G M E N T

Markandey Katju, J.

“Marte hain aarzoo mein marne ki Maut aati hai par nahin aati”

— Mirza Ghalib

1. Heard Mr. Shekhar Naphade, learned senior counsel for the petitioner, learned Attorney General for India for the Union of India Mr. Vahanvati, Mr. T. R. Andhyarujina, learned Senior Counsel, whom we had appointed as amicus curiae, Mr. Pallav Sisodia, learned senior counsel for the Dean, KEM Hospital, Mumbai, and Mr. Chinmay Khaldkar, learned counsel for the State of Maharashtra. 2

2. Euthanasia is one of the most perplexing issues which the courts and legislatures all over the world are facing today. This Court, in this case, is facing the same issue, and we feel like a ship in an uncharted sea, seeking some guidance by the light thrown by the legislations and judicial pronouncements of foreign countries, as well as the submissions of learned counsels before us. The case before us is a writ petition under Article 32 of the Constitution, and has been filed on behalf of the petitioner Aruna Ramachandra Shanbaug by one Ms. Pinki Virani of Mumbai, claiming to be a next friend.

3. It is stated in the writ petition that the petitioner Aruna Ramachandra Shanbaug was a staff Nurse working in King Edward Memorial Hospital, Parel, Mumbai. On the evening of 27th November, 1973 she was attacked by a sweeper in the hospital who wrapped a dog chain around her neck and yanked her back with it. He tried to rape her but finding that she was menstruating, he sodomized her. To immobilize her during this act he twisted the chain around her neck. The next day on 28th November, 1973 at 7.45 a.m. a cleaner found her lying on the floor with blood all over in an unconscious condition. It is alleged that due to strangulation by the dog chain the supply of oxygen to the brain stopped and the brain got damaged. It is alleged that the Neurologist in the Hospital found that she had plantars’ 3 extensor, which indicates damage to the cortex or some other part of the brain. She also had brain stem contusion injury with associated cervical cord injury. It is alleged at page 11 of the petition that 36 years have expired since the incident and now Aruna Ramachandra Shanbaug is about 60 years of age. She is featherweight, and her brittle bones could break if her hand or leg are awkwardly caught, even accidentally, under her lighter body. She has stopped menstruating and her skin is now like papier mache’ stretched over a skeleton. She is prone to bed sores. Her wrists are twisted inwards. Her teeth had decayed causing her immense pain. She can only be given mashed food, on which she survives. It is alleged that Aruna Ramachandra Shanbaug is in a persistent negetative state (p.v.s.) and virtually a dead person and has no state of awareness, and her brain is virtually dead. She can neither see, nor hear anything nor can she express herself or communicate, in any manner whatsoever. Mashed food is put in her mouth, she is not able to chew or taste any food. She is not even aware that food has been put in her mouth. She is not able to swallow any liquid food, which shows that the food goes down on its own and not because of any effort on her part. The process of digestion goes on in this way as the mashed food passes through her system. However, Aruna is virtually a skeleton. Her excreta and the urine is discharged on the bed itself. Once in a while she is cleaned up but in a short 4 while again she goes back into the same sub-human condition. Judged by any parameter, Aruna cannot be said to be a living person and it is only on account of mashed food which is put into her mouth that there is a facade of life which is totally devoid of any human element. It is alleged that there is not the slightest possibility of any improvement in her condition and her body lies on the bed in the KEM Hospital, Mumbai like a dead animal, and this has been the position for the last 36 years. The prayer of the petitioner is that the respondents be directed to stop feeding Aruna, and let her die peacefully.

4. We could have dismissed this petition on the short ground that under Article 32 of the Constitution of India (unlike Article 226) the petitioner has to prove violation of a fundamental right, and it has been held by the Constitution Bench decision of this Court in Gian Kaur vs. State of Punjab, 1996(2) SCC 648 (vide paragraphs 22 and 23) that the right to life guaranteed by Article 21 of the Constitution does not include the right to die. Hence the petitioner has not shown violation of any of her fundamental rights. However, in view of the importance of the issues involved we decided to go deeper into the merits of the case.

5. Notice had been issued by this Court on 16.12.2009 to all the respondents in this petition. A counter affidavit was earlier filed on behalf of the respondent nos.3 and 4, the Mumbai Municipal Corporation and the Dean, KEM Hospital by Dr. Amar Ramaji Pazare, Professor and Head in the said hospital, stating in paragraph 6 that Aruna accepts the food in normal course and responds by facial expressions. She responds to commands intermittently by making sounds. She makes sounds when she has to pass stool and urine which the nursing staff identifies and attends to by leading her to the toilet. Thus, there was some variance between the allegations in the writ petition and the counter affidavit of Dr. Pazare.

6. Since there was some variance in the allegation in the writ petition and the counter affidavit of Dr. Pazare, we, by our order dated 24 January, 2011 appointed a team of three very distinguished doctors of Mumbai to examine Aruna Shanbaug thoroughly and submit a report about her physical and mental condition. These three doctors were :

(1) Dr. J. V. Divatia, Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial Hospital, Mumbai;

(2) Dr. Roop Gursahani, Consultant Neurologist at P.D.

Hinduja, Mumbai; and 6 (3) Dr. Nilesh Shah, Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital.

7. In pursuance of our order dated 24th January, 2011, the team of three doctors above mentioned examined Aruna Shanbuag in KEM Hospital and has submitted us the following report:

” Report of Examination of Ms. Aruna Ramachandra Shanbaug Jointly prepared and signed by

1. Dr. J.V. Divatia (Professor and Head, Department of Anesthesia, Critical Care and Pain, at Tata Memorial Hospital, Mumbai)

2. Dr. Roop Gursahani (Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)

3. Dr. Nilesh Shah (Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital). I. Background As per the request of Hon. Justice Katju and Hon. Justice Mishra of the Supreme Court of India, Ms. Aruna Ramachandra Shanbaug, a 60-year-old female patient was examined on 28th January 2011, morning and 3rd February 2011, in the side-room of ward-4, of the K. E. M. Hospital by the team of 3 doctors viz. Dr. J.V. Divatia (Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial Hospital, Mumbai), Dr. Roop Gursahani (Consultant Neurologist at P.D. Hinduja Hospital, Mumbai) and Dr. Nilesh Shah (Professor and Head, Department of Psychiatry at Lokmanya Tilak 7 Municipal Corporation Medical College and General Hospital). This committee was set up because the Court found some variance between the allegations in the writ petition filed by Ms. Pinki Virani on behalf of Aruna Ramchandras Shanbaug and the counter affidavit of Dr. Pazare. This team of three doctors was appointed to examine Aruna Ramachandra Shanbaug thoroughly and give a report to the Court about her physical and mental condition It was felt by the team of doctors appointed by the Supreme Court that longitudinal case history and observations of last 37 years along with findings of examination will give a better, clear and comprehensive picture of the patient’s condition. This report is based on:

1. The longitudinal case history and observations obtained from the Dean and the medical and nursing staff of K. E. M. Hospital,

2. Case records (including nursing records) since January 2010

3. Findings of the physical, neurological and mental status examinations performed by the panel.

4. Investigations performed during the course of this assessment (Blood tests, CT head, Electroencephalogram) II. Medical history Medical history of Ms. Aruna Ramachandra Shanbaug was obtained from the Dean, the Principal of the School of Nursing and the medical and nursing staff of ward-4 who has been looking after her. 8 It was learnt from the persons mentioned above that

1. Ms. Aruna Ramachandra Shanbaug was admitted in the hospital after she was assaulted and strangulated by a sweeper of the hospital on November 27, 1973.

2. Though she survived, she never fully recovered from the trauma and brain damage resulting from the assault and strangulation.

3. Since last so many years she is in the same bed in the side-room of ward-4.

4. The hospital staff has provided her an excellent nursing care since then which included feeding her by mouth, bathing her and taking care of her toilet needs. The care was of such an exceptional nature that she has not developed a single bed-sore or fracture in spite of her bed-ridden state since 1973.

5. According to the history from them, though she is not very much aware of herself and her surrounding, she somehow recognizes the presence of people around her and expresses her like or dislike by making certain types of vocal sounds and by waving her hands in certain manners. She appears to be happy and smiles when she receives her favorite food items like fish and chicken soup. She accepts feed which she likes but may spit out food which she doesn’t like. She was able to take oral feeds till 16th September 2010, when she developed a febrile illness, probably malaria. After that, her oral intake reduced and a feeding tube (Ryle’s tube) was passed into her stomach via her nose. Since then she receives her major feeds by the Ryle’s tube, and is only occasionally able to accept the oral liquids. Malaria has taken a toll in her physical condition but she is gradually recuperating from it.

6. Occasionally, when there are many people in the room she makes vocal sounds indicating distress. She calms down when people move out of her room. She also seems 9 to enjoy the devotional songs and music which is played in her room and it has calming effect on her.

7. In an annual ritual, each and every batch of nursing students is introduced to Ms. Aruna Ramachandra Shanbaug, and is told that “She was one of us”; “She was a very nice and efficient staff nurse but due to the mishap she is in this bed-ridden state”.

8. The entire nursing staff member and other staff members have a very compassionate attitude towards Ms. Aruna Ramachandra Shanbaug and they all very happily and willingly take care of her. They all are very proud of their achievement of taking such a good care of their bed- ridden colleague and feel very strongly that they want to continue to take care of her in the same manner till she succumbs naturally. They do not feel that Ms. Aruna Ramachandra Shanbaug is living a painful and miserable life. III. Examination IIIa. Physical examination She was conscious, unable to co-operate and appeared to be unaware of her surroundings. Her body was lean and thin. She appeared neat and clean and lay curled up in the bed with movements of the left hand and made sounds, especially when many people were present in the room. She was afebrile, pulse rate was 80/min, regular, and good volume. Her blood pressure recorded on the nursing charts was normal. Respiratory rate was 15/min, regular, with no signs of respiratory distress or breathlessness. There was no pallor, cyanosis, clubbing or icterus. She was edentulous (no teeth). 10 Skin appeared to be generally in good condition, there were no bed sores, bruises or evidence of old healed bed sores. There were no skin signs suggestive of nutritional deficiency or dehydration. Her wrists had developed severe contractures, and were fixed in acute flexion. Both knees had also developed contractures (right more than left). A nasogastric feeding tube (Ryles tube) was in situ. She was wearing diapers. Abdominal, respiratory and cardiovascular examination was unremarkable. IIIb. Neurological Examination When examined she was conscious with eyes open wakefulness but without any apparent awareness (see Table 1 for detailed assessment of awareness). From the above examination, she has evidence of intact auditory, visual, somatic and motor primary neural pathways. However no definitive evidence for awareness of auditory, visual, somatic and motor stimuli was observed during our examinations. There was no coherent response to verbal commands or to calling her name. She did not turn her head to the direction of sounds or voices. When roused she made non-specific unintelligible sounds (“uhhh, ahhh”) loudly and continuously but was generally silent when undisturbed. Menace reflex (blinking in response to hand movements in front of eyes) was present in both eyes and hemifields but brisker and more consistent on the left. Pupillary reaction was normal bilaterally. Fundi could not be seen since she closed her eyes tightly when this was attempted. At rest she seemed to maintain 11 preferential gaze to the left but otherwise gaze was random and undirected (roving) though largely conjugate. Facial movements were symmetric. Gag reflex (movement of the palate in response to insertion of a tongue depressor in the throat) was present and she does not pool saliva. She could swallow both teaspoonfuls of water as well as a small quantity of mashed banana. She licked though not very completely sugar smeared on her lips, suggesting some tongue control. She had flexion contractures of all limbs and seemed to be incapable of turning in bed spontaneously. There was what appeared to be minimal voluntary movement with the left upper limb (touching her wrist to the eye for instance, perhaps as an attempt to rub it). When examined/disturbed, she seemed to curl up even further in her flexed foetal position. Sensory examination was not possible but she did seem to find passive movement painful in all four limbs and moaned continuously during the examination. Deep tendon reflexes were difficult to elicit elsewhere but were present at the ankles. Plantars were withdrawal/extensor. Thus neurologically she appears to be in a state of intact consciousness without awareness of self/environment. No cognitive or communication abilities could be discerned. Visual function if present is severely limited. Motor function is grossly impaired with quadriparesis. IIIc. Mental Status Examination

1. Consciousness, General Appearance, Attitude and Behavior : Ms. Aruna Ramachandra Shanbaug was resting quietly in her bed, apparently listening to the devotional music, when we entered the room. Though, her body built is lean, she appeared to be well nourished and there were no signs of malnourishment. She appeared neat and clean. She has developed contractures at both the wrist 12 joints and knee joints and so lied curled up in the bed with minimum restricted physical movements. She was conscious but appeared to be unaware of herself and her surroundings. As soon as she realized the presence of some people in her room, she started making repetitive vocal sounds and moving her hands. This behavior subsided as we left the room. She did not have any involuntary movements. She did not demonstrate any catatonic, hostile or violent behavior. Her eyes were wide open and from her behavior it appeared that she could see and hear us, as when one loudly called her name, she stopped making vocal sounds and hand movements for a while. She was unable to maintain sustained eye-to eye contact but when the hand was suddenly taken near her eyes, she was able to blink well. When an attempt was made to feed her by mouth, she accepted a spoonful of water, some sugar and mashed banana. She also licked the sugar and banana paste sticking on her upper lips and swallowed it. Thus, at times she could cooperate when fed.

2. Mood and affect : It was difficult to assess her mood as she was unable to communicate or express her feelings. She appeared to calm down when she was touched or caressed gently. She did not cry or laugh or expressed any other emotions verbally or non-verbally during the examination period. When not disturbed and observed quietly from a distance, she did not appear to be in severe pain or misery. Only when many people enter her room, she appears to get a bit disturbed about it. 13

3. Speech and thoughts : She could make repeated vocal sounds but she could not utter or repeat any comprehensible words or follow and respond to any of the simple commands (such as “show me your tongue”). The only way she expressed herself was by making some sounds. She appeared to have minimal language comprehension or expression.

4. Perception : She did not appear to be having any perceptual abnormality like hallucinations or illusions from her behavior.

5. Orientation, memory and intellectual capacity : Formal assessment of orientation in time, place and person, memory of immediate, recent and remote events and her intellectual capacity could not be carried out.

6. Insight : As she does not appear to be fully aware of herself and her surroundings, she is unlikely to have any insight into her illness. IV. Reports of Investigations IVa. CT Scan Head (Plain) This is contaminated by movement artefacts. It shows generalized prominence of supratentorial sulci and ventricles suggestive of generalized cerebral atrophy. Brainstem and cerebellum seem normal. Ischemic foci are seen in left centrum semi-ovale and right external capsule. In addition a small left parieto-occipital cortical lesion is also seen and is probably ischemic. 14 IVb. EEG The dominant feature is a moderately rhythmic alpha frequency at 8-10 Hz and 20-70 microvolts which is widely distributed and is equally prominent both anteriorly and posteriorly. It is not responsive to eye- opening as seen on the video. Beta at 18-25 Hz is also seen diffusely but more prominently anteriorly. No focal or paroxysmal abnormalities were noted IVc. Blood Reports of the hemoglobin, white cell count, liver function tests, renal function tests, electrolytes, thyroid function, Vitamin B12 and 1,25 dihydroxy Vit D3 levels are unremarkable. (Detailed report from KEM hospital attached.) V. Diagnostic impression 1) From the longitudinal case history and examination it appears that Ms. Aruna Ramachandra Shanbaug has developed non-progressive but irreversible brain damage secondary to hypoxic-ischemic brain injury consistent with the known effects of strangulation. Most authorities consider a period exceeding 4 weeks in this condition, especially when due to hypoxic-ischemic injury as confirming irreversibility. In Ms. Aruna’s case, this period has been as long as 37 years, making her perhaps the longest survivor in this situation. 2) She meets most of the criteria for being in a permanent vegetative state (PVS). PVS is defined as a clinical condition of unawareness (Table 1) of self and environment in which the patient breathes spontaneously, has a stable circulation and shows cycles of eye closure and opening which may simulate sleep and waking (Table 2). While she has evidence of intact auditory, visual, somatic and motor primary neural pathways, no definitive evidence for awareness of auditory, visual, 15 somatic and motor stimuli was observed during our examinations. VI. Prognosis Her dementia has not progressed and has remained stable for last many years and it is likely to remain same over next many years. At present there is no treatment available for the brain damage she has sustained.

VII. Appendix VII a. Table 1. CLINICAL ASSESSMENT TO ESTABLISH UNAWARENESS (Wade DT, Johnston C. British Med STI MULUS RESPONSE Journal 1999; 319:841-844) DOMAIN OBSERVED AUDITORY AWARENESS Sudden loud noise (clap) Startle present, ceases other movements Meaningful noise (rattled steel tumbler and spoon, film songs Non-specific head and body movements of 1970s) Spoken commands (“close your eyes”, “lift left hand “: in Unable to obey commands. No specific or reproducible English, Marathi and Konkani) response VISUAL AWARENESS Bright light to eyes Pupillary responses present Large moving object in front of eyes (bright red torch Tracking movements: present but inconsistent and poorly rattle) reproducible Visual threat (fingers suddenly moved toward eyes) Blinks, but more consistent on left than right Written command (English, Marathi: close your eyes) No response SOMATIC AWARENESS Painful stimuli to limbs (light prick with Wi thdrawal, maximal in left upper limb sharp end of tendon hammer) Painful stimuli to face Distress but no co-ordinated response to remove stimulus Routine sensory stimuli during care (changing position in bed Generalized non specific response presence but no coordinated and feeding) attempt to assist in process MOTOR OUTPUT Spontaneous Non-specific undirected activities. Goal directed – lifting left hand to left side of face, apparently to rub her left eye. Responsive Non-specific undirected without any goal directed activities. Conclusion:

From the above examination, she has evidence of intact auditory, visual, somatic and motor primary neural pathways. However no definitive evidence for awareness of auditory, visual, somatic and motor stimuli was observed during our examinations.

VIIb. Table 2. Application of Criteria for Vegetative State (Bernat JL. Neurology clinical Practice 2010; 75 (suppl. 1):

Exa mination findings : whether she meets Criteria S33-S38) Criteria (Yes /No / Probably) Unaware of self and environment Yes, Unaware No interaction with others Yes, no interaction 16 No sustained, reproducible or purposeful voluntary Yes , no sustained, reproducible or purposeful behavioural response to visual, auditory, tactile or b ehavioural response, but : noxious stimuli 1. Resisted examination of fundus

2. Licked sugar off lips No language comprehension or expression Yes, no comprehension No blink to visual threat Blinks, but more consistent on left than right Present sleep wake cycles Yes (according to nurses) Preserved autonomic and hypothalamic function Yes Preserved cranial nerve reflexes Yes Bowel and bladder incontinence Yes VIII. References

1. Multi-Society Task Force on PVS. Medical aspects of the persistent vegetative state. N Engl J Med 1994; 330: 1499-508

2. Wade DT, Johnston C. The permanent vegetative state: practical guidance on diagnosis and management. Brit Med J 1999; 319:841-4

3. Giacino JT, Ashwal S, Childs N, et al. The minimally conscious state : Definition and diagnostic criteria. Neurology 2002;58:349-353

4. Bernat JL. Current controversies in states of chronic unconsciousness. Neurology 2010;75;S33” 8. On 18th February, 2011, we then passed the following order :

“In the above case Dr. J.V. Divatia on 17.02.2011 handed over the report of the team of three doctors whom we had appointed by our order dated 24th January, 2011. He has also handed over a CD in this connection. Let the report as well as the CD form part of the record.

On mentioning, the case has been adjourned to be listed on 2nd March, 2011 at the request of learned Attorney General of India, Mr. T.R. Andhyarujina, learned Senior Advocate, whom we have appointed as amicus curiae in the case as well as Mr. Shekhar Naphade, learned Senior Advocate for the petitioner.

We request the doctors whom we had appointed viz., Dr. J.V. Divatia, Dr. Roop Gurshani and Dr. Nilesh Shah to appear before us on 2nd March, 2011 at 10.30 A.M. in the Court, since 17 it is quite possible that we may like to ask them questions about the report which they have submitted, and in general about their views in connection with euthanasia.

On perusal of the report of the committee of doctors to us we have noted that there are many technical terms which have been used therein which a non-medical man would find it difficult to understand. We, therefore, request the doctors to submit a supplementary report by the next date of hearing (by e-mailing copy of the same two days before the next date of hearing) in which the meaning of these technical terms in the report is also explained.

The Central Government is directed to arrange for the air travel expenses of all the three doctors as well as their stay in a suitable accommodation at Delhi and also to provide them necessary conveyance and other facilities they require, so that they can appear before us on 02.03.2011.

An honorarium may also be given to the doctors, if they so desire, which may be arranged mutually with the learned Attorney General.

The Dean of King Edward Memorial Hospital as well as Ms. Pinky Virani (who claims to be the next friend of the petitioner) are directed to intimate the brother(s)/sister(s) or other close relatives of the petitioner that the case will be listed on 2nd March, 2011 in the Supreme Court and they can put forward their views before the Court, if they so desire. Learned counsel for the petitioner and the Registry of this Court shall communicate a copy of this Order forthwith to the Dean, KEM Hospital. The Dean, KEM Hospital is requested to file an affidavit stating his views regarding the prayer in this writ petition, and also the condition of the petitioner.

Copy of this Order shall be given forthwith to learned Attorney General of India, Mr. Shekhar Naphade and Mr. Andhyarujina, learned Senior Advocates. 18 Let the matter be listed as the first item on 2nd March, 2011”.

9. On 2.3.2011, the matter was listed again before us and we first saw the screening of the CD submitted by the team of doctors along with their report. We had arranged for the screening of the CD in the Courtroom, so that all present in Court could see the condition of Aruna Shanbaug. For doing so, we have relied on the precedent of the Nuremburg trials in which a screening was done in the Courtroom of some of the Nazi atrocities during the Second World War. We have heard learned counsel for the parties in great detail. The three doctors nominated by us are also present in Court. As requested by us, the doctors team submitted a supplementary report before us which states :

Supplement To The Report Of The Medical Examination Of Aruna Ramchandra Shanbaug Jointly prepared and signed by

1. Dr. J.V. Divatia (Professor and Head, Department of Anesthesia, Critical Care and Pain, at Tata Memorial Hospital, Mumbai)

2. Dr. Roop Gursahani (Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)

3. Dr. Nilesh Shah (Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital). Mumbai February 26, 2011 19 INDEX Introduction 3 Terminology 4 Glossary of Technical terms 7 Opinion 11 3 Introduction This document is a supplement to the Report of Examination of Ms. Aruna Ramachandra Shanbaug, dated February 14, 2011. On perusal of the report, the Hon. Court observed that there were many technical terms which a non-medical man would find it difficult to understand, and requested us to submit a supplementary report in which the meaning of these technical terms in the report is also explained. We have therefore prepared this Supplement to include a glossary of technical terms used in the earlier Report, and also to clarify some of the terminology related to brain damage. Finally, we have given our opinion in the case of Aruna Shanbaug. Terminology The words coma, brain death and vegetative state are often used in common language to describe severe brain damage. However, in medical terminology, these terms have specific meaning and significance. Brain death A state of prolonged irreversible cessation of all brain activity, including lower brain stem function with the complete absence of voluntary movements, responses to stimuli, brain stem reflexes, and spontaneous respirations. Explanation: This is the most severe form of brain damage. The patient is unconscious, completely unresponsive, has no reflex activity from centres in the brain, and has no breathing efforts on his own. However the heart is beating. This patient can only be maintained alive by advanced life support (breathing machine or ventilator, drugs to maintain blood pressure, etc). These patients can be legally declared dead (`brain dead’) to allow their organs to be taken for donation. Aruna Shanbaug is clearly not brain dead. Coma Patients in coma have complete failure of the arousal system with no spontaneous eye opening and are unable to be awakened by application of vigorous sensory stimulation. 20 Explanation: These patients are unconscious. They cannot be awakened even by application of a painful stimulus. They have normal heart beat and breathing, and do not require advanced life support to preserve life. Aruna Shanbaug is clearly not in Coma. Vegetative State (VS) The complete absence of behavioral evidence for self or environmental awareness. There is preserved capacity for spontaneous or stimulus-induced arousal, evidenced by sleep-wake cycles. .i.e. patients are awake, but have no awareness. Explanation: Patients appear awake. They have normal heart beat and breathing, and do not require advanced life support to preserve life. They cannot produce a purposeful, co- ordinated, voluntary response in a sustained manner, although they may have primitive reflexive responses to light, sound, touch or pain. They cannot understand, communicate, speak, or have emotions. They are unaware of self and environment and have no interaction with others. They cannot voluntarily control passing of urine or stools. They sleep and awaken. As the centres in the brain controlling the heart and breathing are intact, there is no threat to life, and patients can survive for many years with expert nursing care. The following behaviours may be seen in the vegetative state : Sleep-wake cycles with eyes closed, then open Patient breathes on her own Spontaneous blinking and roving eye movements Produce sounds but no words Brief, unsustained visual pursuit (following an object with her eyes) Grimacing to pain, changing facial expressions Yawning; chewing jaw movements Swallowing of her own spit Nonpurposeful limb movements; arching of back Reflex withdrawal from painful stimuli Brief movements of head or eyes toward sound or movement without apparent localization or fixation Startles with a loud sound Almost all of these features consistent with the diagnosis of permanent vegetative state were present during the medical examination of Aruna Shanbaug. 21 Minimally Conscious State Some patients with severe alteration in consciousness have neurologic findings that do not meet criteria for VS. These patients demonstrate some behavioral evidence of conscious awareness but remain unable to reproduce this behavior consistently. This condition is referred to here as the minimally conscious state (MCS). MCS is distinguished from VS by the partial preservation of conscious awareness. To make the diagnosis of MCS, limited but clearly discernible evidence of self or environmental awareness must be demonstrated on a reproducible or sustained basis by one or more of the following behaviors: 7 Following simple commands. 7 Gestural or verbal yes/no responses (regardless of accuracy). 7 Intelligible sounds 7 Purposeful behavior, including movements or emotional behaviors (smiling, crying) that occur in relation to relevant environmental stimuli and are not due to reflexive activity. Some examples of qualifying purposeful behavior include: – appropriate smiling or crying in response to the linguistic or visual content of emotional but not to neutral topics or stimuli – vocalizations or gestures that occur in direct response to the linguistic content of questions – reaching for objects that demonstrates a clear relationship between object location and direction of reach – touching or holding objects in a manner that accommodates the size and shape of the object – pursuit eye movement or sustained fixation that occurs in direct response to moving or salient stimuli None of the above behaviours suggestive of a Minimally Conscious State were observed during the examination of Aruna Shanbaug. GLOSSARY OF TECHNICAL TERMS USED IN THE MAIN REPORT (In Alphabetical order) Term in text Meaning Affect Feeling conveyed though expressions and behavior Afebrile No fever Auditory Related to hearing Bedsore A painful wound on the body caused by having to lie in bed for a long time Bilaterally On both sides (right and left) Bruise An injury or mark where the skin has not been broken but is darker in colour, often as 22 a result of being hit by something Catatonic Describes someone who is stiff and not moving or reacting, as if dead Cerebral atrophy Shrinking of the globe (cortex) of the brain Clubbing Bulging or prominence of the nailbed, making base of the nails look thick. This is often due to longstanding infection inside the lungs. Cognitive Related to ability to understand and process information in the brain Conjugate Synchronised movement (of the eyeball) Conscious Awake with eyes open. By itself the term conscious does not convey any information about awareness of self and surroundings, or the ability to understand, communicate, have emotions, etc. Contractures Muscles or tendons that have become shortened and taut over a period of time. This causes deformity and restriction of movements. CT Scan A specialized X-ray test where images of the brain (or other part of the body) are obtained in cross-section at different levels. This allows clear visualization of different parts of the brain Cyanosis Bluish discoloration of the nails, lips or skin. It may be due to low levels of oxygen in the blood Deep tendon reflexes Reflex response of the fleshy part of certain muscles when its tendon is hit lightly with an examination hammer Dementia Disorder in which there is a cognitive defect, i.e. the patient is unable to understand and process information in the brain Electroencephalography, (EEG) Recording of the electrical activity of the brain Febrile illness Illness with fever Fracture A crack or a break in bones Fundi Plural of fundus. Fundus of the eye is the interior surface of the eye, opposite the lens. It is examined with an instrument called the ophthalmoscope Gag reflex Movement of the palate in response to insertion of a tongue depressor in the throat Hallucinations Perception in the absence of stimuli. (e.g. hearing voices which are not there or which are inaudible to others) Hemifields Right or left part of the field of vision 23 Hypoxic Related to reduced oxygen levels in the blood Icterus Yellowish discoloration of the skin and eyeballs. This is commonly known as jaundice, and may be caused by liver disease Illusions Misperception of stimuli (seeing a rope as a snake) Immediate memory Memory of events which have occurred just a few minutes ago Insight Person’s understanding of his or her own illness Intellectual capacity Ability to solve problems. The ability to learn, understand and make judgments or have opinions that are based on reason Involuntary movements Automatic movements over which patient has no control Ischemic Related to restriction or cutting off of the blood flow to any part of the body Malnourishment Weak and in bad health because of having too little food or too little of the types of food necessary for good health Menace reflex Blinking in response to hand movements in front of eyes Mood The way one feels at a particular time Motor Related to movement Movement artefacts Disturbance in the image seen in the CT scan due to patient movement Oral feed Food given through mouth Orientation Awareness about the time, place and person Pallor Pale appearance of the skin. Usually this is due to a low red blood cell count or low haemoglobin level in the blood. Passive movement Movement of a limb or part of the body done by the doctor without any effort by the patient Perception Sensory experiences (such as seeing, hearing etc.) Perceptual abnormalities Abnormal sensory experiences, e.g, seeing things that do not exist, hearing sounds when there are none Plantars Reflex response of the toes when a sharp painful stimulus is applied to the sole of the foot. The normal response is curling downwards of the toes. Plantars were withdrawal/extensor When a painful stimulus was applied to the sole of the foot the toes spread out and there was reflex movement of the leg (withdrawal) or upward curling of the great toe and other 24 toes (extensor). This is an abnormal response indicating damage in the pathway in the brain or to the area in the brain controlling function of the legs. Primary neural pathways Course of the nerves from a part of the body to the area in the brain responsible for the function of that part Pupillary reaction The pupillary light reflex controls the diameter of the pupil, in response to the intensity of light. Greater intensity light causes the pupil to become smaller (allowing less light in), whereas Opinion In our view, the issues in this case (and other similar cases) are:

1. In a person who is in a permanent vegetative state (PVS), should withholding or withdrawal of life sustaining therapies (many authorities would include placement of an artificial feeding tube as a life sustaining intervention) be permissible or `not unlawful’ ?

2. If the patient has previously expressed a wish not to have life-sustaining treatments in case of futile care or a PVS, should his / her wishes be respected when the situation arises?

3. In case a person has not previously expressed such a wish, if his family or next of kin makes a request to withhold or withdraw futile life-sustaining treatments, should their wishes be respected?

4. Aruna Shanbaug has been abandoned by her family and is being looked after for the last 37 years by the staff of KEM Hospital. Who should take decisions on her behalf? Questions such as these come up at times in the course of medical practice. We realize that answers to these questions are difficult, and involve several ethical, legal and social issues. Our opinion is based on medical facts and on the principles of medical ethics. We hope that the Honourable Court will provide guidance and clarity in this matter. Two of the cardinal principles of medical ethics are Patient Autonomy and Beneficiance.

1. Autonomy means the right to self-determination, where the informed patient has a right to choose the manner of his treatment. To be autonomous the patient should be competent to make decisions and choices. In the event that he is incompetent to make choices, his wishes expressed in advance in the form of a Living Will, OR the wishes of surrogates acting on his behalf (‘substituted judgment’) are to be respected. The surrogate is expected to represent what the patient may have decided had he / she been competent, or to act in the patient’s best interest. It is expected that a surrogate acting in the 25 patient’s best interest follows a course of action because it is best for the patient, and is not influenced by personal convictions, motives or other considerations.

2. Beneficence is acting in what is (or judged to be) in patient’s best interest. Acting in the patient’s best interest means following a course of action that is best for the patient, and is not influenced by personal convictions, motives or other considerations. In some cases, the doctor’s expanded goals may include allowing the natural dying process (neither hastening nor delaying death, but `letting nature take its course’), thus avoiding or reducing the sufferings of the patient and his family, and providing emotional support. This is not to be confused with euthanasia, which involves the doctor’s deliberate and intentional act through administering a lethal injection to end the life of the patient. In the present case under consideration

1. We have no indication of Aruna Shanbaug’s views or wishes with respect to life-sustaining treatments for a permanent vegetative state.

2. Any decision regarding her treatment will have to be taken by a surrogate

3. The staff of the KEM hospital have looked after her for 37 years, after she was abandoned by her family. We believe that the Dean of the KEM Hospital (representing the staff of hospital) is an appropriate surrogate.

4. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting in the best interest of the patient, feel that life sustaining treatments should continue, their decision should be respected.

5. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting in the best interest of the patient, feel that withholding or withdrawing life-sustaining treatments is the appropriate course of action, they should be allowed to do so, and their actions should not be considered unlawful.

10. To complete the narration of facts and before we come to the legal issues involved, we may mention that Dr. Sanjay Oak, Dean KEM Hospital Mumbai has issued a statement on 24.1.2011 opposing euthanasia for the petitioner :- “She means a lot to KEM hospital. She is on liquid diet and loves listening to music. We have never subjected her to intravenous food or fed her via a tube. All these years, she hasn’t had even one bedsore. When those looking after her do 26 not have a problem, I don’t understand why a third party who has nothing to do with her [Pinky Virani who has moved the apex court to seek euthanasia for Shanbaug] needs to worry,” added Dr Oak, who, when he took over as dean of KEM hospital in 2008, visited her first to take her blessings. “I call on her whenever I get time. I am there whenever she has dysentery or any another problem. She is very much alive and we have faith in the judiciary,” said Dr Oak.”

11. Dr. Sanjay Oak has subsequently filed an affidavit in this Court which states :

“a) Smt. Aruna Ramchandra Shanbaug has been admitted in a single room in Ward No.4 which is a ward of general internal medicine patients and she has been there for last 37 years. She is looked after entirely by doctors, nurses and para-medical staff of KEM Hospital. She has been our staff nurse and the unfortunate tragic incidence has happened with her in KEM Hospital and I must put on record that the entire medical, administrative, nursing and para-medical staff is extremely attached to her and consider her as one of us. Her relatives and a gentleman (her fiancee) used to visit her in the initial period of her illness but subsequently she has been left to the care of KEM staff. I visit her frequently and my last visit to her was on 22nd February, 2011. I give my observations as a Clinician about Smt. Aruna Shanbaug as under :

b) It would be incorrect to say that Smt. Aruna Shanbaug is an appropriate case for Coma. It appears that for a crucial, critical period her brain was deprived of Oxygen supply and this has resulted in her present state similar to that of Cerebral Palsy in the newborn child. It is a condition where brain looses it’s co-ordinatory, sensory as well as motor functions and this includes loss of speech and perception. This has resulted into a state which in a layman’s words “Aruna lives in her own world for last 37 years”. She is lying in a bed in a single room for 33 years. She has not been able to stand or walk, nor have we attempted to do that of late because 27 we fear that she is fragile and would break her bones if she falls. Her extremities and fingers have developed contractures and subsequent to non-use; there is wasting of her body muscles. Her eyes are open and she blinks frequently; however, these movements are not pertaining to a specific purpose or as a response to a question. At times she is quiet and at times she shouts or shrieks. However, I must say that her shouts and shrieks are completely oblivious to anybody’s presence in her room. It is not true that she shouts after seeing a man. I do not think Aruna can distinguish between a man and a woman, nor can she even distinguish between ordinate and inordinate object. We play devotional songs rendered by Sadguru Wamanrao Pai continuously in her room and she lies down on her bed listening to them. She expresses her displeasure by grimaces and shouts if the tape recorder is switched off. All these years she was never fed by tube and whenever a nurse used to take food to her lips, she used to swallow it. It is only since September 2010 she developed Malaria and her oral intake dropped. In order to take care of her calorie make need, nurses cadre resorted to naso-gastric tube feed and now she is used to NG feeding. However, if small morsels are held near her lips, Aruna accepts them gladly. It appears that she relishes fish and occasionally smiles when she is given non-vegetarian food. However, I am honest in admitting that her smiles are not purposeful and it would be improper to interpret them as a signal of gratification. I must put on record that in the world history of medicine there would not be another single case where such a person is cared and nurtured in bed for 33 long years and has not developed a single bed sore. This speaks of volumes of excellence of nursing care that KEM Nursing staff has given to her.

c) This care is given not as a part of duty but as a part of feeling of oneness. With every new batch of entrants, the student nurses are introduced to her and they are told that she was one of us and she continues to be one of us and then they whole-heartedly take care of Aruna. In my opinion, this one is finest example of love, professionalism, dedication and commitment to one of our professional colleagues who is ailing 28 and cannot support herself. Not once, in this long sojourn of 33 years, anybody has thought of putting an end to her so called vegetative existence. There have been several Deans and Doctors of KEM Hospital who have cared her in succession. Right from illustrious Dr. C.K. Deshpande in whose tenure the incidence happened in 1973, Dr. G.B. Parulkar, Dr. Smt. Pragna M. Pai, Dr. R.J. Shirahatti, Dr. Smt. N.A. Kshirsagar, Dr. M.E. Yeolekar and now myself Dr. Sanjay N. Oak, all of us have visited her room time and again and have cared for her and seen her through her ups and downs. The very idea of withholding food or putting her to sleep by active medication (mercy killing) is extremely difficult for anybody working in Seth GSMC & KEM Hospital to accept and I sincerely make a plea to the Learned Counsel and Hon’ble Judges of Supreme Court of India that this should not be allowed. Aruna has probably crossed 60 years of life and would one day meet her natural end. The Doctors, Nurses and staff of KEM, are determined to take care of her till her last breath by natural process.

d) I do not think it is proper on my part to make a comment on the entire case. However, as a clinical surgeon for last 3 decades and as an administrator of the hospitals for last 7 years and as a student of legal system of India (as I hold “Bachelor of Law” degree from Mumbai University), I feel that entire society has not matured enough to accept the execution of an Act of Euthanasia or Mercy Killing. I fear that this may get misused and our monitoring and deterring mechanisms may fail to prevent those unfortunate incidences. To me any mature society is best judged by it’s capacity and commitment to take care of it’s “invalid” ones. They are the children of Lesser God and in fact, developing nation as we are, we should move in a positive manner of taking care of several unfortunate ones who have deficiencies, disabilities and deformities.”

12. The Hospital staff of KEM Hospital, Mumbai e.g. the doctors, sister- in-charge ward no. 4 KEM hospital Lenny Cornielo, Assistant Matron 29 Urmila Chauhan and others have also issued statements that they were looking after Aruna Shanbaug and want her to live. “Aruna is the bond that unites us”, the KEM Hospital staff has stated. One retired nurse, Tidi Makwana, who used to take care of Aruna while in service, has even offered to continue to take care of her without any salary and without charging any traveling expenses.

13. We have referred to these statements because it is evident that the KEM Hospital staff right from the Dean, including the present Dean Dr. Sanjay Oak and down to the staff nurses and para-medical staff have been looking after Aruna for 38 years day and night. What they have done is simply marvelous. They feed Aruna, wash her, bathe her, cut her nails, and generally take care of her, and they have been doing this not on a few occasions but day and night, year after year. The whole country must learn the meaning of dedication and sacrifice from the KEM hospital staff. In 38 years Aruna has not developed one bed sore.

14. It is thus obvious that the KEM hospital staff has developed an emotional bonding and attachment to Aruna Shanbaug, and in a sense they are her real family today. Ms. Pinki Virani who claims to be the next friend of Aruna Shanbaug and has filed this petition on her behalf is not a relative 30 of Aruna Shanbaug nor can she claim to have such close emotional bonding with her as the KEM hospital staff. Hence, we are treating the KEM hospital staff as the next friend of Aruna Shanbaug and we decline to recognize Ms. Pinki Virani as her next friend. No doubt Ms. Pinki Virani has written a book about Aruna Shanbaug and has visited her a few times, and we have great respect for her for the social causes she has espoused, but she cannot claim to have the extent of attachment or bonding with Aruna which the KEM hospital staff, which has been looking after her for years, claims to have. SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES

15. Mr. Shekhar Naphade, learned senior counsel for the petitioner has relied on the decision of this Court in Vikram Deo Singh Tomar vs. State of Bihar 1988 (Supp) SCC 734 (vide para 2) where it was observed by this Court : “We live in an age when this Court has demonstrated, while interpreting Article 21 of the Constitution, that every person is entitled to a quality of life consistent with his human personality. The right to live with human dignity is the fundamental right of every Indian citizen”.

16. He has also relied on the decision of this Court in P. Rathinam vs. Union of India and another [1994] INSC 264; (1994) 3 SCC 394 in which a two-Judge bench of this Court quoted with approval a passage from an article by Dr. M. Indira and Dr. Alka Dhal in which it was mentioned :

“Life is not mere living but living in health. Health is not the absence of illness but a glowing vitality”.

17. The decision in Rathinam’s case (supra) was, however, overruled by a Constitution Bench decision of this Court in Gian Kaur vs. State of Punjab [1996] INSC 434; (1996) 2 SCC 648.

18. Mr. Naphade, however, has invited our attention to paras 24 & 25 of the aforesaid decision in which it was observed :

“(24) Protagonism of euthanasia on the view that existence in persistent vegetative state (PVS) is not a benefit to the patient of a terminal illness being unrelated to the principle of ‘sanctity of life’ or the right to live with dignity’ is of no assistance to determine the scope of Article 21 for deciding whether the guarantee of right to life’ therein includes the right to die’. The right to life’ including the right to live with human dignity would mean the existence of such a right upto the end of natural life. This also includes the right to a dignified life upto the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the ‘right to die’ with dignity at the end of life is not to be confused or equated 32 with the right to die’ an unnatural death curtailing the natural span of life. (25) A question may arise, in the context of a dying man, who is, terminally ill or in a persistent vegetative state that he may be permitted to terminate it by a premature extinction of his life in those circumstances. This category of cases may fall within the ambit of the ‘right to die’ with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced. The debate even in such cases to permit physician assisted termination of life is inconclusive. It is sufficient to reiterate that the argument to support the view of permitting termination of life in such cases to reduce the period of suffering during the process of certain natural death is not available to interpret Article 21 to include therein the right to curtail the natural span of life”.

He has particularly emphasized paragraph 25 of the said judgment in support of his submission that Aruna Shanbaug should be allowed to die.

19. We have carefully considered paragraphs 24 and 25 in Gian Kaur’s case (supra) and we are of the opinion that all that has been said therein is that the view in Rathinam’s case (supra) that the right to life includes the right to die is not correct. We cannot construe Gian Kaur’s case (supra) to mean anything beyond that. In fact, it has been specifically mentioned in paragraph 25 of the aforesaid decision that “the debate even in such cases to 33 permit physician assisted termination of life is inconclusive”. Thus it is obvious that no final view was expressed in the decision in Gian Kaur’s case beyond what we have mentioned above.

20. Mr. Naphade, learned senior counsel submitted that Ms. Pinky Virani is the next friend of Aruna as she has written a book on her life called `Aruna’s story’ and has been following Aruna’s case from 1980 and has done whatever possible and within her means to help Aruna. Mr. Naphade has also invited our attention to the report of the Law Commission of India, 2006 on `Medical Treatment to Terminally Ill Patients’. We have perused the said report carefully.

21. Learned Attorney General appearing for the Union of India after inviting our attention to the relevant case law submitted as under :

(i) Aruna Ramchandra Shanbaug has the right to live in her present state.

(ii) The state that Aruna Ramchandra Shanbaug is presently in does not justify terminating her life by withdrawing hydration/food/medical support.

(iii) The aforesaid acts or series of acts and/or such omissions will be cruel, inhuman and intolerable.

(iv) Withdrawing/withholding of hydration/food/medical support to a patient is unknown to Indian law and is contrary to law.

34 (v) In case hydration or food is withdrawn/withheld from Aruna Ramchandra Shanbaug, the efforts which have been put in by batches after batches of nurses of KEM Hospital for the last 37 years will be undermined.

(vi) Besides causing a deep sense of resentment in the nursing staff as well as other well wishers of Aruna Ramchandra Shanbaug in KEM Hospital including the management, such acts/omissions will lead to disheartenment in them and large scale disillusionment.

(vii) In any event, these acts/omissions cannot be permitted at the instance of Ms. Pinky Virani who desires to be the next friend of Aruna Ramchandra Shanbaug without any locus. Learned Attorney General stated that the report of the Law Commission of India on euthanasia has not been accepted by the Government of India. He further submitted that Indian society is emotional and care-oriented. We do not send our parents to old age homes, as it happens in the West. He stated that there was a great danger in permitting euthanasia that the relatives of a person may conspire with doctors and get him killed to inherit his property. He further submitted that tomorrow there may be a cure to a medical state perceived as incurable today.

22. Mr. T. R. Andhyarujina, learned senior counsel whom we had appointed as Amicus Curiae, in his erudite submissions explained to us the law on the point. He submitted that in general in common law it is the right 35 of every individual to have the control of his own person free from all restraints or interferences of others. Every human being of adult years and sound mind has a right to determine what shall be done with his own body. In the case of medical treatment, for example, a surgeon who performs an operation without the patient’s consent commits assault or battery.

23. It follows as a corollary that the patient possesses the right not to consent i.e. to refuse treatment. (In the United States this right is reinforced by a Constitutional right of privacy). This is known as the principle of self- determination or informed consent.

24. Mr. Andhyarujina submitted that the principle of self-determination applies when a patient of sound mind requires that life support should be discontinued. The same principle applies where a patient’s consent has been expressed at an earlier date before he became unconscious or otherwise incapable of communicating it as by a `living will’ or by giving written authority to doctors in anticipation of his incompetent situation.

Mr. Andhyarujina differed from the view of the learned Attorney General in that while the latter opposed even passive euthanasia, Mr. 36 Andhyarujina was in favour of passive euthanasia provided the decision to discontinue life support was taken by responsible medical practitioners.

25. If the doctor acts on such consent there is no question of the patient committing suicide or of the doctor having aided or abetted him in doing so. It is simply that the patient, as he is entitled to do, declines to consent to treatment which might or would have the effect of prolonging his life and the doctor has in accordance with his duties complied with the patient’s wishes.

26. The troublesome question is what happens when the patient is in no condition to be able to say whether or not he consents to discontinuance of the treatment and has also given no prior indication of his wishes with regard to it as in the case of Aruna. In such a situation the patient being incompetent to express his self-determination the approach adopted in some of the American cases is of “substituted judgment” or the judgment of a surrogate. This involves a detailed inquiry into the patient’s views and preferences. The surrogate decision maker has to gather from material facts as far as possible the decision which the incompetent patient would have made if he was competent. However, such a test is not favoured in English law in relation to incompetent adults.

27. Absent any indication from a patient who is incompetent the test which is adopted by Courts is what is in the best interest of the patient whose life is artificially prolonged by such life support. This is not a question whether it is in the best interest of the patient that he should die. The question is whether it is in the best interest of the patient that his life should be prolonged by the continuance of the life support treatment. This opinion must be formed by a responsible and competent body of medical persons in charge of the patient.

28. The withdrawal of life support by the doctors is in law considered as an omission and not a positive step to terminate the life. The latter would be euthanasia, a criminal offence under the present law in UK, USA and India.

29. In such a situation, generally the wishes of the patient’s immediate family will be given due weight, though their views cannot be determinative of the carrying on of treatment as they cannot dictate to responsible and competent doctors what is in the best interest of the patient. However, experience shows that in most cases the opinions of the doctors and the immediate relatives coincide.

30. Whilst this Court has held that there is no right to die (suicide) under Article 21 of the Constitution and attempt to suicide is a crime vide Section 309 IPC, the Court has held that the right to life includes the right to live with human dignity, and in the case of a dying person who is terminally ill or in a permanent vegetative state he may be permitted to terminate it by a premature extinction of his life in these circumstances and it is not a crime vide Gian Kaur’s case (supra).

31. Mr. Andhyarujina submitted that the decision to withdraw the life support is taken in the best interests of the patient by a body of medical persons. It is not the function of the Court to evaluate the situation and form an opinion on its own. In England for historical reasons the parens patriae jurisdiction over adult mentally incompetent persons was abolished by statute and the Court has no power now to give its consent. In this situation, the Court only gives a declaration that the proposed omission by doctors is not unlawful.

32. In U.K., the Mental Capacity Act, 2005 now makes provision relating to persons who lack capacity and to determine what is in their best interests and the power to make declaration by a special Court of Protection as to the lawfulness of any act done in relation to a patient.

33. Mr. Andhyarujina submitted that the withdrawal of nutrition by stopping essential food by means of nasogastric tube is not the same as unplugging a ventilator which artificially breathes air into the lungs of a patient incapable of breathing resulting in instant death. In case of discontinuance of artificial feeding the patient will as a result starve to death with all the sufferings and pain and distress associated with such starving. This is a very relevant consideration in a PVS patient like Aruna who is not totally unconscious and has sensory conditions of pain etc. unlike Antony Bland in Airedale vs. Director MHD [1992] UKHL 5; (1993) 2 WLR 316 who was totally unconscious. Would the doctor be able to avoid such pain or distress by use of sedatives etc.? In such a condition would it not be more appropriate to continue with the nasogastric feeding but not take any other active steps to combat any other illness which she may contract and which may lead to her death?

34. Mr. Andhyarujina further submitted that in a situation like that of Aruna, it is also necessary to recognize the deep agony of nurses of the hospital who have with deep care looked after her for over 37 years and who 40 may not appreciate the withdrawal of the life support. It may be necessary that their views should be considered by the Court in some appropriate way.

35. Mr. Andhyarujina, in the course of his submission stated that some Courts in USA have observed that the view of a surrogate may be taken to be the view of the incompetent patient for deciding whether to withdraw the life support, though the House of Lords in Airedale’s case has not accepted this. He submitted that relatives of Aruna do not seem to have cared for her and it is only the nursing staff and medical attendants of KEM hospital who have looked after her for 37 years. He has also submitted that though the humanistic intention of Ms. Pinky Virani cannot be doubted, it is the opinion of the attending doctors and nursing staff which is more relevant in this case as they have looked after her for so many years.

36. Mr. Pallav Shishodia, learned senior counsel for the Dean, KEM hospital, Mumbai submitted that Ms. Pinky Virani has no locus standi in the matter and it is only the KEM hospital staff which could have filed such a writ petition.

37. We have also heard learned counsel for the State of Maharashtra, Mr. Chinmoy Khaldkar and other assisting counsel whose names have been 41 mentioned in this judgment. They have been of great assistance to us as we are deciding a very sensitive and delicate issue which while requiring a humanistic approach, also requires great case and caution to prevent misuse. We were informed that not only the learned counsel who argued the case before us, but also the assistants (whose names have been mentioned in the judgment) have done research on the subject for several weeks, and indeed this has made our task easier in deciding this case. They therefore deserve our compliment and thanks.

Legal Issues : Active and Passive Euthanasia

38. Coming now to the legal issues in this case, it may be noted that euthanasia is of two types : active and passive. Active euthanasia entails the use of lethal substances or forces to kill a person e.g. a lethal injection given to a person with terminal cancer who is in terrible agony. Passive euthanasia entails withholding of medical treatment for continuance of life, e.g. withholding of antibiotics where without giving it a patient is likely to die, or removing the heart lung machine, from a patient in coma.

39. The general legal position all over the world seems to be that while active euthanasia is illegal unless there is legislation permitting it, passive 42 euthanasia is legal even without legislation provided certain conditions and safeguards are maintained.

40. A further categorization of euthanasia is between voluntary euthanasia and non voluntary euthanasia. Voluntary euthanasia is where the consent is taken from the patient, whereas non voluntary euthanasia is where the consent is unavailable e.g. when the patient is in coma, or is otherwise unable to give consent. While there is no legal difficulty in the case of the former, the latter poses several problems, which we shall address.

ACTIVE EUTHANASIA

41. As already stated above active euthanasia is a crime all over the world except where permitted by legislation. In India active euthanasia is illegal and a crime under section 302 or at least section 304 IPC. Physician assisted suicide is a crime under section 306 IPC (abetment to suicide).

42. Active euthanasia is taking specific steps to cause the patient’s death, such as injecting the patient with some lethal substance, e.g. sodium pentothal which causes a person deep sleep in a few seconds, and the person instantaneously and painlessly dies in this deep sleep.

43. A distinction is sometimes drawn between euthanasia and physician assisted dying, the difference being in who administers the lethal medication. In euthanasia, a physician or third party administers it, while in physician assisted suicide it is the patient himself who does it, though on the advice of the doctor. In many countries/States the latter is legal while the former is not.

44. The difference between “active” and “passive” euthanasia is that in active euthanasia, something is done to end the patient’s life’ while in passive euthanasia, something is not done that would have preserved the patient’s life.

45. An important idea behind this distinction is that in “passive euthanasia” the doctors are not actively killing anyone; they are simply not saving him. While we usually applaud someone who saves another person’s life, we do not normally condemn someone for failing to do so. If one rushes into a burning building and carries someone out to safety, he will probably be called a hero. But if one sees a burning building and people screaming for help, and he stands on the sidelines — whether out of fear for his own safety, or the belief that an inexperienced and ill-equipped person like himself would only get in the way of the professional firefighters, or whatever — if 44 one does nothing, few would judge him for his inaction. One would surely not be prosecuted for homicide. (At least, not unless one started the fire in the first place.)

46. Thus, proponents of euthanasia say that while we can debate whether active euthanasia should be legal, there can be no debate about passive euthanasia: You cannot prosecute someone for failing to save a life. Even if you think it would be good for people to do X, you cannot make it illegal for people to not do X, or everyone in the country who did not do X today would have to be arrested.

47. Some persons are of the view that the distinction is not valid. They give the example of the old joke about the child who says to his teacher, “Do you think it’s right to punish someone for something that he didn’t do?” “Why, of course not,” the teacher replies. “Good,” the child says, “because I didn’t do my homework.”

48. In fact we have many laws that penalize people for what they did not do. A person cannot simply decide not to pay his income taxes, or not bother to send his/her children to school (where the law requires sending them), or not to obey a policeman’s order to put down one’s gun.

49. However, we are of the opinion that the distinction is valid, as has been explained in some details by Lord Goff in Airedale’s case (infra) which we shall presently discuss.

LEGISLATION IN SOME COUNTRIES RELATING TO EUTHANASIA OR PHYSICIAN ASSISTED DEATH

50. Although in the present case we are dealing with a case related to passive euthanasia, it would be of some interest to note the legislations in certain countries permitting active euthanasia. These are given below.

Netherlands:

Euthanasia in the Netherlands is regulated by the “Termination of Life on Request and Assisted Suicide (Review Procedures) Act”, 2002. It states that euthanasia and physician-assisted suicide are not punishable if the attending physician acts in accordance with the criteria of due care. These criteria concern the patient’s request, the patient’s suffering (unbearable and hopeless), the information provided to the patient, the presence of reasonable alternatives, consultation of another physician and the applied method of ending life. To demonstrate their compliance, the Act requires physicians to report euthanasia to a review committee.

46 The legal debate concerning euthanasia in the Netherlands took off with the “Postma case” in 1973, concerning a physician who had facilitated the death of her mother following repeated explicit requests for euthanasia. While the physician was convicted, the court’s judgment set out criteria when a doctor would not be required to keep a patient alive contrary to his will. This set of criteria was formalized in the course of a number of court cases during the 1980s.

Termination of Life on Request and Assisted Suicide (Review Procedures) Act took effect on April 1, 2002. It legalizes euthanasia and physician assisted suicide in very specific cases, under very specific circumstances. The law was proposed by Els Borst, the minister of Health. The procedures codified in the law had been a convention of the Dutch medical community for over twenty years.

The law allows a medical review board to suspend prosecution of doctors who performed euthanasia when each of the following conditions is fulfilled:

7 the patient’s suffering is unbearable with no prospect of improvement 7 the patient’s request for euthanasia must be voluntary and persist over time (the request cannot be granted when under the influence of others, psychological illness, or drugs) 47 7 the patient must be fully aware of his/her condition, prospects and options 7 there must be consultation with at least one other independent doctor who needs to confirm the conditions mentioned above 7 the death must be carried out in a medically appropriate fashion by the doctor or patient, in which case the doctor must be present 7 the patient is at least 12 years old (patients between 12 and 16 years of age require the consent of their parents) The doctor must also report the cause of death to the municipal coroner in accordance with the relevant provisions of the Burial and Cremation Act. A regional review committee assesses whether a case of termination of life on request or assisted suicide complies with the due care criteria. Depending on its findings, the case will either be closed or, if the conditions are not met, brought to the attention of the Public Prosecutor. Finally, the legislation offers an explicit recognition of the validity of a written declaration of the will of the patient regarding euthanasia (a “euthanasia directive”). Such declarations can be used when a patient is in a coma or otherwise unable to state if they wish to be euthanized.

48 Euthanasia remains a criminal offense in cases not meeting the law’s specific conditions, with the exception of several situations that are not subject to the restrictions of the law at all, because they are considered normal medical practice. These are :

7 stopping or not starting a medically useless (futile) treatment 7 stopping or not starting a treatment at the patient’s request 7 speeding up death as a side-effect of treatment necessary for alleviating serious suffering Euthanasia of children under the age of 12 remains technically illegal; however, Dr. Eduard Verhagen has documented several cases and, together with colleagues and prosecutors, has developed a protocol to be followed in those cases. Prosecutors will refrain from pressing charges if this Groningen Protocol is followed.

Switzerland:

Switzerland has an unusual position on assisted suicide: it is legally permitted and can be performed by non-physicians. However, euthanasia is illegal, the difference between assisted suicide and euthanasia being that while in the former the patient administers the 49 lethal injection himself, in the latter a doctor or some other person administers it.

Article 115 of the Swiss penal code, which came into effect in 1942 (having been approved in 1937), considers assisting suicide a crime if, and only if, the motive is selfish. The code does not give physicians a special status in assisting suicide; although, they are most likely to have access to suitable drugs. Ethical guidelines have cautioned physicians against prescribing deadly drugs. Switzerland seems to be the only country in which the law limits the circumstances in which assisted suicide is a crime, thereby decriminalising it in other cases, without requiring the involvement of a physician. Consequently, non-physicians have participated in assisted suicide. However, legally, active euthanasia e.g. administering a lethal injection by a doctor or some other person to a patient is illegal in Switzerland (unlike in Holland where it is legal under certain conditions).

The Swiss law is unique because (1) the recipient need not be a Swiss national, and (2) a physician need not be involved. Many persons from other countries, especially Germany, go to Switzerland to undergo euthanasia. 50 Belgium:

Belgium became the second country in Europe after Netherlands to legalize the practice of euthanasia in September 2002.

The Belgian law sets out conditions under which suicide can be practised without giving doctors a licence to kill.

Patients wishing to end their own lives must be conscious when the demand is made and repeat their request for euthanasia. They have to be under “constant and unbearable physical or psychological pain” resulting from an accident or incurable illness.

The law gives patients the right to receive ongoing treatment with painkillers — the authorities have to pay to ensure that poor or isolated patients do not ask to die because they do not have money for such treatment.

Unlike the Dutch legislation, minors cannot seek assistance to die.

In the case of someone who is not in the terminal stages of illness, a third medical opinion must be sought.

Every mercy killing case will have to be filed at a special commission to decide if the doctors in charge are following the regulations.

51 U.K., Spain, Austria, Italy, Germany, France, etc.

In none of these countries is euthanasia or physician assisted death legal. In January 2011 the French Senate defeated by a 170-142 vote a bill seeking to legalize euthanasia. In England, in May 2006 a bill allowing physician assisted suicide, was blocked, and never became law. United States of America:

Active Euthanasia is illegal in all states in U.S.A., but physician assisted dying is legal in the states of Oregon, Washington and Montana. As already pointed out above, the difference between euthanasia and physician assisted suicide lies in who administers the lethal medication. In the former, the physician or someone else administers it, while in the latter the patient himself does so, though on the advice of the doctor.

Oregon:

Oregon was the first state in U.S.A. to legalize physician assisted death. 52 The Oregon legislature enacted the Oregon Death with Dignity Act, in 1997. Under the Death With Dignity Act, a person who sought physician-assisted suicide would have to meet certain criteria: 7 He must be an Oregon resident, at least 18 years old, and must have decision making capacity.

7 The person must be terminally ill, having six months or less to live.

7 The person must make one written and two oral requests for medication to end his/her life, the written one substantially in the form provided in the Act, signed, dated, witnessed by two persons in the presence of the patient who attest that the person is capable, acting voluntarily and not being coerced to sign the request. There are stringent qualifications as to who may act as a witness.

7 The patient’s decision must be an `informed’ one, and the attending physician is obligated to provide the patient with information about the diagnosis, prognosis, potential risks, and probable consequences of taking the prescribed medication, and alternatives, including, but not limited to comfort care, hospice care and pain control. Another physician must confirm the diagnosis, the patient’s decision making capacity, and voluntariness of the patient’s decisions. 53 7 Counselling has to be provided if the patient is suffering from depression or a mental disorder which may impact his judgment.

7 There has to be a waiting period of 15 days, next of kin have to be notified, and State authorities have to be informed.

7 The patient can rescind his decision at any time In response to concerns that patients with depression may seek to end their lives, the 1999 amendment provides that the attending physician must determine that the patient does not have `depression causing impaired judgment’ before prescribing the medication.

Under the law, a person who met all requirements could receive a prescription of a barbiturate that would be sufficient to cause death. However, the lethal injection must be administered by the patient himself, and physicians are prohibited from administering it.

The landmark case to declare that the practice of euthanasia by doctors to help their patients shall not be taken into cognizance was Gonzalez vs Oregon decided in 2006.

After the Oregon Law was enacted about 200 persons have had euthanasia in Oregon. 54 Washington:

Washington was the second state in U.S.A. which allowed the practice of physician assisted death in the year 2008 by passing the Washington Death with Dignity Act, 2008.

Montana:

Montana was the third state (after Oregon and Washington) in U.S.A. to legalize physician assisted deaths, but this was done by the State judiciary and not the legislature. On December 31, 2009, the Montana Supreme Court delivered its verdict in the case of Baxter v. Montana permitting physicians to prescribe lethal indication. The court held that there was “nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy.”

Other States in U.S.A.:

In no other State in U.S.A. is euthanasia or physician assisted death legal. Michigan banned euthanasia and assisted suicide in 1993, after Dr. Kevorkian (who became known as `doctor death’) began encouraging and assisting in suicides. He was convicted in 1999 for 55 an assisted suicide displayed on television, his medical licence cancelled, and he spent 8 years in jail. In 1999 the State of Texas enacted the Texas Futile Care Law which entitles Texas hospitals and doctors, in some situations, to withdraw life support measures, such as mechanical respiration, from terminally ill patient when such treatment is considered futile and inappropriate. However, Texas has not legalized euthanasia or physician assisted death. In California, though 75 of people support physician assisted death, the issue is highly controversial in the State legislature. Forty States in USA have enacted laws which explicitly make it a crime to provide another with the means of taking his or her life.

In 1977 California legalized living wills, and other States soon followed suit. A living will (also known as advance directive or advance decision) is an instruction given by an individual while conscious specifying what action should be taken in the event he/she is unable to make a decision due to illness or incapacity, and appoints a person to take such decisions on his/her behalf. It may include a directive to withdraw life support on certain eventualities.

Canada:

In Canada, physician assisted suicide is illegal vide Section 241(b) of the Criminal Code of Canada.

The leading decision of the Canadian Supreme Court in this connection is Sue Rodriguez v. British Columbia (Attorney General), (1993) 3 SCR 519. Rodriguez, a woman of 43, was diagnosed with Amyotrophic Lateral Sclerosis (ALS), and requested the Canadian Supreme Court to allow someone to aid her in ending her life. Her condition was deteriorating rapidly, and the doctors told her that she would soon lose the ability to swallow, speak, walk, and move her body without assistance. Thereafter she would lose her capacity to breathe without a respirator, to eat without a gastrotomy, and would eventually be confined to bed. Her life expectancy was 2 to 14 months.

The Canadian Supreme Court was deeply divided. By a 5 to 4 majority her plea was rejected. Justice Sopinka, speaking for the majority (which included Justices La Forest, Gonthier, Iacobucci and Major) observed :

“Sanctity of life has been understood historically as excluding freedom of choice in the self infliction of 57 death, and certainly in the involvement of others in carrying out that choice. At the very least, no new consensus has emerged in society opposing the right of the State to regulate the involvement of others in exercising power over individuals ending their lives.”

The minority, consisting of Chief Justice Lamer and Justices L’Heureux-Dube, Cory and McLachlin, dissented.

PASSIVE EUTHANASIA

51. Passive euthanasia is usually defined as withdrawing medical treatment with a deliberate intention of causing the patient’s death. For example, if a patient requires kidney dialysis to survive, not giving dialysis although the machine is available, is passive euthanasia. Similarly, if a patient is in coma or on a heart lung machine, withdrawing of the machine will ordinarily result in passive euthanasia. Similarly not giving life saving medicines like antibiotics in certain situations may result in passive euthanasia. Denying food to a person in coma or PVS may also amount to passive euthanasia.

52. As already stated above, euthanasia can be both voluntary or non voluntary. In voluntary passive euthanasia a person who is capable of deciding for himself decides that he would prefer to die (which may be for 58 various reasons e.g., that he is in great pain or that the money being spent on his treatment should instead be given to his family who are in greater need, etc.), and for this purpose he consciously and of his own free will refuses to take life saving medicines. In India, if a person consciously and voluntarily refuses to take life saving medical treatment it is not a crime. Whether not taking food consciously and voluntarily with the aim of ending one’s life is a crime under section 309 IPC (attempt to commit suicide) is a question which need not be decided in this case.

53. Non voluntary passive euthanasia implies that the person is not in a position to decide for himself e.g., if he is in coma or PVS. The present is a case where we have to consider non voluntary passive euthanasia i.e. whether to allow a person to die who is not in a position to give his/her consent.

54. There is a plethora of case law on the subject of the Courts all over the world relating to both active and passive euthanasia. It is not necessary to refer in detail to all the decisions of the Courts in the world on the subject of euthanasia or physically assisted dead (p.a.d.) but we think it appropriate to refer in detail to certain landmark decisions, which have laid down the law on the subject.

59 THE AIREDALE CASE : (Airedale NHS Trust v. Bland (1993) All E.R. 82) (H.L.)

55. In the Airedale case decided by the House of Lords in the U.K., the facts were that one Anthony Bland aged about 17 went to the Hillsborough Ground on 15th April 1989 to support the Liverpool Football Club. In the course of the disaster which occurred on that day, his lungs were crushed and punctured and the supply to his brain was interrupted. As a result, he suffered catastrophic and irreversible damage to the higher centres of the brain. For three years, he was in a condition known as `persistent vegetative state (PVS). This state arises from the destruction of the cerebral cortex on account of prolonged deprivation of oxygen, and the cerebral cortex of Anthony had resolved into a watery mass. The cortex is that part of the brain which is the seat of cognitive function and sensory capacity. Anthony Bland could not see, hear or feel anything. He could not communicate in any way. His consciousness, which is an essential feature of an individual personality, had departed forever. However, his brain-stem, which controls the reflective functions of the body, in particular the heart beat, breathing and digestion, continued to operate. He was in persistent vegetative state (PVS) which is a recognized medical condition quite distinct from other 60 conditions sometimes known as “irreversible coma”, “the Guillain-Barre syndrome”, “the locked-in syndrome” and “brain death”.

56. The distinguishing characteristic of PVS is that the brain stem remains alive and functioning while the cortex has lost its function and activity. Thus the PVS patient continues to breathe unaided and his digestion continues to function. But although his eyes are open, he cannot see. He cannot hear. Although capable of reflex movement, particularly in response to painful stimuli, the patient is uncapable of voluntary movement and can feel no pain. He cannot taste or smell. He cannot speak or communicate in any way. He has no cognitive function and thus can feel no emotion, whether pleasure or distress. The absence of cerebral function is not a matter of surmise; it can be scientifically demonstrated. The space which the brain should occupy is full of watery fluid.

57. In order to maintain Mr. Bland in his condition, feeding and hydration were achieved by artificial means of a nasogastric tube while the excretory functions were regulated by a catheter and enemas. According to eminent medical opinion, there was no prospect whatsoever that he would ever make a recovery from his condition, but there was every likelihood that he would 61 maintain this state of existence for many years to come provided the artificial means of medical care was continued.

58. In this state of affairs the medical men in charge of Anthony Bland case took the view, which was supported by his parents, that no useful purpose would be served by continuing medical care, and that artificial feeding and other measures aimed at prolonging his existence should be stopped. Since however, there was a doubt as to whether this course might constitute a criminal offence, the hospital authorities sought a declaration from the British High Court to resolve these doubts.

59. The declaration was granted by the Family Division of the High Court on 19.11.1992 and that judgment was affirmed by the Court of Appeal on 9.12.1992. A further appeal was made to the House of Lords which then decided the case.

60. The broad issued raised before the House of Lords in the Airedale case (supra) was “In what circumstances, if ever, can those having a duty to feed an invalid lawfully stop doing so?” In fact this is precisely the question raised in the present case of Aruna Shanbaug before us. 62

61. In Airedale’s case (supra), Lord Keith of Kinkel, noted that it was unlawful to administer treatment to an adult who is conscious and of sound mind, without his consent. Such a person is completely at liberty to decline to undergo treatment, even if the result of his doing so will be that he will die. This extends to the situation where the person in anticipation of his entering into a condition such as PVS, gives clear instructions that in such an event he is not to be given medical care, including artificial feeding, designed to keep him alive.

62. It was held that if a person, due to accident or some other cause becomes unconscious and is thus not able to give or withhold consent to medical treatment, in that situation it is lawful for medical men to apply such treatment as in their informed opinion is in the best interests of the unconscious patient. That is what happened in the case of Anthony Bland when he was first dealt with by the emergency services and later taken to hospital.

63. When the incident happened the first imperative was to prevent Anthony from dying, as he would certainly have done in the absence of the steps that were taken. For a time, no doubt, there was some hope that he might recover sufficiently for him to be able to live a life that had some 63 meaning. Some patients who have suffered damage to the cerebral cortex have, indeed, made a complete recovery. It all depends on the degree of damage. But sound medical opinion takes the view that if a P.V.S. patient shows no signs of recovery after six months, or at most a year, then there is no prospect whatever of any recovery.

64. There are techniques available which make it possible to ascertain the state of the cerebral cortex, and in Anthony Bland’s case these indicated that, it had degenerated into a mass of watery fluid. In this situation the question before the House of Lords was whether the doctors could withdraw medical treatment or feeding Anthony Bland thus allowing him to die.

65. It was held by Lord Keith that a medical practitioner is under no duty to continue to treat such a patient where a large body of informed and responsible medical opinion is to the effect that no benefit at all would be conferred by continuance of the treatment. Existence in a vegetative state with no prospect of recovery is by that opinion regarded as not being of benefit to the patient.

66. Given that existence in the persistent vegetative state is of no benefit to the patient, the House of Lords then considered whether the principle of 64 the sanctity of life which is the concern of the State (and the Judiciary is one of the arms of the State) required the Court to hold that medical treatment to Bland could not be discontinued.

67. Lord Keith observed that the principle of sanctity of life is not an absolute one. For instance, it does not compel the medical practitioner on pain of criminal sanction to treat a patient, who will die, if he does not, according to the express wish of the patient. It does not authorize forcible feeding of prisoners on hunger strike. It does not compel the temporary keeping alive of patients who are terminally ill where to do so would merely prolong their suffering. On the other hand, it forbids the taking of active measures to cut short the life of a terminally-ill patient (unless there is legislation which permits it).

68. Lord Keith observed that although the decision whether or not the continued treatment and cure of a PVS patient confers any benefit on him is essentially one for the medical practitioners in charge of his case to decide, as a matter of routine the hospital/medical practitioner should apply to the Family Division of the High Court for endorsing or reversing the said decision. This is in the interest of the protection of the patient, protection of the doctors, and for the reassurance of the patient’s family and the public. 65

69. In Airdale’s case (Supra) another Judge on the Bench, Lord Goff of Chievely observed:- “The central issue in the present case has been aptly stated by the Master of the Rolls to be whether artificial feeding and antibiotic drugs may lawfully be withheld from an insensate patient with no hope of recovery when it is known that if that is done the patient will shortly thereafter die. The Court of Appeal, like the President, answered this question generally in the affirmative, and (in the declarations made or approved by them) specifically also in the affirmative in relation to Anthony Bland . I find myself to be in agreement with the conclusions so reached by all the judges below, substantially for the reasons given by them. But the matter is of such importance that I propose to express my reasons in my own words.

I start with the simple fact that, in law, Anthony is still alive. It is true that his condition is such that it can be described as a living death; but he is nevertheless still alive. This is because, as a result of developments in modern medical technology, doctors no longer associate death exclusively with breathing and heart beat, and it has come to be accepted that death occurs when the brain, and in particular the brain stem, has been destroyed (see Professor Ian Kennedy’s Paper entitled “Switching off Life Support Machines: The Legal Implications” reprinted in Treat Me Right, Essays in Medical Law and Ethics, (1988)), especially at pp. 351-2, and the material there cited). There has been no dispute on this point in the present case, and it is unnecessary for me to consider it further. The evidence is that Anthony’s brain stem is still alive and functioning and it follows that, in the present state of medical science, he is still alive and should be so regarded as a matter of law.

It is on this basis that I turn to the applicable principles of law. Here, the fundamental principle is the principle of 66 the sanctity of human life – a principle long recognized not only in our own society but also in most, if not all, civilized societies throughout the modern world, as is indeed evidenced by its recognition both in article 2 of the European Convention of Human Rights, and in article 6 of the International Covenant of Civil and Political Rights.

But this principle, fundamental though it is, is not absolute. Indeed there are circumstances in which it is lawful to take another man’s life, for example by a lawful act of self-defence, or (in the days when capital punishment was acceptable in our society) by lawful execution. We are not however concerned with cases such as these. We are concerned with circumstances in which it may be lawful to withhold from a patient medical treatment or care by means of which his life may be prolonged. But here too there is no absolute rule that the patient’s life must be prolonged by such treatment or care, if available, regardless of the circumstances.

First, it is established that the principle of self- determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so (see Schloendorff v . Society of New York Hospital 105 N.E. 92, 93, per Cardozo J. (1914); S. v . McC. (Orse S.) and M (D.S. Intervene); W v . W [1972] A.C. 24, 43, per Lord Reid; and Sidaway v . Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871, 882, per Lord Scarman). To this extent, the principle of the sanctity of human life must yield to the principle of self- determination (see Court of Appeal Transcript in the present case, at p. 38F per Hoffmann L.J.), and, for present purposes perhaps more important, the doctor’s duty to act in the best interests of his patient must 67 likewise be qualified. On this basis, it has been held that a patient of sound mind may, if properly informed, require that life support should be discontinued: see Nancy B. v. Hotel Dieu de Quebec (1992) 86 D.L.R. (4th) 385. Moreover the same principle applies where the patient’s refusal to give his consent has been expressed at an earlier date, before he became unconscious or otherwise incapable of communicating it; though in such circumstances especial care may be necessary to ensure that the prior refusal of consent is still properly to be regarded as applicable in the circumstances which have subsequently occurred (see, e.g. In re T. (Adult: Refusal of treatment) [1992] EWCA Civ 18; [1992] 3 W.L.R. 782). I wish to add that, in cases of this kind, there is no question of the patient having committed suicide, nor therefore of the doctor having aided or abetted him in doing so. It is simply that the patient has, as he is entitled to do, declined to consent to treatment which might or would have the effect of prolonging his life, and the doctor has, in accordance with his duty, complied with his patient’s wishes.

But in many cases not only may the patient be in no condition to be able to say whether or not he consents to the relevant treatment or care, but also he may have given no prior indication of his wishes with regard to it. In the case of a child who is a ward of court, the court itself will decide whether medical treatment should be provided in the child’s best interests, taking into account medical opinion. But the court cannot give its consent on behalf of an adult patient who is incapable of himself deciding whether or not to consent to treatment. I am of the opinion that there is nevertheless no absolute obligation upon the doctor who has the patient in his care to prolong his life, regardless of the circumstances. Indeed, it would be most startling, and could lead to the most adverse and cruel effects upon the patient, if any such absolute rule were held to exist. It is scarcely consistent with the primacy given to the principle of self-determination in those cases in which the patient of sound mind has declined to give his consent, that the law should provide 68 no means of enabling treatment to be withheld in appropriate circumstances where the patient is in no condition to indicate, if that was his wish, that he did not consent to it. The point was put forcibly in the judgment of the Supreme Judicial Court of Massachusetts in Superintendent of Belchertown State School v. Saikewicz (1977) 370 N.E. 2d. 417, 428, as follows:

“To presume that the incompetent person must always be subjected to what many rational and intelligent persons may decline is to downgrade the status of the incompetent person by placing a lesser value on his intrinsic human worth and vitality.”

I must however stress, at this point, that the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient’s life to an end. As I have already indicated, the former may be lawful, either because the doctor is giving effect to his patient’s wishes by withholding the treatment or care, or even in certain circumstances in which (on principles which I shall describe) the patient is incapacitated from stating whether or not he gives his consent. But it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be: see Reg. v. Cox (Unreported), Ognall J., Winchester Crown Court, 18 September 1992. So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia – actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law. It is of course well known that there are many responsible members of our society who believe that euthanasia should be made lawful; but that result could, I believe, only be achieved by legislation which expresses the democratic will that so 69 fundamental a change should be made in our law, and can, if enacted, ensure that such legalised killing can only be carried out subject to appropriate supervision and control. It is true that the drawing of this distinction may lead to a charge of hypocrisy; because it can be asked why, if the doctor, by discontinuing treatment, is entitled in consequence to let his patient die, it should not be lawful to put him out of his misery straight away, in a more humane manner, by a lethal injection, rather than let him linger on in pain until he dies. But the law does not feel able to authorize euthanasia, even in circumstances such as these; for once euthanasia is recognized as lawful in these circumstances, it is difficult to see any logical basis for excluding it in others.

At the heart of this distinction lies a theoretical question. Why is it that the doctor who gives his patient a lethal injection which kills him commits an unlawful act and indeed is guilty of murder, whereas a doctor who, by discontinuing life support, allows his patient to die, may not act unlawfully – and will not do so, if he commits no breach of duty to his patient? Professor Glanville Williams has suggested (see his Textbook of Criminal Law, 2nd ed., p. 282) that the reason is that what the doctor does when he switches off a life support machine ‘is in substance not an act but an omission to struggle, and that ‘the omission is not a breach of duty by the doctor because he is not obliged to continue in a hopeless case’.

I agree that the doctor’s conduct in discontinuing life support can properly be categorized as an omission. It is true that it may be difficult to describe what the doctor actually does as an omission, for example where he takes some positive step to bring the life support to an end. But discontinuation of life support is, for present purposes, no different from not initiating life support in the first place. In each case, the doctor is simply allowing his patient to die in the sense that he is desisting from taking a step which might, in certain circumstances, prevent his patient 70 from dying as a result of his pre-existing condition; and as a matter of general principle an omission such as this will not be unlawful unless it constitutes a breach of duty to the patient. I also agree that the doctor’s conduct is to be differentiated from that of, for example, an interloper who maliciously switches off a life support machine because, although the interloper may perform exactly the same act as the doctor who discontinues life support, his doing so constitutes interference with the life-prolonging treatment then being administered by the doctor. Accordingly, whereas the doctor, in discontinuing life support, is simply allowing his patient to die of his pre- existing condition, the interloper is actively intervening to stop the doctor from prolonging the patient’s life, and such conduct cannot possibly be categorised as an omission.

The distinction appears, therefore, to be useful in the present context in that it can be invoked to explain how discontinuance of life support can be differentiated from ending a patient’s life by a lethal injection. But in the end the reason for that difference is that, whereas the law considers that discontinuance of life support may be consistent with the doctor’s duty to care for his patient, it does not, for reasons of policy, consider that it forms any part of his duty to give his patient a lethal injection to put him out of his agony.

I return to the patient who, because for example he is of unsound mind or has been rendered unconscious by accident or by illness, is incapable of stating whether or not he consents to treatment or care. In such circumstances, it is now established that a doctor may lawfully treat such a patient if he acts in his best interests, and indeed that, if the patient is already in his care, he is under a duty so to treat him: see In re F [1991] UKHL 1; [1990] 2 AC 1, in which the legal principles governing treatment in such circumstances were stated by this House. For my part I can see no reason why, as a matter of principle, a decision by a doctor whether or not to initiate, or to 71 continue to provide, treatment or care which could or might have the effect of prolonging such a patient’s life, should not be governed by the same fundamental principle. Of course, in the great majority of cases, the best interests of the patient are likely to require that treatment of this kind, if available, should be given to a patient. But this may not always be so. To take a simple example given by Thomas J. in Re J.H.L. (Unreported) (High Court of New Zealand) 13 August 1992, at p. 35), to whose judgment in that case I wish to pay tribute, it cannot be right that a doctor, who has under his care a patient suffering painfully from terminal cancer, should be under an absolute obligation to perform upon him major surgery to abate another condition which, if unabated, would or might shorten his life still further. The doctor who is caring for such a patient cannot, in my opinion, be under an absolute obligation to prolong his life by any means available to him, regardless of the quality of the patient’s life. Common humanity requires otherwise, as do medical ethics and good medical practice accepted in this country and overseas. As I see it, the doctor’s decision whether or not to take any such step must (subject to his patient’s ability to give or withhold his consent) be made in the best interests of the patient. It is this principle too which, in my opinion, underlies the established rule that a doctor may, when caring for a patient who is, for example, dying of cancer, lawfully administer painkilling drugs despite the fact that he knows that an incidental effect of that application will be to abbreviate the patient’s life. Such a decision may properly be made as part of the care of the living patient, in his best interests; and, on this basis, the treatment will be lawful. Moreover, where the doctor’s treatment of his patient is lawful, the patient’s death will be regarded in law as exclusively caused by the injury or disease to which his condition is attributable.

It is of course the development of modern medical technology, and in particular the development of life support systems, which has rendered cases such as the 72 present so much more relevant than in the past. Even so, where (for example) a patient is brought into hospital in such a condition that, without the benefit of a life support system, he will not continue to live, the decision has to be made whether or not to give him that benefit, if available. That decision can only be made in the best interests of the patient. No doubt, his best interests will ordinarily require that he should be placed on a life support system as soon as necessary, if only to make an accurate assessment of his condition and a prognosis for the future. But if he neither recovers sufficiently to be taken off it nor dies, the question will ultimately arise whether he should be kept on it indefinitely. As I see it, that question (assuming the continued availability of the system) can only be answered by reference to the best interests of the patient himself, having regard to established medical practice. Indeed, if the justification for treating a patient who lacks the capacity to consent lies in the fact that the treatment is provided in his best interests, it must follow that the treatment may, and indeed ultimately should, be discontinued where it is no longer in his best interests to provide it. The question which lies at the heart of the present case is, as I see it, whether on that principle the doctors responsible for the treatment and care of Anthony Bland can justifiably discontinue the process of artificial feeding upon which the prolongation of his life depends.

It is crucial for the understanding of this question that the question itself should be correctly formulated. The question is not whether the doctor should take a course which will kill his patient, or even take a course which has the effect of accelerating his death. The question is whether the doctor should or should not continue to provide his patient with medical treatment or care which, if continued, will prolong his patient’s life. The question is sometimes put in striking or emotional terms, which can be misleading. For example, in the case of a life support system, it is sometimes asked: Should a doctor be entitled to switch it off, or to pull the plug? And then it is 73 asked: Can it be in the best interests of the patient that a doctor should be able to switch the life support system off, when this will inevitably result in the patient’s death? Such an approach has rightly been criticised as misleading, for example by Professor Ian Kennedy (in his paper in Treat Me Right, Essays in Medical Law and Ethics (1988), and by Thomas J. in Re J.H.L. at pp. 21-

22. This is because the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care.

The correct formulation of the question is of particular importance in a case such as the present, where the patient is totally unconscious and where there is no hope whatsoever of any amelioration of his condition. In circumstances such as these, it may be difficult to say that it is in his best interests that the treatment should be ended. But if the question is asked, as in my opinion it should be, whether it is in his best interests that treatment which has the effect of artificially prolonging his life should be continued, that question can sensibly be answered to the effect that it is not in his best interests to do so.

(emphasis supplied)

70. In a Discussion Paper on Treatment of Patients in Persistent Vegetative State issued in September 1992 by the Medical Ethics Committee of the British Medical Association certain safeguards were mentioned which should be observed before constituting life support for such patients:- “(1) Every effort should be made at rehabilitation for at least six months after the injury; (2) The diagnosis of irreversible PVS should not be considered confirmed 74 until at least twelve months after the injury, with the effect that any decision to withhold life prolonging treatment will be delayed for that period; (3) The diagnosis should be agreed by two other independent doctors; and (4) Generally, the wishes of the patient’s immediate family will be given great weight.”

71. Lord Goff observed that discontinuance of artificial feeding in such cases is not equivalent to cutting a mountaineer’s rope, or severing the air pipe of a deep sea diver. The true question is not whether the doctor should take a course in which he will actively kill his patient, but rather whether he should continue to provide his patient with medical treatment or care which, if continued, will prolong his life.

72. Lord Browne-Wilkinson was of the view that removing the nasogastric tube in the case of Anthony Bland cannot be regarded as a positive act causing the death. The tube itself, without the food being supplied through it, does nothing. Its non removal itself does not cause the death since by itself, it does not sustain life. Hence removal of the tube would not constitute the actus reus of murder, since such an act would not cause the death.

73. Lord Mustill observed:- “Threaded through the technical arguments addressed to the House were the strands of a much wider 75 position, that it is in the best interests of the community at large that Anthony Bland’s life should now end. The doctors have done all they can. Nothing will be gained by going on and much will be lost. The distress of the family will get steadily worse. The strain on the devotion of a medical staff charged with the care of a patient whose condition will never improve, who may live for years and who does not even recognize that he is being cared for, will continue to mount. The large resources of skill, labour and money now being devoted to Anthony Bland might in the opinion of many be more fruitfully employed in improving the condition of other patients, who if treated may have useful, healthy and enjoyable lives for years to come.”

74. Thus all the Judges of the House of Lords in the Airedale case (supra) were agreed that Anthony Bland should be allowed to die.

75. Airedale (1993) decided by the House of Lords has been followed in a number of cases in U.K., and the law is now fairly well settled that in the case of incompetent patients, if the doctors act on the basis of informed medical opinion, and withdraw the artificial life support system if it is in the patient’s best interest, the said act cannot be regarded as a crime.

76. The question, however, remains as to who is to decide what is the patient’s best interest where he is in a persistent vegetative state (PVS)? Most decisions have held that the decision of the parents, spouse, or other close relative, should carry weight if it is an informed one, but it is not 76 decisive (several of these decisions have been referred to in Chapter IV of the 196th Report of the Law Commission of India on Medical Treatment to Terminally ill Patients).

77. It is ultimately for the Court to decide, as parens patriae, as to what is is in the best interest of the patient, though the wishes of close relatives and next friend, and opinion of medical practitioners should be given due weight in coming to its decision. As stated by Balcombe, J. in In Re J ( A Minor Wardship : Medical Treatment) 1990(3) All E.R. 930, the Court as representative of the Sovereign as parens patriae will adopt the same standard which a reasonable and responsible parent would do.

78. The parens patriae (father of the country) jurisdiction was the jurisdiction of the Crown, which, as stated in Airedale, could be traced to the 13th Century. This principle laid down that as the Sovereign it was the duty of the King to protect the person and property of those who were unable to protect themselves. The Court, as a wing of the State, has inherited the parens patriae jurisdiction which formerly belonged to the King. U.S. decisions

79. The two most significant cases of the U.S. Supreme Court that addressed the issue whether there was a federal constitutional right to 77 assisted suicide arose from challenges to State laws banning physician assisted suicide brought by terminally ill patients and their physicians. These were Washington vs. Glucksberg 521 U.S. 702 (1997) and Vacco vs. Quill [1997] USSC 74; 521 U.S. 793 (1997).

80. In Glucksberg’s case, the U.S. Supreme Court held that the asserted right to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment. The Court observed :

“The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed the two acts are widely and reasonably regarded as quite distinct.”

81. The Court went on to conclude that the Washington statute being challenged was rationally related to five legitimate government interest : protection of life, prevention of suicide, protection of ethical integrity of the medical profession, protection of vulnerable groups, and protection against the “slippery slope” towards euthanasia. The Court then noted that perhaps the individual States were more suited to resolving or at least addressing the 78 myriad concerns raised by both proponents and opponents of physician assisted suicide. The Court observed : “Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.”

82. In Vacco’s case (supra) the U.S. Supreme Court again recognized the distinction between refusing life saving medical treatment and giving lethal medication. The Court disagreed with the view of the Second Circuit Federal Court that ending or refusing lifesaving medical treatment is nothing more nor less than assisted suicide. The Court held that “the distinction between letting a patient die and making that patient die is important, logical, rational, and well established”. The Court held that the State of New York could validly ban the latter.

83. In Cruzan v. Director, MDH, [1990] USSC 122; 497 U.S. 261(1990) decided by the U.S. Supreme Court the majority opinion was delivered by the Chief Justice Rehnquist.

84. In that case, the petitioner Nancy Cruzan sustained injuries in an automobile accident and lay in a Missouri State hospital in what has been referred to as a persistent vegetative state (PVS), a condition in which a person exhibits motor reflexes but evinces no indication of significant cognitive function. The state of Missouri was bearing the cost of her care. 79 Her parents and co-guardians applied to the Court for permission to withdraw her artificial feeding and hydration equipment and allow her to die. While the trial Court granted the prayer, the State Supreme Court of Missouri reversed, holding that under a statute in the State of Missouri it was necessary to prove by clear and convincing evidence that the incompetent person had wanted, while competent, withdrawal of life support treatment in such an eventuality. The only evidence led on that point was the alleged statement of Nancy Cruzan to a housemate about a year before the accident that she did not want life as a `vegetable’. The State Supreme Court was of the view that this did not amount to saying that medical treatment or nutrition or hydration should be withdrawn.

85. Chief Justice Rehnquist delivering the opinion of the Court (in which Justices White, O’Connor, Scalia, and Kennedy, joined) in his judgment first noted the facts:- “On the night of January 11, 1983, Nancy Cruzan lost control of her car as she traveled down Elm Road in Jasper County, Missouri. The vehicle overturned, and Cruzan was discovered lying face down in a ditch without detectable respiratory or cardiac function. Paramedics were able to restore her breathing and heartbeat at the accident site, and she was transported to a hospital in an unconscious state. An attending neurosurgeon diagnosed her as having sustained probable 80 cerebral contusions compounded by significant anoxia (lack of oxygen). The Missouri trial court in this case found that permanent brain damage generally results after 6 minutes in an anoxic state; it was estimated that Cruzan was deprived of oxygen from 12 to 14 minutes. She remained in a coma for approximately three weeks, and then progressed to an unconscious state in which she was able to orally ingest some nutrition. In order to ease feeding and further the recovery, surgeons implanted a gastrostomy feeding and hydration tube in Cruzan with the consent of her then husband. Subsequent rehabilitative efforts proved unavailing. She now lies in a Missouri state hospital in what is commonly referred to as a persistent vegetative state: generally, a condition in which a person exhibits motor reflexes but evinces no indications of significant cognitive function. 1 The State of Missouri is bearing the cost of her care. [1990] USSC 122; [497 U.S. 261, 267] After it had become apparent that Nancy Cruzan had virtually no chance of regaining her mental faculties, her parents asked hospital employees to terminate the artificial nutrition and hydration procedures. All agree that such a [1990] USSC 122; [497 U.S. 261, 268] removal would cause her death. The employees refused to honor the request without court approval. The parents then sought and received authorization from the state trial court for termination.”

86. While the trial Court allowed the petition the State Supreme Court of Missouri reversed. The US Supreme Court by majority affirmed the verdict of the State Supreme Court

87. Chief Justice Rehnquist noted that in law even touching of one person by another without consent and without legal justification was a battery, and 81 hence illegal. The notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. As observed by Justice Cardozo, while on the Court of Appeals of New York “Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.” vide Schloendorff vs. Society of New York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914). Thus the informed consent doctrine has become firmly entrenched in American Tort Law. The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is to refuse treatment.

88. The question, however, arises in cases where the patient is unable to decide whether the treatment should continue or not e.g. if he is in coma or PVS. Who is to give consent to terminate the treatment in such a case? The learned Chief Justice referred to a large number of decisions of Courts in U.S.A. in this connection, often taking diverse approaches.

89. In re Quinlan 70 N.J.10, 355 A. 2d 647, Karen Quinlan suffered severe brain damage as a result of anoxia, and entered into PVS. Her father 82 sought judicial approval to disconnect her respirator. The New Jersey Supreme Court granted the prayer, holding that Karen had a right of privacy grounded in the U.S. Constitution to terminate treatment. The Court concluded that the way Karen’s right to privacy could be exercised would be to allow her guardian and family to decide whether she would exercise it in the circumstances.

90. In re Conroy 98 NJ 321, 486 A.2d 1209 (1985), however, the New Jersey Supreme Court, in a case of an 84 year old incompetent nursing home resident who had suffered irreversible mental and physical ailments, contrary to its decision in Quinlan’s case, decided to base its decision on the common law right to self determination and informed consent. This right can be exercised by a surrogate decision maker when there was a clear evidence that the incompetent person would have exercised it. Where such evidence was lacking the Court held that an individual’s right could still be invoked in certain circumstances under objective `best interest’ standards. Where no trustworthy evidence existed that the individual would have wanted to terminate treatment, and a person’s suffering would make the administration of life sustaining treatment inhumane, a pure objective 83 standard could be used to terminate the treatment. If none of these conditions obtained, it was best to err in favour of preserving life.

91. What is important to note in Cruzan’s case (supra) is that there was a statute of the State of Missouri, unlike in Airedale’s case (where there was none), which required clear and convincing evidence that while the patient was competent she had desired that if she becomes incompetent and in a PVS her life support should be withdrawn.

92. In Cruzan’s case (supra) the learned Chief Justice observed :

“Not all incompetent patients will have loved ones available to serve as surrogate decision makers. And even where family members are present, there will be, of course, some unfortunate situations in which family members will not act to protect a patient. A State is entitled to guard against potential abuses in such situations.” 93. The learned Chief Justice further observed :

“An erroneous decision not to terminate results in maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient’s intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw 84 life-sustaining treatment, however, is not susceptible of correction.”

94. No doubt Mr. Justice Brennan (with whom Justices Marshall and Blackmun joined) wrote a powerful dissenting opinion, but it is not necessary for us to go into the question whether the view of the learned Chief Justice or that of Justice Brennan, is correct.

95. It may be clarified that foreign decisions have only persuasive value in our country, and are not binding authorities on our Courts. Hence we can even prefer to follow the minority view, rather than the majority view, of a foreign decision, or follow an overruled foreign decision.

96. Cruzan’s case (supra) can be distinguished on the simple ground that there was a statute in the State of Missouri, whereas there was none in the Airedale’s case nor in the present case before us. We are, therefore, of the opinion that the Airedale’s case (supra) is more apposite as a precedent for us. No doubt foreign decisions are not binding on us, but they certainly have persuasive value.

LAW IN INDIA

97. In India abetment of suicide (Section 306 Indian Penal Code) and attempt to suicide (Section 309 of Indian Penal Code) are both criminal 85 offences. This is in contrast to many countries such as USA where attempt to suicide is not a crime.

98. The Constitution Bench of the Indian Supreme Court in Gian Kaur vs. State of Punjab, 1996(2) SCC 648 held that both euthanasia and assisted suicide are not lawful in India. That decision overruled the earlier two Judge Bench decision of the Supreme Court in P. Rathinam vs. Union of India, 1994(3) SCC 394. The Court held that the right to life under Article 21 of the Constitution does not include the right to die (vide para 33). In Gian Kaur’s case (supra) the Supreme Court approved of the decision of the House of Lords in Airedale’s case (supra), and observed that euthanasia could be made lawful only by legislation. 99. Sections 306 and 309 IPC read as under :

“306. Abetment of suicide – If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

309. Attempt to commit suicide – Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both.” 86 100. We are of the opinion that although Section 309 Indian Penal Code (attempt to commit suicide) has been held to be constitutionally valid in Gian Kaur’s case (supra), the time has come when it should be deleted by Parliament as it has become anachronistic. A person attempts suicide in a depression, and hence he needs help, rather than punishment. We therefore recommend to Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code. 101. It may be noted that in Gian Kaur’s case (supra) although the Supreme Court has quoted with approval the view of the House of Lords in Airedale’s case (supra), it has not clarified who can decide whether life support should be discontinued in the case of an incompetent person e.g. a person in coma or PVS. This vexed question has been arising often in India because there are a large number of cases where persons go into coma (due to an accident or some other reason) or for some other reason are unable to give consent, and then the question arises as to who should give consent for withdrawal of life support.

102. This is an extremely important question in India because of the unfortunate low level of ethical standards to which our society has descended, its raw and widespread commercialization, and the rampant 87 corruption, and hence, the Court has to be very cautious that unscrupulous persons who wish to inherit the property of someone may not get him eliminated by some crooked method.

103. Also, since medical science is advancing fast, doctors must not declare a patient to be a hopeless case unless there appears to be no reasonable possibility of any improvement by some newly discovered medical method in the near future. In this connection we may refer to a recent news item which we have come across on the internet of an Arkansas man Terry Wallis, who was 19 years of age and newly married with a baby daughter when in 1984 his truck plunged through a guard rail, falling 25 feet. He went into coma in the crash in 1984, but after 24 years he has regained consciousness. This was perhaps because his brain spontaneously rewired itself by growing tiny new nerve connections to replace the ones sheared apart in the car crash. Probably the nerve fibers from Terry Wallis’ cells were severed but the cells themselves remained intact, unlike Terri Schiavo, whose brain cells had died (see Terri Schiavo’s case on Google). 104. However, we make it clear that it is experts like medical practitioners who can decide whether there is any reasonable possibility of a new medical discovery which could enable such a patient to revive in the near future.

88 WHEN CAN A PERSON IS SAID TO BE DEAD 105. It is alleged in the writ petition filed by Ms. Pinky Virani (claiming to be the next friend of Aruna Shanbaug) that in fact Aruna Shanbaug is already dead and hence by not feeding her body any more we shall not be killing her. The question hence arises as to when a person can be said to be dead ? 106. A person’s most important organ is his/her brain. This organ cannot be replaced. Other body parts can be replaced e.g. if a person’s hand or leg is amputed, he can get an artificial limb. Similarly, we can transplant a kidney, a heart or a liver when the original one has failed. However, we cannot transplant a brain. If someone else’s brain is transplanted into one’s body, then in fact, it will be that other person living in one’s body. The entire mind, including one’s personality, cognition, memory, capacity of receiving signals from the five senses and capacity of giving commands to the other parts of the body, etc. are the functions of the brain. Hence one is one’s brain. It follows that one is dead when one’s brain is dead.

107. As is well-known, the brain cells normally do not multiply after the early years of childhood (except in the region called hippocampus), unlike other cells like skin cells, which are regularly dying and being replaced by 89 new cells produced by multiplying of the old cells. This is probably because brain cells are too highly specialized to multiply. Hence if the brain cells die, they usually cannot be replaced (though sometimes one part of the brain can take over the function of another part in certain situations where the other part has been irreversibly damaged).

108. Brain cells require regular supply of oxygen which comes through the red cells in the blood. If oxygen supply is cut off for more than six minutes, the brain cells die and this condition is known as anoxia. Hence, if the brain is dead a person is said to be dead.

BRAIN DEATH 109. The term `brain death’ has developed various meanings. While initially, death could be defined as a cessation of breathing, or, more scientifically, a cessation of heart-beat, recent medical advances have made such definitions obsolete. In order to understand the nature and scope of brain death, it is worthwhile to look at how death was understood. Historically, as the oft-quoted definition in Black’s Law Dictionary suggests, death was:

“The cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the blood, and a cessation of the animal and 90 vital functions consequent thereon, such as respiration, pulsation, etc.”.1 This definition saw its echo in numerous other texts and legal case law. This includes many American precedents- such as Schmidt v. Pierce, 344 S.W.2d 120, 133 (Mo. 1961) (“Black’s Law Dictionary, 4th Ed., defines death as `the cessation of life; the ceasing to exist ….”‘); and Sanger v. Butler, 101 S.W. 459, 462 (Tex. Civ. App. 1907) (“The Encyclopaedic Dictionary, among others, gives the following definitions of [death]: `The state of being dead; the act or state of dying; the state or condition of the dead.’ The Century Dictionary defines death as `cessation of life; that state of a being, animal or vegetable, in which there is a total and permanent cessation of all the vital functions.”‘).2 110. This understanding of death emerged from a cardiopulmonary perspective. In such cases, the brain was usually irrelevant — being understood that the cessation of circulation would automatically lead to the death of brain cells, which require a great deal of blood to survive. 111. The invention of the ventilator and the defibrillator in the 1920s altered this understanding, it being now possible that the cessation of 1 Black’s Law Dictionary 488 (4th ed., rev. 1968).

2 Goldsmith, Jason, Wanted! Dead and/or Alive: Choosing Amongst the Many Not-so-Uniform Definitions of Death, 61 U. Miami L. Rev. 871. (2007).

91 respiration and circulation, though critical, would no longer be irreversible3. Hence, a present-day understanding of death as the irreversible end of life must imply total brain failure, such that neither breathing, nor circulation is possible any more. The question of the length of time that may determine such death is significant, especially considering a significant increase in organ donations across jurisdictions over the last few years. 112. Brain death, may thus, be defined as “the irreversible cessation of all functions of the entire brain, including the brain stem”.4 It is important to understand that this definition goes beyond acknowledging consciousness — a person who is incapable of ever regaining consciousness will not be considered to be brain dead as long as parts of the brain e.g. brain stem that regulate involuntary activity (such as response to light, respiration, heartbeat etc.) still continue to function. Likewise, if consciousness, albeit severely limited, is present, then a person will be considered to be alive even if he has suffered brain stem death, wherein breathing and heartbeat can no longer be regulated and must be mechanically determined. Hence, the international standard for brain death is usually considered to include “whole-brain death”, i.e., a situation where the higher brain (i.e. the part of the brain that 3 Samantha Weyrauch, Acceptance of Whole Brain Death Criteria for Determination of Death: A Comparative Analysis of the United States and Japan, 17 UCLA Pac. Basin L.J. 91, 96. (1999).

4 Section 1, Universal Determination of Death Act, (The United States Legislation) 92 regulates consciousness and thought), the cerebellum or mid-brain, and the brain-stem have all ceased to demonstrate any electrical activity whatsoever for a significant amount of time. To say, in most cases, that only the death of the higher brain would be a criteria for `brain death’ may have certain serious consequences — for example, a foetus, technically under this definition, would not be considered to be alive at all. Similarly, as per this, different definitions of death would apply to human and non-human organisms.

113. Brain death, thus, is different from a persistent vegetative state, where the brain stem continues to work, and so some degree of reactions may occur, though the possibility of regaining consciousness is relatively remote. Even when a person is incapable of any response, but is able to sustain respiration and circulation, he cannot be said to be dead. The mere mechanical act of breathing, thus, would enable him or her to be “alive”. 114. The first attempt to define death in this manner came about in 1968, as a result of a Harvard Committee constituted for the purpose.5 This definition, widely criticized for trying to maximize organ donations, considered death to be a situation wherein “individuals who had sustained traumatic brain 5 Ad Hoc Comm. of the Harvard Med. Sch. to Examine the Definition of Brain Death, A Definition of Irreversible Coma, 205 JAMA 337, 337-40 (1968).

93 injury that caused them to be in an irreversible coma, and had lost the ability to breathe spontaneously”6, would be considered dead. This criticism led to the Presidents’ Committee, set up for the purpose, in 1981, defining death more vaguely as the point “where the body’s physiological system ceases to contribute a uniform whole”. This definition of whole brain death, however, is not without its critics. Some argue that the brain is not always responsible for all bodily functioning- digestion, growth, and some degree of movement (regulated by the spinal cord) may not require any electrical activity in the brain. In order to combat this argument, and further explain what brain death could include, the President’s Committee on Bio-ethics in the United States of America in 2008 came up with a new definition of brain death, according to which a person was considered to be brain dead when he could no longer perform the fundamental human work of an organism. These are:

“(1) “openness to the world, that is receptivity to stimuli and signals from the surrounding environment,”

(2) “the ability to act upon the world to obtain selectively what it needs.

and (3) “the basic felt need that drives the organism to act … to obtain what it needs.”7 6 Seema K. Shah, Franklin Miller, Can We Handle The Truth? Legal Fictions in the Determination of Death. 36 Am. J.L. & Med. 540 (2010).

7 Ibid.

94 115. When this situation is reached, it is possible to assume that the person is dead, even though he or she, through mechanical stimulation, may be able to breathe, his or her heart might be able to beat, and he or she may be able to take some form of nourishment. It is important, thus, that it be medically proved that a situation where any human functioning would be impossible should have been reached for there to be a declaration of brain death– situations where a person is in a persistent vegetative state but can support breathing, cardiac functions, and digestion without any mechanical aid are necessarily those that will not come within the ambit of brain death.

116. In legal terms, the question of death would naturally assume significance as death has a set of legal consequences as well. As per the definition in the American Uniform Definition of Death Act, 1980. an individual who “sustain[s] . . . irreversible cessation of all functions of the entire brain, including the brain stem, is dead.” This stage, thus, is reached at a situation where not only consciousness, but every other aspect of life regulated from the brain can no longer be so regulated. 117. In the case of `euthanasia’, however, the situation is slightly different. In these cases, it is believed, that a determination of when it would be right or fair to disallow resuscitation of a person who is incapable of expressing 95 his or her consent to a termination of his or her life depends on two circumstances:

a. when a person is only kept alive mechanically, i.e. when not only consciousness is lost, but the person is only able to sustain involuntary functioning through advanced medical technology–such as the use of heart-lung machines, medical ventilators etc.

b. when there is no plausible possibility of the person ever being able to come out of this stage. Medical “miracles” are not unknown, but if a person has been at a stage where his life is only sustained through medical technology, and there has been no significant alteration in the person’s condition for a long period of time–at least a few years–then there can be a fair case made out for passive euthanasia.

To extend this further, especially when a person is incapable of being able to give any consent, would amount to committing judicial murder. 118. In this connection we may refer to the Transplantation of Human Organs Act, 1994 enacted by the Indian Parliament. Section 2(d) of the Act states :

“brain-stem death” means the stage at which all functions of the brain-stem have permanently and irreversibly ceased and is so certified under sub-section (6) of section 3:” 96 119. Section 3(6) of the said Act states:

“(6) Where any human organ is to be removed from the body of a person in the event of his brain-stem death, no such removal shall be undertaken unless such death is certified, in such form and in such manner and on satisfaction of such conditions and requirements as may be prescribed, by a Board of medical experts consisting of the following, namely:- (i) the registered medical practitioner, in charge of the hospital in which brain-stem death has occurred;

(ii) an independent registered medical practitioner, being a specialist, to be nominated by the registered medical practitioner specified in clause (i), from the panel of names approved by the Appropriate Authority;

(iii) a neurologist or a neurosurgeon to be nominated by the registered medical practitioner specified in clause (i), from the panel of names approved by the Appropriate Authority; and (iv) the registered medical practitioner treating the person whose brain-stem death has occurred”.

120. Although the above Act was only for the purpose of regulation of transplantation of human organs it throws some light on the meaning of brain death.

97 121. From the above angle, it cannot be said that Aruna Shanbaug is dead. Even from the report of Committee of Doctors which we have quoted above it appears that she has some brain activity, though very little.

122. She recognizes that persons are around her and expresses her like or dislike by making some vocal sound and waving her hand by certain movements. She smiles if she receives her favourite food, fish and chicken soup. She breathes normally and does not require a heart lung machine or intravenous tube for feeding. Her pulse rate and respiratory rate and blood pressure are normal. She was able to blink well and could see her doctors who examined her. When an attempt was made to feed her through mouth she accepted a spoonful of water, some sugar and mashed banana. She also licked the sugar and banana paste sticking on her upper lips and swallowed it. She would get disturbed when many people entered her room, but she appeared to calm down when she was touched or caressed gently. 123. Aruna Shanbaug meets most of the criteria for being in a permanent vegetative state which has resulted for 37 years. However, her dementia has not progressed and has remained stable for many years. 98 124. From the above examination by the team of doctors, it cannot be said that Aruna Shanbaug is dead. Whatever the condition of her cortex, her brain stem is certainly alive. She does not need a heart–lung machine. She breathes on her own without the help of a respirator. She digests food, and her body performs other involuntary function without any help. From the CD (which we had screened in the courtroom on 2.3.2011 in the presence of counsels and others) it appears that she can certainly not be called dead. She was making some sounds, blinking, eating food put in her mouth, and even licking with her tongue morsels on her mouth. 125. However, there appears little possibility of her coming out of PVS in which she is in. In all probability, she will continue to be in the state in which she is in till her death. The question now is whether her life support system (which is done by feeding her) should be withdrawn, and at whose instance? WITHDRAWAL OF LIFE SUPPORT OF A PATIENT IN
PERMANENT VEGETATIVE STATE (PVS) 126. 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 in this connection. We agree with Mr. 99 Andhyarujina that passive euthanasia should be permitted in our country in certain situations, and we disagree with the learned Attorney General that it should never be permitted. Hence, following the technique used in Vishakha’s case (supra), we are laying down the law in this connection which will continue to be the law until Parliament makes a law on the subject.

(i) A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient. In the present case, we have already noted that Aruna Shanbaug’s parents are dead and other close relatives are not interested in her ever since she had the unfortunate assault on her. As already noted above, 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 100 Virani who has only visited her on few occasions and written a book on her. Hence it is for the KEM hospital staff to take that decision. The KEM hospital staff have clearly expressed their wish that Aruna Shanbaug should be allowed to live. Mr. Pallav Shisodia, learned senior counsel, appearing for the Dean, KEM Hospital, Mumbai, submitted that Ms. Pinky Virani has no locus standi in this case. In our opinion it is not necessary for us to go into this question since we are of the opinion that it is the KEM Hospital staff who is really the next friend of Aruna Shanbaug. We do not mean to decry or disparage what Ms. Pinky Virani has done. Rather, we wish to express our appreciation of the splendid social spirit she has shown. We have seen on the internet that she has been espousing many social causes, and we hold her in high esteem. All that we wish to say is that however much her interest in Aruna Shanbaug may be it cannot match the involvement of the KEM hospital staff who have been taking care of Aruna day and night for 38 years.

101 However, assuming that the KEM hospital staff at some future time changes its mind, in our opinion in such a situation the KEM hospital would have to apply to the Bombay High Court for approval of the decision to withdraw life support.

(ii) Hence, even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned as laid down in Airedale’s case (supra). In our opinion, this is even more necessary in our country as we cannot rule out the possibility of mischief being done by relatives or others for inheriting the property of the patient.

127. In our opinion, if we leave it solely to the patient’s relatives or to the doctors or next friend to decide whether to withdraw the life support of an incompetent person there is always a risk in our country that this may be misused by some unscrupulous persons who wish to inherit or otherwise grab the property of the patient. Considering the low ethical levels prevailing in our society today and the rampant commercialization and corruption, we cannot rule out the possibility that unscrupulous persons with 102 the help of some unscrupulous doctors may fabricate material to show that it is a terminal case with no chance of recovery. There are doctors and doctors. While many doctors are upright, there are others who can do anything for money (see George Bernard Shaw’s play `The Doctors Dilemma’). The commercialization of our society has crossed all limits. Hence we have to guard against the potential of misuse (see Robin Cook’s novel `Coma’). In our opinion, while giving great weight to the wishes of the parents, spouse, or other close relatives or next friend of the incompetent patient and also giving due weight to the opinion of the attending doctors, we cannot leave it entirely to their discretion whether to discontinue the life support or not. We agree with the decision of the Lord Keith in Airedale’s case (supra) that the approval of the High Court should be taken in this connection. This is in the interest of the protection of the patient, protection of the doctors, relative and next friend, and for reassurance of the patient’s family as well as the public. This is also in consonance with the doctrine of parens patriae which is a well known principle of law. DOCTRINE OF PARENS PATRIAE 128. The doctrine of Parens Patriae (father of the country) had originated in British law as early as the 13th century. It implies that the King is the 103 father of the country and is under obligation to look after the interest of those who are unable to look after themselves. The idea behind Parens Patriae is that if a citizen is in need of someone who can act as a parent who can make decisions and take some other action, sometimes the State is best qualified to take on this role. 129. In the Constitution Bench decision of this Court in Charan Lal Sahu vs. Union of India [1989] INSC 395; (1990) 1 SCC 613 (vide paras 35 and 36), the doctrine has been explained in some details as follows :

“In the “Words and Phrases” Permanent Edition, Vol. 33 at page 99, it is stated that parens patriae is the inherent power and authority of a legislature to provide protection to the person and property of persons non sui juris, such as minor, insane, and incompetent persons, but the words parens patriae meaning thereby `the father of the country’, were applied originally to the King and are used to designate the State referring to its sovereign power of guardianship over persons under disability. Parens patriae jurisdiction, it has been explained, is the right of the sovereign and imposes a duty on the sovereign, in public interest, to protect persons under disability who have no rightful protector. The connotation of the term parens patriae differs from country to country, for instance, in England it is the King, in America it is the people, etc. The government is within its duty to protect and to control persons under disability”. 104 The duty of the King in feudal times to act as parens patriae (father of the country) has been taken over in modern times by the State.

130. In Heller vs. DOE (509) US 312 Mr. Justice Kennedy speaking for the U.S. Supreme Court observed :

“the State has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable to care for themselves”.

131. In State of Kerala vs. N.M. Thomas, 1976(1) SCR 906 (at page 951) Mr. Justice Mathew observed :

” The Court also is `state’ within the meaning of Article 12 (of the Constitution).”.

132. In our opinion, in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.

UNDER WHICH PROVISION OF THE LAW CAN THE COURT GRANT APPROVAL FOR WITHDRAWING LIFE SUPPORT TO AN
INCOMPETENT PERSON 105 133. In our opinion, it is the High Court under Article 226 of the Constitution which can grant approval for withdrawal of life support to such an incompetent person. Article 226(1) of the Constitution states :

“Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose”.

134. A bare perusal of the above provisions shows that the High Court under Article 226 of the Constitution is not only entitled to issue writs, but is also entitled to issue directions or orders. 135. In Dwarka Nath vs. ITO [1965] INSC 86; AIR 1966 SC 81(vide paragraph 4) this Court observed : “This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression “nature”, for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. 106 That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art. 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure.”

136. The above decision has been followed by this Court in Shri Anadi Mukta Sadguru vs. V. R. Rudani [1989] INSC 134; AIR 1989 SC 1607 (vide para 18). 137. No doubt, the ordinary practice in our High Courts since the time of framing of the Constitution in 1950 is that petitions filed under Article 226 of the Constitution pray for a writ of the kind referred to in the provision. However, from the very language of the Article 226, and as explained by the above decisions, a petition can also be made to the High Court under Article 226 of the Constitution praying for an order or direction, and not for any writ. Hence, in our opinion, Article 226 gives abundant power to the High Court to 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 of the kind above mentioned. 107 PROCEDURE TO BE ADOPTED BY THE HIGH COURT WHEN SUCH AN APPLICATION IS FILED 138. When such an application is filed the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. Before doing so the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit. Preferably one of the three doctors should be a neurologist, one should be a psychiatrist, and the third a physician. For this purpose a panel of doctors in every city may be prepared by the High Court in consultation with the State Government/Union Territory and their fees for this purpose may be fixed. 139. The committee of three doctors nominated by the Bench 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 Bench.

140. Simultaneously with appointing the committee of doctors, the High Court Bench shall also issue notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence 108 his/her next friend, and supply a copy of the report of the doctor’s committee to them as soon as it is available. After hearing them, the High Court bench should give its verdict. The above procedure should be followed all over India until Parliament makes legislation on this subject. 141. The High Court should give its decision speedily at the earliest, since delay in the matter may result in causing great mental agony to the relatives and persons close to the patient.

142. The High Court should give its decision assigning specific reasons in accordance with the principle of `best interest of the patient’ laid down by the House of Lords in Airedale’s case (supra). The views of the near relatives and committee of doctors should be given due weight by the High Court before pronouncing a final verdict which shall not be summary in nature.

143. With these observations, this petition is dismissed.

144. Before parting with the case, we would like to express our gratitude to Mr. Shekhar Naphade, learned senior counsel for the petitioner, assisted by Ms. Shubhangi Tuli, Ms. Divya Jain and Mr. Vimal Chandra S. Dave, 109 advocates, the learned Attorney General for India Mr. G. E. Vahanvati, assisted by Mr. Chinmoy P. Sharma, advocate, Mr. T. R. Andhyarujina, learned Senior Counsel, whom we had appointed as amicus curiae assisted by Mr. Soumik Ghoshal, advocate, Mr. Pallav Shishodia, learned senior counsel, assisted by Ms. Sunaina Dutta and Mrs. Suchitra Atul Chitale, advocates for the KEM Hospital, Mumbai and Mr. Chinmoy Khaldkar, counsel for the State of Maharashtra, assisted by Mr. Sanjay V. Kharde and Ms. Asha Gopalan Nair, advocates, who were of great assistance to us. We wish to express our appreciation of Mr. Manav Kapur, Advocate, who is Law-Clerk-cum-Research Assistant of one of us (Katju, J.) as well as Ms. Neha Purohit, Advocate, who is Law-Clerk-cum-Research Assistant of Hon’ble Justice Gyan Sudha Mishra. We also wish to mention the names of Mr. Nithyaesh Nataraj and Mr. Vaibhav Rangarajan, final year law students in the School of Excellence, Dr. B.R. Ambedkar Law University, Chennai, who were the interns of one of us (Katju, J.) and who were of great help in doing research in this case.

145. We wish to commend the team of doctors of Mumbai who helped us viz. Dr. J. V. Divatia, Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial Hospital, Mumbai; Dr. Roop 110 Gursahani, Consultant Neurologist at P.D. Hinduja, Mumbai; and Dr. Nilesh Shah, Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital. They did an excellent job.

146. We also wish to express our appreciation of Ms. Pinki Virani who filed this petition. Although we have dismissed the petition for the reasons given above, we regard her as a public spirited person who filed the petition for a cause she bona fide regarded as correct and ethical. We hold her in high esteem.

147. We also commend the entire staff of KEM Hospital, Mumbai (including the retired staff) for their noble spirit and outstanding, exemplary and unprecedented dedication in taking care of Aruna for so many long years. Every Indian is proud of them.

……….…………………….J.
(Markandey Katju)
…………………………….J.
(Gyan Sudha Misra)

New Delhi:
March 07, 2011

The post Aruna Ramachandra Shanbaug vs. Union of India appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 115 OF 2009
Aruna Ramchandra Shanbaug .. Petitioner
versus
Union of India and others .. Respondents

J U D G M E N T

Markandey Katju, J.

“Marte hain aarzoo mein marne ki Maut aati hai par nahin aati”

— Mirza Ghalib

1. Heard Mr. Shekhar Naphade, learned senior counsel for the petitioner, learned Attorney General for India for the Union of India Mr. Vahanvati, Mr. T. R. Andhyarujina, learned Senior Counsel, whom we had appointed as amicus curiae, Mr. Pallav Sisodia, learned senior counsel for the Dean, KEM Hospital, Mumbai, and Mr. Chinmay Khaldkar, learned counsel for the State of Maharashtra.

2. Euthanasia is one of the most perplexing issues which the courts and legislatures all over the world are facing today. This Court, in this case, is facing the same issue, and we feel like a ship in an uncharted sea, seeking some guidance by the light thrown by the legislations and judicial pronouncements of foreign countries, as well as the submissions of learned counsels before us. The case before us is a writ petition under Article 32 of the Constitution, and has been filed on behalf of the petitioner Aruna Ramachandra Shanbaug by one Ms. Pinki Virani of Mumbai, claiming to be a next friend.

3. It is stated in the writ petition that the petitioner Aruna Ramachandra Shanbaug was a staff Nurse working in King Edward Memorial Hospital, Parel, Mumbai. On the evening of 27th November, 1973 she was attacked by a sweeper in the hospital who wrapped a dog chain around her neck and yanked her back with it. He tried to rape her but finding that she was menstruating, he sodomized her. To immobilize her during this act he twisted the chain around her neck. The next day on 28th November, 1973 at 7.45 a.m. a cleaner found her lying on the floor with blood all over in an unconscious condition. It is alleged that due to strangulation by the dog chain the supply of oxygen to the brain stopped and the brain got damaged. It is alleged that the Neurologist in the Hospital found that she had plantars’ extensor, which indicates damage to the cortex or some other part of the brain. She also had brain stem contusion injury with associated cervical cord injury. It is alleged at page 11 of the petition that 36 years have expired since the incident and now Aruna Ramachandra Shanbaug is about 60 years of age. She is featherweight, and her brittle bones could break if her hand or leg are awkwardly caught, even accidentally, under her lighter body. She has stopped menstruating and her skin is now like papier mache’ stretched over a skeleton. She is prone to bed sores. Her wrists are twisted inwards. Her teeth had decayed causing her immense pain. She can only be given mashed food, on which she survives. It is alleged that Aruna Ramachandra Shanbaug is in a persistent negetative state (p.v.s.) and virtually a dead person and has no state of awareness, and her brain is virtually dead. She can neither see, nor hear anything nor can she express herself or communicate, in any manner whatsoever. Mashed food is put in her mouth, she is not able to chew or taste any food. She is not even aware that food has been put in her mouth. She is not able to swallow any liquid food, which shows that the food goes down on its own and not because of any effort on her part. The process of digestion goes on in this way as the mashed food passes through her system. However, Aruna is virtually a skeleton. Her excreta and the urine is discharged on the bed itself. Once in a while she is cleaned up but in a short while again she goes back into the same sub-human condition. Judged by any parameter, Aruna cannot be said to be a living person and it is only on account of mashed food which is put into her mouth that there is a facade of life which is totally devoid of any human element. It is alleged that there is not the slightest possibility of any improvement in her condition and her body lies on the bed in the KEM Hospital, Mumbai like a dead animal, and this has been the position for the last 36 years. The prayer of the petitioner is that the respondents be directed to stop feeding Aruna, and let her die peacefully.

4. We could have dismissed this petition on the short ground that under Article 32 of the Constitution of India (unlike Article 226) the petitioner has to prove violation of a fundamental right, and it has been held by the Constitution Bench decision of this Court in Gian Kaur vs. State of Punjab, 1996(2) SCC 648 (vide paragraphs 22 and 23) that the right to life guaranteed by Article 21 of the Constitution does not include the right to die. Hence the petitioner has not shown violation of any of her fundamental rights. However, in view of the importance of the issues involved we decided to go deeper into the merits of the case.

5. Notice had been issued by this Court on 16.12.2009 to all the respondents in this petition. A counter affidavit was earlier filed on behalf of the respondent nos.3 and 4, the Mumbai Municipal Corporation and the Dean, KEM Hospital by Dr. Amar Ramaji Pazare, Professor and Head in the said hospital, stating in paragraph 6 that Aruna accepts the food in normal course and responds by facial expressions. She responds to commands intermittently by making sounds. She makes sounds when she has to pass stool and urine which the nursing staff identifies and attends to by leading her to the toilet. Thus, there was some variance between the allegations in the writ petition and the counter affidavit of Dr. Pazare.

6. Since there was some variance in the allegation in the writ petition and the counter affidavit of Dr. Pazare, we, by our order dated 24 January, 2011 appointed a team of three very distinguished doctors of Mumbai to examine Aruna Shanbaug thoroughly and submit a report about her physical and mental condition. These three doctors were :

(1) Dr. J. V. Divatia, Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial Hospital, Mumbai;

(2) Dr. Roop Gursahani, Consultant Neurologist at P.D.

Hinduja, Mumbai; and (3) Dr. Nilesh Shah, Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital.

7. In pursuance of our order dated 24th January, 2011, the team of three doctors above mentioned examined Aruna Shanbuag in KEM Hospital and has submitted us the following report:

” Report of Examination of Ms. Aruna Ramachandra Shanbaug Jointly prepared and signed by

1. Dr. J.V. Divatia (Professor and Head, Department of Anesthesia, Critical Care and Pain, at Tata Memorial Hospital, Mumbai)

2. Dr. Roop Gursahani (Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)

3. Dr. Nilesh Shah (Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital). I. Background As per the request of Hon. Justice Katju and Hon. Justice Mishra of the Supreme Court of India, Ms. Aruna Ramachandra Shanbaug, a 60-year-old female patient was examined on 28th January 2011, morning and 3rd February 2011, in the side-room of ward-4, of the K. E. M. Hospital by the team of 3 doctors viz. Dr. J.V. Divatia (Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial Hospital, Mumbai), Dr. Roop Gursahani (Consultant Neurologist at P.D. Hinduja Hospital, Mumbai) and Dr. Nilesh Shah (Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital). This committee was set up because the Court found some variance between the allegations in the writ petition filed by Ms. Pinki Virani on behalf of Aruna Ramchandras Shanbaug and the counter affidavit of Dr. Pazare. This team of three doctors was appointed to examine Aruna Ramachandra Shanbaug thoroughly and give a report to the Court about her physical and mental condition It was felt by the team of doctors appointed by the Supreme Court that longitudinal case history and observations of last 37 years along with findings of examination will give a better, clear and comprehensive picture of the patient’s condition. This report is based on:

1. The longitudinal case history and observations obtained from the Dean and the medical and nursing staff of K. E. M. Hospital,

2. Case records (including nursing records) since January 2010

3. Findings of the physical, neurological and mental status examinations performed by the panel.

4. Investigations performed during the course of this assessment (Blood tests, CT head, Electroencephalogram) II. Medical history Medical history of Ms. Aruna Ramachandra Shanbaug was obtained from the Dean, the Principal of the School of Nursing and the medical and nursing staff of ward-4 who has been looking after her. It was learnt from the persons mentioned above that

1. Ms. Aruna Ramachandra Shanbaug was admitted in the hospital after she was assaulted and strangulated by a sweeper of the hospital on November 27, 1973.

2. Though she survived, she never fully recovered from the trauma and brain damage resulting from the assault and strangulation.

3. Since last so many years she is in the same bed in the side-room of ward-4.

4. The hospital staff has provided her an excellent nursing care since then which included feeding her by mouth, bathing her and taking care of her toilet needs. The care was of such an exceptional nature that she has not developed a single bed-sore or fracture in spite of her bed-ridden state since 1973.

5. According to the history from them, though she is not very much aware of herself and her surrounding, she somehow recognizes the presence of people around her and expresses her like or dislike by making certain types of vocal sounds and by waving her hands in certain manners. She appears to be happy and smiles when she receives her favorite food items like fish and chicken soup. She accepts feed which she likes but may spit out food which she doesn’t like. She was able to take oral feeds till 16th September 2010, when she developed a febrile illness, probably malaria. After that, her oral intake reduced and a feeding tube (Ryle’s tube) was passed into her stomach via her nose. Since then she receives her major feeds by the Ryle’s tube, and is only occasionally able to accept the oral liquids. Malaria has taken a toll in her physical condition but she is gradually recuperating from it.

6. Occasionally, when there are many people in the room she makes vocal sounds indicating distress. She calms down when people move out of her room. She also seems to enjoy the devotional songs and music which is played in her room and it has calming effect on her.

7. In an annual ritual, each and every batch of nursing students is introduced to Ms. Aruna Ramachandra Shanbaug, and is told that “She was one of us”; “She was a very nice and efficient staff nurse but due to the mishap she is in this bed-ridden state”.

8. The entire nursing staff member and other staff members have a very compassionate attitude towards Ms. Aruna Ramachandra Shanbaug and they all very happily and willingly take care of her. They all are very proud of their achievement of taking such a good care of their bed- ridden colleague and feel very strongly that they want to continue to take care of her in the same manner till she succumbs naturally. They do not feel that Ms. Aruna Ramachandra Shanbaug is living a painful and miserable life. III. Examination IIIa. Physical examination She was conscious, unable to co-operate and appeared to be unaware of her surroundings. Her body was lean and thin. She appeared neat and clean and lay curled up in the bed with movements of the left hand and made sounds, especially when many people were present in the room. She was afebrile, pulse rate was 80/min, regular, and good volume. Her blood pressure recorded on the nursing charts was normal. Respiratory rate was 15/min, regular, with no signs of respiratory distress or breathlessness. There was no pallor, cyanosis, clubbing or icterus. She was edentulous (no teeth). Skin appeared to be generally in good condition, there were no bed sores, bruises or evidence of old healed bed sores. There were no skin signs suggestive of nutritional deficiency or dehydration. Her wrists had developed severe contractures, and were fixed in acute flexion. Both knees had also developed contractures (right more than left). A nasogastric feeding tube (Ryles tube) was in situ. She was wearing diapers. Abdominal, respiratory and cardiovascular examination was unremarkable. IIIb. Neurological Examination When examined she was conscious with eyes open wakefulness but without any apparent awareness (see Table 1 for detailed assessment of awareness). From the above examination, she has evidence of intact auditory, visual, somatic and motor primary neural pathways. However no definitive evidence for awareness of auditory, visual, somatic and motor stimuli was observed during our examinations. There was no coherent response to verbal commands or to calling her name. She did not turn her head to the direction of sounds or voices. When roused she made non-specific unintelligible sounds (“uhhh, ahhh”) loudly and continuously but was generally silent when undisturbed. Menace reflex (blinking in response to hand movements in front of eyes) was present in both eyes and hemifields but brisker and more consistent on the left. Pupillary reaction was normal bilaterally. Fundi could not be seen since she closed her eyes tightly when this was attempted. At rest she seemed to maintain preferential gaze to the left but otherwise gaze was random and undirected (roving) though largely conjugate. Facial movements were symmetric. Gag reflex (movement of the palate in response to insertion of a tongue depressor in the throat) was present and she does not pool saliva. She could swallow both teaspoonfuls of water as well as a small quantity of mashed banana. She licked though not very completely sugar smeared on her lips, suggesting some tongue control. She had flexion contractures of all limbs and seemed to be incapable of turning in bed spontaneously. There was what appeared to be minimal voluntary movement with the left upper limb (touching her wrist to the eye for instance, perhaps as an attempt to rub it). When examined/disturbed, she seemed to curl up even further in her flexed foetal position. Sensory examination was not possible but she did seem to find passive movement painful in all four limbs and moaned continuously during the examination. Deep tendon reflexes were difficult to elicit elsewhere but were present at the ankles. Plantars were withdrawal/extensor. Thus neurologically she appears to be in a state of intact consciousness without awareness of self/environment. No cognitive or communication abilities could be discerned. Visual function if present is severely limited. Motor function is grossly impaired with quadriparesis. IIIc. Mental Status Examination

1. Consciousness, General Appearance, Attitude and Behavior : Ms. Aruna Ramachandra Shanbaug was resting quietly in her bed, apparently listening to the devotional music, when we entered the room. Though, her body built is lean, she appeared to be well nourished and there were no signs of malnourishment. She appeared neat and clean. She has developed contractures at both the wrist joints and knee joints and so lied curled up in the bed with minimum restricted physical movements. She was conscious but appeared to be unaware of herself and her surroundings. As soon as she realized the presence of some people in her room, she started making repetitive vocal sounds and moving her hands. This behavior subsided as we left the room. She did not have any involuntary movements. She did not demonstrate any catatonic, hostile or violent behavior. Her eyes were wide open and from her behavior it appeared that she could see and hear us, as when one loudly called her name, she stopped making vocal sounds and hand movements for a while. She was unable to maintain sustained eye-to eye contact but when the hand was suddenly taken near her eyes, she was able to blink well. When an attempt was made to feed her by mouth, she accepted a spoonful of water, some sugar and mashed banana. She also licked the sugar and banana paste sticking on her upper lips and swallowed it. Thus, at times she could cooperate when fed.

2. Mood and affect : It was difficult to assess her mood as she was unable to communicate or express her feelings. She appeared to calm down when she was touched or caressed gently. She did not cry or laugh or expressed any other emotions verbally or non-verbally during the examination period. When not disturbed and observed quietly from a distance, she did not appear to be in severe pain or misery. Only when many people enter her room, she appears to get a bit disturbed about it.

3. Speech and thoughts : She could make repeated vocal sounds but she could not utter or repeat any comprehensible words or follow and respond to any of the simple commands (such as “show me your tongue”). The only way she expressed herself was by making some sounds. She appeared to have minimal language comprehension or expression.

4. Perception : She did not appear to be having any perceptual abnormality like hallucinations or illusions from her behavior.

5. Orientation, memory and intellectual capacity : Formal assessment of orientation in time, place and person, memory of immediate, recent and remote events and her intellectual capacity could not be carried out.

6. Insight : As she does not appear to be fully aware of herself and her surroundings, she is unlikely to have any insight into her illness. IV. Reports of Investigations IVa. CT Scan Head (Plain) This is contaminated by movement artefacts. It shows generalized prominence of supratentorial sulci and ventricles suggestive of generalized cerebral atrophy. Brainstem and cerebellum seem normal. Ischemic foci are seen in left centrum semi-ovale and right external capsule. In addition a small left parieto-occipital cortical lesion is also seen and is probably ischemic. IVb. EEG The dominant feature is a moderately rhythmic alpha frequency at 8-10 Hz and 20-70 microvolts which is widely distributed and is equally prominent both anteriorly and posteriorly. It is not responsive to eye- opening as seen on the video. Beta at 18-25 Hz is also seen diffusely but more prominently anteriorly. No focal or paroxysmal abnormalities were noted IVc. Blood Reports of the hemoglobin, white cell count, liver function tests, renal function tests, electrolytes, thyroid function, Vitamin B12 and 1,25 dihydroxy Vit D3 levels are unremarkable. (Detailed report from KEM hospital attached.) V. Diagnostic impression 1) From the longitudinal case history and examination it appears that Ms. Aruna Ramachandra Shanbaug has developed non-progressive but irreversible brain damage secondary to hypoxic-ischemic brain injury consistent with the known effects of strangulation. Most authorities consider a period exceeding 4 weeks in this condition, especially when due to hypoxic-ischemic injury as confirming irreversibility. In Ms. Aruna’s case, this period has been as long as 37 years, making her perhaps the longest survivor in this situation. 2) She meets most of the criteria for being in a permanent vegetative state (PVS). PVS is defined as a clinical condition of unawareness (Table 1) of self and environment in which the patient breathes spontaneously, has a stable circulation and shows cycles of eye closure and opening which may simulate sleep and waking (Table 2). While she has evidence of intact auditory, visual, somatic and motor primary neural pathways, no definitive evidence for awareness of auditory, visual, somatic and motor stimuli was observed during our examinations. VI. Prognosis Her dementia has not progressed and has remained stable for last many years and it is likely to remain same over next many years. At present there is no treatment available for the brain damage she has sustained.

VII. Appendix VII a. Table 1. CLINICAL ASSESSMENT TO ESTABLISH UNAWARENESS (Wade DT, Johnston C. British Med STI MULUS RESPONSE Journal 1999; 319:841-844) DOMAIN OBSERVED AUDITORY AWARENESS Sudden loud noise (clap) Startle present, ceases other movements Meaningful noise (rattled steel tumbler and spoon, film songs Non-specific head and body movements of 1970s) Spoken commands (“close your eyes”, “lift left hand “: in Unable to obey commands. No specific or reproducible English, Marathi and Konkani) response VISUAL AWARENESS Bright light to eyes Pupillary responses present Large moving object in front of eyes (bright red torch Tracking movements: present but inconsistent and poorly rattle) reproducible Visual threat (fingers suddenly moved toward eyes) Blinks, but more consistent on left than right Written command (English, Marathi: close your eyes) No response SOMATIC AWARENESS Painful stimuli to limbs (light prick with Wi thdrawal, maximal in left upper limb sharp end of tendon hammer) Painful stimuli to face Distress but no co-ordinated response to remove stimulus Routine sensory stimuli during care (changing position in bed Generalized non specific response presence but no coordinated and feeding) attempt to assist in process MOTOR OUTPUT Spontaneous Non-specific undirected activities. Goal directed – lifting left hand to left side of face, apparently to rub her left eye. Responsive Non-specific undirected without any goal directed activities. Conclusion:

From the above examination, she has evidence of intact auditory, visual, somatic and motor primary neural pathways. However no definitive evidence for awareness of auditory, visual, somatic and motor stimuli was observed during our examinations.

VIIb. Table 2. Application of Criteria for Vegetative State (Bernat JL. Neurology clinical Practice 2010; 75 (suppl. 1):

Exa mination findings : whether she meets Criteria S33-S38) Criteria (Yes /No / Probably) Unaware of self and environment Yes, Unaware No interaction with others Yes, no interaction No sustained, reproducible or purposeful voluntary Yes , no sustained, reproducible or purposeful behavioural response to visual, auditory, tactile or b ehavioural response, but : noxious stimuli 1. Resisted examination of fundus

2. Licked sugar off lips No language comprehension or expression Yes, no comprehension No blink to visual threat Blinks, but more consistent on left than right Present sleep wake cycles Yes (according to nurses) Preserved autonomic and hypothalamic function Yes Preserved cranial nerve reflexes Yes Bowel and bladder incontinence Yes VIII. References

1. Multi-Society Task Force on PVS. Medical aspects of the persistent vegetative state. N Engl J Med 1994; 330: 1499-508

2. Wade DT, Johnston C. The permanent vegetative state: practical guidance on diagnosis and management. Brit Med J 1999; 319:841-4

3. Giacino JT, Ashwal S, Childs N, et al. The minimally conscious state : Definition and diagnostic criteria. Neurology 2002;58:349-353

4. Bernat JL. Current controversies in states of chronic unconsciousness. Neurology 2010;75;S33” 8. On 18th February, 2011, we then passed the following order :

“In the above case Dr. J.V. Divatia on 17.02.2011 handed over the report of the team of three doctors whom we had appointed by our order dated 24th January, 2011. He has also handed over a CD in this connection. Let the report as well as the CD form part of the record.

On mentioning, the case has been adjourned to be listed on 2nd March, 2011 at the request of learned Attorney General of India, Mr. T.R. Andhyarujina, learned Senior Advocate, whom we have appointed as amicus curiae in the case as well as Mr. Shekhar Naphade, learned Senior Advocate for the petitioner.

We request the doctors whom we had appointed viz., Dr. J.V. Divatia, Dr. Roop Gurshani and Dr. Nilesh Shah to appear before us on 2nd March, 2011 at 10.30 A.M. in the Court, since it is quite possible that we may like to ask them questions about the report which they have submitted, and in general about their views in connection with euthanasia.

On perusal of the report of the committee of doctors to us we have noted that there are many technical terms which have been used therein which a non-medical man would find it difficult to understand. We, therefore, request the doctors to submit a supplementary report by the next date of hearing (by e-mailing copy of the same two days before the next date of hearing) in which the meaning of these technical terms in the report is also explained.

The Central Government is directed to arrange for the air travel expenses of all the three doctors as well as their stay in a suitable accommodation at Delhi and also to provide them necessary conveyance and other facilities they require, so that they can appear before us on 02.03.2011.

An honorarium may also be given to the doctors, if they so desire, which may be arranged mutually with the learned Attorney General.

The Dean of King Edward Memorial Hospital as well as Ms. Pinky Virani (who claims to be the next friend of the petitioner) are directed to intimate the brother(s)/sister(s) or other close relatives of the petitioner that the case will be listed on 2nd March, 2011 in the Supreme Court and they can put forward their views before the Court, if they so desire. Learned counsel for the petitioner and the Registry of this Court shall communicate a copy of this Order forthwith to the Dean, KEM Hospital. The Dean, KEM Hospital is requested to file an affidavit stating his views regarding the prayer in this writ petition, and also the condition of the petitioner.

Copy of this Order shall be given forthwith to learned Attorney General of India, Mr. Shekhar Naphade and Mr. Andhyarujina, learned Senior Advocates. Let the matter be listed as the first item on 2nd March, 2011”.

9. On 2.3.2011, the matter was listed again before us and we first saw the screening of the CD submitted by the team of doctors along with their report. We had arranged for the screening of the CD in the Courtroom, so that all present in Court could see the condition of Aruna Shanbaug. For doing so, we have relied on the precedent of the Nuremburg trials in which a screening was done in the Courtroom of some of the Nazi atrocities during the Second World War. We have heard learned counsel for the parties in great detail. The three doctors nominated by us are also present in Court. As requested by us, the doctors team submitted a supplementary report before us which states :

Supplement To The Report Of The Medical Examination Of Aruna Ramchandra Shanbaug Jointly prepared and signed by

1. Dr. J.V. Divatia (Professor and Head, Department of Anesthesia, Critical Care and Pain, at Tata Memorial Hospital, Mumbai)

2. Dr. Roop Gursahani (Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)

3. Dr. Nilesh Shah (Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital). Mumbai February 26, 2011 INDEX Introduction 3 Terminology 4 Glossary of Technical terms 7 Opinion 11 3 Introduction This document is a supplement to the Report of Examination of Ms. Aruna Ramachandra Shanbaug, dated February 14, 2011. On perusal of the report, the Hon. Court observed that there were many technical terms which a non-medical man would find it difficult to understand, and requested us to submit a supplementary report in which the meaning of these technical terms in the report is also explained. We have therefore prepared this Supplement to include a glossary of technical terms used in the earlier Report, and also to clarify some of the terminology related to brain damage. Finally, we have given our opinion in the case of Aruna Shanbaug. Terminology The words coma, brain death and vegetative state are often used in common language to describe severe brain damage. However, in medical terminology, these terms have specific meaning and significance. Brain death A state of prolonged irreversible cessation of all brain activity, including lower brain stem function with the complete absence of voluntary movements, responses to stimuli, brain stem reflexes, and spontaneous respirations. Explanation: This is the most severe form of brain damage. The patient is unconscious, completely unresponsive, has no reflex activity from centres in the brain, and has no breathing efforts on his own. However the heart is beating. This patient can only be maintained alive by advanced life support (breathing machine or ventilator, drugs to maintain blood pressure, etc). These patients can be legally declared dead (`brain dead’) to allow their organs to be taken for donation. Aruna Shanbaug is clearly not brain dead. Coma Patients in coma have complete failure of the arousal system with no spontaneous eye opening and are unable to be awakened by application of vigorous sensory stimulation.Explanation: These patients are unconscious. They cannot be awakened even by application of a painful stimulus. They have normal heart beat and breathing, and do not require advanced life support to preserve life. Aruna Shanbaug is clearly not in Coma. Vegetative State (VS) The complete absence of behavioral evidence for self or environmental awareness. There is preserved capacity for spontaneous or stimulus-induced arousal, evidenced by sleep-wake cycles. .i.e. patients are awake, but have no awareness. Explanation: Patients appear awake. They have normal heart beat and breathing, and do not require advanced life support to preserve life. They cannot produce a purposeful, co- ordinated, voluntary response in a sustained manner, although they may have primitive reflexive responses to light, sound, touch or pain. They cannot understand, communicate, speak, or have emotions. They are unaware of self and environment and have no interaction with others. They cannot voluntarily control passing of urine or stools. They sleep and awaken. As the centres in the brain controlling the heart and breathing are intact, there is no threat to life, and patients can survive for many years with expert nursing care. The following behaviours may be seen in the vegetative state : Sleep-wake cycles with eyes closed, then open Patient breathes on her own Spontaneous blinking and roving eye movements Produce sounds but no words Brief, unsustained visual pursuit (following an object with her eyes) Grimacing to pain, changing facial expressions Yawning; chewing jaw movements Swallowing of her own spit Nonpurposeful limb movements; arching of back Reflex withdrawal from painful stimuli Brief movements of head or eyes toward sound or movement without apparent localization or fixation Startles with a loud sound Almost all of these features consistent with the diagnosis of permanent vegetative state were present during the medical examination of Aruna Shanbaug. Minimally Conscious State Some patients with severe alteration in consciousness have neurologic findings that do not meet criteria for VS. These patients demonstrate some behavioral evidence of conscious awareness but remain unable to reproduce this behavior consistently. This condition is referred to here as the minimally conscious state (MCS). MCS is distinguished from VS by the partial preservation of conscious awareness. To make the diagnosis of MCS, limited but clearly discernible evidence of self or environmental awareness must be demonstrated on a reproducible or sustained basis by one or more of the following behaviors: 7 Following simple commands. 7 Gestural or verbal yes/no responses (regardless of accuracy). 7 Intelligible sounds 7 Purposeful behavior, including movements or emotional behaviors (smiling, crying) that occur in relation to relevant environmental stimuli and are not due to reflexive activity. Some examples of qualifying purposeful behavior include: – appropriate smiling or crying in response to the linguistic or visual content of emotional but not to neutral topics or stimuli – vocalizations or gestures that occur in direct response to the linguistic content of questions – reaching for objects that demonstrates a clear relationship between object location and direction of reach – touching or holding objects in a manner that accommodates the size and shape of the object – pursuit eye movement or sustained fixation that occurs in direct response to moving or salient stimuli None of the above behaviours suggestive of a Minimally Conscious State were observed during the examination of Aruna Shanbaug. GLOSSARY OF TECHNICAL TERMS USED IN THE MAIN REPORT (In Alphabetical order) Term in text Meaning Affect Feeling conveyed though expressions and behavior Afebrile No fever Auditory Related to hearing Bedsore A painful wound on the body caused by having to lie in bed for a long time Bilaterally On both sides (right and left) Bruise An injury or mark where the skin has not been broken but is darker in colour, often as a result of being hit by something Catatonic Describes someone who is stiff and not moving or reacting, as if dead Cerebral atrophy Shrinking of the globe (cortex) of the brain Clubbing Bulging or prominence of the nailbed, making base of the nails look thick. This is often due to longstanding infection inside the lungs. Cognitive Related to ability to understand and process information in the brain Conjugate Synchronised movement (of the eyeball) Conscious Awake with eyes open. By itself the term conscious does not convey any information about awareness of self and surroundings, or the ability to understand, communicate, have emotions, etc. Contractures Muscles or tendons that have become shortened and taut over a period of time. This causes deformity and restriction of movements. CT Scan A specialized X-ray test where images of the brain (or other part of the body) are obtained in cross-section at different levels. This allows clear visualization of different parts of the brain Cyanosis Bluish discoloration of the nails, lips or skin. It may be due to low levels of oxygen in the blood Deep tendon reflexes Reflex response of the fleshy part of certain muscles when its tendon is hit lightly with an examination hammer Dementia Disorder in which there is a cognitive defect, i.e. the patient is unable to understand and process information in the brain Electroencephalography, (EEG) Recording of the electrical activity of the brain Febrile illness Illness with fever Fracture A crack or a break in bones Fundi Plural of fundus. Fundus of the eye is the interior surface of the eye, opposite the lens. It is examined with an instrument called the ophthalmoscope Gag reflex Movement of the palate in response to insertion of a tongue depressor in the throat Hallucinations Perception in the absence of stimuli. (e.g. hearing voices which are not there or which are inaudible to others) Hemifields Right or left part of the field of vision Hypoxic Related to reduced oxygen levels in the blood Icterus Yellowish discoloration of the skin and eyeballs. This is commonly known as jaundice, and may be caused by liver disease Illusions Misperception of stimuli (seeing a rope as a snake) Immediate memory Memory of events which have occurred just a few minutes ago Insight Person’s understanding of his or her own illness Intellectual capacity Ability to solve problems. The ability to learn, understand and make judgments or have opinions that are based on reason Involuntary movements Automatic movements over which patient has no control Ischemic Related to restriction or cutting off of the blood flow to any part of the body Malnourishment Weak and in bad health because of having too little food or too little of the types of food necessary for good health Menace reflex Blinking in response to hand movements in front of eyes Mood The way one feels at a particular time Motor Related to movement Movement artefacts Disturbance in the image seen in the CT scan due to patient movement Oral feed Food given through mouth Orientation Awareness about the time, place and person Pallor Pale appearance of the skin. Usually this is due to a low red blood cell count or low haemoglobin level in the blood. Passive movement Movement of a limb or part of the body done by the doctor without any effort by the patient Perception Sensory experiences (such as seeing, hearing etc.) Perceptual abnormalities Abnormal sensory experiences, e.g, seeing things that do not exist, hearing sounds when there are none Plantars Reflex response of the toes when a sharp painful stimulus is applied to the sole of the foot. The normal response is curling downwards of the toes. Plantars were withdrawal/extensor When a painful stimulus was applied to the sole of the foot the toes spread out and there was reflex movement of the leg (withdrawal) or upward curling of the great toe and other toes (extensor). This is an abnormal response indicating damage in the pathway in the brain or to the area in the brain controlling function of the legs. Primary neural pathways Course of the nerves from a part of the body to the area in the brain responsible for the function of that part Pupillary reaction The pupillary light reflex controls the diameter of the pupil, in response to the intensity of light. Greater intensity light causes the pupil to become smaller (allowing less light in), whereas Opinion In our view, the issues in this case (and other similar cases) are:

1. In a person who is in a permanent vegetative state (PVS), should withholding or withdrawal of life sustaining therapies (many authorities would include placement of an artificial feeding tube as a life sustaining intervention) be permissible or `not unlawful’ ?

2. If the patient has previously expressed a wish not to have life-sustaining treatments in case of futile care or a PVS, should his / her wishes be respected when the situation arises?

3. In case a person has not previously expressed such a wish, if his family or next of kin makes a request to withhold or withdraw futile life-sustaining treatments, should their wishes be respected?

4. Aruna Shanbaug has been abandoned by her family and is being looked after for the last 37 years by the staff of KEM Hospital. Who should take decisions on her behalf? Questions such as these come up at times in the course of medical practice. We realize that answers to these questions are difficult, and involve several ethical, legal and social issues. Our opinion is based on medical facts and on the principles of medical ethics. We hope that the Honourable Court will provide guidance and clarity in this matter. Two of the cardinal principles of medical ethics are Patient Autonomy and Beneficiance.

1. Autonomy means the right to self-determination, where the informed patient has a right to choose the manner of his treatment. To be autonomous the patient should be competent to make decisions and choices. In the event that he is incompetent to make choices, his wishes expressed in advance in the form of a Living Will, OR the wishes of surrogates acting on his behalf (‘substituted judgment’) are to be respected. The surrogate is expected to represent what the patient may have decided had he / she been competent, or to act in the patient’s best interest. It is expected that a surrogate acting in the patient’s best interest follows a course of action because it is best for the patient, and is not influenced by personal convictions, motives or other considerations.

2. Beneficence is acting in what is (or judged to be) in patient’s best interest. Acting in the patient’s best interest means following a course of action that is best for the patient, and is not influenced by personal convictions, motives or other considerations. In some cases, the doctor’s expanded goals may include allowing the natural dying process (neither hastening nor delaying death, but `letting nature take its course’), thus avoiding or reducing the sufferings of the patient and his family, and providing emotional support. This is not to be confused with euthanasia, which involves the doctor’s deliberate and intentional act through administering a lethal injection to end the life of the patient. In the present case under consideration

1. We have no indication of Aruna Shanbaug’s views or wishes with respect to life-sustaining treatments for a permanent vegetative state.

2. Any decision regarding her treatment will have to be taken by a surrogate

3. The staff of the KEM hospital have looked after her for 37 years, after she was abandoned by her family. We believe that the Dean of the KEM Hospital (representing the staff of hospital) is an appropriate surrogate.

4. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting in the best interest of the patient, feel that life sustaining treatments should continue, their decision should be respected.

5. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting in the best interest of the patient, feel that withholding or withdrawing life-sustaining treatments is the appropriate course of action, they should be allowed to do so, and their actions should not be considered unlawful.

10. To complete the narration of facts and before we come to the legal issues involved, we may mention that Dr. Sanjay Oak, Dean KEM Hospital Mumbai has issued a statement on 24.1.2011 opposing euthanasia for the petitioner :- “She means a lot to KEM hospital. She is on liquid diet and loves listening to music. We have never subjected her to intravenous food or fed her via a tube. All these years, she hasn’t had even one bedsore. When those looking after her do not have a problem, I don’t understand why a third party who has nothing to do with her [Pinky Virani who has moved the apex court to seek euthanasia for Shanbaug] needs to worry,” added Dr Oak, who, when he took over as dean of KEM hospital in 2008, visited her first to take her blessings. “I call on her whenever I get time. I am there whenever she has dysentery or any another problem. She is very much alive and we have faith in the judiciary,” said Dr Oak.”

11. Dr. Sanjay Oak has subsequently filed an affidavit in this Court which states :

“a) Smt. Aruna Ramchandra Shanbaug has been admitted in a single room in Ward No.4 which is a ward of general internal medicine patients and she has been there for last 37 years. She is looked after entirely by doctors, nurses and para-medical staff of KEM Hospital. She has been our staff nurse and the unfortunate tragic incidence has happened with her in KEM Hospital and I must put on record that the entire medical, administrative, nursing and para-medical staff is extremely attached to her and consider her as one of us. Her relatives and a gentleman (her fiancee) used to visit her in the initial period of her illness but subsequently she has been left to the care of KEM staff. I visit her frequently and my last visit to her was on 22nd February, 2011. I give my observations as a Clinician about Smt. Aruna Shanbaug as under :

b) It would be incorrect to say that Smt. Aruna Shanbaug is an appropriate case for Coma. It appears that for a crucial, critical period her brain was deprived of Oxygen supply and this has resulted in her present state similar to that of Cerebral Palsy in the newborn child. It is a condition where brain looses it’s co-ordinatory, sensory as well as motor functions and this includes loss of speech and perception. This has resulted into a state which in a layman’s words “Aruna lives in her own world for last 37 years”. She is lying in a bed in a single room for 33 years. She has not been able to stand or walk, nor have we attempted to do that of late because we fear that she is fragile and would break her bones if she falls. Her extremities and fingers have developed contractures and subsequent to non-use; there is wasting of her body muscles. Her eyes are open and she blinks frequently; however, these movements are not pertaining to a specific purpose or as a response to a question. At times she is quiet and at times she shouts or shrieks. However, I must say that her shouts and shrieks are completely oblivious to anybody’s presence in her room. It is not true that she shouts after seeing a man. I do not think Aruna can distinguish between a man and a woman, nor can she even distinguish between ordinate and inordinate object. We play devotional songs rendered by Sadguru Wamanrao Pai continuously in her room and she lies down on her bed listening to them. She expresses her displeasure by grimaces and shouts if the tape recorder is switched off. All these years she was never fed by tube and whenever a nurse used to take food to her lips, she used to swallow it. It is only since September 2010 she developed Malaria and her oral intake dropped. In order to take care of her calorie make need, nurses cadre resorted to naso-gastric tube feed and now she is used to NG feeding. However, if small morsels are held near her lips, Aruna accepts them gladly. It appears that she relishes fish and occasionally smiles when she is given non-vegetarian food. However, I am honest in admitting that her smiles are not purposeful and it would be improper to interpret them as a signal of gratification. I must put on record that in the world history of medicine there would not be another single case where such a person is cared and nurtured in bed for 33 long years and has not developed a single bed sore. This speaks of volumes of excellence of nursing care that KEM Nursing staff has given to her.

c) This care is given not as a part of duty but as a part of feeling of oneness. With every new batch of entrants, the student nurses are introduced to her and they are told that she was one of us and she continues to be one of us and then they whole-heartedly take care of Aruna. In my opinion, this one is finest example of love, professionalism, dedication and commitment to one of our professional colleagues who is ailing 28 and cannot support herself. Not once, in this long sojourn of 33 years, anybody has thought of putting an end to her so called vegetative existence. There have been several Deans and Doctors of KEM Hospital who have cared her in succession. Right from illustrious Dr. C.K. Deshpande in whose tenure the incidence happened in 1973, Dr. G.B. Parulkar, Dr. Smt. Pragna M. Pai, Dr. R.J. Shirahatti, Dr. Smt. N.A. Kshirsagar, Dr. M.E. Yeolekar and now myself Dr. Sanjay N. Oak, all of us have visited her room time and again and have cared for her and seen her through her ups and downs. The very idea of withholding food or putting her to sleep by active medication (mercy killing) is extremely difficult for anybody working in Seth GSMC & KEM Hospital to accept and I sincerely make a plea to the Learned Counsel and Hon’ble Judges of Supreme Court of India that this should not be allowed. Aruna has probably crossed 60 years of life and would one day meet her natural end. The Doctors, Nurses and staff of KEM, are determined to take care of her till her last breath by natural process.

d) I do not think it is proper on my part to make a comment on the entire case. However, as a clinical surgeon for last 3 decades and as an administrator of the hospitals for last 7 years and as a student of legal system of India (as I hold “Bachelor of Law” degree from Mumbai University), I feel that entire society has not matured enough to accept the execution of an Act of Euthanasia or Mercy Killing. I fear that this may get misused and our monitoring and deterring mechanisms may fail to prevent those unfortunate incidences. To me any mature society is best judged by it’s capacity and commitment to take care of it’s “invalid” ones. They are the children of Lesser God and in fact, developing nation as we are, we should move in a positive manner of taking care of several unfortunate ones who have deficiencies, disabilities and deformities.”

12. The Hospital staff of KEM Hospital, Mumbai e.g. the doctors, sister- in-charge ward no. 4 KEM hospital Lenny Cornielo, Assistant Matron Urmila Chauhan and others have also issued statements that they were looking after Aruna Shanbaug and want her to live. “Aruna is the bond that unites us”, the KEM Hospital staff has stated. One retired nurse, Tidi Makwana, who used to take care of Aruna while in service, has even offered to continue to take care of her without any salary and without charging any traveling expenses.

13. We have referred to these statements because it is evident that the KEM Hospital staff right from the Dean, including the present Dean Dr. Sanjay Oak and down to the staff nurses and para-medical staff have been looking after Aruna for 38 years day and night. What they have done is simply marvelous. They feed Aruna, wash her, bathe her, cut her nails, and generally take care of her, and they have been doing this not on a few occasions but day and night, year after year. The whole country must learn the meaning of dedication and sacrifice from the KEM hospital staff. In 38 years Aruna has not developed one bed sore.

14. It is thus obvious that the KEM hospital staff has developed an emotional bonding and attachment to Aruna Shanbaug, and in a sense they are her real family today. Ms. Pinki Virani who claims to be the next friend of Aruna Shanbaug and has filed this petition on her behalf is not a relative of Aruna Shanbaug nor can she claim to have such close emotional bonding with her as the KEM hospital staff. Hence, we are treating the KEM hospital staff as the next friend of Aruna Shanbaug and we decline to recognize Ms. Pinki Virani as her next friend. No doubt Ms. Pinki Virani has written a book about Aruna Shanbaug and has visited her a few times, and we have great respect for her for the social causes she has espoused, but she cannot claim to have the extent of attachment or bonding with Aruna which the KEM hospital staff, which has been looking after her for years, claims to have. SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES

15. Mr. Shekhar Naphade, learned senior counsel for the petitioner has relied on the decision of this Court in Vikram Deo Singh Tomar vs. State of Bihar 1988 (Supp) SCC 734 (vide para 2) where it was observed by this Court : “We live in an age when this Court has demonstrated, while interpreting Article 21 of the Constitution, that every person is entitled to a quality of life consistent with his human personality. The right to live with human dignity is the fundamental right of every Indian citizen”.

16. He has also relied on the decision of this Court in P. Rathinam vs. Union of India and another [1994] INSC 264; (1994) 3 SCC 394 in which a two-Judge bench of this Court quoted with approval a passage from an article by Dr. M. Indira and Dr. Alka Dhal in which it was mentioned :

“Life is not mere living but living in health. Health is not the absence of illness but a glowing vitality”.

17. The decision in Rathinam’s case (supra) was, however, overruled by a Constitution Bench decision of this Court in Gian Kaur vs. State of Punjab [1996] INSC 434; (1996) 2 SCC 648.

18. Mr. Naphade, however, has invited our attention to paras 24 & 25 of the aforesaid decision in which it was observed :

“(24) Protagonism of euthanasia on the view that existence in persistent vegetative state (PVS) is not a benefit to the patient of a terminal illness being unrelated to the principle of ‘sanctity of life’ or the right to live with dignity’ is of no assistance to determine the scope of Article 21 for deciding whether the guarantee of right to life’ therein includes the right to die’. The right to life’ including the right to live with human dignity would mean the existence of such a right upto the end of natural life. This also includes the right to a dignified life upto the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the ‘right to die’ with dignity at the end of life is not to be confused or equated with the right to die’ an unnatural death curtailing the natural span of life. (25) A question may arise, in the context of a dying man, who is, terminally ill or in a persistent vegetative state that he may be permitted to terminate it by a premature extinction of his life in those circumstances. This category of cases may fall within the ambit of the ‘right to die’ with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced. The debate even in such cases to permit physician assisted termination of life is inconclusive. It is sufficient to reiterate that the argument to support the view of permitting termination of life in such cases to reduce the period of suffering during the process of certain natural death is not available to interpret Article 21 to include therein the right to curtail the natural span of life”.

He has particularly emphasized paragraph 25 of the said judgment in support of his submission that Aruna Shanbaug should be allowed to die.

19. We have carefully considered paragraphs 24 and 25 in Gian Kaur’s case (supra) and we are of the opinion that all that has been said therein is that the view in Rathinam’s case (supra) that the right to life includes the right to die is not correct. We cannot construe Gian Kaur’s case (supra) to mean anything beyond that. In fact, it has been specifically mentioned in paragraph 25 of the aforesaid decision that “the debate even in such cases to permit physician assisted termination of life is inconclusive”. Thus it is obvious that no final view was expressed in the decision in Gian Kaur’s case beyond what we have mentioned above.

20. Mr. Naphade, learned senior counsel submitted that Ms. Pinky Virani is the next friend of Aruna as she has written a book on her life called `Aruna’s story’ and has been following Aruna’s case from 1980 and has done whatever possible and within her means to help Aruna. Mr. Naphade has also invited our attention to the report of the Law Commission of India, 2006 on `Medical Treatment to Terminally Ill Patients’. We have perused the said report carefully.

21. Learned Attorney General appearing for the Union of India after inviting our attention to the relevant case law submitted as under :

(i) Aruna Ramchandra Shanbaug has the right to live in her present state.

(ii) The state that Aruna Ramchandra Shanbaug is presently in does not justify terminating her life by withdrawing hydration/food/medical support.

(iii) The aforesaid acts or series of acts and/or such omissions will be cruel, inhuman and intolerable.

(iv) Withdrawing/withholding of hydration/food/medical support to a patient is unknown to Indian law and is contrary to law.

(v) In case hydration or food is withdrawn/withheld from Aruna Ramchandra Shanbaug, the efforts which have been put in by batches after batches of nurses of KEM Hospital for the last 37 years will be undermined.

(vi) Besides causing a deep sense of resentment in the nursing staff as well as other well wishers of Aruna Ramchandra Shanbaug in KEM Hospital including the management, such acts/omissions will lead to disheartenment in them and large scale disillusionment.

(vii) In any event, these acts/omissions cannot be permitted at the instance of Ms. Pinky Virani who desires to be the next friend of Aruna Ramchandra Shanbaug without any locus. Learned Attorney General stated that the report of the Law Commission of India on euthanasia has not been accepted by the Government of India. He further submitted that Indian society is emotional and care-oriented. We do not send our parents to old age homes, as it happens in the West. He stated that there was a great danger in permitting euthanasia that the relatives of a person may conspire with doctors and get him killed to inherit his property. He further submitted that tomorrow there may be a cure to a medical state perceived as incurable today.

22. Mr. T. R. Andhyarujina, learned senior counsel whom we had appointed as Amicus Curiae, in his erudite submissions explained to us the law on the point. He submitted that in general in common law it is the right of every individual to have the control of his own person free from all restraints or interferences of others. Every human being of adult years and sound mind has a right to determine what shall be done with his own body. In the case of medical treatment, for example, a surgeon who performs an operation without the patient’s consent commits assault or battery.

23. It follows as a corollary that the patient possesses the right not to consent i.e. to refuse treatment. (In the United States this right is reinforced by a Constitutional right of privacy). This is known as the principle of self- determination or informed consent.

24. Mr. Andhyarujina submitted that the principle of self-determination applies when a patient of sound mind requires that life support should be discontinued. The same principle applies where a patient’s consent has been expressed at an earlier date before he became unconscious or otherwise incapable of communicating it as by a `living will’ or by giving written authority to doctors in anticipation of his incompetent situation.

Mr. Andhyarujina differed from the view of the learned Attorney General in that while the latter opposed even passive euthanasia, Mr. Andhyarujina was in favour of passive euthanasia provided the decision to discontinue life support was taken by responsible medical practitioners.

25. If the doctor acts on such consent there is no question of the patient committing suicide or of the doctor having aided or abetted him in doing so. It is simply that the patient, as he is entitled to do, declines to consent to treatment which might or would have the effect of prolonging his life and the doctor has in accordance with his duties complied with the patient’s wishes.

26. The troublesome question is what happens when the patient is in no condition to be able to say whether or not he consents to discontinuance of the treatment and has also given no prior indication of his wishes with regard to it as in the case of Aruna. In such a situation the patient being incompetent to express his self-determination the approach adopted in some of the American cases is of “substituted judgment” or the judgment of a surrogate. This involves a detailed inquiry into the patient’s views and preferences. The surrogate decision maker has to gather from material facts as far as possible the decision which the incompetent patient would have made if he was competent. However, such a test is not favoured in English law in relation to incompetent adults.

27. Absent any indication from a patient who is incompetent the test which is adopted by Courts is what is in the best interest of the patient whose life is artificially prolonged by such life support. This is not a question whether it is in the best interest of the patient that he should die. The question is whether it is in the best interest of the patient that his life should be prolonged by the continuance of the life support treatment. This opinion must be formed by a responsible and competent body of medical persons in charge of the patient.

28. The withdrawal of life support by the doctors is in law considered as an omission and not a positive step to terminate the life. The latter would be euthanasia, a criminal offence under the present law in UK, USA and India.

29. In such a situation, generally the wishes of the patient’s immediate family will be given due weight, though their views cannot be determinative of the carrying on of treatment as they cannot dictate to responsible and competent doctors what is in the best interest of the patient. However, experience shows that in most cases the opinions of the doctors and the immediate relatives coincide.

30. Whilst this Court has held that there is no right to die (suicide) under Article 21 of the Constitution and attempt to suicide is a crime vide Section 309 IPC, the Court has held that the right to life includes the right to live with human dignity, and in the case of a dying person who is terminally ill or in a permanent vegetative state he may be permitted to terminate it by a premature extinction of his life in these circumstances and it is not a crime vide Gian Kaur’s case (supra).

31. Mr. Andhyarujina submitted that the decision to withdraw the life support is taken in the best interests of the patient by a body of medical persons. It is not the function of the Court to evaluate the situation and form an opinion on its own. In England for historical reasons the parens patriae jurisdiction over adult mentally incompetent persons was abolished by statute and the Court has no power now to give its consent. In this situation, the Court only gives a declaration that the proposed omission by doctors is not unlawful.

32. In U.K., the Mental Capacity Act, 2005 now makes provision relating to persons who lack capacity and to determine what is in their best interests and the power to make declaration by a special Court of Protection as to the lawfulness of any act done in relation to a patient.

33. Mr. Andhyarujina submitted that the withdrawal of nutrition by stopping essential food by means of nasogastric tube is not the same as unplugging a ventilator which artificially breathes air into the lungs of a patient incapable of breathing resulting in instant death. In case of discontinuance of artificial feeding the patient will as a result starve to death with all the sufferings and pain and distress associated with such starving. This is a very relevant consideration in a PVS patient like Aruna who is not totally unconscious and has sensory conditions of pain etc. unlike Antony Bland in Airedale vs. Director MHD [1992] UKHL 5; (1993) 2 WLR 316 who was totally unconscious. Would the doctor be able to avoid such pain or distress by use of sedatives etc.? In such a condition would it not be more appropriate to continue with the nasogastric feeding but not take any other active steps to combat any other illness which she may contract and which may lead to her death?

34. Mr. Andhyarujina further submitted that in a situation like that of Aruna, it is also necessary to recognize the deep agony of nurses of the hospital who have with deep care looked after her for over 37 years and who may not appreciate the withdrawal of the life support. It may be necessary that their views should be considered by the Court in some appropriate way.

35. Mr. Andhyarujina, in the course of his submission stated that some Courts in USA have observed that the view of a surrogate may be taken to be the view of the incompetent patient for deciding whether to withdraw the life support, though the House of Lords in Airedale’s case has not accepted this. He submitted that relatives of Aruna do not seem to have cared for her and it is only the nursing staff and medical attendants of KEM hospital who have looked after her for 37 years. He has also submitted that though the humanistic intention of Ms. Pinky Virani cannot be doubted, it is the opinion of the attending doctors and nursing staff which is more relevant in this case as they have looked after her for so many years.

36. Mr. Pallav Shishodia, learned senior counsel for the Dean, KEM hospital, Mumbai submitted that Ms. Pinky Virani has no locus standi in the matter and it is only the KEM hospital staff which could have filed such a writ petition.

37. We have also heard learned counsel for the State of Maharashtra, Mr. Chinmoy Khaldkar and other assisting counsel whose names have been mentioned in this judgment. They have been of great assistance to us as we are deciding a very sensitive and delicate issue which while requiring a humanistic approach, also requires great case and caution to prevent misuse. We were informed that not only the learned counsel who argued the case before us, but also the assistants (whose names have been mentioned in the judgment) have done research on the subject for several weeks, and indeed this has made our task easier in deciding this case. They therefore deserve our compliment and thanks.

Legal Issues : Active and Passive Euthanasia

38. Coming now to the legal issues in this case, it may be noted that euthanasia is of two types : active and passive. Active euthanasia entails the use of lethal substances or forces to kill a person e.g. a lethal injection given to a person with terminal cancer who is in terrible agony. Passive euthanasia entails withholding of medical treatment for continuance of life, e.g. withholding of antibiotics where without giving it a patient is likely to die, or removing the heart lung machine, from a patient in coma.

39. The general legal position all over the world seems to be that while active euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal even without legislation provided certain conditions and safeguards are maintained.

40. A further categorization of euthanasia is between voluntary euthanasia and non voluntary euthanasia. Voluntary euthanasia is where the consent is taken from the patient, whereas non voluntary euthanasia is where the consent is unavailable e.g. when the patient is in coma, or is otherwise unable to give consent. While there is no legal difficulty in the case of the former, the latter poses several problems, which we shall address.

ACTIVE EUTHANASIA

41. As already stated above active euthanasia is a crime all over the world except where permitted by legislation. In India active euthanasia is illegal and a crime under section 302 or at least section 304 IPC. Physician assisted suicide is a crime under section 306 IPC (abetment to suicide).

42. Active euthanasia is taking specific steps to cause the patient’s death, such as injecting the patient with some lethal substance, e.g. sodium pentothal which causes a person deep sleep in a few seconds, and the person instantaneously and painlessly dies in this deep sleep.

43. A distinction is sometimes drawn between euthanasia and physician assisted dying, the difference being in who administers the lethal medication. In euthanasia, a physician or third party administers it, while in physician assisted suicide it is the patient himself who does it, though on the advice of the doctor. In many countries/States the latter is legal while the former is not.

44. The difference between “active” and “passive” euthanasia is that in active euthanasia, something is done to end the patient’s life’ while in passive euthanasia, something is not done that would have preserved the patient’s life.

45. An important idea behind this distinction is that in “passive euthanasia” the doctors are not actively killing anyone; they are simply not saving him. While we usually applaud someone who saves another person’s life, we do not normally condemn someone for failing to do so. If one rushes into a burning building and carries someone out to safety, he will probably be called a hero. But if one sees a burning building and people screaming for help, and he stands on the sidelines — whether out of fear for his own safety, or the belief that an inexperienced and ill-equipped person like himself would only get in the way of the professional firefighters, or whatever — if 44 one does nothing, few would judge him for his inaction. One would surely not be prosecuted for homicide. (At least, not unless one started the fire in the first place.)

46. Thus, proponents of euthanasia say that while we can debate whether active euthanasia should be legal, there can be no debate about passive euthanasia: You cannot prosecute someone for failing to save a life. Even if you think it would be good for people to do X, you cannot make it illegal for people to not do X, or everyone in the country who did not do X today would have to be arrested.

47. Some persons are of the view that the distinction is not valid. They give the example of the old joke about the child who says to his teacher, “Do you think it’s right to punish someone for something that he didn’t do?” “Why, of course not,” the teacher replies. “Good,” the child says, “because I didn’t do my homework.”

48. In fact we have many laws that penalize people for what they did not do. A person cannot simply decide not to pay his income taxes, or not bother to send his/her children to school (where the law requires sending them), or not to obey a policeman’s order to put down one’s gun.

49. However, we are of the opinion that the distinction is valid, as has been explained in some details by Lord Goff in Airedale’s case (infra) which we shall presently discuss.

LEGISLATION IN SOME COUNTRIES RELATING TO EUTHANASIA OR PHYSICIAN ASSISTED DEATH

50. Although in the present case we are dealing with a case related to passive euthanasia, it would be of some interest to note the legislations in certain countries permitting active euthanasia. These are given below.

Netherlands:

Euthanasia in the Netherlands is regulated by the “Termination of Life on Request and Assisted Suicide (Review Procedures) Act”, 2002. It states that euthanasia and physician-assisted suicide are not punishable if the attending physician acts in accordance with the criteria of due care. These criteria concern the patient’s request, the patient’s suffering (unbearable and hopeless), the information provided to the patient, the presence of reasonable alternatives, consultation of another physician and the applied method of ending life. To demonstrate their compliance, the Act requires physicians to report euthanasia to a review committee.

The legal debate concerning euthanasia in the Netherlands took off with the “Postma case” in 1973, concerning a physician who had facilitated the death of her mother following repeated explicit requests for euthanasia. While the physician was convicted, the court’s judgment set out criteria when a doctor would not be required to keep a patient alive contrary to his will. This set of criteria was formalized in the course of a number of court cases during the 1980s.

Termination of Life on Request and Assisted Suicide (Review Procedures) Act took effect on April 1, 2002. It legalizes euthanasia and physician assisted suicide in very specific cases, under very specific circumstances. The law was proposed by Els Borst, the minister of Health. The procedures codified in the law had been a convention of the Dutch medical community for over twenty years.

The law allows a medical review board to suspend prosecution of doctors who performed euthanasia when each of the following conditions is fulfilled:

7 the patient’s suffering is unbearable with no prospect of improvement 7 the patient’s request for euthanasia must be voluntary and persist over time (the request cannot be granted when under the influence of others, psychological illness, or drugs) 7 the patient must be fully aware of his/her condition, prospects and options 7 there must be consultation with at least one other independent doctor who needs to confirm the conditions mentioned above 7 the death must be carried out in a medically appropriate fashion by the doctor or patient, in which case the doctor must be present 7 the patient is at least 12 years old (patients between 12 and 16 years of age require the consent of their parents) The doctor must also report the cause of death to the municipal coroner in accordance with the relevant provisions of the Burial and Cremation Act. A regional review committee assesses whether a case of termination of life on request or assisted suicide complies with the due care criteria. Depending on its findings, the case will either be closed or, if the conditions are not met, brought to the attention of the Public Prosecutor. Finally, the legislation offers an explicit recognition of the validity of a written declaration of the will of the patient regarding euthanasia (a “euthanasia directive”). Such declarations can be used when a patient is in a coma or otherwise unable to state if they wish to be euthanized.

Euthanasia remains a criminal offense in cases not meeting the law’s specific conditions, with the exception of several situations that are not subject to the restrictions of the law at all, because they are considered normal medical practice. These are :

7 stopping or not starting a medically useless (futile) treatment 7 stopping or not starting a treatment at the patient’s request 7 speeding up death as a side-effect of treatment necessary for alleviating serious suffering Euthanasia of children under the age of 12 remains technically illegal; however, Dr. Eduard Verhagen has documented several cases and, together with colleagues and prosecutors, has developed a protocol to be followed in those cases. Prosecutors will refrain from pressing charges if this Groningen Protocol is followed.

Switzerland:

Switzerland has an unusual position on assisted suicide: it is legally permitted and can be performed by non-physicians. However, euthanasia is illegal, the difference between assisted suicide and euthanasia being that while in the former the patient administers the lethal injection himself, in the latter a doctor or some other person administers it.

Article 115 of the Swiss penal code, which came into effect in 1942 (having been approved in 1937), considers assisting suicide a crime if, and only if, the motive is selfish. The code does not give physicians a special status in assisting suicide; although, they are most likely to have access to suitable drugs. Ethical guidelines have cautioned physicians against prescribing deadly drugs. Switzerland seems to be the only country in which the law limits the circumstances in which assisted suicide is a crime, thereby decriminalising it in other cases, without requiring the involvement of a physician. Consequently, non-physicians have participated in assisted suicide. However, legally, active euthanasia e.g. administering a lethal injection by a doctor or some other person to a patient is illegal in Switzerland (unlike in Holland where it is legal under certain conditions).

The Swiss law is unique because (1) the recipient need not be a Swiss national, and (2) a physician need not be involved. Many persons from other countries, especially Germany, go to Switzerland to undergo euthanasia.

Belgium:

Belgium became the second country in Europe after Netherlands to legalize the practice of euthanasia in September 2002.

The Belgian law sets out conditions under which suicide can be practised without giving doctors a licence to kill.

Patients wishing to end their own lives must be conscious when the demand is made and repeat their request for euthanasia. They have to be under “constant and unbearable physical or psychological pain” resulting from an accident or incurable illness.

The law gives patients the right to receive ongoing treatment with painkillers — the authorities have to pay to ensure that poor or isolated patients do not ask to die because they do not have money for such treatment.

Unlike the Dutch legislation, minors cannot seek assistance to die.

In the case of someone who is not in the terminal stages of illness, a third medical opinion must be sought.

Every mercy killing case will have to be filed at a special commission to decide if the doctors in charge are following the regulations.

U.K., Spain, Austria, Italy, Germany, France, etc.

In none of these countries is euthanasia or physician assisted death legal. In January 2011 the French Senate defeated by a 170-142 vote a bill seeking to legalize euthanasia. In England, in May 2006 a bill allowing physician assisted suicide, was blocked, and never became law. United States of America:

Active Euthanasia is illegal in all states in U.S.A., but physician assisted dying is legal in the states of Oregon, Washington and Montana. As already pointed out above, the difference between euthanasia and physician assisted suicide lies in who administers the lethal medication. In the former, the physician or someone else administers it, while in the latter the patient himself does so, though on the advice of the doctor.

Oregon:

Oregon was the first state in U.S.A. to legalize physician assisted death. The Oregon legislature enacted the Oregon Death with Dignity Act, in 1997. Under the Death With Dignity Act, a person who sought physician-assisted suicide would have to meet certain criteria: 7 He must be an Oregon resident, at least 18 years old, and must have decision making capacity.

7 The person must be terminally ill, having six months or less to live.

7 The person must make one written and two oral requests for medication to end his/her life, the written one substantially in the form provided in the Act, signed, dated, witnessed by two persons in the presence of the patient who attest that the person is capable, acting voluntarily and not being coerced to sign the request. There are stringent qualifications as to who may act as a witness.

7 The patient’s decision must be an `informed’ one, and the attending physician is obligated to provide the patient with information about the diagnosis, prognosis, potential risks, and probable consequences of taking the prescribed medication, and alternatives, including, but not limited to comfort care, hospice care and pain control. Another physician must confirm the diagnosis, the patient’s decision making capacity, and voluntariness of the patient’s decisions. 7 Counselling has to be provided if the patient is suffering from depression or a mental disorder which may impact his judgment.

7 There has to be a waiting period of 15 days, next of kin have to be notified, and State authorities have to be informed.

7 The patient can rescind his decision at any time In response to concerns that patients with depression may seek to end their lives, the 1999 amendment provides that the attending physician must determine that the patient does not have `depression causing impaired judgment’ before prescribing the medication.

Under the law, a person who met all requirements could receive a prescription of a barbiturate that would be sufficient to cause death. However, the lethal injection must be administered by the patient himself, and physicians are prohibited from administering it.

The landmark case to declare that the practice of euthanasia by doctors to help their patients shall not be taken into cognizance was Gonzalez vs Oregon decided in 2006.

After the Oregon Law was enacted about 200 persons have had euthanasia in Oregon.

Washington:

Washington was the second state in U.S.A. which allowed the practice of physician assisted death in the year 2008 by passing the Washington Death with Dignity Act, 2008.

Montana:

Montana was the third state (after Oregon and Washington) in U.S.A. to legalize physician assisted deaths, but this was done by the State judiciary and not the legislature. On December 31, 2009, the Montana Supreme Court delivered its verdict in the case of Baxter v. Montana permitting physicians to prescribe lethal indication. The court held that there was “nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy.”

Other States in U.S.A.:

In no other State in U.S.A. is euthanasia or physician assisted death legal. Michigan banned euthanasia and assisted suicide in 1993, after Dr. Kevorkian (who became known as `doctor death’) began encouraging and assisting in suicides. He was convicted in 1999 for an assisted suicide displayed on television, his medical licence cancelled, and he spent 8 years in jail. In 1999 the State of Texas enacted the Texas Futile Care Law which entitles Texas hospitals and doctors, in some situations, to withdraw life support measures, such as mechanical respiration, from terminally ill patient when such treatment is considered futile and inappropriate. However, Texas has not legalized euthanasia or physician assisted death. In California, though 75 of people support physician assisted death, the issue is highly controversial in the State legislature. Forty States in USA have enacted laws which explicitly make it a crime to provide another with the means of taking his or her life.

In 1977 California legalized living wills, and other States soon followed suit. A living will (also known as advance directive or advance decision) is an instruction given by an individual while conscious specifying what action should be taken in the event he/she is unable to make a decision due to illness or incapacity, and appoints a person to take such decisions on his/her behalf. It may include a directive to withdraw life support on certain eventualities.

Canada:

In Canada, physician assisted suicide is illegal vide Section 241(b) of the Criminal Code of Canada.

The leading decision of the Canadian Supreme Court in this connection is Sue Rodriguez v. British Columbia (Attorney General), (1993) 3 SCR 519. Rodriguez, a woman of 43, was diagnosed with Amyotrophic Lateral Sclerosis (ALS), and requested the Canadian Supreme Court to allow someone to aid her in ending her life. Her condition was deteriorating rapidly, and the doctors told her that she would soon lose the ability to swallow, speak, walk, and move her body without assistance. Thereafter she would lose her capacity to breathe without a respirator, to eat without a gastrotomy, and would eventually be confined to bed. Her life expectancy was 2 to 14 months.

The Canadian Supreme Court was deeply divided. By a 5 to 4 majority her plea was rejected. Justice Sopinka, speaking for the majority (which included Justices La Forest, Gonthier, Iacobucci and Major) observed :

“Sanctity of life has been understood historically as excluding freedom of choice in the self infliction of death, and certainly in the involvement of others in carrying out that choice. At the very least, no new consensus has emerged in society opposing the right of the State to regulate the involvement of others in exercising power over individuals ending their lives.”

The minority, consisting of Chief Justice Lamer and Justices L’Heureux-Dube, Cory and McLachlin, dissented.

PASSIVE EUTHANASIA

51. Passive euthanasia is usually defined as withdrawing medical treatment with a deliberate intention of causing the patient’s death. For example, if a patient requires kidney dialysis to survive, not giving dialysis although the machine is available, is passive euthanasia. Similarly, if a patient is in coma or on a heart lung machine, withdrawing of the machine will ordinarily result in passive euthanasia. Similarly not giving life saving medicines like antibiotics in certain situations may result in passive euthanasia. Denying food to a person in coma or PVS may also amount to passive euthanasia.

52. As already stated above, euthanasia can be both voluntary or non voluntary. In voluntary passive euthanasia a person who is capable of deciding for himself decides that he would prefer to die (which may be for various reasons e.g., that he is in great pain or that the money being spent on his treatment should instead be given to his family who are in greater need, etc.), and for this purpose he consciously and of his own free will refuses to take life saving medicines. In India, if a person consciously and voluntarily refuses to take life saving medical treatment it is not a crime. Whether not taking food consciously and voluntarily with the aim of ending one’s life is a crime under section 309 IPC (attempt to commit suicide) is a question which need not be decided in this case.

53. Non voluntary passive euthanasia implies that the person is not in a position to decide for himself e.g., if he is in coma or PVS. The present is a case where we have to consider non voluntary passive euthanasia i.e. whether to allow a person to die who is not in a position to give his/her consent.

54. There is a plethora of case law on the subject of the Courts all over the world relating to both active and passive euthanasia. It is not necessary to refer in detail to all the decisions of the Courts in the world on the subject of euthanasia or physically assisted dead (p.a.d.) but we think it appropriate to refer in detail to certain landmark decisions, which have laid down the law on the subject.

THE AIREDALE CASE : (Airedale NHS Trust v. Bland (1993) All E.R. 82) (H.L.)

55. In the Airedale case decided by the House of Lords in the U.K., the facts were that one Anthony Bland aged about 17 went to the Hillsborough Ground on 15th April 1989 to support the Liverpool Football Club. In the course of the disaster which occurred on that day, his lungs were crushed and punctured and the supply to his brain was interrupted. As a result, he suffered catastrophic and irreversible damage to the higher centres of the brain. For three years, he was in a condition known as `persistent vegetative state (PVS). This state arises from the destruction of the cerebral cortex on account of prolonged deprivation of oxygen, and the cerebral cortex of Anthony had resolved into a watery mass. The cortex is that part of the brain which is the seat of cognitive function and sensory capacity. Anthony Bland could not see, hear or feel anything. He could not communicate in any way. His consciousness, which is an essential feature of an individual personality, had departed forever. However, his brain-stem, which controls the reflective functions of the body, in particular the heart beat, breathing and digestion, continued to operate. He was in persistent vegetative state (PVS) which is a recognized medical condition quite distinct from other conditions sometimes known as “irreversible coma”, “the Guillain-Barre syndrome”, “the locked-in syndrome” and “brain death”.

56. The distinguishing characteristic of PVS is that the brain stem remains alive and functioning while the cortex has lost its function and activity. Thus the PVS patient continues to breathe unaided and his digestion continues to function. But although his eyes are open, he cannot see. He cannot hear. Although capable of reflex movement, particularly in response to painful stimuli, the patient is uncapable of voluntary movement and can feel no pain. He cannot taste or smell. He cannot speak or communicate in any way. He has no cognitive function and thus can feel no emotion, whether pleasure or distress. The absence of cerebral function is not a matter of surmise; it can be scientifically demonstrated. The space which the brain should occupy is full of watery fluid.

57. In order to maintain Mr. Bland in his condition, feeding and hydration were achieved by artificial means of a nasogastric tube while the excretory functions were regulated by a catheter and enemas. According to eminent medical opinion, there was no prospect whatsoever that he would ever make a recovery from his condition, but there was every likelihood that he would maintain this state of existence for many years to come provided the artificial means of medical care was continued.

58. In this state of affairs the medical men in charge of Anthony Bland case took the view, which was supported by his parents, that no useful purpose would be served by continuing medical care, and that artificial feeding and other measures aimed at prolonging his existence should be stopped. Since however, there was a doubt as to whether this course might constitute a criminal offence, the hospital authorities sought a declaration from the British High Court to resolve these doubts.

59. The declaration was granted by the Family Division of the High Court on 19.11.1992 and that judgment was affirmed by the Court of Appeal on 9.12.1992. A further appeal was made to the House of Lords which then decided the case.

60. The broad issued raised before the House of Lords in the Airedale case (supra) was “In what circumstances, if ever, can those having a duty to feed an invalid lawfully stop doing so?” In fact this is precisely the question raised in the present case of Aruna Shanbaug before us.

61. In Airedale’s case (supra), Lord Keith of Kinkel, noted that it was unlawful to administer treatment to an adult who is conscious and of sound mind, without his consent. Such a person is completely at liberty to decline to undergo treatment, even if the result of his doing so will be that he will die. This extends to the situation where the person in anticipation of his entering into a condition such as PVS, gives clear instructions that in such an event he is not to be given medical care, including artificial feeding, designed to keep him alive.

62. It was held that if a person, due to accident or some other cause becomes unconscious and is thus not able to give or withhold consent to medical treatment, in that situation it is lawful for medical men to apply such treatment as in their informed opinion is in the best interests of the unconscious patient. That is what happened in the case of Anthony Bland when he was first dealt with by the emergency services and later taken to hospital.

63. When the incident happened the first imperative was to prevent Anthony from dying, as he would certainly have done in the absence of the steps that were taken. For a time, no doubt, there was some hope that he might recover sufficiently for him to be able to live a life that had some

meaning. Some patients who have suffered damage to the cerebral cortex have, indeed, made a complete recovery. It all depends on the degree of damage. But sound medical opinion takes the view that if a P.V.S. patient shows no signs of recovery after six months, or at most a year, then there is no prospect whatever of any recovery.

64. There are techniques available which make it possible to ascertain the state of the cerebral cortex, and in Anthony Bland’s case these indicated that, it had degenerated into a mass of watery fluid. In this situation the question before the House of Lords was whether the doctors could withdraw medical treatment or feeding Anthony Bland thus allowing him to die.

65. It was held by Lord Keith that a medical practitioner is under no duty to continue to treat such a patient where a large body of informed and responsible medical opinion is to the effect that no benefit at all would be conferred by continuance of the treatment. Existence in a vegetative state with no prospect of recovery is by that opinion regarded as not being of benefit to the patient.

66. Given that existence in the persistent vegetative state is of no benefit to the patient, the House of Lords then considered whether the principle of the sanctity of life which is the concern of the State (and the Judiciary is one of the arms of the State) required the Court to hold that medical treatment to Bland could not be discontinued.

67. Lord Keith observed that the principle of sanctity of life is not an absolute one. For instance, it does not compel the medical practitioner on pain of criminal sanction to treat a patient, who will die, if he does not, according to the express wish of the patient. It does not authorize forcible feeding of prisoners on hunger strike. It does not compel the temporary keeping alive of patients who are terminally ill where to do so would merely prolong their suffering. On the other hand, it forbids the taking of active measures to cut short the life of a terminally-ill patient (unless there is legislation which permits it).

68. Lord Keith observed that although the decision whether or not the continued treatment and cure of a PVS patient confers any benefit on him is essentially one for the medical practitioners in charge of his case to decide, as a matter of routine the hospital/medical practitioner should apply to the Family Division of the High Court for endorsing or reversing the said decision. This is in the interest of the protection of the patient, protection of the doctors, and for the reassurance of the patient’s family and the public.

69. In Airdale’s case (Supra) another Judge on the Bench, Lord Goff of Chievely observed:- “The central issue in the present case has been aptly stated by the Master of the Rolls to be whether artificial feeding and antibiotic drugs may lawfully be withheld from an insensate patient with no hope of recovery when it is known that if that is done the patient will shortly thereafter die. The Court of Appeal, like the President, answered this question generally in the affirmative, and (in the declarations made or approved by them) specifically also in the affirmative in relation to Anthony Bland . I find myself to be in agreement with the conclusions so reached by all the judges below, substantially for the reasons given by them. But the matter is of such importance that I propose to express my reasons in my own words.

I start with the simple fact that, in law, Anthony is still alive. It is true that his condition is such that it can be described as a living death; but he is nevertheless still alive. This is because, as a result of developments in modern medical technology, doctors no longer associate death exclusively with breathing and heart beat, and it has come to be accepted that death occurs when the brain, and in particular the brain stem, has been destroyed (see Professor Ian Kennedy’s Paper entitled “Switching off Life Support Machines: The Legal Implications” reprinted in Treat Me Right, Essays in Medical Law and Ethics, (1988)), especially at pp. 351-2, and the material there cited). There has been no dispute on this point in the present case, and it is unnecessary for me to consider it further. The evidence is that Anthony’s brain stem is still alive and functioning and it follows that, in the present state of medical science, he is still alive and should be so regarded as a matter of law.

It is on this basis that I turn to the applicable principles of law. Here, the fundamental principle is the principle of the sanctity of human life – a principle long recognized not only in our own society but also in most, if not all, civilized societies throughout the modern world, as is indeed evidenced by its recognition both in article 2 of the European Convention of Human Rights, and in article 6 of the International Covenant of Civil and Political Rights.

But this principle, fundamental though it is, is not absolute. Indeed there are circumstances in which it is lawful to take another man’s life, for example by a lawful act of self-defence, or (in the days when capital punishment was acceptable in our society) by lawful execution. We are not however concerned with cases such as these. We are concerned with circumstances in which it may be lawful to withhold from a patient medical treatment or care by means of which his life may be prolonged. But here too there is no absolute rule that the patient’s life must be prolonged by such treatment or care, if available, regardless of the circumstances.

First, it is established that the principle of self- determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so (see Schloendorff v . Society of New York Hospital 105 N.E. 92, 93, per Cardozo J. (1914); S. v . McC. (Orse S.) and M (D.S. Intervene); W v . W [1972] A.C. 24, 43, per Lord Reid; and Sidaway v . Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871, 882, per Lord Scarman). To this extent, the principle of the sanctity of human life must yield to the principle of self- determination (see Court of Appeal Transcript in the present case, at p. 38F per Hoffmann L.J.), and, for present purposes perhaps more important, the doctor’s duty to act in the best interests of his patient must likewise be qualified. On this basis, it has been held that a patient of sound mind may, if properly informed, require that life support should be discontinued: see Nancy B. v. Hotel Dieu de Quebec (1992) 86 D.L.R. (4th) 385. Moreover the same principle applies where the patient’s refusal to give his consent has been expressed at an earlier date, before he became unconscious or otherwise incapable of communicating it; though in such circumstances especial care may be necessary to ensure that the prior refusal of consent is still properly to be regarded as applicable in the circumstances which have subsequently occurred (see, e.g. In re T. (Adult: Refusal of treatment) [1992] EWCA Civ 18; [1992] 3 W.L.R. 782). I wish to add that, in cases of this kind, there is no question of the patient having committed suicide, nor therefore of the doctor having aided or abetted him in doing so. It is simply that the patient has, as he is entitled to do, declined to consent to treatment which might or would have the effect of prolonging his life, and the doctor has, in accordance with his duty, complied with his patient’s wishes.

But in many cases not only may the patient be in no condition to be able to say whether or not he consents to the relevant treatment or care, but also he may have given no prior indication of his wishes with regard to it. In the case of a child who is a ward of court, the court itself will decide whether medical treatment should be provided in the child’s best interests, taking into account medical opinion. But the court cannot give its consent on behalf of an adult patient who is incapable of himself deciding whether or not to consent to treatment. I am of the opinion that there is nevertheless no absolute obligation upon the doctor who has the patient in his care to prolong his life, regardless of the circumstances. Indeed, it would be most startling, and could lead to the most adverse and cruel effects upon the patient, if any such absolute rule were held to exist. It is scarcely consistent with the primacy given to the principle of self-determination in those cases in which the patient of sound mind has declined to give his consent, that the law should provide no means of enabling treatment to be withheld in appropriate circumstances where the patient is in no condition to indicate, if that was his wish, that he did not consent to it. The point was put forcibly in the judgment of the Supreme Judicial Court of Massachusetts in Superintendent of Belchertown State School v. Saikewicz (1977) 370 N.E. 2d. 417, 428, as follows:

“To presume that the incompetent person must always be subjected to what many rational and intelligent persons may decline is to downgrade the status of the incompetent person by placing a lesser value on his intrinsic human worth and vitality.”

I must however stress, at this point, that the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient’s life to an end. As I have already indicated, the former may be lawful, either because the doctor is giving effect to his patient’s wishes by withholding the treatment or care, or even in certain circumstances in which (on principles which I shall describe) the patient is incapacitated from stating whether or not he gives his consent. But it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be: see Reg. v. Cox (Unreported), Ognall J., Winchester Crown Court, 18 September 1992. So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia – actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law. It is of course well known that there are many responsible members of our society who believe that euthanasia should be made lawful; but that result could, I believe, only be achieved by legislation which expresses the democratic will that so fundamental a change should be made in our law, and can, if enacted, ensure that such legalised killing can only be carried out subject to appropriate supervision and control. It is true that the drawing of this distinction may lead to a charge of hypocrisy; because it can be asked why, if the doctor, by discontinuing treatment, is entitled in consequence to let his patient die, it should not be lawful to put him out of his misery straight away, in a more humane manner, by a lethal injection, rather than let him linger on in pain until he dies. But the law does not feel able to authorize euthanasia, even in circumstances such as these; for once euthanasia is recognized as lawful in these circumstances, it is difficult to see any logical basis for excluding it in others.

At the heart of this distinction lies a theoretical question. Why is it that the doctor who gives his patient a lethal injection which kills him commits an unlawful act and indeed is guilty of murder, whereas a doctor who, by discontinuing life support, allows his patient to die, may not act unlawfully – and will not do so, if he commits no breach of duty to his patient? Professor Glanville Williams has suggested (see his Textbook of Criminal Law, 2nd ed., p. 282) that the reason is that what the doctor does when he switches off a life support machine ‘is in substance not an act but an omission to struggle, and that ‘the omission is not a breach of duty by the doctor because he is not obliged to continue in a hopeless case’.

I agree that the doctor’s conduct in discontinuing life support can properly be categorized as an omission. It is true that it may be difficult to describe what the doctor actually does as an omission, for example where he takes some positive step to bring the life support to an end. But discontinuation of life support is, for present purposes, no different from not initiating life support in the first place. In each case, the doctor is simply allowing his patient to die in the sense that he is desisting from taking a step which might, in certain circumstances, prevent his patient from dying as a result of his pre-existing condition; and as a matter of general principle an omission such as this will not be unlawful unless it constitutes a breach of duty to the patient. I also agree that the doctor’s conduct is to be differentiated from that of, for example, an interloper who maliciously switches off a life support machine because, although the interloper may perform exactly the same act as the doctor who discontinues life support, his doing so constitutes interference with the life-prolonging treatment then being administered by the doctor. Accordingly, whereas the doctor, in discontinuing life support, is simply allowing his patient to die of his pre- existing condition, the interloper is actively intervening to stop the doctor from prolonging the patient’s life, and such conduct cannot possibly be categorised as an omission.

The distinction appears, therefore, to be useful in the present context in that it can be invoked to explain how discontinuance of life support can be differentiated from ending a patient’s life by a lethal injection. But in the end the reason for that difference is that, whereas the law considers that discontinuance of life support may be consistent with the doctor’s duty to care for his patient, it does not, for reasons of policy, consider that it forms any part of his duty to give his patient a lethal injection to put him out of his agony.

I return to the patient who, because for example he is of unsound mind or has been rendered unconscious by accident or by illness, is incapable of stating whether or not he consents to treatment or care. In such circumstances, it is now established that a doctor may lawfully treat such a patient if he acts in his best interests, and indeed that, if the patient is already in his care, he is under a duty so to treat him: see In re F [1991] UKHL 1; [1990] 2 AC 1, in which the legal principles governing treatment in such circumstances were stated by this House. For my part I can see no reason why, as a matter of principle, a decision by a doctor whether or not to initiate, or to continue to provide, treatment or care which could or might have the effect of prolonging such a patient’s life, should not be governed by the same fundamental principle. Of course, in the great majority of cases, the best interests of the patient are likely to require that treatment of this kind, if available, should be given to a patient. But this may not always be so. To take a simple example given by Thomas J. in Re J.H.L. (Unreported) (High Court of New Zealand) 13 August 1992, at p. 35), to whose judgment in that case I wish to pay tribute, it cannot be right that a doctor, who has under his care a patient suffering painfully from terminal cancer, should be under an absolute obligation to perform upon him major surgery to abate another condition which, if unabated, would or might shorten his life still further. The doctor who is caring for such a patient cannot, in my opinion, be under an absolute obligation to prolong his life by any means available to him, regardless of the quality of the patient’s life. Common humanity requires otherwise, as do medical ethics and good medical practice accepted in this country and overseas. As I see it, the doctor’s decision whether or not to take any such step must (subject to his patient’s ability to give or withhold his consent) be made in the best interests of the patient. It is this principle too which, in my opinion, underlies the established rule that a doctor may, when caring for a patient who is, for example, dying of cancer, lawfully administer painkilling drugs despite the fact that he knows that an incidental effect of that application will be to abbreviate the patient’s life. Such a decision may properly be made as part of the care of the living patient, in his best interests; and, on this basis, the treatment will be lawful. Moreover, where the doctor’s treatment of his patient is lawful, the patient’s death will be regarded in law as exclusively caused by the injury or disease to which his condition is attributable.

It is of course the development of modern medical technology, and in particular the development of life support systems, which has rendered cases such as the present so much more relevant than in the past. Even so, where (for example) a patient is brought into hospital in such a condition that, without the benefit of a life support system, he will not continue to live, the decision has to be made whether or not to give him that benefit, if available. That decision can only be made in the best interests of the patient. No doubt, his best interests will ordinarily require that he should be placed on a life support system as soon as necessary, if only to make an accurate assessment of his condition and a prognosis for the future. But if he neither recovers sufficiently to be taken off it nor dies, the question will ultimately arise whether he should be kept on it indefinitely. As I see it, that question (assuming the continued availability of the system) can only be answered by reference to the best interests of the patient himself, having regard to established medical practice. Indeed, if the justification for treating a patient who lacks the capacity to consent lies in the fact that the treatment is provided in his best interests, it must follow that the treatment may, and indeed ultimately should, be discontinued where it is no longer in his best interests to provide it. The question which lies at the heart of the present case is, as I see it, whether on that principle the doctors responsible for the treatment and care of Anthony Bland can justifiably discontinue the process of artificial feeding upon which the prolongation of his life depends.

It is crucial for the understanding of this question that the question itself should be correctly formulated. The question is not whether the doctor should take a course which will kill his patient, or even take a course which has the effect of accelerating his death. The question is whether the doctor should or should not continue to provide his patient with medical treatment or care which, if continued, will prolong his patient’s life. The question is sometimes put in striking or emotional terms, which can be misleading. For example, in the case of a life support system, it is sometimes asked: Should a doctor be entitled to switch it off, or to pull the plug? And then it is asked: Can it be in the best interests of the patient that a doctor should be able to switch the life support system off, when this will inevitably result in the patient’s death? Such an approach has rightly been criticised as misleading, for example by Professor Ian Kennedy (in his paper in Treat Me Right, Essays in Medical Law and Ethics (1988), and by Thomas J. in Re J.H.L. at pp. 21-

22. This is because the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care.

The correct formulation of the question is of particular importance in a case such as the present, where the patient is totally unconscious and where there is no hope whatsoever of any amelioration of his condition. In circumstances such as these, it may be difficult to say that it is in his best interests that the treatment should be ended. But if the question is asked, as in my opinion it should be, whether it is in his best interests that treatment which has the effect of artificially prolonging his life should be continued, that question can sensibly be answered to the effect that it is not in his best interests to do so.

(emphasis supplied)

70. In a Discussion Paper on Treatment of Patients in Persistent Vegetative State issued in September 1992 by the Medical Ethics Committee of the British Medical Association certain safeguards were mentioned which should be observed before constituting life support for such patients:- “(1) Every effort should be made at rehabilitation for at least six months after the injury; (2) The diagnosis of irreversible PVS should not be considered confirmed until at least twelve months after the injury, with the effect that any decision to withhold life prolonging treatment will be delayed for that period; (3) The diagnosis should be agreed by two other independent doctors; and (4) Generally, the wishes of the patient’s immediate family will be given great weight.”

71. Lord Goff observed that discontinuance of artificial feeding in such cases is not equivalent to cutting a mountaineer’s rope, or severing the air pipe of a deep sea diver. The true question is not whether the doctor should take a course in which he will actively kill his patient, but rather whether he should continue to provide his patient with medical treatment or care which, if continued, will prolong his life.

72. Lord Browne-Wilkinson was of the view that removing the nasogastric tube in the case of Anthony Bland cannot be regarded as a positive act causing the death. The tube itself, without the food being supplied through it, does nothing. Its non removal itself does not cause the death since by itself, it does not sustain life. Hence removal of the tube would not constitute the actus reus of murder, since such an act would not cause the death.

73. Lord Mustill observed:- “Threaded through the technical arguments addressed to the House were the strands of a much wider position, that it is in the best interests of the community at large that Anthony Bland’s life should now end. The doctors have done all they can. Nothing will be gained by going on and much will be lost. The distress of the family will get steadily worse. The strain on the devotion of a medical staff charged with the care of a patient whose condition will never improve, who may live for years and who does not even recognize that he is being cared for, will continue to mount. The large resources of skill, labour and money now being devoted to Anthony Bland might in the opinion of many be more fruitfully employed in improving the condition of other patients, who if treated may have useful, healthy and enjoyable lives for years to come.”

74. Thus all the Judges of the House of Lords in the Airedale case (supra) were agreed that Anthony Bland should be allowed to die.

75. Airedale (1993) decided by the House of Lords has been followed in a number of cases in U.K., and the law is now fairly well settled that in the case of incompetent patients, if the doctors act on the basis of informed medical opinion, and withdraw the artificial life support system if it is in the patient’s best interest, the said act cannot be regarded as a crime.

76. The question, however, remains as to who is to decide what is the patient’s best interest where he is in a persistent vegetative state (PVS)? Most decisions have held that the decision of the parents, spouse, or other close relative, should carry weight if it is an informed one, but it is not decisive (several of these decisions have been referred to in Chapter IV of the 196th Report of the Law Commission of India on Medical Treatment to Terminally ill Patients).

77. It is ultimately for the Court to decide, as parens patriae, as to what is is in the best interest of the patient, though the wishes of close relatives and next friend, and opinion of medical practitioners should be given due weight in coming to its decision. As stated by Balcombe, J. in In Re J ( A Minor Wardship : Medical Treatment) 1990(3) All E.R. 930, the Court as representative of the Sovereign as parens patriae will adopt the same standard which a reasonable and responsible parent would do.

78. The parens patriae (father of the country) jurisdiction was the jurisdiction of the Crown, which, as stated in Airedale, could be traced to the 13th Century. This principle laid down that as the Sovereign it was the duty of the King to protect the person and property of those who were unable to protect themselves. The Court, as a wing of the State, has inherited the parens patriae jurisdiction which formerly belonged to the King. U.S. decisions

79. The two most significant cases of the U.S. Supreme Court that addressed the issue whether there was a federal constitutional right to assisted suicide arose from challenges to State laws banning physician assisted suicide brought by terminally ill patients and their physicians. These were Washington vs. Glucksberg 521 U.S. 702 (1997) and Vacco vs. Quill [1997] USSC 74; 521 U.S. 793 (1997).

80. In Glucksberg’s case, the U.S. Supreme Court held that the asserted right to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment. The Court observed :

“The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed the two acts are widely and reasonably regarded as quite distinct.”

81. The Court went on to conclude that the Washington statute being challenged was rationally related to five legitimate government interest : protection of life, prevention of suicide, protection of ethical integrity of the medical profession, protection of vulnerable groups, and protection against the “slippery slope” towards euthanasia. The Court then noted that perhaps the individual States were more suited to resolving or at least addressing the myriad concerns raised by both proponents and opponents of physician assisted suicide. The Court observed : “Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.”

82. In Vacco’s case (supra) the U.S. Supreme Court again recognized the distinction between refusing life saving medical treatment and giving lethal medication. The Court disagreed with the view of the Second Circuit Federal Court that ending or refusing lifesaving medical treatment is nothing more nor less than assisted suicide. The Court held that “the distinction between letting a patient die and making that patient die is important, logical, rational, and well established”. The Court held that the State of New York could validly ban the latter.

83. In Cruzan v. Director, MDH, [1990] USSC 122; 497 U.S. 261(1990) decided by the U.S. Supreme Court the majority opinion was delivered by the Chief Justice Rehnquist.

84. In that case, the petitioner Nancy Cruzan sustained injuries in an automobile accident and lay in a Missouri State hospital in what has been referred to as a persistent vegetative state (PVS), a condition in which a person exhibits motor reflexes but evinces no indication of significant cognitive function. The state of Missouri was bearing the cost of her care. Her parents and co-guardians applied to the Court for permission to withdraw her artificial feeding and hydration equipment and allow her to die. While the trial Court granted the prayer, the State Supreme Court of Missouri reversed, holding that under a statute in the State of Missouri it was necessary to prove by clear and convincing evidence that the incompetent person had wanted, while competent, withdrawal of life support treatment in such an eventuality. The only evidence led on that point was the alleged statement of Nancy Cruzan to a housemate about a year before the accident that she did not want life as a `vegetable’. The State Supreme Court was of the view that this did not amount to saying that medical treatment or nutrition or hydration should be withdrawn.

85. Chief Justice Rehnquist delivering the opinion of the Court (in which Justices White, O’Connor, Scalia, and Kennedy, joined) in his judgment first noted the facts:- “On the night of January 11, 1983, Nancy Cruzan lost control of her car as she traveled down Elm Road in Jasper County, Missouri. The vehicle overturned, and Cruzan was discovered lying face down in a ditch without detectable respiratory or cardiac function. Paramedics were able to restore her breathing and heartbeat at the accident site, and she was transported to a hospital in an unconscious state. An attending neurosurgeon diagnosed her as having sustained probable cerebral contusions compounded by significant anoxia (lack of oxygen). The Missouri trial court in this case found that permanent brain damage generally results after 6 minutes in an anoxic state; it was estimated that Cruzan was deprived of oxygen from 12 to 14 minutes. She remained in a coma for approximately three weeks, and then progressed to an unconscious state in which she was able to orally ingest some nutrition. In order to ease feeding and further the recovery, surgeons implanted a gastrostomy feeding and hydration tube in Cruzan with the consent of her then husband. Subsequent rehabilitative efforts proved unavailing. She now lies in a Missouri state hospital in what is commonly referred to as a persistent vegetative state: generally, a condition in which a person exhibits motor reflexes but evinces no indications of significant cognitive function. 1 The State of Missouri is bearing the cost of her care. [1990] USSC 122; [497 U.S. 261, 267] After it had become apparent that Nancy Cruzan had virtually no chance of regaining her mental faculties, her parents asked hospital employees to terminate the artificial nutrition and hydration procedures. All agree that such a [1990] USSC 122; [497 U.S. 261, 268] removal would cause her death. The employees refused to honor the request without court approval. The parents then sought and received authorization from the state trial court for termination.”

86. While the trial Court allowed the petition the State Supreme Court of Missouri reversed. The US Supreme Court by majority affirmed the verdict of the State Supreme Court

87. Chief Justice Rehnquist noted that in law even touching of one person by another without consent and without legal justification was a battery, and hence illegal. The notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. As observed by Justice Cardozo, while on the Court of Appeals of New York “Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.” vide Schloendorff vs. Society of New York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914). Thus the informed consent doctrine has become firmly entrenched in American Tort Law. The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is to refuse treatment.

88. The question, however, arises in cases where the patient is unable to decide whether the treatment should continue or not e.g. if he is in coma or PVS. Who is to give consent to terminate the treatment in such a case? The learned Chief Justice referred to a large number of decisions of Courts in U.S.A. in this connection, often taking diverse approaches.

89. In re Quinlan 70 N.J.10, 355 A. 2d 647, Karen Quinlan suffered severe brain damage as a result of anoxia, and entered into PVS. Her father sought judicial approval to disconnect her respirator. The New Jersey Supreme Court granted the prayer, holding that Karen had a right of privacy grounded in the U.S. Constitution to terminate treatment. The Court concluded that the way Karen’s right to privacy could be exercised would be to allow her guardian and family to decide whether she would exercise it in the circumstances.

90. In re Conroy 98 NJ 321, 486 A.2d 1209 (1985), however, the New Jersey Supreme Court, in a case of an 84 year old incompetent nursing home resident who had suffered irreversible mental and physical ailments, contrary to its decision in Quinlan’s case, decided to base its decision on the common law right to self determination and informed consent. This right can be exercised by a surrogate decision maker when there was a clear evidence that the incompetent person would have exercised it. Where such evidence was lacking the Court held that an individual’s right could still be invoked in certain circumstances under objective `best interest’ standards. Where no trustworthy evidence existed that the individual would have wanted to terminate treatment, and a person’s suffering would make the administration of life sustaining treatment inhumane, a pure objective standard could be used to terminate the treatment. If none of these conditions obtained, it was best to err in favour of preserving life.

91. What is important to note in Cruzan’s case (supra) is that there was a statute of the State of Missouri, unlike in Airedale’s case (where there was none), which required clear and convincing evidence that while the patient was competent she had desired that if she becomes incompetent and in a PVS her life support should be withdrawn.

92. In Cruzan’s case (supra) the learned Chief Justice observed :

“Not all incompetent patients will have loved ones available to serve as surrogate decision makers. And even where family members are present, there will be, of course, some unfortunate situations in which family members will not act to protect a patient. A State is entitled to guard against potential abuses in such situations.” 93. The learned Chief Justice further observed :

“An erroneous decision not to terminate results in maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient’s intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction.”

94. No doubt Mr. Justice Brennan (with whom Justices Marshall and Blackmun joined) wrote a powerful dissenting opinion, but it is not necessary for us to go into the question whether the view of the learned Chief Justice or that of Justice Brennan, is correct.

95. It may be clarified that foreign decisions have only persuasive value in our country, and are not binding authorities on our Courts. Hence we can even prefer to follow the minority view, rather than the majority view, of a foreign decision, or follow an overruled foreign decision.

96. Cruzan’s case (supra) can be distinguished on the simple ground that there was a statute in the State of Missouri, whereas there was none in the Airedale’s case nor in the present case before us. We are, therefore, of the opinion that the Airedale’s case (supra) is more apposite as a precedent for us. No doubt foreign decisions are not binding on us, but they certainly have persuasive value.

LAW IN INDIA

97. In India abetment of suicide (Section 306 Indian Penal Code) and attempt to suicide (Section 309 of Indian Penal Code) are both criminal offences. This is in contrast to many countries such as USA where attempt to suicide is not a crime.

98. The Constitution Bench of the Indian Supreme Court in Gian Kaur vs. State of Punjab, 1996(2) SCC 648 held that both euthanasia and assisted suicide are not lawful in India. That decision overruled the earlier two Judge Bench decision of the Supreme Court in P. Rathinam vs. Union of India, 1994(3) SCC 394. The Court held that the right to life under Article 21 of the Constitution does not include the right to die (vide para 33). In Gian Kaur’s case (supra) the Supreme Court approved of the decision of the House of Lords in Airedale’s case (supra), and observed that euthanasia could be made lawful only by legislation. 99. Sections 306 and 309 IPC read as under :

“306. Abetment of suicide – If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

309. Attempt to commit suicide – Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both. 100. We are of the opinion that although Section 309 Indian Penal Code (attempt to commit suicide) has been held to be constitutionally valid in Gian Kaur’s case (supra), the time has come when it should be deleted by Parliament as it has become anachronistic. A person attempts suicide in a depression, and hence he needs help, rather than punishment. We therefore recommend to Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code. 101. It may be noted that in Gian Kaur’s case (supra) although the Supreme Court has quoted with approval the view of the House of Lords in Airedale’s case (supra), it has not clarified who can decide whether life support should be discontinued in the case of an incompetent person e.g. a person in coma or PVS. This vexed question has been arising often in India because there are a large number of cases where persons go into coma (due to an accident or some other reason) or for some other reason are unable to give consent, and then the question arises as to who should give consent for withdrawal of life support.

102. This is an extremely important question in India because of the unfortunate low level of ethical standards to which our society has descended, its raw and widespread commercialization, and the rampant corruption, and hence, the Court has to be very cautious that unscrupulous persons who wish to inherit the property of someone may not get him eliminated by some crooked method.

103. Also, since medical science is advancing fast, doctors must not declare a patient to be a hopeless case unless there appears to be no reasonable possibility of any improvement by some newly discovered medical method in the near future. In this connection we may refer to a recent news item which we have come across on the internet of an Arkansas man Terry Wallis, who was 19 years of age and newly married with a baby daughter when in 1984 his truck plunged through a guard rail, falling 25 feet. He went into coma in the crash in 1984, but after 24 years he has regained consciousness. This was perhaps because his brain spontaneously rewired itself by growing tiny new nerve connections to replace the ones sheared apart in the car crash. Probably the nerve fibers from Terry Wallis’ cells were severed but the cells themselves remained intact, unlike Terri Schiavo, whose brain cells had died (see Terri Schiavo’s case on Google). 104. However, we make it clear that it is experts like medical practitioners who can decide whether there is any reasonable possibility of a new medical discovery which could enable such a patient to revive in the near future.

WHEN CAN A PERSON IS SAID TO BE DEAD 105. It is alleged in the writ petition filed by Ms. Pinky Virani (claiming to be the next friend of Aruna Shanbaug) that in fact Aruna Shanbaug is already dead and hence by not feeding her body any more we shall not be killing her. The question hence arises as to when a person can be said to be dead ? 106. A person’s most important organ is his/her brain. This organ cannot be replaced. Other body parts can be replaced e.g. if a person’s hand or leg is amputed, he can get an artificial limb. Similarly, we can transplant a kidney, a heart or a liver when the original one has failed. However, we cannot transplant a brain. If someone else’s brain is transplanted into one’s body, then in fact, it will be that other person living in one’s body. The entire mind, including one’s personality, cognition, memory, capacity of receiving signals from the five senses and capacity of giving commands to the other parts of the body, etc. are the functions of the brain. Hence one is one’s brain. It follows that one is dead when one’s brain is dead.

107. As is well-known, the brain cells normally do not multiply after the early years of childhood (except in the region called hippocampus), unlike other cells like skin cells, which are regularly dying and being replaced by new cells produced by multiplying of the old cells. This is probably because brain cells are too highly specialized to multiply. Hence if the brain cells die, they usually cannot be replaced (though sometimes one part of the brain can take over the function of another part in certain situations where the other part has been irreversibly damaged).

108. Brain cells require regular supply of oxygen which comes through the red cells in the blood. If oxygen supply is cut off for more than six minutes, the brain cells die and this condition is known as anoxia. Hence, if the brain is dead a person is said to be dead.

BRAIN DEATH 109. The term `brain death’ has developed various meanings. While initially, death could be defined as a cessation of breathing, or, more scientifically, a cessation of heart-beat, recent medical advances have made such definitions obsolete. In order to understand the nature and scope of brain death, it is worthwhile to look at how death was understood. Historically, as the oft-quoted definition in Black’s Law Dictionary suggests, death was:

“The cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc.”.1 This definition saw its echo in numerous other texts and legal case law. This includes many American precedents- such as Schmidt v. Pierce, 344 S.W.2d 120, 133 (Mo. 1961) (“Black’s Law Dictionary, 4th Ed., defines death as `the cessation of life; the ceasing to exist ….”‘); and Sanger v. Butler, 101 S.W. 459, 462 (Tex. Civ. App. 1907) (“The Encyclopaedic Dictionary, among others, gives the following definitions of [death]: `The state of being dead; the act or state of dying; the state or condition of the dead.’ The Century Dictionary defines death as `cessation of life; that state of a being, animal or vegetable, in which there is a total and permanent cessation of all the vital functions.”‘).2 110. This understanding of death emerged from a cardiopulmonary perspective. In such cases, the brain was usually irrelevant — being understood that the cessation of circulation would automatically lead to the death of brain cells, which require a great deal of blood to survive. 111. The invention of the ventilator and the defibrillator in the 1920s altered this understanding, it being now possible that the cessation of 1 Black’s Law Dictionary 488 (4th ed., rev. 1968).

2 Goldsmith, Jason, Wanted! Dead and/or Alive: Choosing Amongst the Many Not-so-Uniform Definitions of Death, 61 U. Miami L. Rev. 871. (2007).

respiration and circulation, though critical, would no longer be irreversible3. Hence, a present-day understanding of death as the irreversible end of life must imply total brain failure, such that neither breathing, nor circulation is possible any more. The question of the length of time that may determine such death is significant, especially considering a significant increase in organ donations across jurisdictions over the last few years. 112. Brain death, may thus, be defined as “the irreversible cessation of all functions of the entire brain, including the brain stem”.4 It is important to understand that this definition goes beyond acknowledging consciousness — a person who is incapable of ever regaining consciousness will not be considered to be brain dead as long as parts of the brain e.g. brain stem that regulate involuntary activity (such as response to light, respiration, heartbeat etc.) still continue to function. Likewise, if consciousness, albeit severely limited, is present, then a person will be considered to be alive even if he has suffered brain stem death, wherein breathing and heartbeat can no longer be regulated and must be mechanically determined. Hence, the international standard for brain death is usually considered to include “whole-brain death”, i.e., a situation where the higher brain (i.e. the part of the brain that 3 Samantha Weyrauch, Acceptance of Whole Brain Death Criteria for Determination of Death: A Comparative Analysis of the United States and Japan, 17 UCLA Pac. Basin L.J. 91, 96. (1999).

4 Section 1, Universal Determination of Death Act, (The United States Legislation) regulates consciousness and thought), the cerebellum or mid-brain, and the brain-stem have all ceased to demonstrate any electrical activity whatsoever for a significant amount of time. To say, in most cases, that only the death of the higher brain would be a criteria for `brain death’ may have certain serious consequences — for example, a foetus, technically under this definition, would not be considered to be alive at all. Similarly, as per this, different definitions of death would apply to human and non-human organisms.

113. Brain death, thus, is different from a persistent vegetative state, where the brain stem continues to work, and so some degree of reactions may occur, though the possibility of regaining consciousness is relatively remote. Even when a person is incapable of any response, but is able to sustain respiration and circulation, he cannot be said to be dead. The mere mechanical act of breathing, thus, would enable him or her to be “alive”. 114. The first attempt to define death in this manner came about in 1968, as a result of a Harvard Committee constituted for the purpose.5 This definition, widely criticized for trying to maximize organ donations, considered death to be a situation wherein “individuals who had sustained traumatic brain 5 Ad Hoc Comm. of the Harvard Med. Sch. to Examine the Definition of Brain Death, A Definition of Irreversible Coma, 205 JAMA 337, 337-40 (1968).

injury that caused them to be in an irreversible coma, and had lost the ability to breathe spontaneously”6, would be considered dead. This criticism led to the Presidents’ Committee, set up for the purpose, in 1981, defining death more vaguely as the point “where the body’s physiological system ceases to contribute a uniform whole”. This definition of whole brain death, however, is not without its critics. Some argue that the brain is not always responsible for all bodily functioning- digestion, growth, and some degree of movement (regulated by the spinal cord) may not require any electrical activity in the brain. In order to combat this argument, and further explain what brain death could include, the President’s Committee on Bio-ethics in the United States of America in 2008 came up with a new definition of brain death, according to which a person was considered to be brain dead when he could no longer perform the fundamental human work of an organism. These are:

“(1) “openness to the world, that is receptivity to stimuli and signals from the surrounding environment,”

(2) “the ability to act upon the world to obtain selectively what it needs.

and (3) “the basic felt need that drives the organism to act … to obtain what it needs.”7 6 Seema K. Shah, Franklin Miller, Can We Handle The Truth? Legal Fictions in the Determination of Death. 36 Am. J.L. & Med. 540 (2010).

7 Ibid.

115. When this situation is reached, it is possible to assume that the person is dead, even though he or she, through mechanical stimulation, may be able to breathe, his or her heart might be able to beat, and he or she may be able to take some form of nourishment. It is important, thus, that it be medically proved that a situation where any human functioning would be impossible should have been reached for there to be a declaration of brain death– situations where a person is in a persistent vegetative state but can support breathing, cardiac functions, and digestion without any mechanical aid are necessarily those that will not come within the ambit of brain death.

116. In legal terms, the question of death would naturally assume significance as death has a set of legal consequences as well. As per the definition in the American Uniform Definition of Death Act, 1980. an individual who “sustain[s] . . . irreversible cessation of all functions of the entire brain, including the brain stem, is dead.” This stage, thus, is reached at a situation where not only consciousness, but every other aspect of life regulated from the brain can no longer be so regulated. 117. In the case of `euthanasia’, however, the situation is slightly different. In these cases, it is believed, that a determination of when it would be right or fair to disallow resuscitation of a person who is incapable of expressing his or her consent to a termination of his or her life depends on two circumstances:

a. when a person is only kept alive mechanically, i.e. when not only consciousness is lost, but the person is only able to sustain involuntary functioning through advanced medical technology–such as the use of heart-lung machines, medical ventilators etc.

b. when there is no plausible possibility of the person ever being able to come out of this stage. Medical “miracles” are not unknown, but if a person has been at a stage where his life is only sustained through medical technology, and there has been no significant alteration in the person’s condition for a long period of time–at least a few years–then there can be a fair case made out for passive euthanasia.

To extend this further, especially when a person is incapable of being able to give any consent, would amount to committing judicial murder. 118. In this connection we may refer to the Transplantation of Human Organs Act, 1994 enacted by the Indian Parliament. Section 2(d) of the Act states :

“brain-stem death” means the stage at which all functions of the brain-stem have permanently and irreversibly ceased and is so certified under sub-section (6) of section 3:” 119. Section 3(6) of the said Act states:

“(6) Where any human organ is to be removed from the body of a person in the event of his brain-stem death, no such removal shall be undertaken unless such death is certified, in such form and in such manner and on satisfaction of such conditions and requirements as may be prescribed, by a Board of medical experts consisting of the following, namely:- (i) the registered medical practitioner, in charge of the hospital in which brain-stem death has occurred;

(ii) an independent registered medical practitioner, being a specialist, to be nominated by the registered medical practitioner specified in clause (i), from the panel of names approved by the Appropriate Authority;

(iii) a neurologist or a neurosurgeon to be nominated by the registered medical practitioner specified in clause (i), from the panel of names approved by the Appropriate Authority; and (iv) the registered medical practitioner treating the person whose brain-stem death has occurred”.

120. Although the above Act was only for the purpose of regulation of transplantation of human organs it throws some light on the meaning of brain death.

121. From the above angle, it cannot be said that Aruna Shanbaug is dead. Even from the report of Committee of Doctors which we have quoted above it appears that she has some brain activity, though very little.

122. She recognizes that persons are around her and expresses her like or dislike by making some vocal sound and waving her hand by certain movements. She smiles if she receives her favourite food, fish and chicken soup. She breathes normally and does not require a heart lung machine or intravenous tube for feeding. Her pulse rate and respiratory rate and blood pressure are normal. She was able to blink well and could see her doctors who examined her. When an attempt was made to feed her through mouth she accepted a spoonful of water, some sugar and mashed banana. She also licked the sugar and banana paste sticking on her upper lips and swallowed it. She would get disturbed when many people entered her room, but she appeared to calm down when she was touched or caressed gently. 123. Aruna Shanbaug meets most of the criteria for being in a permanent vegetative state which has resulted for 37 years. However, her dementia has not progressed and has remained stable for many years. 124. From the above examination by the team of doctors, it cannot be said that Aruna Shanbaug is dead. Whatever the condition of her cortex, her brain stem is certainly alive. She does not need a heart–lung machine. She breathes on her own without the help of a respirator. She digests food, and her body performs other involuntary function without any help. From the CD (which we had screened in the courtroom on 2.3.2011 in the presence of counsels and others) it appears that she can certainly not be called dead. She was making some sounds, blinking, eating food put in her mouth, and even licking with her tongue morsels on her mouth. 125. However, there appears little possibility of her coming out of PVS in which she is in. In all probability, she will continue to be in the state in which she is in till her death. The question now is whether her life support system (which is done by feeding her) should be withdrawn, and at whose instance? WITHDRAWAL OF LIFE SUPPORT OF A PATIENT IN
PERMANENT VEGETATIVE STATE (PVS) 126. 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 in this connection. We agree with Mr. Andhyarujina that passive euthanasia should be permitted in our country in certain situations, and we disagree with the learned Attorney General that it should never be permitted. Hence, following the technique used in Vishakha’s case (supra), we are laying down the law in this connection which will continue to be the law until Parliament makes a law on the subject.

(i) A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient. In the present case, we have already noted that Aruna Shanbaug’s parents are dead and other close relatives are not interested in her ever since she had the unfortunate assault on her. As already noted above, 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 few occasions and written a book on her. Hence it is for the KEM hospital staff to take that decision. The KEM hospital staff have clearly expressed their wish that Aruna Shanbaug should be allowed to live. Mr. Pallav Shisodia, learned senior counsel, appearing for the Dean, KEM Hospital, Mumbai, submitted that Ms. Pinky Virani has no locus standi in this case. In our opinion it is not necessary for us to go into this question since we are of the opinion that it is the KEM Hospital staff who is really the next friend of Aruna Shanbaug. We do not mean to decry or disparage what Ms. Pinky Virani has done. Rather, we wish to express our appreciation of the splendid social spirit she has shown. We have seen on the internet that she has been espousing many social causes, and we hold her in high esteem. All that we wish to say is that however much her interest in Aruna Shanbaug may be it cannot match the involvement of the KEM hospital staff who have been taking care of Aruna day and night for 38 years.

However, assuming that the KEM hospital staff at some future time changes its mind, in our opinion in such a situation the KEM hospital would have to apply to the Bombay High Court for approval of the decision to withdraw life support.

(ii) Hence, even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned as laid down in Airedale’s case (supra). In our opinion, this is even more necessary in our country as we cannot rule out the possibility of mischief being done by relatives or others for inheriting the property of the patient.

127. In our opinion, if we leave it solely to the patient’s relatives or to the doctors or next friend to decide whether to withdraw the life support of an incompetent person there is always a risk in our country that this may be misused by some unscrupulous persons who wish to inherit or otherwise grab the property of the patient. Considering the low ethical levels prevailing in our society today and the rampant commercialization and corruption, we cannot rule out the possibility that unscrupulous persons with the help of some unscrupulous doctors may fabricate material to show that it is a terminal case with no chance of recovery. There are doctors and doctors. While many doctors are upright, there are others who can do anything for money (see George Bernard Shaw’s play `The Doctors Dilemma’). The commercialization of our society has crossed all limits. Hence we have to guard against the potential of misuse (see Robin Cook’s novel `Coma’). In our opinion, while giving great weight to the wishes of the parents, spouse, or other close relatives or next friend of the incompetent patient and also giving due weight to the opinion of the attending doctors, we cannot leave it entirely to their discretion whether to discontinue the life support or not. We agree with the decision of the Lord Keith in Airedale’s case (supra) that the approval of the High Court should be taken in this connection. This is in the interest of the protection of the patient, protection of the doctors, relative and next friend, and for reassurance of the patient’s family as well as the public. This is also in consonance with the doctrine of parens patriae which is a well known principle of law. DOCTRINE OF PARENS PATRIAE 128. The doctrine of Parens Patriae (father of the country) had originated in British law as early as the 13th century. It implies that the King is the father of the country and is under obligation to look after the interest of those who are unable to look after themselves. The idea behind Parens Patriae is that if a citizen is in need of someone who can act as a parent who can make decisions and take some other action, sometimes the State is best qualified to take on this role. 129. In the Constitution Bench decision of this Court in Charan Lal Sahu vs. Union of India [1989] INSC 395; (1990) 1 SCC 613 (vide paras 35 and 36), the doctrine has been explained in some details as follows :

“In the “Words and Phrases” Permanent Edition, Vol. 33 at page 99, it is stated that parens patriae is the inherent power and authority of a legislature to provide protection to the person and property of persons non sui juris, such as minor, insane, and incompetent persons, but the words parens patriae meaning thereby `the father of the country’, were applied originally to the King and are used to designate the State referring to its sovereign power of guardianship over persons under disability. Parens patriae jurisdiction, it has been explained, is the right of the sovereign and imposes a duty on the sovereign, in public interest, to protect persons under disability who have no rightful protector. The connotation of the term parens patriae differs from country to country, for instance, in England it is the King, in America it is the people, etc. The government is within its duty to protect and to control persons under disability”. The duty of the King in feudal times to act as parens patriae (father of the country) has been taken over in modern times by the State.

130. In Heller vs. DOE (509) US 312 Mr. Justice Kennedy speaking for the U.S. Supreme Court observed :

“the State has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable to care for themselves”.

131. In State of Kerala vs. N.M. Thomas, 1976(1) SCR 906 (at page 951) Mr. Justice Mathew observed :

” The Court also is `state’ within the meaning of Article 12 (of the Constitution).”.

132. In our opinion, in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.

UNDER WHICH PROVISION OF THE LAW CAN THE COURT GRANT APPROVAL FOR WITHDRAWING LIFE SUPPORT TO AN
INCOMPETENT PERSON 133. In our opinion, it is the High Court under Article 226 of the Constitution which can grant approval for withdrawal of life support to such an incompetent person. Article 226(1) of the Constitution states :

“Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose”.

134. A bare perusal of the above provisions shows that the High Court under Article 226 of the Constitution is not only entitled to issue writs, but is also entitled to issue directions or orders. 135. In Dwarka Nath vs. ITO [1965] INSC 86; AIR 1966 SC 81(vide paragraph 4) this Court observed : “This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression “nature”, for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art. 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure.”

136. The above decision has been followed by this Court in Shri Anadi Mukta Sadguru vs. V. R. Rudani [1989] INSC 134; AIR 1989 SC 1607 (vide para 18). 137. No doubt, the ordinary practice in our High Courts since the time of framing of the Constitution in 1950 is that petitions filed under Article 226 of the Constitution pray for a writ of the kind referred to in the provision. However, from the very language of the Article 226, and as explained by the above decisions, a petition can also be made to the High Court under Article 226 of the Constitution praying for an order or direction, and not for any writ. Hence, in our opinion, Article 226 gives abundant power to the High Court to 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 of the kind above mentioned. PROCEDURE TO BE ADOPTED BY THE HIGH COURT WHEN SUCH AN APPLICATION IS FILED 138. When such an application is filed the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. Before doing so the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit. Preferably one of the three doctors should be a neurologist, one should be a psychiatrist, and the third a physician. For this purpose a panel of doctors in every city may be prepared by the High Court in consultation with the State Government/Union Territory and their fees for this purpose may be fixed. 139. The committee of three doctors nominated by the Bench 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 Bench.

140. Simultaneously with appointing the committee of doctors, the High Court Bench shall also issue notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, and supply a copy of the report of the doctor’s committee to them as soon as it is available. After hearing them, the High Court bench should give its verdict. The above procedure should be followed all over India until Parliament makes legislation on this subject. 141. The High Court should give its decision speedily at the earliest, since delay in the matter may result in causing great mental agony to the relatives and persons close to the patient.

142. The High Court should give its decision assigning specific reasons in accordance with the principle of `best interest of the patient’ laid down by the House of Lords in Airedale’s case (supra). The views of the near relatives and committee of doctors should be given due weight by the High Court before pronouncing a final verdict which shall not be summary in nature.

143. With these observations, this petition is dismissed.

144. Before parting with the case, we would like to express our gratitude to Mr. Shekhar Naphade, learned senior counsel for the petitioner, assisted by Ms. Shubhangi Tuli, Ms. Divya Jain and Mr. Vimal Chandra S. Dave, advocates, the learned Attorney General for India Mr. G. E. Vahanvati, assisted by Mr. Chinmoy P. Sharma, advocate, Mr. T. R. Andhyarujina, learned Senior Counsel, whom we had appointed as amicus curiae assisted by Mr. Soumik Ghoshal, advocate, Mr. Pallav Shishodia, learned senior counsel, assisted by Ms. Sunaina Dutta and Mrs. Suchitra Atul Chitale, advocates for the KEM Hospital, Mumbai and Mr. Chinmoy Khaldkar, counsel for the State of Maharashtra, assisted by Mr. Sanjay V. Kharde and Ms. Asha Gopalan Nair, advocates, who were of great assistance to us. We wish to express our appreciation of Mr. Manav Kapur, Advocate, who is Law-Clerk-cum-Research Assistant of one of us (Katju, J.) as well as Ms. Neha Purohit, Advocate, who is Law-Clerk-cum-Research Assistant of Hon’ble Justice Gyan Sudha Mishra. We also wish to mention the names of Mr. Nithyaesh Nataraj and Mr. Vaibhav Rangarajan, final year law students in the School of Excellence, Dr. B.R. Ambedkar Law University, Chennai, who were the interns of one of us (Katju, J.) and who were of great help in doing research in this case.

145. We wish to commend the team of doctors of Mumbai who helped us viz. Dr. J. V. Divatia, Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial Hospital, Mumbai; Dr. Roop Gursahani, Consultant Neurologist at P.D. Hinduja, Mumbai; and Dr. Nilesh Shah, Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital. They did an excellent job.

146. We also wish to express our appreciation of Ms. Pinki Virani who filed this petition. Although we have dismissed the petition for the reasons given above, we regard her as a public spirited person who filed the petition for a cause she bona fide regarded as correct and ethical. We hold her in high esteem.

147. We also commend the entire staff of KEM Hospital, Mumbai (including the retired staff) for their noble spirit and outstanding, exemplary and unprecedented dedication in taking care of Aruna for so many long years. Every Indian is proud of them.

……….…………………….J.
(Markandey Katju)
…………………………….J.
(Gyan Sudha Misra)

New Delhi:
March 07, 2011

The post Aruna Ramchandra Shanbaug Case Vs. Union of India appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 7085-7086 OF 2011
[Arising out of SLP (C) Nos. 10049-10050 of 2010]

Ramesh Kumar & Anr. … Appellants
Vs.
Furu Ram & Anr. etc. … Respondents

R.V.RAVEENDRAN, J.

Leave granted. For convenience parties will also be referred by their ranks in the suit or by name.

2. The appellants – two brothers, are the co-owners with equal shares, in lands measuring in all 98 Kanals and 19 marlas situated in village Udana, Tehsil Indri, District Karnal. They entered into an agreement to sell the said lands to the sons of Furu Ram and Kalu Ram (brothers) the respective first respondent in these two appeals, on 18.10.1991 for a consideration of Rs.14,22,000/- and received Rs.1,00,000 as earnest money. As per the terms of the agreement, the balance was to be paid by the purchasers at the time of registration of the sale deed and the sale was to be completed by 31.1.1992.

The case of appellants (Ramesh Kumar & Naresh Kumar)

3. The respondents were not in a position to pay the balance of the sale consideration and therefore failed to get the sale completed by 31.1.1992. The respondents requested for refund of the earnest money of Rs.100,000/-. The appellants were not willing to return the earnest money in view of the breach by the respondents. There was a panchayat in that behalf wherein it was decided that the appellants should permit the respondents to cultivate their said lands for a period of one and half years without any rent in satisfaction and discharge of the claim for refund of Rs.100,000/-. In pursuance of the said panchayat settlement, appellants delivered possession of the suit lands to the respondents. The respondents represented that they would reduce the terms of the said settlement into writing and requested the appellants to come to Kurukshetra to sign some papers. The appellants trusted the respondents as it was a panchayat settlement and went to Kurukshetra, and signed the papers given by the respondents, under the bonafide belief that they were signing papers relating to the terms of the aforesaid settlement. The respondents also asked the appellants to appear in court and confirm the same. The appellants accordingly went to the court and nodded their assent when asked whether they were agreeable for the settlement.

4. Some months thereafter, a suit was filed against appellants in June 1992 by one Lal Singh and others claiming pre-emption. During the pendency of that suit, the appellants learnt that the respondents had obtained a mutation in their favour on the basis of some decrees obtained by them from the court of Senior Sub-Judge, Kurukshetra. On verification, the appellants were surprised to learn that consent orders had been passed by the court of Sr. Sub-Judge, Kurukshetra on 30.3.1992 in C.S.No.366/1992 and C.S.No.367/1992, directing decrees be drawn in terms of arbitration awards dated 13.3.1992 made by one Chandra Bhushan Sharma, Advocate, Kurukshetra, appointed as per reference agreements dated 12.3.1992.

5. According to appellants, the agreements dated 12.3.1992, the arbitration awards dated 13.3.1992, the consent decrees dated 30.3.1992 and the mutations in favour of respondents were all illegal, null and void and non-est, being the result of fraud and misrepresentation on the part of respondents. According to appellants, the allegations in the said agreements, awards and as also the plaints in CS Nos.366 and 367 of 1992 that appellants had borrowed Rs.8 lacs from Furu Ram and Rs.8 lacs from Kalu Ram agreeing to repay the same with interest at 2% per month, that they had given their lands to Furu Ram and Kalu Ram as they were not able to repay the two loans of Rs.800,000/- each, were all false. They alleged that they had not engaged any counsel for appearance in CS Nos.366 and 367 of 1992, nor signed any written statements, nor participated in any arbitration proceedings, nor made any statements agreeing for making decrees in terms of any award. The appellants claimed that they only signed some papers which respondents had represented to be documents relating to giving their lands on licence basis for one and half years instead of returning the earnest money deposit of Rupees One Lakh. The appellants therefore filed two suits on 11.11.1993 (renumbered as CS No.63 and 64 of 1997) in the court of the Civil Judge, Junior Division, Kurukshetra, against Furu Ram and Kalu Ram respectively for a declaration that the judgments and decrees dated 30.3.1992 in C.S.No.366/1992 and 367/1992 (by which the awards dated 13.3.1992 were made the rule of the court), the agreements dated 12.3.1992, the awards dated 13.3.1992, the proceedings in C.S.No.366/1992 and 367/1992 and the mutations in pursuance of the said decrees were all null and void, non-est and not binding on them and for the consequential relief of possession of the suit properties. In the said suits (CS No.63 of 1997 and 64 of 1997) the arbitrator `C.B. Sharma’ was impleaded as the second defendant.

The case of respondent (Furu Ram and Kalu Ram)
6. In their respective written statements in the two suits, Furu Ram and Kalu Ram alleged that they were ready to get the sale deeds registered on the date fixed for sale as per the agreement of sale dated 18.10.1991, but the appellants evaded, and therefore the matter was referred to Arbitrator C B Sharma by both parties for settlement. It was further alleged that the Arbitrator recorded the statements of appellants as well as respondents and made the awards. They contended that the awards made by the arbitrator and the decrees made in terms of the awards were lawful and valid.

The Proceedings
7. In the two suits filed by appellants (C.S.Nos.63 and 64 of 1997) the trial court framed appropriate issues as to whether judgments and decrees dated 30.3.1992 were null and void; whether plaintiffs were entitled to possession; whether the suits were not maintainable; whether the suits were not within time; and whether plaintiffs were estopped from filing the suits, by their own conduct; and whether the suits were bad for misjoinder/non- joinder of parties. Parties led oral and documentary evidence in support of their cases.

8. The trial court decreed the two suits of appellants by common judgment dated 7.2.1998. The trial court held that as the awards dated 13.3.1992 created a right in immovable properties in favour of the respondents who did not have any pre-existing right therein, they were compulsorily registrable; and as the arbitration awards were not registered under the Registration Act, 1908, they were invalid and consequently the judgments and decrees dated 30.3.1992 of the court, making decrees in terms of the said awards were also invalid. In view of the said finding the trial court declared that the decrees dated 30.3.1992, the agreements dated 12.3.1992, the awards dated 13.3.1992 and the mutations were illegal, null and void, not binding on the plaintiffs and granted the relief of possession. In the course of the said judgment, the trial court however held that the evidence of the advocate Sudhir Sharma (DW-3) and the arbitrator C.B. Sharma (DW-1) showed that the appellants had full knowledge of the facts and circumstances of the two cases (CS Nos.366 and 367 of 1992) and only thereafter they filed written statements admitting the claims; and that therefore the case of the appellants that the consent decrees dated 30.3.1992 were obtained by fraud and misrepresentation could not be accepted.

9. The respondents filed appeals against the said common judgment and decrees dated 7.2.1998 of the trial court. The said appeals, filed on 19.3.1998, renumbered as C.A. No.37/2003 and 38/2003, were allowed by the first appellate court (Addl. District Judge, Kurukshetra) by judgment dated 3.8.2004 and the common judgment and decrees of the trial court in the two suits were set aside and the suits filed by the appellants were dismissed with costs. The first appellate court held that the consent decrees in terms of the awards could not be challenged on the ground that they were not registered; that having regard to section 32 of the Arbitration Act, 1940, no suit would lie on any ground whatsoever, for a decision upon the existence, effect or validity of an award, nor could any award be enforced, set aside, modified or in any way affected, otherwise than as provided under the said Act; that an award could be challenged or contested only by an application under section 33 of the Act, and an award could be set aside only on any of the grounds mentioned in section 30 of the said Act. The first appellate court further held that as no application was filed under sections 30 and 33 of the said Act by appellants for setting aside the awards and as the awards had been made rule of the court, the suits for declaration filed by the appellants were barred by section 32 of the Arbitration Act, 1940, and were not maintainable. The second appeals filed by the appellants against the said common judgment of the first appellate court were dismissed by the High Court by judgment dated 11.8.2009 holding that decrees passed by a court in terms of the arbitration awards under section 17 of the Arbitration Act, 1940, did not require registration and that arbitration awards could be challenged only by applications under section 33 of the said Act.

Questions for consideration
10. The said common judgment of the High Court is challenged in these appeals by special leave. On the contentions urged, the questions that arise for our consideration are as under: (i) Whether the suits by appellants were not maintainable? (ii) Whether the courts below were justified in holding that there was no fraud or misrepresentation on the part of the respondents in obtaining the decrees in terms of the awards dated 13.3.1992? (iii) Whether the arbitration awards dated 13.3.1992 were invalid for want of registration? (iv) Whether the orders dated 30.3.1992 directing that the said awards be made the rule of the court, invalid?

Re: Question (i)
11. The appellants sought a declaration that the orders dated 30.3.1992 passed by the Senior Sub-Judge, Kurukshetra in C.S.No.366 and 367 of 1992 (directing that decrees be drawn in terms of the awards dated 13.3.1992) and the decrees drawn in terms of the awards as also the agreements dated 12.3.1992 and the awards dated 13.3.1992 which led to such decrees, were null and void, as they were the result of fraud and misrepresentation; and that the mutations obtained on the basis of the said decrees were also null and void. In other words, the appellants were seeking a declaration that the proceedings before the court of Sr. Sub-Judge, Kurukshetra, in the two suits under sections 14 and 17 of the Arbitration Act 1940 resulting in the orders dated 30.3.1992 and decrees made pursuant to the said orders dated 30.3.1992 were null and void as they were vitiated by fraud and misrepresentation and for the consequential relief of setting aside the mutations based on such decrees and possession of the lands. The challenge to the validity of the agreements dated 12.3.1992 and awards dated 13.3.1992 was incidental to challenge the orders dated 30.3.1992 and the decrees drawn in pursuance of such orders. The first appellate court and the High Court have therefore erroneously proceeded on the basis that the suits were filed only for declaring that the arbitration agreements dated 12.3.1992 and awards dated 13.3.1992 were invalid and that suits for such declaration were not maintainable having regard to the bar contained in sections 32 and 33 of the Arbitration Act, 1940. What has been lost sight of is the fact that the challenge was to the orders dated 30.3.1992 making the awards rule of the court. To establish that the said judgments and decrees were obtained by fraud and misrepresentation and therefore invalid, it was also contended that the agreements dated 12.3.1992 and the awards dated 13.3.1992 and the proceedings initiated under sections 14 and 17 of the Arbitration Act, 1940 seeking decrees in terms of the awards were all fraudulent. Therefore, sections 32 and 33 of Arbitration Act, 1940 were not a bar to the suits (C.S.Nos. 63 and 64 of 1997) filed by the appellants.

Re : Question (ii)
12. The manner in which the agreements dated 12.3.1992 were entered, the awards dated 13.3.1992 were made and the said awards were made rule of the court, clearly disclose a case of fraud. Fraud can be of different forms and different hues. It is difficult to define it with precision, as the shape of each fraud depends upon the fertile imagination and cleverness who conceives of and perpetrates the fraud. Its ingredients are an intention to deceive, use of unfair means, deliberate concealment of material facts, or abuse of position of confidence. `Fraud’ is `knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his detriment’. `Fraud’ is also defined as a concealment or false representation through a statement or conduct that injures another who relies on it in acting. (vide The Black’s Law Dictionary). Any conduct involving deceit resulting in injury, loss or damage to some one is fraud.

13. Section 17 of the Indian Contract Act, 1872 defines `fraud’ thus :

“17. `Fraud’ defined.-`Fraud’ means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract : (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent. Explanation.- Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence, is in itself, equivalent to speech.” The word `fraud’ is used in section 12 of Hindu Marriage Act, 1955 in a narrower sense. The said section provides that a marriage shall be voidable and annulled by a decree of nullity if the consent of the petitioner was obtained by `fraud’ as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. In the context in which it is used refers to misrepresentation, false statement, deception, concealment.

14. Differently nuanced contextual meanings of the word `fraud’ are collected in P.Ramnatha Aiyar’s Advanced Law Lexicon (3rd Edition, Book 2, Page 1914-1915). We may extract two of them : “Fraud, is deceit in grants and conveyances of lands, and bargains and sales of goods, etc., to the damage of another person which may be either by suppression of the truth, or suggestion of a falsehood. (Tomlin) The colour of fraud in public law or administrative law, as it is developing, is assuming different shade. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. That is misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which power can be exercised.” Any wilful attempt to defeat or circumvent any tax law in order to illegally reduce one’s tax liability is a tax evasion which is termed as a tax fraud. The stamp duty payable under Stamp Act is considered to be a species of tax levied on certain transfer documents and instruments. Any wilful attempt to defeat the provision of the Stamp Act or illegally evade one’s liability to pay stamp duty will be a stamp evasion which would amount to a fraud.

15. One of the plaintiffs (Naresh Kumar) was examined as PW-1 and Raj Kumar, a member of the Panchayat was examined as PW-2. The evidence of PW1 (Naresh Kumar) and PW2 (Raj Kumar) is consistent and narrate the events described in the plaints in the two suits showing the deceit and fraud practiced upon the appellants. The plaintiffs exhibited two documents that is revenue extracts showing the mutation in favour of the respondents and the decrees made in pursuance of the orders dated 30.3.1992 by the Sr. Sub- Judge in CS Nos.366 and 367 of 1992.

16. The defendants – respondents did not step into the witness box to give their version, which leads to an adverse inference that if the defendants had examined themselves, their evidence would have been unfavourable to them (vide section 114 of Evidence Act, 1872 read with illustration (g) thereto). They however examined five witnesses : C.B. Sharma, the arbitrator, was examined as DW-1; Ram Kumar, their power of attorney holder was examined as DW 2; Sudhir Sharma, their Advocate who appeared in C.S.No.366 and 367 of 1992, was examined as DW-3; Chander Pal, said to be a member of the panchayat was examined as DW4; and Devi Dayal, a court officer, was examined as DW-5 in connection with the production of documents from the court. They also got exhibited among other documents, 14 the agreement of sale dated 18.10.1991, the reference agreements dated 12.3.1992 appointing C. B. Sharma as arbitrator, the statements of parties allegedly recorded by the Arbitrator on 12.3.1992, the awards dated 13.3.1992 made by the Arbitrator, the plaints, written statements and order- sheets all dated 16.3.1992 and the final order dated 30.3.1992 in CS Nos.366 and 367 of 1992, the decrees in terms of the awards and the declarations made by appellants on 31.3.1992.

17. The oral evidence of defendants’ witnesses (DW1 to DW4) unfolds a story, different from what was pleaded by them in their written statement. We may refer to the said evidence briefly.

18. C. B. Sharma who was examined as DW-1 stated that the parties gave him the agreements dated 12.3.1992 appointing him as arbitrator, that as arbitrator he recorded the statements of the appellants and the respondents and on that basis, made the awards dated 13.3.1992. He states that appellants appeared before the court and consented to the award as per proceedings Ex.D4 dated 16.3.1992 and he identified them as their counsel before the court. On further questioning, he admitted that he was not aware about the transaction of sale and purchase between the parties or whether there was any dispute at all in regard to sale or purchase of land. He stated that the parties submitted an arbitration agreement in regard to a loan and that he gave the awards in regard to the loan; and that the reference agreements dated 12.3.1992 were not in regard to any dispute relating to property nor about the sale or purchase thereof nor about specific performance of any agreement of sale and that the dispute was only in regard to money and he was not appointed as arbitrator to settle any dispute in regard to any land. He also stated that he did not charge any fee in regard to the arbitration or making the awards.

19. DW2 – Ram Kumar, (son of Furu Ram), power of attorney holder of defendants, stated that the agreement of sale in regard to 98 kanals 19 marlas was got executed for a consideration of Rs.14 lakhs in favour of three sons of Furu Ram (Ram Swaroop, Veer Singh and Ram Kumar) and four sons of Kalu Ram (Bhagat Ram, Jagir Singh, Ramesh Kumar and Lala Ram); that Rs.One lakh was given as earnest money under agreement dated 18.10.1991; that there was a dispute in regard to the price and the dispute was decided by a panchayat consisting of Chander Pal, Purushottam, Harbhajan, C. B. Sharma (Advocate) and Sudhir Sharma (Advocate) and Rs.15 lakhs was paid in cash in their presence to the appellants; that after paying the money it was decided that a court decree should be obtained in favour of the respondents and C.B. Sharma was then appointed as the arbitrator to obtain a decree; that C. B. Sharma made the awards and decrees were obtained from the court on the basis of the said awards.

20. DW-3 – Sudhir Sharma who was the counsel for the respondents stated that there was a dispute in regard to the sale price of the property agreed to be sold by appellants to respondents. There was a panchayat on 12.3.1992 where it was agreed that the sale price should be increased by Rs.200,000/-. In addition to the earnest money of Rs.100,000/-, earlier paid, another sum of Rs. fifteen lakhs was paid in cash by the defendants to the plaintiffs in full and final settlement before the members of the panchayat. The parties felt that the expenses of stamp duty and registration of sale deed would be high and agreed for an arbitration award and a decree in terms of it. The panchayat resolved the dispute at around 1.30 p.m. Both parties and C.B. Sharma thereafter came to his chamber. The agreements dated 12.3.1992 referring disputes to arbitration, were prepared by the arbitrator C.B. Sharma. The said agreements were signed by the parties in his (Sudhir Sharma’s) office. The parties had also given their statements to C.B. Sharma in his office. The arbitrator made the awards on 13.3.1992. On the instructions of respondents (Furu Ram and Kalu Ram), he filed the two suits under sections 14 & 17 of the Act for making decree in terms of the two awards in the sub-court on 16.3.1992. The owners of the land Ramesh Kumar and Naresh Kumar were impleaded as defendants 1 and 2 in the said two suits and the Arbitrator C.B. Sharma was impleaded as the third defendant. C.B. Sharma, represented defendants and 1 and 2 as their counsel in the two suits. The court recorded the statements of both parties. After the statements of the appellants (defendants in those suits) were recorded by the court, they were identified by their counsel C.B. Sharma. He stated (in cross- examination) that the payment of Rs.15 lakhs was made after the appellants made statements before court agreeing for a decree in terms of awards.

21. DW-4 Chander Pal Singh stated that he was instrumental in getting the parties to enter into the agreement of sale; that dispute arose as respondents wanted to register sale deeds showing a lesser consideration and appellants wanted the sale deed for the full consideration; that therefore a panchayat was conveyed; that he was present when the negotiations took place before the panchayat and settlement was reached by agreeing for a price of Rs.16 lakhs; that Rs.15 lakhs was paid by Ram Kumar (Power of Attorney Holder of respondents) to appellants in the presence of Panchayat consisting of himself, Purushottam, Harbhajan and Sudhir Sharma. Sudhir Sharma, counsel for respondents got C.B.Sharma as Arbitrator to make an award. After the decrees were made in terms of the awards, he tore the receipt for Rs.15 lakhs given by appellants.

22. The respondents’ version of what transpired as emerging from the evidence of their four witnesses (DW1 to DW4) (shorn of inconsistencies in the evidence) can thus be summarized as follows : The sale in terms of the agreement of sale dated 18.10.1991 did not take place, as the appellants unreasonably demanded an increase in price for executing the sale deed. The dispute was brought up before a panchayat. It was agreed before the panchayat that the respondents should pay a sum of Rs.15,00,000 in addition to earnest money of Rs.1,00,000/-, thereby increasing the price to Rs.16,00,000/- instead of Rs.14,22,000/-. The respondents paid the entire balance of Rs.15,00,000/- in cash in a lump sum to the appellants in the presence of the panchayat. To avoid the heavy expenditure towards stamp duty and registration charges for the sale deed, it was agreed that arbitration awards would be obtained in favour of respondents and the appellants would agree for decrees in terms of the awards, so as to confer title upon the respondents, instead of executing sale deeds. In pursuance of it, the parties entered into two agreements dated 12.3.1992 appointing C.B. Sharma, Advocate, as arbitrator. The said arbitrator recorded the statements of parties on 12.3.1992 and made awards dated 13.3.1992 declaring Furu Ram to be the owner in possession of 49 Kanals 10 Marlas of land and Kalu Ram to be the owner of 49 Kanals and 9 Marlas of land. Thereafter, Furu Ram and Kalu Ram filed petitions under sections 14 and 17 of the Arbitration Act, 1940 in the Court of the Senior Sub Judge, Kurukshetra praying that the awards in their favour be made the rule of the court. By orders dated 30.3.1992 the court directed decrees be drawn up in terms of the award. In pursuance of the decrees, Furu Ram and Kalu Ram also got the lands mutated to their names. The decrees dated 30.3.1992 in terms of the awards were valid and binding, and neither the decrees nor the awards were fraudulent.

23. We may now refer to the documentary evidence produced by the defendants – respondents, which narrate a completely different story.

24. The reference agreements dated 12.3.1992, the statements recorded by the Arbitrator on 12.3.1992 and the awards dated 13.3.1992, all stated that appellants had borrowed Rs.8 lacs from Furu Ram and Rs.8 lacs from Kalu Ram in November 1991 and had agreed to repay the same with interest at the rate of 2% per month that as they were not able to repay the amounts borrowed with interest, they agreed to give 49 kanals 10 marlas of land to Furu Ram and 49 kanals 9 marlas of land to Kalu Ram and delivered possession and confirmed the same before the arbitrator. The arbitral awards stated that the disputes relating to payment of Rs.8 lacs with interest thereon were referred to the Arbitrator, that the appellants had admitted borrowing Rs.8 lacs from Furu Ram and Rs.8 lacs from Kalu Ram and further admitted that being unable to pay the said amount, had given 49 kanals 10 marlas of land to Furu Ram and 49 kanals 9 marlas of land to Kalu Ram and therefore, Furu Ram has become the owner of 49 Kanals and 10 Marlas of land and Kalu Ram had become the owner of 49 kanals and 9 marlas of land.

25. The identical plaints dated 13.3.1992 in the two suits (CS Nos.366- 367 of 1992) under sections 14 and 17 of the Arbitration Act, 1940 filed by Furu Ram and Kalu Ram read as under :

“Application u/s 14/17 of the Arbitration Act to make the award dated 13.3.1992 the rule of the court.

Sir, It is prayed as under:-

1. That the respondents no.1 and 2 had borrowed a sum of Rs.8,00000/- from the applicant-plaintiff.

2. That the respondents no.1 and 2 failed to repay the amount and interest to applicant – plaintiff.

3. That vide agreement dt.12-3-1992 the respondent no.3 was appointed as Arbitrator to decide the matter.

4. That the respondent no.3 has decided the matter vide award dated 13- 3-1992.

5. That the applicant – plaintiff has been declared as owner in possession of the property mentioned in the award enclosed herewith.

6. That the applicant – plaintiff has been put in possession of the said property at the spot and is debarred from recovering the amount and interest from the respondents no.1 and 2.

7. That the respondents no.1 and 2 have refused to admit the award.

8. That the agreement and award were executed at Thanesar, Kurukshetra so this learned court has got jurisdiction to try this application.

9. That the required court fees is paid on the application.

It is, therefore, prayed that the award dated 13-3-1992 may kindly be made the rule of the court whereby the plaintiff-applicant may kindly be declared as owner in possession of the land measuring 49 Kanals 10 Marlas detailed as under:-”

[Note : The other plaint by Kalu Ram was identical except the extent which was 49 kanals 9 marlas and the description of the lands].

26. The written statements were also filed on the same day the suits were filed, that is 16.3.1992. The written statements were not signed by either of the appellants but were signed by C.B. Sharma (defendant no.3 in those suits) as advocate for the defendants 1 and 2 (appellants). The brief written statements stated that paras 1 to 7 of the plaint were correct and admitted and that paras 8 and 9 were legal and that therefore the suit be decreed.

27. The order-sheets dated 16.3.1992 in the said two suits, recorded that the appellants (defendants 1 & 2 in the suits) appeared and stated that they had no objection for decrees being made in terms of the award. The appellants signed the order-sheets and were identified by the arbitrator C.B. Sharma as their counsel. The cases (C.S.Nos.366 and 367 of 1992) thereafter came up before the learned Sr.Sub-Judge on 30.3.1992. The parties were not present. The orders of the court dated 30.3.1992 in both suits were identical and they are extracted below : “Present : Counsel for the parties.

Heard. Since the parties are not at issue, so the award dated 13.3.1992 – Ex C1 is made the rule of the court. Decree sheet be prepared accordingly and the award dated 13.3.1992 – Ex C1 shall form the part of the decree sheet. The file be consigned to the record room.”

28. We find three different versions from the pleadings and evidence led by the respondents. The case set forth in their written statements was completely different from the case made out in the evidence of their witnesses DW1, DW2, DW3 and DW4. More interestingly, the case set forth in the written statements and the case made out in the oral evidence were completely different from what is stated in the documentary evidence. Let us refer to them briefly. (a) The written statements filed by the respondents merely stated that the appellants did not execute the sale deed, on the date fixed for sale, as per agreement of sale dated 18.10.1991 and therefore, and the said dispute was referred to arbitration and awards were made by the arbitrator on the basis of their statements and decrees were made in terms of the award. (b) The evidence of DW1 to DW4 was that appellants unreasonably demanded the price to be increased from Rs.14,22,000/- to Rs.16,00,000/-, that the resultant dispute was referred to Panchayat, that a price of Rs.16,00,000/- was agreed before the Panchayat on 12.3.1992, that immediately the respondents paid the balance of Rs.15,00,000/- in cash to the appellants in the presence of the panchayat, that the respondents felt that the stamp duty and registration expenses were high and that therefore, it was agreed on the suggestion of their counsel that they should resort to the process of getting an arbitration award and decree to convey the title instead of execution of a sale deed. It was stated that C. B. Sharma was appointed as the arbitrator who made the awards and decrees were obtained in terms of the awards. (c) The documentary evidence, that is the reference agreements, the statements recorded by the Arbitrator, the awards, the plaints in the suits under sections 14 and 17 of Arbitration Act, 1940, on the other hand do not refer to the agreement of sale or the payment of price. They showed that the appellants had borrowed Rs.8 lakhs from Furu Ram and Rs.8 lakhs from Kalu Ram, about four months prior to 12.3.1992, and had agreed to repay the same with interest at 2% per month; that thereafter, Furu Ram and Kalu Ram demanded the money and the appellants were not in a position to repay the loans and therefore a dispute arose; and that by mutual consent, C.B. Sharma was appointed as an Arbitrator and parties agreed to be bound by his decision. The appellants allegedly made statements before C.B. Sharma (Arbitrator) admitting that they had taken Rs.8 lakhs from Furu Ram and Rs.8 lakhs from Kalu Ram as loans, agreeing to repay the same with interest at 2% per month, and that as they did not have the means to repay the same, they had given 49 Kanals 10 Marlas to Furu Ram and 49 Kanals 9 Marlas of land to Kalu Ram and also delivered possession of respective lands to Furu Ram and Kalu Ram. It is well settled that no amount of evidence contrary to the pleading can be relied on or accepted. In this case, there is variance and divergence between the pleading and documentary evidence, pleading and oral evidence and between the oral and documentary evidence. It is thus clear that the entire case of the respondents is liable to be rejected. The different versions clearly demonstration fraud and misrepresentation on the part of the respondents.

29. The trial court in its judgment in C.S.Nos.63 and 64 of 1997 inferred from the evidence of DW1 (C.B. Sharma) and DW3 (Sudhir Sharma) that appellants had knowledge of the full facts and circumstances of the cases filed under sections 14 and 17 of the Arbitration Act and that with such knowledge, they had filed written statements therein, admitting the facts and, therefore it could not be said that the judgments and decrees dated 30.3.1992 were obtained by misrepresentation and fraud. But the documentary evidence produced by the respondents clearly showed that in CS Nos. 366 and 367 of 1992, no notice/summons were issued to defendants; that appellants (defendants 1 & 2) did not sign the written statements which admitted the plaint averments; that the arbitrator who was the third defendant in those suits, very strangely appeared as advocate for defendants 1 and 2 (appellants) and signed the written statement and made a statement before the court on 30.3.1992 that defendants did not have any objection to the awards. All this lends credence to the case of appellants that respondents had conspired with DW1 and DW3 and got certain documents prepared and persuaded appellants who were barely literate, to give their consent on 16.3.1992 by misrepresenting to them that they were giving consent for giving their lands for cultivation to respondents for a period of one and half years as per the settlement. The trial court ignored relevant evidence and drew a wrong inference that there was no fraud or misrepresentation.

30. Let us now refer to the fraudulent manner in which the orders were obtained from the Sr. Sub-Judge, Kurukshetra for making decrees in terms of the award. According to the evidence of respondents, the events took place as under : Stage I (12.3.1992) (a) Settlement before the Panchayat that appellants 12.3.1992 should sell the property to the respondents for Rs.16 lacs (b) Decision of respondents to avoid stamp duty and 12.3.1992 registration charges and instead have an arbitration award through Advocate C. B. Sharma as arbitrator and then get decrees in terms of the awards (c) Reference agreements prepared by CB Sharma for 12.3.1992 referring the dispute to himself (d) The signing of the reference agreement by parties 12.3.1992 (e) Statements of parties recorded by CB Sharma in 12.3.1992 the office of Sushil Sharma, Advocate for respondents wherein appellants confirmed that they had given the lands to respondents Stage II (13.3.1992) (a) Awards made by the Arbitrator 13.3.1992 (b) Plaints under sections 14 and 17 of Arbitration Act 13.3.1992 prepared by Sushil Sharma, on behalf of respondents Stage III (16.3.1992) (a) CS Nos.366 and 367 of 1992 under sections 14 16.3.1992 and 17 of the Arbitration Act filed by respondents on (b) Written statements in the said suits signed by C.B. 16.3.1992 Sharma as Advocate for appellants (defendants in the suit) filed on (c) The statements of appellants that they were 16.3.1992 consenting to the decree, recorded by the court on Stage IV (a) Orders made directing decrees being drawn up in 30.3.1992 terms of the award (b) Undated declaration by appellants confirming that 31.3.1992 they had agreed for decrees in favour of Furu Ram and Kalu Ram attested by an Executive Magistrate (with the endorsement “I know Naresh Kumar and Ramesh Kumar and they have signed in my presence made” by Sushil Sharma, advocate for respondents) The above narration will show that even according to the evidence produced by the respondents the entire arbitration was sham and nominal, that an alleged Panchayat had settled the dispute on 12.3.1992, that thereafter, Sushil Sharma, advocate for respondents and C.B. Sharma, an advocate who was made to act as an Arbitrator at the instance of respondents created a bunch of documents and obtained the signatures of the appellants and created proceedings for obtaining decrees in terms of the awards.

31. C. B. Sharma was an advocate engaged by respondents through their counsel Sushil Sharma, to make awards in their favour. On 12.3.1992, he is appointed as arbitrator. On 13.3.1992, he makes the awards and gives them to respondents. On 16.3.1992, he signs the written statements of defendants (appellants herein) in the proceedings under sections 14 and 17 of Arbitration Act, 1940 as their counsel. Though he is the third defendant in the said two suits (C.S. Nos.366 and 367 of 1992), he appears as the counsel for defendants 1 and 2 without their consent or knowledge. On 30.3.1992, he makes a statement on behalf of defendants 1 and 2 that they have no objection for decrees being made. We fail to understand how a counsel can do these things. His acts are fraudulent.

32. We may next refer to the inconsistencies and improbabilities in the evidence. According to respondents, the appellants had refused to execute the sale deed, for the price of Rs.14,22,000/- and demanded an increase in the price; that in the presence of a panchayat, an increase in price was agreed on 12.3.1992, and that the entire balance price of Rs.15,00,000/- was immediately paid in cash on 12.3.1992 in the presence of the panchayat. While DW2 says that Rs.15,00,000/- was paid in cash in the presence of the Panchayat. DW-3 Sudhir Sharma states that the payment was made after the appellants made a statement before the court agreeing for a decree in terms of the awards, that is on 16.3.1992. Further, it is highly improbable that the respondents would have attended the Panchayat readily carrying Rs.15,00,000/- in cash and paid it immediately after the settlement. If the said evidence is accepted, the entire documentary evidence showing that two sums of Rs.800,00/- each were given as loans to appellants about four months prior to 12.3.1992 and the lands were given to respondents as appellants could not repay the same are proved to be false and fraudulent.

33. We may next refer to the stamp fraud committed by respondents. According to the DW-1 to DW-4 under the agreement of sale dated 18.10.1991, the sale price agreed was Rs.14,22,000/-, that in the presence of a panchayat, there was a settlement and the price was increased to Rs.16,00,000 for 98 kanals 19 marlas of land, that the said price was paid half being the sale price in regard to an extent of 49 Kanals 10 marlas sold to Furu Ram and the remaining half being the sale price in regard to an extent of 49 Kanals 9 Marlas sold by appellants to Furu Ram and Kalu Ram. The respondents wanted to avoid payment of stamp duty and registration charges on the sale deeds. They were advised by their lawyer that they could get decrees from a civil court in terms of an arbitration award so that sale deeds need not be executed and stamp duty and registration charges need not be paid. It was decided by the respondents on the advice of their lawyer to get arbitration awards declaring them as owners and also get court decrees in terms of the awards. . On the same day (12.3.1992) their lawyer got reference agreements prepared through the arbitrator C.B. Sharma which were executed by the parties to get arbitration awards by consent. In short the agreements, arbitration awards and decrees were sham and nominal, the object of respondents being to evade the stamp duty and registration charges payable with respect to a sale deed, by obtaining decrees from the court in terms of the awards which declared their title.

34. Let us refer to another facet of such stamp fraud. There can be a reference to arbitration only if there is a dispute and there is an agreement to settle the dispute by arbitration. If the parties had already settled the disputes before a panchayat for sale of half of the property to Furu Ram and another half to Kalu Ram for a consideration of Rs.8,00,000 plus Rs.8,00,000/-, and appellant had received the entire consideration, and delivered possession, there was no dispute between the parties, that could be referred to arbitration. The respondents, on the advice of their advocate Sudhir Sharma decided to have a nominal and sham arbitration proceedings and awards by C.B. Sharma and get decrees made in terms of the awards, only to avoid stamp duty and registration charges. The entire procedure was fraudulent because (i) there was no dispute between the parties; (ii) there was no reference of any dispute to arbitration; (iii) the reference agreements dated 12.3.1992 were prepared and executed in pursuance of a pre-existing arrangement to have a collusive awards; (iv) the arbitrator was not required to decide any dispute between the parties, nor was there any adjudication of the dispute by the arbitrator. DW-1 who claims to be the arbitrator clearly stated in his evidence, that the reference under the agreements dated 12.3.1992 was in regard to a dispute relating to loan of Rs.800,000/- advanced to each appellant. Therefore, the statements in the two awards that the reference agreements dated 12.3.1992 were in regard to a dispute in regard to the failure to repay the two loans of Rs.800,000/- each and interest thereon; that the appellants admitted before the Arbitrator that they had borrowed Rs.8,00,000 from Furu Ram and Rs.8,00,000 from Kalu Ram; that the appellants did not have the means to repay the same and that instead of repaying the amount with interest, that they had therefore given to Furu Ram an extent of 49 Kanals 10 Marlas and to Kalu Ram, 49 Kanals 9 marlas of land; that Furu Ram and Kalu Ram confirmed that they had already taken the said lands in lieu of the amount due to them, are also false and at all events, sham averments to create two awards. The references to arbitration, the proceedings before the arbitrator, the awards of the arbitrator, and the proceedings in court to get decrees in terms of the awards, and the decrees in terms of the award were all thus sham and bogus, the sole fraudulent object being to avoid payment of stamp duty and registration charges.

35. The modus operandi adopted by the respondents to obtain title to lands without a conveyance and without incurring the stamp duty and registration charges due in respect of a conveyance by obtaining a sham and collusive arbitration awards when there was no dispute, and then obtaining a nominal decree in terms of the said awards would be a fraud committed upon the court and the state government by evading liability to pay the stamp duty and registration charges. The irregularities, illegalities, suppressions and misrepresentations which culminated in the orders dated 30.3.1992 in CS NOs.366 and 367 of 1992 directing that the awards dated 13.3.1992 be made decrees of the court, show that the decrees in terms of the awards were obtained fraudulently.

36. Normally, this Court would not interfere with a finding of fact relating to fraud and misrepresentation. But as material evidence produced by the defendants – respondents had been ignored and as the courts below failed to draw proper inferences therefrom and had ignored a cause of fraud, we are constrained to interfere with reference to a question of fact. The suits were decreed by the trial court on the ground that the decrees were null and void and all the reliefs sought were granted. When the decrees dated 30.3.1992 were held to be null and void, the question of plaintiffs challenging any other finding in the judgment did not arise. Therefore when the first appellate court and High Court held that the decree was not null and void, the plaintiffs-appellants were entitled to urge all grounds to show that the entire transaction and arbitration proceedings were fraudulent and the decree was also a result of fraud. Be that as it may.

Re : Point (iii)
37. Chapter III of Registration Act, 1908 relates to registrable documents. Section 17 enumerates the documents which are compulsorily registrable and the exceptions to the categories of documents which are compulsorily registrable. The relevant portions of the said sections are extracted below: “17. Documents of which registration is compulsory (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877 or this Act came or comes into force, namely:- xxx xxx xxx (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees, and upwards, to or in immovable property;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (2) Nothing in clauses (b) and (c) of sub-section (1) applies to- xxx xxx xxx (vi) any decree or order of a court except a decree or order expressed to be made on a compromise, and comprising immovable property other than that which is the subject-matter of the suit or proceeding].”

38. A reading of these provisions make the following position clear (a) any non-testamentary document purporting or operating to create, declare any right, title or interest in any immoveable property of the value of more than Rs.100 is compulsorily registrable; (b) that an order or decree of a court is not compulsorily registrable even if it purports or operates to create, declare any right, title or interest in any immoveable property of the value of more than Rs.100; (c) that if the decree or order of the court is not rendered on merits, but expressed to be made on a compromise and comprises any immoveable property which was not the subject mater of the suit or proceeding, such order or decree is compulsorily registrable; and (d) that as clause (iv) of sub-section (2) of section 17 excludes decrees or orders of court, but does not exclude awards of arbitrator, any arbitration award which purports or operates to create, declare any right, title or interest in any immoveable property of the value of more than Rs.100 is compulsorily registrable.

39. As noticed above, the reference agreements dated 12.3.1992 were not in regard to any agreement of sale or any dispute relating to immoveable property, or in regard to the lands in regard to which the award was made. It did not refer to the lands in question. No dispute regarding immoveable property was referred to arbitration or was the subject matter of the arbitration. The alleged subject matter of arbitration was non-payment of Rs.8,00,000 said to have been borrowed by each of the appellants. The arbitrator recorded an alleged statement by the borrowers (appellants) that they had received Rs.8,00,000 from Furu Ram and Rs.8,00,000/- from Kalu Ram; that they were not able to refund the same and therefore they had given lands measuring 49 Kanals 10 Marlas to Furu Ram and another 49 Kanals 9 Marlas to Kalu Ram; and that Furu Ram and Kalu Ram confirmed that they had obtained possession of the said land. The awards therefore declared that Furu Ram and Kalu Ram had become the absolute owners of the lands in question. Thus the awards are clearly documents which purport or operate to create and declare a right, title or interest in an immoveable property of the value of more than Rs.100 which was not the subject of the dispute or reference to arbitration. Therefore the awards were compulsorily registrable. If they were not registered, they could not be acted upon under section 49 of the Registration Act, 1908 nor could a decree be passed in terms of such unregistered awards. Unregistered awards which are compulsorily registrable under section 17(1)(b) could neither be admitted in evidence nor can decrees be passed in terms of the same.

40. In Ratan Lal Sharma vs. Purshottam Harit [1974] INSC 8; AIR 1974 SC 1066, this court held : “So in express words it purports to create rights in immovable property worth above Rs.100/- in favour of the appellant. It would accordingly require registration under S.17, Registration Act. As it is unregistered, the Court could not look into it. If the court could not, as we hold, look into it, the Court not pronounce judgment in accordance with it. Sec. 17, Arbitration Act presupposes an award which can be validly looked into by the Court. The appellant cannot successfully invoke Section 17……… we are of opinion that the award requires registration and, not being registered is inadmissible in evidence for the purpose of pronouncing judgment in accordance with it.”

In Lachhman Dass vs. Ram Lal – [1989] INSC 107; 1989 (3) SCC 99, this Court held : “In the present case the award declared that half share of ownership of the appellant to the lands in question “shall now be owned” by the respondent in addition to his half share in the lands. On a proper construction of the award, it is thus clear that the award did create, declare or assign a right, title and interest in the immovable property. It is not merely a declaration of the pre-existing right but creation of new right of the parties. Since the award affected the immovable property over Rs.100 it was required to be registered. …………..

An award affecting immovable property of the value of more than Rs.100 cannot be looked into by the court for pronouncement upon the award on the application under Section 14 of the Arbitration Act unless the award is registered. ………..

As the court could not look into the award, there is no question of the court passing a decree in accordance with the award and that point can also be taken when the award is sought to be enforced as the rule of the court.”

The courts below have not considered or decided this aspect at all.

Re: Question (iv)
41. If an award was not genuine, but was collusive and sham, the court will not and in fact can not make it a rule of the court. As noticed above, there should be a dispute, there should be an agreement to refer the dispute to arbitration, there should be reference to arbitration, there should be an adjudication or decision by the arbitrator after hearing parties, for a valid arbitration. If the parties had already settled their disputes and the arbitration award was only a ruse to avoid payment of stamp duty and registration with respect to a sale deed and declare a title in persons who did not have title earlier, then the entire proceedings is sham and bogus. In fact, C.B. Sharma was not really an arbitrator, nor the proceedings before him were arbitration proceedings and the awards were not really arbitration awards. If all these facts which have a bearing on the making of the award and the validity of the award are suppressed before the court and the court was misled into making decrees in terms of the awards, necessarily the proceedings are fraudulent and amounted to committing fraud on the court. In these circumstances the decree in CS Nos.366 and 367 of 1992 on the file of the Sr. Sub-Judge, Kurukshetra were invalid. Conclusion

42. We, therefore allow these appeals, set aside the judgments of the first appellate court and High Court and restore the decrees of the trial court decreeing the suits filed by the appellants.

……………………….J.
(R. V. Raveendran)
……………………….J.
(A.K. Patnaik)

New Delhi;
August 18, 2011

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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 937 of 2005

State of Rajasthan …Appellant
Versus
Talevar & Anr. …Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred by the State of Rajasthan against the judgment and order dated 27.10.2004 passed by the High Court of Judicature for Rajasthan, Jaipur Bench, in Criminal Appeal No. 1579 of 2002 acquitting the respondents, setting aside their conviction and the sentence passed by Additional District and Sessions Judge, (Fast Track), Laxmangarh, Alwar, dated 2.11.2002 in Sessions Case No. 4 of 2002 (14/2000) for the offences punishable under Sections 395, 396 and 397 of the Indian Penal Code, 1860 (hereinafter called the IPC).

2. The facts and circumstances giving rise to this case are as under: A. Santosh Jagwayan (PW.13) lodged an FIR on 17.12.1996 at 8.30 A.M., that in the intervening night between 16th and 17th December, 1996 on hearing the noise, he sent his Chowkidar Gopal Nepali (deceased) to the roof of his house. Gopal Nepali went upstairs and opened the gate of the roof and found that 8 to 10 accused persons were trying to enter into the house by breaking upon the door of the roof. They immediately fired shot at Gopal Nepali (deceased) and entered into the house. The accused persons locked Shashi Devi (PW.12) wife of complainant, Preeti (PW.14) and Sandhya (PW.15), his daughters, in the bathroom and started looting the moveable properties. In the meanwhile, his neighbours raised their voice. Thus, the accused immediately fired a shot at Mrs. Anita Yadav, as a result of which, she died on the spot. Kripa Dayal Yadav (PW.2), husband of Anita Yadav (deceased) caught hold of one of the accused but he was beaten with the butt of the gun by the other accused persons and they got the accused released from his clutches. The accused decamped with cash, jewellery and silver wares etc. B. On the basis of the said complaint, an FIR No. 240 of 1996 (Ex.P-30) was registered under Sections 395, 396, 397 and 398 IPC and investigation ensued. The dead bodies of Gopal Nepali and Anita Yadav were recovered and sent for post-mortem examination. Kuniya – accused/respondent was arrested on 24.12.1996. He made a disclosure statement (Ex.P-76) on 29.12.1996 on the basis of which a silver glass and one thousand rupees were recovered vide recovery memo (Ex.P-53). Further, on his disclosure statement, a scooter bearing No. RJ-05-0678 was recovered vide recovery memo (Ex.P- 52) on 2.1.1997. C. Another accused Talevar – respondent, was arrested on 19.1.1997 and on his disclosure statement made on 26.1.1997, two thousand rupees, a silver key ring and a key of Ambassador car was recovered vide seizure memo (Ex.P-45). D. Some more recoveries were made from the other accused persons. After completing the investigation chargesheet was filed against 9 accused persons including the two respondents. As all of them pleaded not guilty, they were put to trial for the offences punishable under Sections 395, 396 and 398 IPC. E. In the Sessions trial prosecution examined 34 witnesses in support of its case. The ornaments and stolen articles were identified by Shashi Devi (PW.12) and Santosh Jagwayan (PW.13). The trial court vide judgment and order dated 2.11.2002 convicted 8 accused including the two respondents. One accused named Ram Krishan, died during the trial. All of them stood convicted under the provisions of Sections 395, 396 and 397 IPC. All the accused were awarded punishment to undergo life imprisonment and a fine of Rs. 1,000/- and in default of payment of fine, to further undergo six months rigorous imprisonment under Section 396 IPC. All of them were convicted for the offence punishable under Section 397 IPC and a sentence to undergo rigorous imprisonment for seven years and a fine of Rs.500/- and in default of payment of fine, to further undergo three months rigorous imprisonment. They were further convicted under Section 395 IPC, awarded life imprisonment and fine of Rs. 1,000/- and in default of payment of fine, to further undergo six months rigorous imprisonment. Accused namely, Ghurelal, Chunchu @ Bhagwan Singh, Kallu, Rajpal and Samay Singh were further convicted under Sections 3/25 and 3/27 of the Arms Act and sentence was awarded to undergo three years rigorous imprisonment and a fine of Rs. 500/- each of them, in default of payment of fine, to further undergo three months rigorous imprisonment. F. Being aggrieved by the said decision, all the accused including the two respondents preferred Criminal Appeal No. 1579 of 2002, which has been decided by the High Court vide judgment and order dated 27.10.2004 acquitting the two respondents/accused though maintaining the conviction and sentence in respect of other accused. Hence, this appeal by the State against their acquittal.

3. Dr. Manish Singhvi, learned Additional Advocate General for the State of Rajasthan, has submitted that recovery of some of the looted property had been made on the basis of the disclosure statements made by the said respondents. The law provides for a presumption that they had participated in the crime and, therefore, the High Court has wrongly acquitted the said accused and thus, the appeal deserves to be allowed.

4. On the contrary, Shri Altaf Hussain, learned counsel appearing for the said two accused, has vehemently opposed the appeal contending that mere recovery of looted property on the disclosure statement of the accused, is not enough to bring home the charges of offence of loot or dacoity, when the recovery is made after expiry of a considerable period from the date of incident and particularly when the nature of the looted property is such which can change hands 5  easily. Thus, no inference can be drawn against the respondents. The order of acquittal made by the High Court has been passed on proper appreciation of facts and application of law. The appeal lacks merit and is liable to be dismissed.

5. We have considered the rival submissions made by the learned counsel for the parties and perused the record.

6. Admitted facts remained so far as the two respondents/accused are concerned, that no test identification parade was held at all. Further none of the eye witnesses, particularly, Shashi Devi (PW.12), Santosh Jagwayan (PW.13), Kripa Dayal Yadav (PW.2), Preeti (PW.14) and Sandhya (PW.15), identified either of the said respondents in the court. Therefore, there is no evidence so far as their identification is concerned.

7. Thus, the sole question remains to be decided whether adverse inference could be drawn against the accused merely on the basis of recoveries made on their disclosure statements. 7.1. In Gulab Chand v. State of M.P., AIR 1995 SC 1598, this Court upheld the conviction for committing dacoity on the basis of recovery of ornaments of the deceased from the possession of the person accused of robbery and murder immediately after the occurrence. 7.2. In Geejaganda Somaiah v. State of Karnataka, AIR 2007 SC 1355, this Court relied on the judgment in Gulab Chand (supra) and observed that simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery. But culpability for the aforesaid offences will depend on the facts and circumstances of the case and the nature of evidence adduced. It has been indicated by this Court in Sanwat Khan v. State of Rajasthan, AIR 1956 SC 54, that no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances.

7.3. In Tulsiram Kanu v. State, AIR 1954 SC 1, this Court has indicated that the presumption permitted to be drawn under Section 114, Illustration (a) of the Evidence Act 1872 has to be drawn under the ‘important time factor’. If the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted. But if a long period has expired in the interval, the presumption cannot be drawn having regard to the circumstances of the case. 7.4. In Earabhadrappa v. State of Karnataka AIR 1983 SC 446, this Court held that the nature of the presumption under Illustration (a) of Section 114 of the Evidence Act must depend upon the nature of evidence adduced. No fixed time-limit can be laid down to determine whether possession is recent or otherwise. Each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according “as the stolen article is or is not calculated to pass readily from hand to hand”. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed could not be said to be too long particularly when the appellant had been absconding during that period. 7.5. Following such a reasoning, in Sanjay @ Kaka etc. etc. v. The State (NCT of Delhi), AIR 2001 SC 979, this Court upheld the conviction by the trial court since disclosure statements were made by the accused persons on the next day of the commission of the offence and the property of the deceased was recovered at their instance from the places where they had kept such properties, on the same day. The Court found that the trial Court was justified in holding that the disclosure statements of the accused persons and huge recoveries from them at their instance by itself was a sufficient circumstance on the very next day of the incident which clearly went to show that the accused persons had joined hands to commit the offence of robbery. Therefore, recent and unexplained possession of stolen properties will be taken to be presumptive evidence of the charge of murder as well. 7.6. In Ronny Alias Ronald James Alwaris & Ors. v. State of Maharashtra, AIR 1998 SC 1251, this Court held that apropos the recovery of articles belonging to the family of the deceased from the possession of the appellants soon after the robbery and the murder of the deceased remained unexplained by the accused, and so the presumption under Illustration (a) of Section 114 of the Evidence Act would be attracted : “It needs no discussion to conclude that the murder and the robbery of the articles were found to be part of the same transaction. The irresistible conclusion would therefore, be that the appellants and no one else had committed the three murders and the robbery.” (See also: Baijur v. State of Madhya Pradesh, [1978] INSC 10; AIR 1978 SC 522; and Mukund alias Kundu Mishra & Anr. v. State of Madhya Pradesh, AIR 1997 SC 2622).

7.7. Thus, the law on this issue can be summarized to the effect that where only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder. It also depends on the nature of the property so recovered, whether it was likely to pass readily from hand to hand. Suspicion should not take the place of proof.

8. In the instant case, accused Kuniya was arrested on 24.12.1996 and a silver glass and one thousand rupees were alleged to have been recovered on his disclosure statement on 29.12.1996. Again on disclosure statement dated 2.1.1997, a scooter alleged to have been used in the dacoity, was recovered. Similarly, another accused Talevar was arrested on 19.1.1997 and on his disclosure statement on 26.1.1997, two thousand rupees, a silver key ring and a key of Ambassador car alleged to have been used in the crime were recovered. Thus, it is evident that recovery on the disclosure statements of either of the respondents/accused persons was not in close proximity of time from the date of incident. More so, recovery is either of cash, small things or vehicles which can be passed from one person to another without any difficulty. In such a fact situation, we reach the inescapable conclusion that no presumption can be drawn against the said two respondents/accused under Section 114 Illustration (a) of the Evidence Act. No adverse inference can be drawn on the basis of recoveries made on their disclosure statements to connect them with the commission of the crime.

9. The instant appeal has been prepared by the State against the judgment and order of acquittal of the respondents by the High Court. The law on the issue is settled to the effect that only in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (See : Brahm Swaroop & Anr. v. State of U.P., AIR 2011 SC 280; V.S. Achuthanandan v. R. Balakrishna Pillai & Ors., (2011) 3 SCC 317; and Rukia Begum & Ors. v. State of Karnataka, (2011) 4 SCC 779).

10. In view of the above, we do not find any reason to interfere with the well reasoned judgment and order of the High Court acquitting the said respondents. The appeal lacks merit and is accordingly dismissed.

………………………………J.
(Dr. B.S. CHAUHAN)

……………………………….J.
(SWATANTER KUMAR)

New Delhi,
June 17, 2011

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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1085 OF 2003

GURDEEP SINGH ….. APPELLANT
VERSUS
STATE OF PUNJAB & ORS. ….. RESPONDENT

O R D E R

1. This appeal arises out of the following facts:

1.1 The appellant Gurdeep Singh was the husband of the deceased Rajender Kaur. The couple had got married on the 14th of October, 1989 and it is the case of the prosecution that a substantial amount of money far beyond the means of the bride’s family had been spent at that time though the appellant, his parents, sisters and other relatives remained dissatisfied. It appears that the demands for dowry continued unabated and about one year before the death the appellant demanded a sum of `25,000/- for the purchase of a motorcycle, and this amount was indeed handed over to the appellant but was utilised for purchasing a plot instead. It is further Crl.A. No. 1085 of 2003 REPORTABLE 2 the prosecution story that despite having received the aforesaid amount, the deceased continued to suffer at the hands of her husband and his relatives and that despite the efforts of a panchayat in the matter no suitable result followed. It is further the prosecution story that the appellant and his relatives administered poison to Rajinder Kaur on the 27th July, 1995 which caused her death and that three days thereafter information was received by Gurdev Singh P.W. 2, her brother, and Satnam Singh, P.W. 3 her father on which they alongwith others rushed to the matrimonial home of Rajinder Kaur but found that the dead body had been hurriedly cremated. Gurdev Singh P.W.2 thereupon gave an application Exhibit PB to the Station House Officer, Police Station, Gidderbaha and on its basis a daily diary entry was recorded and after a preliminary probe, a First Information Report for offences punishable under Section 304B and 498A IPC was registered on the 8th August, 1995. After investigation, Gurdeep Singh, the appellant herein, his brothers, Harbhajan Singh and Daljit Singh, parents, Jit Singh and Satnam Kaur, and sisters Darshan Kaur and Daljit Kaur were brought to trial for the aforesaid offences. The trial court vide its judgment dated 15th July, 2000, found the charge under Section 304B proved against the appellant, Jit Crl.A. No. 1085 of 2003 REPORTABLE 3 Singh and Satnam Kaur and the three were, accordingly, sentenced to undergo rigorous imprisonment for ten years. The trial court, however, gave the benefit of doubt to Harbhajan Singh, Daljit Singh, Darshan Kaur and Daljit Kaur and acquitted them of the charge. The matter was thereafter taken in appeal by the convicted accused, and the High Court, has, by the impugned judgment dismissed the appeal of Gurdeep Singh and allowed the appeal of Jit Singh and Satnam Kaur. The solitary appellant now before us is Gurdeep Singh.

2. Mr. Sudhir Walia, the learned counsel for the appellant has raised several arguments before us during the course of the hearing. He has first pointed out that the presumption under Section 113B of the Indian Evidence Act could be drawn with respect to a dowry death only if the ingredients of Section 304B of the Indian Penal Code were spelt out and in the light of the uncertain evidence that had come on record, more particularly, as there was no evidence of an unnatural death or demands being made for dowry or other articles soon before the death, the said provision was inapplicable. It has also been pointed out that the prosecution story that `25,000/- had been spent to buy a plot was on the face of it wrong in the light of the documentary evidence proved by D.W. 2 Ram Chand, an Crl.A. No. 1085 of 2003 REPORTABLE 4 employee of the bank who deposed to the effect that a sum of `93,000/- had been withdrawn from the bank on the 27th of July, 1994, and the statement of DW 4- Pushpinder Singh, Junior Assistant, Tehsil Office, Gidderbaha from the Sub-Registrar’s office who deposed that a sale deed for a plot priced at `54,000/- had been executed and as such the facts indicated that the entire amount for the sale had come from the account of Gurdeep Singh the appellant herein. He has, accordingly, pointed out that there was no evidence with respect to any demand being made soon before the death. The learned counsel has also placed reliance on a judgment of this Court in Suresh Kumar Singh v. State of Uttar Pradesh (2009) 17 SCC 243. He has, in addition, argued that the prosecution story that P.W. 2, P.W. 3 and other relatives had not been called to attend the cremation was in clear contradiction vis-a-vis their statements recorded under Section 161 Cr.P.C. and the evidence in Court and that this contradiction had been pointed out during the course of the cross examination. In the alternative, it has been submitted that assuming for a moment that no statements of P.Ws. 2 and 3 under Section 161 Cr.P.C. had been recorded, as deposed by them in their evidence, the prosecution would still not gain any advantage as a statement recorded in Court for Crl.A. No. 1085 of 2003 REPORTABLE 5 the first time would have very limited evidentiary value.

3. Mr. Kuldip Singh, learned counsel for the State has, however, supported the judgment of the trial court and the High Court and has submitted that as the deceased was a young woman,a presumption had to be drawn that she had died an unnatural death and as such the provisions of Section 113B of the Evidence Act would be applicable to the facts of the case.

4. We have heard the learned counsel very carefully and have gone through the record.

5. We first find that the evidence with respect to the appellant Gurdeep Singh is almost identical with that of the six accused who have been acquitted of the same charge – two by the High Court and four by the trial court and he appears to have been singled out as being the husband. We first take up the argument relating to Section 304B and the presumption drawn under Section 113B. A bare reading of Section 304B pre- supposes several factors for its applicability, they being:- (i) death should be of burns or bodily injury or has occurred otherwise than under normal circumstances: (ii) within seven years of the marriage; and (iii) that soon before her death she had been subjected to cruelty or harrassment by her husband or her relatives. This Crl.A. No. 1085 of 2003 REPORTABLE 6 Court in Suresh Kumar Singh’s case supra has held that even if one of the ingredients is not made out, the presumption under Section 113B of the Evidence Act would not be available to the prosecution and the onus would not shift to the defence.

6. We find in the present case that there is no evidence of unnatural death. It is the prosecution story that the deceased had been poisoned. It has, however, come in the evidence, and in particular, in the report of the Forensic Science Laboratory dated 21st August, 1995, that on an analysis of the bones and ashes no poisonous substance had been found to be present. In this view of the matter, the mere fact that the deceased happened to be a young woman would not lead to the inference that she had died an unnatural death. Likewise, we find that the evidence of demand for dowry or goods soon before death is also lacking. Admittedly, the only evidence of any demand was of Rs. 25,000/- made one year prior to the incident and as per the defence evidence of D.W. 2 and D.W. 4, the money for the execution of the sale deed had been taken out from the bank a day earlier. In the light of these two factors it has been held in paragraph 25 of the above cited case as under:

Indisputably, in order to attract Section 304B, it is imperative on the part Crl.A. No. 1085 of 2003 REPORTABLE 7 of the prosecution to establish that the cruelty or harassment has been meted out to the deceased `soon before her death’. There cannot be any doubt or dispute that it is a flexible term. Its application would depend upon the factual matrix obtaining in a particular case. No fixed period can be indicated therefor. It, however, must undergo the test known as `proximity test’. What, however, is necessary for the prosecution is to bring on record that the dowry demand was not too late and not too stale before the death of the victim.”

7. We, therefore, find that evidence clearly fails the proximity test as laid down in the aforesaid judgment.

8. The courts below have, however, drawn a presumption against the accused primarily on the plea that they had not informed the parents of the deceased that she had died and had hurriedly cremated her dead body. We further see from the evidence of P.Ws. 2 and 3 that in their statements recorded in Court they did say that they had received no information about the death on which they had been confronted with their statements recorded under Section 161 of the Cr.P.C. in which they had stated that they had indeed been present when the cremation had taken place. In order to explain this contradiction both these witnesses disowned their 161 statements and testified that they had not made any statement to the police. These statements are, however, falsified by the evidence of P.W. 4 ASI Gurmel Singh, Crl.A. No. 1085 of 2003 REPORTABLE 8 the police officer concerned, who deposed that the police statements had been recorded by him as per the dictates of the two witnesses. In the alternative, even assuming that no statements of P.Ws. 2 and 3 had been recorded under Section 161 Cr.P.C. this factor destroys the substratum of the prosecution story in a far greater measure as it must then be taken that their statements were being recorded for the first time in Court which would rob them of much of their evidentiary value. In this case, we find that the two witnesses are none other than the brother and the father of the deceased.

9. We are, therefore, of the opinion that as a result of the cumulative discussion above, the appellant has to succeed. We, accordingly, allow this appeal, set aside the judgments of the courts below insofar as he is concerned and order his acquittal. Bail bonds stand discharged.

…………………J
[HARJIT SINGH BEDI]

………………….J
[GYAN SUDHA MISRA]

NEW DELHI
AUGUST 25, 2011.

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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICITION
CRIMINAL APPEAL NO.1250 OF 2006

Elavarasan …Appellant
Versus
State Rep. by Inspector of Police …Respondent

J U D G M E N T

T.S. THAKUR, J.

1. This appeal by special leave arises out of a judgment and order passed by the High Court of Madras whereby Criminal Appeal No.1215 of 2003 has been dismissed and the conviction of the appellant and sentence awarded to him for offences punishable under Sections 302, 307 and 342 of the I.P.C. upheld.

2. Briefly stated the prosecution case is that the appellant was residing in a house situate at Yadwal Street, Poovam Koticherri, Distt. Karaikal, Tamil Nadu. Apart from his wife Smt. Dhanalakshmi, PW2 and his daughter Abirami, aged about 1= years, his mother Smt. Valli, PW3 also lived with him. On the fateful night intervening 11-12 of December, 2000 at about 1 p.m. the appellant is alleged to have started a quarrel with his wife accusing her of having brought misfortune to him ever since she got married to him. The immediate provocation for making that accusation was his inability to sell the property owned by his mother, as the Revenue entries relating the same stood in the name of Kannan, the paternal uncle of the appellant, who it appears was not agreeable to the sale of the property. The quarrel between the husband and the wife took an ugly turn when the appellant made a murderous assault on his wife, Dhanalakshmi causing several injuries to her including those on her head, left hand, right cheek and other parts of the body. Intervention of PW3, Vali who is none other than the mother of the appellant also did not stop the appellant from assaulting his wife. In the process injuries were caused even to the mother. Due to the ruckus caused by the quarrel and the assault on the two women, Abirami who was sleeping in the adjacent room woke up and started crying. The appellant at that stage is alleged to have gone inside the room and hit the deceased resulting in her death.

3. The prosecution case further is that the appellant did not allow the injured to go out of the house and bolted the doors from inside. In the morning at about 7 a.m. Shri R. Parvathi, PW5 is said to have gone to the house of R. Natarajan, PW1 – a resident of the same street in the village and told him about the quarrel at the house of the appellant the previous night. Both of them then came to the spot and found a pool of blood near the outer door of the house of the appellant. Since the door was bolted from inside, PW1 called the appellant by his name, who responded to the call and said that he had cut his mother and wife and wanted to commit suicide for which he demanded some poison from them. A large number of villagers in the meantime gathered on the spot but the appellant refused to open the door. The Police was informed about the incident on telephone and soon arrived at the spot to knock at the doors of the appellant’s house asking him to open the same. The appellant refused to do so and threatened that he would murder anyone who ventured to enter the house. Since the appellant remained adamant in this resolve, the Police with the help of PWs 1, 8 and others forced the door open and found the appellant inside the house armed with an Aruval, and his mother and wife lying inside the house with serious cut injuries and blood all over the place. In the adjacent room they found Abirami in an injured condition. Not knowing whether she was dead or alive, she was picked up and rushed to the hospital alongwith the other two injured, where the doctor pronounced the child brought dead. On completion of the investigation, the police filed a charge- sheet against the appellant for offences punishable under Sections 342, 307 (2 counts) and 302 IPC. He was committed to the sessions at Karaikal where the appellant pleaded not guilty and claimed a trial.

4. Before the Trial Court the prosecution examined as many as 21 witnesses in support of its case while the accused-appellant who set up unsoundness of mind in defence did not lead any evidence except making a request for medical examination which request was allowed and Dr. R. Chandrasekaran and Dr. P. Srinivasan who examined the appellant summoned as court witnesses to depose about their observations and conclusions as regards the mental health of the appellant.

5. The Trial court eventually rejected the plea of insanity and found the appellant guilty of the charges framed against him and sentenced him to undergo imprisonment for life for the murder of his child baby Abirami and to undergo 1 year rigorous imprisonment for the offence punishable under Section 342 IPC and 10 years rigorous imprisonment together with a fine of Rs.1,000/- for each of the offences punishable under Section 307 (2 counts). The sentences were ordered to run concurrently.

6. Aggrieved by the judgment and order of the Trial Court the appellant filed an appeal before the High Court of Madras, who dismissed the same and affirmed the findings recorded by the Trial Court as already noticed by us. The High Court held that the appellant had been caught red handed with the weapon of offence inside the house in the presence of PWs 1, 7, 8 and others. Besides, there was no reason why his wife PW2, who was an injured eye-witness to the entire incident, should have falsely implicated the appellant. The High Court also took the view that since PW3, the mother of the appellant who had also been injured in the incident had turned hostile and stated that she had sustained the injuries accidently because of a fall, the appellant’s conviction for the attempted murder of his mother punishable under Section 307 was liable to be set aside. The fact that PW3 had turned hostile did not, opined the High Court, make any dent in the prosecution case in so far as the same related to the murder of the innocent child and an attempt made by the appellant on the life of his wife Dhanalakshmi. The plea of insanity was rejected by the High Court on the ground that there was no material to show that the appellant was insane at the time of the commission of the offences. The present appeal assails the correctness of the above judgment and order as already noticed by us.

7. Appearing for the appellant, Mr. Mani, learned counsel urged a solitary point in support of the appeal. He submitted that the material on record sufficiently proved the plea of insanity set up by the appellant at the trial. Reliance in support was placed by the learned counsel upon the deposition of Dr. P. Srinivasan, CW1, according to whom the appellant was a person of unsound mind. He also drew our attention to the deposition of other witnesses to argue that the appellant had been treated by a Psychiatrist and had been taking medicines for his illness. Reliance in particular was placed by the learned counsel upon the contents of Ex.P.3 the observation Mahazar which refers to certain writings on the walls of the appellant’s house suggesting that the appellant was mentally unsound even at the time of commission of crime. From the graffiti, it was according to Mr. Mani evident that the appellant suffered from insanity before and at the time of the incident. Mr. Mani further argued that murderous assault on his wife, his mother and child without any ostensible reason was itself suggestive of the appellant being an insane person. The appellant’s conduct after the event was also, argued Mr. Mani, suggestive of his being of unsound mind, which aspects the courts below had failed to appreciate in the process denying to the appellant the benefit of Section 84 of the Indian Penal Code, legitimately due to him.

8. On behalf of the respondent Mr. Venkataramani, learned senior counsel contended that the trial court as also the High Court had correctly found the plea of insanity set up by the appellant as not proved and held the appellant guilty of the offences with which he stood charged. Mr. Ventakaramani argued that there was no credible evidence to establish legal insanity at the time of the commission of the offence so as to entitle the appellant to the benefit of Section 84 of IPC. The fact that the appellant did not run away from the place of occurrence or that he had attacked his wife and child without any reason did not establish that the appellant was of unsound mind, hence unable to understand the nature of the act or that what he was doing was either wrong or contrary to law. Reliance was placed by Mr. Venkatarmani upon the deposition of CW2 Dr. R. Chandrasekaran in support of his submission that the appellant was not an insane person at the time of the incident or at the time he was tried for the offences committed by him.

9. There was before the courts below and even before us no challenge to the factual narrative given by the prosecution and the witnesses examined on its behalf. That the appellant lived with his mother, wife and minor child in the house owned by him was not disputed. That he assaulted his wife, who was in family way and caused several injuries to her and to his mother who intervened to save the former is also not in dispute. That injuries were caused even to Abirami who succumbed to the same was also not challenged before us by Mr. Mani. The appellant’s mother PW3, no doubt turned hostile at the trial and tried to attribute the injuries sustained by her to a fall in the house, but the deposition of PW2, the wife of the appellant completely supported the prosecution case and the sequence of events leading to the heartless killing of the innocent child Abirami, who was sleeping in the adjacent room and whose only fault was that she woke up hearing the shrieks and wails of the mother and started crying. That the appellant was arrested from the house from where the injured witnesses PW2 and PW3 and Abirami were removed in an injured condition, was also not disputed. Even independent of the line of arguments adopted by the learned counsel, we are satisfied that there is no reason whatsoever to disbelieve the deposition of Dhanalakshmi, PW2 who unlike Abirami not only suffered the murderous assault but survived to tell the tale in all its details that leave no room for any doubt in our mind about her version being completely reliable. That Shri R. Natarajan, PW1 and Shri J. Ashokan, PW8 also support and corroborate the version of PW2, Dhanalakshmi, only goes to show that it was the appellant and the appellant alone who attacked not only his wife but his daughter of tender age resulting in the death of the later. Superadded to the above is the depositions of PW19, Dr. Ramamurthy, who conducted the post-mortem of the dead body of Abirami and who proved the post-mortem report marked as Ex.P.25 enumerating the injuries found on the body of the unfortunate child. The doctor opined that death was due to coma as a result of head injuries within 24 to 36 hours prior to post-mortem and that the blunt side of a weapon like M.O.27 could have caused the injuries found on the dead body.

10. Similarly, the deposition of PW16, Dr. Anni Pula Juilet who was posted as Assistant Surgeon in the Government Hospital at Karaikal proved the injury report marked Ex.P19 that listed the injuries sustained by Dhanalakshmi, PW2, as under: (1) Injury of 3 cms. x 3 cms. Right side of leg.

(2) Injury of 3 cms. x 3 cms. Lt. side of elbow.

(3) Injury on left side of forearm of 7 cms. x 7 cm. Suspected fracture on it. Forearm.

(4) Injury Lt. side of hand 3 cms. x 3 cms. (5) Injury Lt. Side of hand 3 cms. x 3 cms.

(6) Injury on the palm.

(7) Injury all the fingers.

(8) Injury chest 4 cms. x 4 cms.

(9) 24 weeks foetus.

(10) Injury face angle from Lt. Side measuring 7 cms. x 7 cms.

(11) Injury scale back side of 8 cms. x 8 cms.

(12) Deep cut on the scale 10 cms. x 12 cms. Deep cut extending to the back 3 cms. x 3 cms.

(13) Abrasion frontal side of scalp.

(14) Injury Rt. Side of the hand. Lacerated injury Rt. Index finger extending bone.

(15) Deep cut injury on the scalp 6 cms. x 6 cms.

11. Injuries found on the person of PW3, the mother of the appellant were described in Ex.P20 proved by the same witness, as under:

(1) Cut injury Lt. Side of forearm hand.

(2) Cut injury Rt. Side of hand near the Wrist 7 cms. x 6 cms.

(3) Deep cut injury on the forehead 5 cms. x 5 cms. Lt. Side above ridge bone.

(4) Deep cut injury Lt. Side of forearm 7 cms. x 7 cmx. near wrist.

(5) Deep cut injury on the Lt. Side of forearm 5 cms. x 5 cms. (6) Deep cut injury on the scalp exposing the bones about 16 cms. x 16 cms.

12. PW15, Dr. Shriramulu, was the Assistant Surgeon in the General Hospital at Karaikal who found 15 injuries on the person of PW2, stated that PW2 remained admitted to the hospital from 12th December, 2000 till 28th January, 2001. According to him the appellant’s mother PW3 had also suffered six injuries and her little and index fingers in the right hand had been amputated in the course of treatment on 8th January, 2001.

13. In the light of the above evidence and in the absence of any challenge to the veracity of the witnesses produced by the prosecution we have no manner of doubt in our mind that the appellant alone was responsible for the assault on his wife PW2, Dhanlakshmi and baby Abrami who lost her life as a result of the injuries sustained by her in the said incident. Left at that there can be no escape from the conclusion that the appellant was guilty of committing culpable homicide of his daughter Abirami aged about 1= year and an attempt to commit the murder of his wife Dhanlakshmi, even if the assault on the mother of the appellant is taken as doubtful on account of the injured turning hostile at the trial and attempting to attribute the injuries sustained by her to a fall.

14. The question, however, is whether the appellant was entitled to the benefit of Section 84 of Indian Penal Code which provides that nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act or who is incapable of knowing that what he is doing, is either wrong or contrary to law. Before adverting to the evidence on record as regards the plea of insanity set up by the appellant, we consider it necessary to refer to two aspects that bear relevance to cases where a plea of insanity is raised in defence by a person accused of a crime. The first aspect concerns the burden of proving the existence of circumstances that would bring the case within the purview of Section 84 of the I.P.C. It is trite that the burden of proving the commission of an offence is always on the prosecution and that the same never shifts. Equally well settled is the proposition that if intention is an essential ingredient of the offence alleged against the accused the prosecution must establish that ingredient also. There is no gainsaying that intention or the state of mind of a person is ordinarily inferred from the circumstances of the case. This implies that, if a person deliberately assaults another and causes an injury to him then depending upon the weapon used and the part of the body on which it is struck, it would be reasonable to assume that the accused had the intention to cause the kind of injury which he inflicted. Having said that, Section 84 can be invoked by the accused for nullifying the effect of the evidence adduced by the prosecution. He can do so by proving that he was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law. But what is important is that the burden of bringing his/her case under Section 84 of the IPC lies squarely upon the person claiming the benefit of that provision. Section 105 of the Evidence Act is in this regard relevant and may be extracted: “105. Burden of proving that case of accused comes within exceptions.-When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.”

15. A careful reading of the above would show that not only is the burden to prove an exception cast upon the accused but the Court shall presume the absence of circumstances which may bring his case within any of the general exceptions in the Indian Penal Code or within any special exception or provision contained in any part of the said Code or in law defining the offence. The following passage from the decision of this Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, [1964] INSC 81; (1964) 7 SCR 361 may serve as a timely reminder of the principles governing burden of proof in cases where the accused pleads an exception:

“The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions:

(1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.”

16. The second aspect which we need to mention is that the standard of proof which the accused has to satisfy for the discharge of the burden cast upon him under Section 105 (supra) is not the same as is expected of the prosecution. A long line of decisions of this Court have authoritatively settled the legal proposition on the subject. Reference in this connection to the decision of this Court in State of U.P. v. Ram Swarup and Anr., [1974] INSC 118; (1974) 4 SCC 764 should suffice where this court observed:

“The burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the charge beyond a reasonable doubt. It is enough for the accused to show, as in a civil case, that the preponderance of probabilities is in his favour.”

17. To the same effect is the decision of this Court in Bhikari v. State of Uttar Pradesh (AIR [1965] UKHL 2; 1966 SC 1).

18. Let us now consider the material on record in the light of the above propositions to determine whether the appellant had discharged the burden of bringing his case under Section 84 of the IPC. The appellant has led no evidence in defence to support the plea of legal insanity. That may be a significant aspect but by no means conclusive, for it is open to an accused to rely upon the material brought on record by the prosecution to claim the benefit of the exception. Evidence in defence may be a surplusage in cases where the defence can make out a case for the acquittal of the accused based on the evidence adduced by the prosecution.

19. What falls for consideration in the light of the above is whether the present is one such case where the plea of insanity – is proved or even probablised by the evidence led by the prosecution and the court witnesses examined at the Trial. Depositions of two prosecution witnesses viz. PW2, Dhanalakshmi and PW3, Valli immediately assume significance to which we may at this stage refer. PW2, Dhanalakshmi has, apart from narrating the sequence of events leading to the incident, stated that her husband is a government servant getting a monthly salary of Rs.4000/- which he would hand over to the witness to meet the household expenses. She further stated that the couple had a peaceful married life for five years but there was a dispute between the appellant and his maternal uncle by name Kannan in regard to the property a part of which the appellant had already sold and the remainder he wanted to sell. The appellant had according to the witness started the quarrel around 12 p.m. but assaulted her an hour later. The witness further stated that for sleeplessness, the appellant used to take some medicine but she did not recall the name of the Clinic from where he was taking the treatment. According to the witness, the Psychiatrist who was treating the appellant had diagnosed his medical condition to be the effect of excessive drinking and advised that if the appellant took the medicines regularly he would get cured.

20. That brings us to the deposition of PW3, Smt. Valli, the mother of the appellant. This witness has in cross- examination stated that the appellant was working as a Watchman at PWD bungalow and that she used to deliver his lunch at the appellant’s office. She also referred to the dispute between the appellant and his paternal uncle regarding family properties in which connection he had filed a complaint to the police station. On the date of the incident, the family had their dinner at around 9 p.m. and gone to bed. But the couple started quarreling around 1 p.m. leading to an assault on PW2, Dhanalakshmi. The witness stated that the appellant was undergoing treatment with a Psychiatrist in a clinic situated at Perumal Kovi street and that the doctor had diagnosed the appellant to be a case of mental disorder because of which he could get angry very often.

21. From the deposition of the above two witnesses who happen to be the close family members of the appellant it is not possible to infer that the appellant was of unsound mind at the time of the incident or at any time before that. The fact that the appellant was working as a government servant and was posted as a Watchman with no history of any complaint as to his mental health from anyone supervising his duties, is significant. Equally important is the fact that his spouse Smt. Dhanalakshim who was living with him under the same roof also did not suggest any ailment afflicting the appellant except sleeplessness which was diagnosed by the doctor to be the effect of excessive drinking. The deposition of PW3, Valli that her son was getting treatment for mental disorder is also much too vague and deficient for this Court to record a finding of unsoundness of mind especially when the witness had turned hostile at the trial despite multiple injuries sustained by her which she tried to attribute to a fall inside her house. The statement of the witness that her son was getting treatment for some mental disorder cannot in the circumstances be accepted on its face value, to rest an order of acquittal in favour of the appellant on the basis thereof. It is obvious that the mother has switched sides to save her son from the consequences flowing from his criminal act.

22. That leaves us with the deposition of two medical experts who examined the appellant under the orders of the Court during the course of the trial. Dr. B. Srinivasan, Specialist in Psychiatry, in his deposition stated that the appellant was admitted to the government hospital, Karaikal on 29th July, 2002 pursuant to an order passed by the Trial Court directing his medical examination so as to evaluate his mental condition and ability to converse. The witness further stated that the appellant was kept under observation on and from the afternoon of 29th July 2000 till 6th August, 2002 during which time he found him to be conscious, ambulant dressed adequately and able to converse with the examiner. The doctor has described the condition of the appellant during this period in the following words: “He has restlessness, suspicious looking around at time inappropriate smile has complaints of some innervoice telling to him (abusive in nature at times), has fear and worries about others opinion about him, wants to be left alone, says he needs a few pegs of alcohol to sleep peacefully at night. He has confusion at times about the whisper within him, feels some pulling connection between his chest and brain, that prevents him from taking freely with people and with the examiner. I am of the opinion that the above individual is of unsound mind. The possible medical dispenses being psychosis: (The differential diagnosis considered in this case are

1. Paranoid Psychosis (Schizophrenia)

2. Substance induced Psychosis (Alcohol induced)

3. Organic Psychosis /organic mental disorder (Head injury sequelae & personality changes) I, therefore, request this Hon’ble Court be kindly arrange for a second opinion by another consultant Psychiatrist in this case and also Psychological assessment by a clinical psychologist.”

(Emphasis supplied)

23. The appellant was, in the light of the recommendations made by Dr. B. Srinivasan referred to JIPMAR hospital at Pondicherry, where he remained under the observation of Dr. R. Chandrashekhar, CW2 who happened to be Professor and Head of the Department of Psychiatry in that Hospital. In his deposition before the Court Dr. Chandrashekhar has stated that the appellant was admitted on 30th September, 2002 but escaped from the hospital on 1st October, 2002 in which connection the doctor made a report marked Ex.P1. After examining the relevant record the witness deposed that the appellant did not have any Psychataxia symptoms. In the detailed report proved by the witness and marked Ex.P2 the medical condition of the appellant is described as under: “He was well groomed. Rapport was established. No abnormal motoric behavior was present. He was cooperative. His mood appeared euthymic and speech was normal. There was no evidence of formal thought disorder or disorder of possession or thought content. No perceptual disorder was evident. Attention was arousable and concentration well sustained. He was oriented to time, place, person. The immediate recall, recent and remote memory was intact. Abstraction was at functional level. Judgement was preserved. Insight was present.”

24. In the final report the doctor has drawn the following pen picture about the appellant’s mental health and psycho- diagnostic evaluation. PSYCHO-DIAGOSTIC EVALUATION:

Patient’s perception, memory and intelligence were slightly impaired (Memory Quotient was 70 and performance quotient was 72). Mixed psychotic picture with predominantly affective disturbances was seen. He requires further support and guidance in occupational area. The examination is suggestive of a life time diagnosis of Psychosis (not otherwise specified) and currently in remission. Patient was on treatment with vitamins and chlorpromazine 100 mg. per day during his stay in the ward. The course in the hospital was uneventful except for the fact that he absconded from the ward on 1.10.2002. I am of the opinion that the above individual does not currently suffer from any mental symptom, which can interfere with the capability of making his defense. Sd/- XXX (DR. R. CHANDRASHKARAN) H/D of Psychiatry Dt. 5th October, 2002. JIPMER, Pondicherry-6. ”

25. What is important is that the depositions of the two doctors examined as court witnesses during the trial deal with the mental health condition of the appellant at the time of the examination by the doctors and not the commission of the offence which is the relevant point of time for claiming the benefit of Section 84 I.P.C. The medical opinion available on record simply deals with the question whether the appellant is suffering from any disease, mental or otherwise that could prevent him from making his defence at the trial. It is true that while determining whether the accused is entitled to the benefit of Section 84 I.P.C. the Court has to consider the circumstances that proceeded, attended or followed the crime but it is equally true that such circumstances must be established by credible evidence. No such evidence has been led in this case. On the contrary expert evidence comprising the deposition and certificates of Dr. Chandrashekhar of JIPMER unequivocally establish that the appellant did not suffer from any medical symptoms that could interfere with his capability of making his defence. There is no evidence suggesting any mental derangement of the appellant at the time of the commission of the crime for neither the wife nor even his mother have in so many words suggested any unsoundness of mind leave alone a mental debility that would prevent him from understanding the nature and consequences of his actions. The doctor, who is alleged to have treated him for insomnia, has also not been examined nor has anyone familiar with the state of his mental health stepped into the witness box to support the plea of insanity. There is no gainsaying that insanity is a medical condition that cannot for long be concealed from friends and relatives of the person concerned. Non- production of anyone who noticed any irrational or eccentric behaviour on the part of the appellant in that view is noteworthy. Suffice it to say that the plea of insanity taken by the appellant was neither substantiated nor probablised.

26. Mr. Mani, as a last ditch attempt relied upon certain observations made in Mahazar Ex.P3 in support of the argument that the appellant was indeed insane at the time of commission of the offences. He submitted that the Mahazar referred to certain writings on the inner walls of the appellant’s house which suggested that the appellant was insane. A similar argument was advanced even before the Courts below and was rejected for reasons which we find to be fairly sound and acceptable especially when evidence on record establishes that the appellant was an alcoholic, who could scribble any message or request on the walls of his house while under the influence of alcohol. The Courts below were, therefore, justified in holding that the plea of insanity had not been proved and the burden of proof cast upon the appellant under Section 105 of the Evidence Act remained undischarged. The High Court has also correctly held that the mere fact that the appellant had assaulted his wife, mother and child was not ipso facto suggestive of his being an insane person.

27. So, also the fact that he had not escaped from the place of occurrence was no reason by itself to declare him to be a person of unsound mind incapable of understanding the nature of the acts committed by him. Experience has shown that different individuals react differently to same or similar situations. Some may escape from the scene of occurrence, others may not while some may even walk to the police station to surrender and report about what they have done. Such post event conduct may be relevant to determine the culpability of the offender in the light of other evidence on record, but the conduct of not fleeing from the spot would not in itself show that the person concerned was insane at the time of the commission of the offence.

28. That brings us to the nature of offence committed by the appellant and the quantum of sentence that would meet the ends of justice. The courts below have found the appellant guilty of murder of baby Abirami and awarded a life sentence to the appellant apart from 10 years rigorous imprisonment for the offence of attempt to murder Dhanalakshmi and imprisonment of one year under Section 342 of the I.P.C. In the circumstances of the case we see no reason to alter the conviction or sentence under Section 342 of the I.P.C. We also see no reason to interfere with the conviction of the appellant under Section 307 of the I.P.C. except that instead of 10 years rigorous imprisonment of 7 years, should in our view suffice. The conviction of the appellant under Section 302 of the I.P.C. is not, however, justified. We say so for reasons more than one. In the first place there was no pre-meditation in the assault upon the deceased. The evidence on record shows that the family had gone to bed after dinner around 9 p.m. The quarrel between the appellant husband and Dhanalakshmi his wife started around 12 midnight and escalated into an assault on the later around one a.m. That the quarrel was sudden and without any premeditation, is evident from the deposition of the two injured witnesses.

29. Secondly, because in the assault following the quarrel, the appellant used a sharp edged cutting weapon against his wife and mother. Incised wounds sustained by the said two ladies bear testimony to this part of the prosecution case. The deceased Abirami was at this stage of the occurrence, in another room wholly unconnected to the incident.

30. Thirdly, because the appellant had because of the sudden fight with his wife assaulted her in the heat of passion and injured his mother who intervened to save her. The noise and wails of the injured woke up the deceased sleeping in the adjacent room who started crying thereby attracting the appellant’s attention towards her.

31. Fourthly, because the assault on the deceased caused only two injuries with a resultant fracture. The injuries were described by the doctor as under:

“1. Lacerated injury measuring 2 x 0.5 cm. x 0.5 cm. Seen on middle of (R) Eyebrow. Lesion covered with blood clots.

2. Contusion – faint reddish blue in colour seen on (L) side of face and temporal region of head. 8 cm. x 8 cm. inside. Lesions are antemortem in nature. Faint suggilations fixed on back of trunk.”

32. Fifthly, because the appellant did not evidently use the sharp edged weapon for causing injuries to the deceased as he had done in the case of Dhanalakshmi and Valli, PWs 2 and 3 respectively. In the circumstances we are inclined to hold that there was no intention on the part of the appellant to cause the death of the deceased, though looking to the nature of the injuries suffered by the deceased, the appellant must be presumed to have the knowledge that the same were likely to cause death. The fact remains that the appellant committed culpable homicide without premeditation in a sudden fight and in the heat of passion. The fact that the appellant did not use the sharp edged weapon with which he was armed also shows that he did not act in a cruel or unusual manner nor did he take an undue advantage. It is evident from the deposition of Dhanalakshmi, that she did not see the appellant assaulting the deceased. It is, therefore, just possible that a hard blow given to the deceased by his bare hand itself threw the child down from the bed causing the injuries that proved fatal.

33. In the result, we allow this appeal in part, and in modification of the judgments and orders under appeal convict the appellant under section 304 Part-II and sentence him to undergo rigorous imprisonment for a period of ten years. The reduced sentence of seven years rigorous imprisonment awarded to the appellant for the offence of attempt to murder and one year rigorous imprisonment for the offence punishable under Section 342 I.P.C. shall all run concurrently with the sentence awarded under Section 304-Part II. The sentence awarded in default of payment of fine shall stand affirmed. The appellant shall be entitled to the benefit of Section 428 of the Criminal Procedure Code.

……………………..………J.
(V.S. SIRPURKAR)

……………………..………J.
(T.S. THAKUR)

New Delhi
July 5, 2011

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 562 OF 2003

RANGAMMAL .. Appellant
Versus
KUPPUSWAMI & ANR. ..Respondents

J U D G M E N T

GYAN SUDHA MISRA, J.

This appeal by special leave has been filed by the appellant Tmt. Rangammal against the order dated 11.07.2002 passed by the learned single Judge of the High Court of Judicature at Madras in Second Appeal No. 703/1992 by which the appeal was dismissed by practically a summary order although the substantial question of law which was formulated at the time of admission of the appeal was as follows:

“Whether the sale deed executed by the de facto guardian on behalf of the minor without the permission of the court could be held to be valid ?

2. However, on hearing the appeal in the light of the prevailing facts and circumstances of the instant matter, we are of the view that the question also arises whether in a partition suit filed by the plaintiff/respondent No.1 herein, the courts below could shift the burden of proof on the defendant – appellant regarding the validity of a sale deed, which was executed when the appellant was admittedly a minor, contrary to the pleading in the plaint filed in a suit for partition, who claimed title to the suit land on the basis of the alleged sale deed. Still further the question arises whether the question of limitation could arise against the defendant/appellant shifting the burden on her to challenge the sale deed, when the story of execution of the alleged sale deed was set up by the plaintiff/respondent No.1 in the plaint for the first time when he filed partition suit against his brother, without impleading the appellant, but claimed benefit of title to the suit land on the basis of the alleged sale deed.

3. In order to decide the aforesaid controversy, it is necessary to relate the facts giving rise to this appeal in so far as it is relevant which disclose that the appellant Tmt. Rangammal was impleaded as second defendant in a suit for partition bearing O.S. No. 255/1982 which had been filed by one Kuppuswami plaintiff-respondent No.1 herein in the court of District Munsif, Palani, against his brother Andivelu who was the principal defendant/1st defendant/respondent No.2 herein for partition and separate possession, but the plaintiff also included the property of the appellant-Rangammal in the schedule to the plaint without including her as a party to the suit as it was pleaded by the plaintiff-respondent No.1-Kuppuswami that the share which originally belonged to the appellant- Rangammal, was transferred to their predecessors, who were father and uncle of the plaintiff and defendant No.1/Respondent No.1 Andivelu, by way of a sale deed dated 24.2.1951 executed in their favour by Kumara Naicker who claimed to be the legal guardian of the Rangammal when the appellant/Rangammal was admittedly a minor and was barely few years old, less than even three years. The sale deed was claimed to have been executed for legal necessity in order to discharge the debt of the deceased mother of the appellant in the year 1951 which according to the case of the plaintiff-respondent No. 1 had been transferred to their branch by virtue of the aforesaid sale deed executed on 24.2.1951 by the alleged guardian of the appellant Kumara Naicker.

4. Since the appellant had not been impleaded in the suit for partition although her property was included in the partition suit between the two brothers i.e. plaintiff Kuppuswami-respondent No.1 herein and Andivelu 1st defendant -respondent No.2 herein, the appellant filed an application for impleadment in the partition suit before the trial court which was allowed.

5. The appellant herein who was impleaded as a second defendant in the suit clearly pleaded that the partition suit filed by Kuppuswami-plaintiff against his brother Andivelu 1st defendant -respondent No.2 herein, was collusive in nature as this was clearly to deprive the appellant from her share by relying on an alleged sale deed dated 24.2.1951 by fraudulently stating that the deceased mother of the appellant was owing certain debt during her lifetime and in order to discharge the same, the so- called legal guardian of the appellant Kumara Naicker executed a sale deed in favour of the father and uncle of the plaintiff and defendant No.1 who are respondents herein. It was, therefore, submitted by the appellant/2nd defendant in the suit that the sale deed dated 24.2.1951 alleged to have been executed in order to discharge the debt of her deceased mother, when the appellant was a minor, ought not to be held legally binding on her and so as to include her property for partition in the partition suit which had been instituted by an altogether different branch of the family who had separated more than three generations ago. Hence she specifically pleaded that the partition suit including her property was clearly collusive in nature and therefore the suit was fit to be dismissed.

6. In order to appreciate whether the courts below were justified in depriving the appellant Tmt. Rangammal from her share, it appears necessary to relate some other salient facts of the case leading up to the filing of this appeal. The schedule-property comprising an area of 4 acres and 10 cents described in various survey numbers originally belonged to one Laksmi Naicker-the common ancestor of contesting parties who had two sons and an oral partition had taken place between them in regard to the properties of the joint family including the schedule- property. Thereafter, a sale deed dated 24.2.1951 in respect of the schedule-property was executed by Kumara Naicker -alleged legal guardian of appellant-Rangammal who was one of the sons of late Kumara Naicker and wife of the elder son of Laksmi Naicker-Thottammal a cousin of her son, who was descendent of Kumara Naicker. Kumara Naicker, i.e. the son of the elder son of Laksmi Naicker executed the sale deed on behalf of the appellant herein, who was the daughter of younger son of Laksmi Naicker and Andi Naicker was admittedly a minor, representing himself as her guardian since she had lost both her father and her mother at the time of the execution of the sale deed. However, the appellant according to her case continued in possession of half of the schedule property according to the oral partition which had fallen into the share of her father since the only brother of the appellant/ Rangammal had died unmarried. Thus, the appellant continued to be in possession of half of the property without any knowledge about the alleged sale deed.

7. The appellant’s case is that as she was a minor and had lost both her parents, she was living with her maternal uncle even at the time of the alleged sale. The appellant’s case is that the suit was instituted between the plaintiff-respondent No.1 herein and 1st defendant- respondent No.2 herein under the pretext of partition but in fact the idea behind institution of the suit was to oust the appellant who continued to be in possession of half of the share of the property being the sole legal representative of the younger son of Laksmi Naicker who was Andi Naicker. As already stated, the appellant in fact was not even made a party in the partition suit initially but was later impleaded as 2nd defendant after she filed an application for her impleadment.

8. However, the High Court while dealing with the second appeal arising out of the partition suit, cast the burden completely on the appellant/2nd defendant to prove that the property shown in the sale deed which fell into the share of the appellant, was not for the purpose of discharge of the liability of her deceased mother who according to her case was not owing any debt to anyone including Kumara Naicker. But the suit was finally decreed in favour of the plaintiff/respondent No.1 holding therein that the appellant’s deceased mother was owing certain debts and for discharge of the same, the so-called legal guardian of the appellant who was Kumara Naicker executed a sale deed in favour of the plaintiff’s father and defendant No.1’s father in respect of the entire property of Rangammal and this was done ostensibly as the appellant’s mother had to discharge certain debts which she was owing to the plaintiff’s father during her lifetime. Thus, the District Munsif, Palani, decreed the suit in favour of the plaintiff/1st respondent herein Kuppuswami. While doing so, the trial court recorded a finding that the sale deed dated 24.2.1951 by which half share of the appellant in the suit property was transferred when the appellant was a minor had been executed by legal guardian Kumara Naicker for legal necessity according to the case of the appellant herein, Kumara Naicker the so-called legal guardian was neither her natural guardian nor guardian appointed by the court and hence the sale deed executed by him to the extent of half share of the schedule property of appellant-Rangammal was clearly void, illegal, inoperative and hence not binding on her. The trial court decreed the suit against which the appeal before the 1st appellate court was dismissed. The matter then came up to the High Court by way of a second appeal.

9. Learned counsel for the appellant while challenging the judgment and orders of the courts below submitted that the sale deed executed by the so-called de facto guardian Kumara Naicker and Thottammal cannot be held to be binding on her as she was a minor in the custody of her maternal uncle and not Kumara Naicker – father of the respondent No.2 and hence the sale deed executed by him on her behalf was not binding on her as the same was executed in order to deprive her of her half share in the disputed property which is situated on the eastern portion of the schedule property.

10. The learned single Judge of the High Court however was pleased to dismiss the second appeal holding therein that the present suit out of which the second appeal arose was filed in the year 1982 which was after 31 years of the execution of the sale deed dated 24.2.1951. The single Judge further observed that if the appellant Tmt. Rangammal was aggrieved of the sale deed executed by the de facto guardian, she ought to have challenged it within three years from the date of attaining majority. The High Court went on to hold that until the date of filing of the present suit by the 1st respondent and even thereafter, the appellant had not chosen to challenge the sale deed executed by the de facto guardian and she never asserted any title in respect of the suit property irrespective of the sale deed in order to establish that she was aggrieved of the sale deed and hence it was too late for the appellant to raise such a plea in the High Court by way of a second appeal.

11. We have heard learned counsel for the parties at length and on a consideration of their submissions in the light of the judgments and orders of the courts below, specially the High Court, we are clearly of the view that the High Court as also the courts below have clearly misconstrued the entire case of the plaintiff as well as the respondents and tried it contrary to the pleadings. The High Court has recorded that “the present suit which was filed in the year 1982, is after 31 years” i.e. after 31 years of the execution of the sale deed dated 24.2.1951. But it can be instantly noticed that the High Court has fallen into a crystal clear error as it has patently and unambiguously missed that the suit had not been filed by the appellant Tmt. Rangammal as she was the 2nd defendant who was later impleaded in the suit but the partition suit had been filed by the plaintiff-Kuppuswami-respondent No.1 herein against his brother the 2nd respondent-Andivelu-1st defendant which was a suit for partition of the property but while doing so he included and asserted title to the property in the schedule of the plaint which admittedly had fallen into the share of the appellant’s deceased-father which devolved upon her after the death of her father, mother and brother who died unmarried. But it is the plaintiff/respondent No.1 who came up with a case in the plaint that this property was transferred for legal necessity by the so-called legal guardian of the appellant by executing a sale deed on 24.2.1951 in favour of the respondents predecessors who were father and uncle of the plaintiff and 1st defendants/respondents herein.

12. The learned single Judge of the High Court as also the trial court and the lower appellate court thus have lost sight of the fact that it is the plaintiff/respondent No.1 herein who had come up with a case that the half share of the disputed property which on partition had fallen into the share of the appellant’s father was sold out by Kumara Naicker as guardian of the appellant-who was a minor in order to discharge some debt which the appellant’s deceased mother was alleged to be owing. However the disputed property which was sold in order to discharge the alleged burden of debt vide sale deed dated 24.2.1951 was purchased by the plaintiff-1st respondent’s father Arumuga Gounder and their uncle Kumara Naicker which means that the legal guardian Kumara Naicker claims the property of the appellant who was minor and then sold it to himself and nephew Arumuga Gounder. Furthermore, it is also the plaintiff’s case that the property which had fallen into the share of Tmt. Rangammal had been sold out by Kumara Naicker to the father of Kuppuswami-Arumuga Gounder and Andivelu who was his own son.

13. Therefore, it is more than apparent that when the plaintiff/respondent came up with a case of execution of sale deed on 24.2.21951 for half of the schedule property/disputed property alleged to have been sold out for legal necessity which had fallen into the share of appellant Rangammal, the burden clearly lay on the plaintiff/respondent No.1 to discharge that the sale deed executed by Kumara Naicker to his own son and nephew Arumuga Gounder in regard to the share which had admittedly fallen into the appellant share Rangammal who was a minor, was sold for the legal necessity. But this burden by the trial court was wrongly cast upon the appellant/Rangammal to discharge, although, it is well- settled that the party who pleads has also to prove his case.

14. Section 101 of the Indian Evidence Act, 1872 defines `burden of proof’ which clearly lays down that whosoever desires any court to give judgment as to any legal right or law dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Thus, the Evidence Act has clearly laid down that the burden of proving fact always lies upon the person who asserts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party. In view of this legal position of the Evidence Act, it is clear that in the instant matter, when the plaintiff/respondent No.1 pleaded that the disputed property fell into the share of the plaintiff by virtue of the sale deed dated 24.2.1951, then it was clearly for the plaintiff/respondent No.1 to prove that it was executed for legal necessity of the appellant-while she was a minor. But, the High Court clearly took an erroneous view while holding that it is the defendant/appellant who should have challenged the sale deed after attaining majority as she had no reason to do so since the plaintiff /respondent No.1 failed to first of all discharge the burden that the sale deed in fact had been executed for legal necessity of the minor’s predecessor mother was without permission of the court. It was not the defendant/respondent who first of all claimed benefit of the sale deed or asserted its genuineness, hence the burden of challenging the sale deed specifically when she had not even been dispossessed from the disputed share, did not arise at all.

15. Plethora of commentaries emerging from series of case laws on burden of proof which are too numerous to cite, lay down that when a person after attaining majority, questions any sale of his property by his guardian during his minority, the burden lies on the person who upholds/asserts the purchase not only to show that the guardian had the power to sell but further that the whole transaction was bona fide. This was held in the case of Roop Narain vs. Gangadhar, 9WR 297, as also in Anna Malay vs. Na U Ma, 17C 990. Thus when the plaintiff/respondent No.1 came up with a case that the minor’s share/appellant herein was sold for legal necessity by her uncle Kumara Naicker, then it was the plaintiff/respondent No.1 who should have discharged the burden to prove that the minor/appellant’s share had been sold of by the de facto guardian Kumara Naicker without permission of the court, could be held to be legal and valid so as to include the same in the partition suit between two brothers, which has not been discharged at all by the plaintiff/respondent No.1. In fact, the real brother of plaintiff Kuppuswami who is defendant No.1/respondent No.1 herein Andivelu has also not supported the case of the plaintiff that the half share of appellant/Rangammal in the disputed property was sold out vide sale deed dated 24.2.1951 for legal necessity without permission of the Court and hence defendant No.1/respondent No.2 also has not supported the case of the plaintiff/respondent No.1 on this count.

16. The plaintiff/respondent No.1 therefore has miserably failed to prove his case as per his pleading in the plaint and the burden to prove that the sale deed in fact was valid has not even been cast on plaintiff/respondent No.1 that the share of appellant-Rangammal had been sold out by Kumara Naicker vide sale deed dated 24.2.1951 for consideration without permission of the Court when the appellant was a minor.

17. The High Court, therefore, has fallen into an error while observing that the appellant/defendant No.2 in the suit should have assailed the sale deed and cannot do so after 31 years of its execution when it is unambiguously an admitted factual position that it is the plaintiff/respondent No.1 who had filed a suit for partition against his brother defendant No.1/respondent No.2 and in that partition suit it was plaintiff/respondent No.1 who banked upon the story that a sale deed had been executed by his Uncle Kumara Naicker who claimed it to be the legal guardian of the appellant-Rangammal who admittedly was a minor for legal necessity which was to discharge the debt of the appellant’s deceased mother. Hence, in view of Section 101 of the Indian Evidence Act, 1872 it is the plaintiff/respondent No.1 who should have first of all discharged the burden that in fact a sale deed had been executed for the share which admittedly belonged to appellant-Rangammal in order to discharge the burden of debt for legal necessity and for the benefit of the appellant who admittedly was a minor.

18. When the plaintiff-respondent No.1-Kuppuswami came with a specific pleading for the first time in a partition suit that the appellant’s share had been sold out by her de facto guardian Kumara Naicker without even the permission of the court, it was clearly the plaintiff/respondent No.1 who should have discharged the burden that the same was done for legal necessity of the minor in order to discharge the debt which the deceased mother of the appellant was alleged to have been owing to some one. When the plaintiff/respondent No.1 failed to discharge this burden, the question of discharge of burden to disprove the sale deed by the 2nd defendant/appellant-Rangammal do not arise at all as per the provisions of Evidence Act. It may be relevant at this stage to cite the ratio of the decision of this Court delivered in the matter of Subhra Mukherjee vs. Bharat Coaking Coal Ltd, AIR 2000 SC 1203, whether the document in question was genuine or sham or bogus, the party who alleged it to be bogus had to prove nothing until the party relying upon the document established its genuineness. This was the view expressed by this Court in the matter of Subhra Mukherjee vs. Bharat Coaking Coal Ltd, AIR 2000 SC 1203 = 2000 (3) SCC 312. This case although did not relate to a suit for partition or question relating to minority, it was a case wherein the appellant refused to hand over possession of property to the respondent-government company when ordered to do so. Instead she filed a suit for declaration of title in respect of property. The evidence of plaintiff/appellant indicated several discrepancies and inconsistencies due to which the trial court dismissed the suit but the 1st appellate court and the High Court, had allowed the appeal which was upheld by the Supreme Court as it was held that the High Court rightly allowed the respondent’s/government company’s second appeal and rightly found that the sale in favour of the appellant was not bona fide and thus confer no rights on them.

19. Application of Section 101 of the Evidence Act, 1872 thus came up for discussion in this matter and while discussing the law on the burden of proof in the context of dealing with the allegation of sham and bogus transaction, it was held that party which makes allegation must prove it. But the court was further pleased to hold wherein the question before the court was “whether the transaction in question was a bona fide and genuine one” so that the party/plaintiff relying on the transaction had to first of all prove its genuineness and only thereafter would the defendant be required to discharge the burden in order to dislodge such proof and establish that the transaction was sham and fictitious. This ratio can aptly be relied upon in this matter as in this particular case, it is the plaintiff/respondent No.1-Kuppuswami who relied upon the alleged sale deed dated 24.2.1951 and included the subject-matter of the property which formed part of the sale deed and claimed partition. This sale deed was denied by the defendant/appellant on the ground that it was bogus and a sham transaction which was executed admittedly in 1951 when she was a minor. Thus, it was the plaintiff/respondent No.1 who should have first of all discharged the burden that the sale deed executed during the minority of the appellant was genuine and was fit to be relied upon. If the courts below including the High Court had felt satisfied on this aspect, only then the burden could be shifted on the defendant/appellant to dislodge the case of the plaintiff that the sale deed was not genuine. But when the plaintiff merely pleaded in the plaint but failed to lead any evidence – much less proof, that the sale deed was genuine and was executed in order to discharge the burden of legal necessity in the interest of minor, then the High Court clearly misdirected itself by recording in the impugned order that it is the defendant/appellant herein who should have challenged the genuineness of the sale deed after attaining majority within the period of limitation.

20. Since the High Court has misplaced burden of proof, it clearly vitiated its own judgments as also of the 22  courts below since it is well established dictum of the Evidence Act that misplacing burden of proof would vitiate judgment. It is also equally and undoubtedly true that the burden of proof may not be of much consequence after both the parties lay evidence, but while appreciating the question of burden of proof, misplacing of burden of proof on a particular party and recording findings in a particular way definitely vitiates the judgment as it has happened in the instant matter. This position stands reinforced by several authorities including the one delivered in the case of Koppula Koteshwara Rao vs. Koppula Hemant Rao, 2002 AIHC 4950 (AP).

21. It has been further held by the Supreme Court in the case of State of J & K vs. Hindustan Forest Company, 2006 (12) SCC 198, wherein it was held that the onus is on the plaintiff to positively establish its case on the basis of material available and it cannot rely on the weakness or absence of defence to discharge onus.

22. It was still further held by this Court in the matter of Corporation of City of Bangalore vs. Zulekha Bi, 2008 (11) SCC 306 (308) that it is for the plaintiff to prove his title to the property. This ratio can clearly be made applicable to the facts of this case for it is the plaintiff who claimed title to the property which was a subject-matter of the alleged sale deed of 24.2.1951 for which he had sought partition against his brother and, therefore, it was clearly the plaintiff who should have first of all established his case establishing title of the property to the joint family out of which he was claiming his share. When the plaintiff himself failed to discharge the burden to prove that the sale deed which he executed in favour of his own son and nephew by selling the property of a minor of whom he claimed to be legal guardian without permission of the court, it was clearly fit to be set aside by the High Court which the High Court as also the courts below have miserably failed to discharge. The onus was clearly on the plaintiff to positively establish his case on the basis of material available and could not have been allowed by the High Court to rely on the weakness or absence of defence of the defendant/appellant herein to discharge such onus.

23. The courts below thus have illegally and erroneously failed not to cast this burden on the plaintiff/respondent No.1 by clearly misconstruing the whole case and thus resulted into recording of findings which are wholly perverse and even against the admitted case of the parties.

24. It is further well-settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. This basic principle, seems to have been missed not only by the trial court in this case but consistently by the first appellate court which has been compounded by the High Court.

25. Thus, we are of the view, that the whole case out of which this appeal arises had been practically made a mess by missing the basic principle that the suit should be decided on the basis of the pleading of the contesting parties after which Section 101 of The Evidence Act would come into play in order to determine on whom the burden falls for proving the issues which have been determined.

26. We further fail to comprehend as to how the basic case pleaded by the plaintiff had been misconstrued and the burden of discharge of genuineness, veracity and legal efficacy of the sale deed dated 24.2.1951 was shifted on the appellant-Rangammal clearly missing that it is the plaintiff’s/respondent No.1 case who was bent upon to include Rangammal’s property also for partition by relying upon the story of execution of sale deed when the partition suit was between the two brothers who were plaintiff- Kuppuswami and defendant No.1-Andivelu.

27. Coming now to the next question, we are unable to appreciate as to how the High Court has held that the delay in challenging the sale deed of 1951 should have been done at the instance of the 2nd defendant-appellant herein when it is the plaintiff who brought the theory/story of execution of the sale deed of appellant Rangammal’s property into the branch of plaintiff/respondents’ branch by pleading and asserting that this had fallen into the share of their predecessor as one of the predecessors was the de facto guardian of the appellant Rangammal. In fact, if there was a dispute about 26  the genuineness and veracity of the sale deed and the appellant was in occupation of her share, then it is the plaintiff who should have filed a suit claiming title on the basis of the sale deed which was claimed to have been executed in their favour by the de facto guardian of Rangammal when she was a minor before this property could be included in the suit for partition between the brothers excluding the 2nd defendant/appellant Rangammal and the consequence of not doing so or delay in this regard, obviously will have to be attributed to the plaintiff/respondent.

28. Thus, the High Court fell into a clear error when it observed that the suit was barred by limitation as it had been filed after 31 years of the execution of the sale deed which on the face of it is factually incorrect. The High Court has clearly erred while recording so, as it seems to have missed that the suit had not been filed by the appellant herein but she was merely contesting the suit as the 2nd defendant by getting herself impleaded in the partition suit when it came to her knowledge that the property which is in her occupation and possession has also been included in the schedule in the suit for partition between plaintiff/respondent No.1 herein-Kuppuswamy and the 1st defendant/respondent No.2 herein-Andivelu and when she received the copy of the plaint, execution of the alleged sale deed way back in 1951 was disclosed to her for the first time. Hence, there was no cause of action for her to file a suit challenging the alleged sale deed as knowledge of the same cannot be attributed to her in this regard as she asserted actual physical possession on her share.

29. The appellant who claimed to be in occupation and peaceful possession of her share to the extent of half which is situated on the eastern side of the schedule property, had no reason to file a suit assailing the sale deed when she was in actual physical possession of her share and suddenly out of the blue, a partition suit was filed by the plaintiff/respondent No.1 wherein the property of the appellant also was included in the schedule of the partition suit which was to be partitioned between the two brothers by metes and bounds by setting a cooked up story that the appellant’s share, who belonged to an altogether different branch of the family, had been given away by her de facto guardian Kumara Naicker by executing a sale deed in favour of the respondents’ predecessor way back on 24.2.1951 when the appellant admittedly was a minor.

30. We are, therefore, constrained to partly set aside the judgment and order of the High Court in so far as the share of the appellant Rangammal is concerned and consequently the decree passed by the trial court, upheld by the first appellate court and the High Court which had been illegally decreed including the share of the appellant -Rangammal which had not devolved on the family of the plaintiff/respondent No.1 and defendant No.1/respondent No.2, but was claimed on the basis of a sale deed which could not be proved either by evidence or law, is fit to be set aside.

31. It hardly needs to be highlighted that in a suit for partition, it is expected of the plaintiff to include only those properties for partition to which the family has clear title and unambiguously belong to the members of the joint family which is sought to be partitioned and if someone else’s property meaning thereby disputed property is 29  included in the schedule of the suit for partition, and the same is contested by a third party who is allowed to be impleaded by order of the trial court, obviously it is the plaintiff who will have to first of all discharge the burden of proof for establishing that the disputed property belongs to the joint family which should be partitioned excluding someone who claims that some portion of the joint family property did not belong to the plaintiff’s joint family in regard to which decree for partition is sought.

32. However, we make it clear that the decree which has been passed by the trial court in so far as partition between plaintiff/respondent No.1 and defendant No.1/respondent No.2 is concerned, shall remain in tact but the said decree shall exclude the property which had fallen into the share of appellant-Rangammal but was claimed to have been transferred to the branch of the plaintiff and 1st defendant-respondents herein vide sale deed dated 24.2.1951 The trial court being the court of District Munsif, Palani, accordingly shall modify the decree passed in O.S. No.255 of 1982 by excluding the share of the appellant -Rangammal claimed on the basis of the sale deed dated 24.2.1951. Thereafter, if the decree is put to execution, the executing court shall ensure that such portion of the property which is in occupation of Rangammal which was alleged to have been sold vide sale deed dated 24.2.1951, shall not be put into execution while partitioning the remaining property between the plaintiff- Kuppuswami and 1st defendant -Andivelu – respondent No.2.

33. Thus, this appeal in so far as the claim of the appellant- Rangammal to the extent of half of the share in the schedule to the suit property, situated on the eastern portion is concerned, stands allowed with a token cost which is quantified at rupees twenty five thousand as we are of the view that the appellant who was in actual physical and peaceful possession of her property which she had inherited from her deceased parents, was unnecessarily dragged into this litigation at the instance of the plaintiff- Kuppuswami who filed a partition suit which was apparently collusive in nature as it included the share of a third party to which the plaintiff and 1st defendant’s family had no clear title. Under the facts and circumstance of the instant case, it was clearly a compulsion on the part of the appellant/Tmt. Rangammal to contest the collusive suit for decades Kwasting time, energy and expense over a litigation which was started by the plaintiff clearly with an oblique motive and evil design. Hence the cost shall be paid by the respondent No.1-Kuppuswami to the appellant- Rangammal as indicated above.

34. Accordingly, this appeal stands allowed with costs.

…………………………….J
(J.M. Panchal)

…………………………….J
(Gyan Sudha Misra )

New Delhi,
May 13, 2011

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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
IA NO.36 AND IA NO.44
IN
WRIT PETITION (C) No.967 OF 1989

Indian Council for Enviro-Legal Action … Petitioners
Versus
Union of India & Others … Respondents

JUDGMENT

Dalveer Bhandari, J.

1. This is a very unusual and extraordinary litigation where even after fifteen years of the final judgment of this court (date of judgment 13th February, 1996) the litigation has been deliberately kept alive by filing one interlocutory application or the other in order to avoid compliance of the judgment. The said judgment of this Court has not been permitted to acquire finality till date. This is a classic example how by abuse of the process of law even the final judgment of the apex court can be circumvented for more than a decade and a half. This is indeed a very serious matter concerning the sanctity and credibility of the judicial system in general and of the apex court in particular.

2. An environmentalist organisation brought to light the sufferings and woes of people living in the vicinity of chemical industrial plants in India. This petition relates to the suffering of people of village Bichhri in Udaipur District of Rajasthan. In the Writ Petition No.967 of 1989, it was demonstrated how the conditions of a peaceful, nice and small village of Rajasthan were dramatically changed after respondent no. 4 Hindustan Agro Chemicals Limited started producing certain chemicals like Oleum (concentrated form of sulphuric acid) and Single Super Phosphate. Respondent numbers 4 to 8 are controlled by the same group and they were known as chemical industries. The entire chemical industrial complex is located within the limits of Bichhri village, Udaipur, Rajasthan. Pursuit of profit of entrepreneurs has absolutely drained them of any feeling for fellow human beings living in that village.

3. The basic facts of this case are taken from the judgment delivered in the Writ Petition No.967 of 1989. In the beginning of the judgment of this court delivered on February 13, 1996, it is observed as under:

“It highlights the disregard, nay, contempt for law and lawful authorities on the part of some among the emerging breed of entrepreneurs, taking advantage, as they do, of the country’s need for industrialisation and export earnings. Pursuit of profit has absolutely drained them of any feeling for fellow human beings – for that matter, for anything else. And the law seems to have been helpless. Systemic defects? It is such instances which have led many people in this country to believe that disregard of law pays and that the consequences of such disregard will never be visited upon them -particularly, if they are men with means. Strong words indeed – but nothing less would reflect the deep sense of hurt, the hearing of this case has instilled in us.”

4. It seems that the court was prophetic when it made observation that at times men with means are successful in avoiding compliance of the orders of this court. This case is a classic illustration where even after decade and a half of the pronouncement of the judgment by this court based on the principle of `polluter pays’, till date the polluters (concerned industries in this case) have taken no steps to ecologically restore the entire village and its surrounding areas or complied with the directions of this court at all. The orders of this court were not implemented by keeping the litigation alive by filing interlocutory and interim applications even after dismissal of the writ petition, the review petition and the curative petition by this court.

5. In the impugned judgment, it is mentioned that because of the pernicious wastes emerging from the production of ‘H’ acid, its manufacture is stated to have been banned in the western countries. But the need of ‘H’ acid continues in the West and that need is catered to by the industries like the Silver Chemicals and Jyoti Chemicals in this part of the world.

6. In the impugned judgment, it is also mentioned that since the toxic untreated waste waters were allowed to flow out freely and because the untreated toxic sludge was thrown in the open in and around the complex, the toxic substances have percolated deep into the bowels of the earth polluting the aquifers and the sub-terrain supply of water. The water in the wells and the streams has turned dark and dirty rendering it unfit for human consumption. It has become unfit for cattle to drink and for irrigating the land. The soil has become polluted rendering it unfit for cultivation, which is the main source of livelihood for the villagers. The resulting misery to the villagers needs no emphasis. It spreads disease, death and disaster in the village and the surrounding areas. This sudden degradation of earth and water had an echo in Parliament too and the concerned Minister said that action was being taken, but nothing meaningful was done on the spot. The villagers then rose in virtual revolt leading to the imposition of Section 144 of the Criminal Procedure Code by the District Magistrate in the area and the closure of Silver Chemicals in January, 1989. It is averred by the respondents that both the units, Silver Chemicals and Jyoti Chemicals have stopped manufacturing ‘H’ acid since January, 1989 and are closed. We may assume it to be so, yet the consequences of their action remain – the sludge, the long-lasting damage to earth, to underground water, to human beings, to cattle and the village economy.

7. The Rajasthan State Pollution Control Board (for short “R.S.P.C.B.”) in pursuance of the show cause notice filed a counter affidavit and stated the following averments: (a) Re.: Hindustan Agro Chemicals Limited (respondent for short) [R-4]: The unit obtained ‘No-Objection Certificate’ from the R.S.P.C.B. for manufacturing sulphuric acid and Aluminum sulphate. The Board granted clearance subject to certain conditions. Later ‘No-Objection Certificate’ was granted under the Water [Prevention and Control of Pollution] Act, 1974 [Water Act] and Air (Prevention and Control of Pollution) Act, 1981 [Air Act], again subject to certain conditions. However, this unit changed its product without clearance from the Board. Instead of sulphuric acid, it started manufacturing Oleum and Single Super Phosphate [S.S.P.]. Accordingly, consent was refused to the unit on February 16, 1987. Directions were also issued to close down the unit. (b) Re.: Silver Chemicals [R-5]: This unit was promoted by the fourth respondent without obtaining ‘No-Objection Certificate’ from the Board for the manufacture of ‘H’ acid. The waste water generated from the manufacture of ‘H’ acid is highly acidic and contains very high concentration of dissolved solids along with several dangerous pollutants. This unit was commissioned in February, 1988 without obtaining the prior consent of the Board and accordingly, notice of closure was served on April 30, 1988. On May 12, 1988, the unit applied for consent under Water and Air Acts which was refused. The Government was requested to issue directions for cutting off the electricity and water to this unit but no action was taken by the Government. The unit was found closed on the date of inspection, viz., October 2, 1989. (c) Re.: Rajasthan Multi Fertilizers [R-6]: This unit was installed without obtaining prior ‘No- Objection Certificate’ from the Board and without even applying for consent under Water and Air Acts. Notice was served on this unit on February 20, 1989. In reply thereto, the Board was informed that the unit was closed since last three years and that electricity has also been cut off since February 12, 1988. (d) Re.: Phosphates India [R-7]: This unit was also established without obtaining prior ‘No- Objection Certificate’ from the Board nor did it apply for consent under the Water and Air Acts. When notice dated February 20, 1989 was served upon this unit, the Management replied that this unit was closed for a long time. (e) Re.: Jyoti Chemicals [R-8]: This unit applied for ‘No-Objection Certificate’ for producing ferric alum. ‘No-Objection Certificate’ was issued imposing various conditions on April 8, 1988. The ‘No-Objection Certificate’ was withdrawn on May 30, 1988 on account of non-compliance with its conditions. The consent applied for under Water and Air Acts by this unit was also refused. Subsequently, on February 9, 1989, the unit applied for fresh consent for manufacturing ‘H’ acid. The consent was refused on May 30, 1989. The Board has been keeping an eye upon this unit to ensure that it does not start the manufacture of ‘H’ acid. On October 2, 1989, when the unit was inspected, it was found closed.

8. The Government of Rajasthan filed counter-affidavit on January 20, 1990. The Para 3 of the affidavit reads as under:- “That the State Government is now aware of the pollution of under-ground water being caused by liquid effluents from the firms arrayed as Respondent Nos. 4 to 8 in the writ petition. Therefore, the State Government has initiated action through the Pollution Control Board to check further spread of pollution.”

9. The State Government stated that the water in certain wells in Bichhri village and some other surrounding villages has become unfit for drinking for human beings and cattle, though in some other wells, the water remains unaffected.

10. The Ministry of Environment and Forests, Government of India (for short `MOEF’) in its counter affidavit filed on February 8, 1990 stated that M/s. Silver Chemicals was merely granted a Letter of Intent but it never applied for conversion of the Letter of Intent into industrial licence. Commencing production before obtaining industrial licence is an offence under Industries [Development and Regulation] Act, 1951. So far as M/s. Jyoti Chemicals is concerned, it is stated that it has not approached the Government at any time even for a Letter of Intent. The Government of India stated that in June, 1989, a study of the situation in Bichhri village and some other surrounding villages was conducted by the Centre for Science and Environment. A copy of their report was enclosed with the counter affidavit. The report states the consequences emanating from the production of ‘H’ acid and the manner in which the resulting wastes were dealt with by Respondents Nos. 4 to 8 thus: “The effluents are very difficult to treat as many of the pollutants present are refractory in nature. Setting up such highly polluting industry in a critical ground water area was essentially ill- conceived. The effluents seriously polluted the nearby drain and overflowed into Udaisagar main canal, severely corroding its cement-concrete lined bed and banks. The polluted waters also seriously degraded some agricultural land and damaged standing crops. On being ordered to contain the effluents, the industry installed an unlined holding pond within its premises and resorted to spraying the effluent on the nearby hill-slope. This only resulted in extensive seepage and percolation of the effluents into ground water and their spread down the aquifers. Currently about 60 wells appear to have been significantly polluted but every week a few new wells, down the aquifers start showing signs of pollution. This has created serious problems for water supply for domestic purposes, cattle-watering crop irrigation and other beneficial uses, and it has also caused human illness and even death, degradation of land and damage to fruit, trees and other vegetation. There are serious apprehensions that the pollution and its harmful effects will spread further after the onset of the monsoon as the water percolating from the higher parts of the basin moves down carrying the pollutants lying on the slopes – in the holding pond and those already underground.”

11. This court passed number of orders during the period 1989-1992.

12. On February 17, 1992, this Court passed a fairly elaborate order observing that respondent nos. 5 to 8 are responsible for discharging the hazardous industrial wastes; that the manufacture of ‘H’ acid has given rise to huge quantities of iron sludge and gypsum sludge – approximately 2268 MT of gypsum-based sludge and about 189 mt. of iron- based sludge; that while the other respondents blamed respondent no.9 as the main culprit but respondent no. 9 denied any responsibility, therefore, according to the Courts, the immediate concern was the appropriate remedial action. The report of the R.S.P.C.B. presented a disturbing picture. It stated that the respondents have deliberately spread the hazardous material/sludge all over the place which has only heightened the problem of its removal and that they have failed to carry out the orders of this Court dated April 4, 1990. Accordingly, this Court directed the MOEF to depute its experts immediately to inspect the area to ascertain the existence and extent of gypsum-based and iron-based sludge, to suggest the handling and disposal procedures and to prescribe a package for its transportation and safe storage. The cost of such storage and transportation was to be recovered from the concerned respondents.

13. Pursuant to the above order, a team of experts visited the area and submitted a report along with an affidavit dated March 30, 1992. The report presented a highly disturbing picture. It stated that the sludge was found inside a shed and also at four places outside the shed but within the premises of the complex belonging to the respondents. It further stated that the sludge has been mixed with soil and at many places it is covered with earth. A good amount of sludge was said to be lying exposed to sun and rain.

14. The report stated: “Above all, the extent of pollution in the ground water seems to the very great and the entire aquifer may be affected due to the pollution caused by the industry. The organic content of the sludge needs to be analysed to assess the percolation property of the contents from the sludge. It is also possible that the iron content in the sludge may be very high which may cause the reddish colouration. As the mother liquor produced during the process (with pH-1) was highly acidic in nature and was indiscriminately discharged on land by the unit, it is possible that this might have eroded soil and caused the extensive damage. It is also possible that the organic contents of the mother liquor would have gone into soil with water together with the reddish colour.” The report also suggested the mode of disposal of sludge and measures for re-conditioning the soil.

15. In view of the above report, the Court made an order on April 6, 1992 for entombing the sludge under the supervision of the officers of the MOEF. Regarding revamping of the soil, the Court observed that for this purpose, it might become necessary to stop or suspend the operation of all the units of the respondent but that, the Court said, requires to be examined further.

16. The work of entombment of sludge again faced several difficulties. While the respondents blamed the Government officers for the delay, the Government officials blamed the said respondents of non-cooperation. Several Orders were passed by this Court in that behalf and ultimately, the work commenced. Orders passed in 1993, filing of Writ Petition (C) No. 76 of 1994 by Respondent No. 4 and the orders passed therein:

17. With a view to find out the connection between the wastes and sludge resulting from the production of ‘H’ acid and the pollution in the underground water, the Court directed on 20th August, 1993 that samples should be taken of the entombed sludge and also of the water from the affected wells and sent for analysis. Environment experts of the MOEF were asked to find out whether the pollution in the well water was on account of the said sludge or not. Accordingly, analysis was conducted and the experts submitted the Report on November 1, 1993. Under the heading “Conclusion”, the report stated:

5.0 Conclusion

5.1 On the basis of the observations and analysis results, it is concluded beyond doubt that the sludge inside the emoted pit is the contaminated one as evident from the number of parameters analysed.

5.2 The ground water is also contaminated due to discharge of H- acid plant effluent as well as H-acid sludge/contaminated soil leachiest as shown in the photographs and also supported by the results. The analysis result revealed good correlation between the colour of well water and H-acid content in it. The analysis results show high degree of impurities in sludge/soil and also in well water which is a clear indication of contamination of soil and ground water due to disposal of H-acid waste.

The report which is based upon their inspection of the area in September, 1993 revealed many other alarming features. It represents a commentary on the attitude and actions of the respondents. In Para-2, under the heading “Site Observations & Collection of Sludge/Contaminated Soil Samples”, the following facts are stated: 2.1. The Central team, during inspection of the premises of M/s. HACL, observed that H-acid sludge (iron gypsum) and contaminated soil are still lying at different places, as shown in Figure 1, within the industrial premises(Photograph 1) which are the left overs. The area, where the solar evaporation pond was existing with H-acid sludge dumped here and there, was observed to have been leveled with borrowed soil (Photograph 2). It was difficult to ascertain whether the sludge had been removed before filling. However, there are visual evidences of contaminated soil in the area.

2.2 As reported by the R.S.P.C.B. representatives, about 720 tonnes out of the total contaminated soil and sludge scraped from the sludge dump sites is disposed of in six lined entombed pits covered by lime/flash mix, brick soling and concrete (Photographs were placed on record). The remaining scraped sludge and contaminated soil was lying near the entombed pits for want of additional disposal facility. However, during the visit, the left over sludge and contaminated soil could not be traced at site. Inspection of the surrounding area revealed that a huge heap of foreign soil of 5 metre height heap of foreign soil of 5 metre height (Photograph was placed on record) covering a large area, as also indicated in Fig. I, was raised on the sloppy ground at the foot hill within the industry premises. The storm water run-off pathway over the area showed indication of H-acid sludge leachate coming out of the heap. Soil in the area was sampled for analysis.

2.3 M/s. HACL has a number of other industrial units which are operating within the same premises without valid consents from the R.S.P.C.B. These plants are sulphuric acid (H2SO4), fertilizer (SSP) and vegetable oil extraction. The effluents of these units are not properly treated and the untreated effluent particularly from the acid plant is passing through the sludge dump area playing havoc (Photograph was placed on record). The final effluent was collected at the outlet of the factory premises during operation of these units, at the time of groundwater monitoring in September 1993, by the RSPCB. Its quality was observed to be highly acidic (pH : 1.08, Conductivity : 37,100 mg/1, SO4 : 21,000 mg/1, Fe : 392 mg/1, COD : 167 mg/1) which was also revealed in the earlier visits of the Central teams. However, these units were not in operation during the present visit. Under Para 4.2.1, the report stated inter alia: The sludge samples from the surroundings of the (presently nonexistent) solar evaporation and the contaminated soil due to seepage from the newly raised dump site also exhibited very high values of the above mentioned parameters. This revealed that the contaminated soil is buried under the new dump found by the team.

25. So much for the waste disposal by the respondents and their continuing good conduct. To the same effect is the Report of the R.S.P.C.B. which is dated October 30, 1993.

26. In view of the aforesaid Reports, all of which unanimously point out the consequences of the ‘H’ acid production, the manner in which the highly corrosive waste water (mother liquor) and the sludge resulting from the production of ‘H’ acid was disposed of and the continuing discharge of highly toxic effluents by the remaining units even in the year 1993, the authorities [R.S.P.C.B.] passed orders closing down, in exercise of their powers Under Section 33A of the Water Act, the operation of the Sulphuric Acid Plant and the solvent extraction plant including oil refinery of the fourth respondent with immediate effect. Orders were also passed directing disconnection of electricity supply to the said plants. The fourth respondent filed Writ Petition (C) No. 76 of 1994 in this Court, under Article 32 of the Constitution, questioning the said Orders in January, 1994. The main grievance in this writ petition was that without even waiting for the petitioner’s [Hindustan Agro Chemicals Limited] reply to the show-cause notices, orders of closure and disconnection of electricity supply were passed and that this was done by the R.S.P.C.B. with a malafide intent to cause loss to the industry. It was also submitted that sudden closure of its plants is likely to result in disaster and, may be, an explosion and that this consideration was not taken into account while ordering the closure. In its Order dated March 7, 1994, this Court found some justification in the contention of the industry that the various counter-affidavits filed by the R.S.P.C.B. are self-contradictory. The Board was directed to adopt a constructive attitude in the matter. By another Order dated March 18, 1994, the R.S.P.C.B. was directed to examine the issue of grant of permission to re-start the industry or to permit any interim arrangement in that behalf. On April 8, 1994, a ‘consent’ order was passed whereunder the industry was directed to deposit a sum of Rupees sixty thousand with R.S.P.C.B. before April 11, 1994 and the R.S.P.C.B. was directed to carry on the construction work of storage tank for storing and retaining ten days effluents from the Sulphuric Acid Plant. The construction of temporary tank was supposed to be an interim measure pending the construction of an E.T.P. on permanent basis. The Order dated April 28, 1994 noted the Report of the R.S.P.C.B. stating that the construction of temporary tank was completed on April 26, 1994 under its supervision. The industry was directed to comply with such other requirements as may be pointed out by R.S.P.C.B. for prevention and control of pollution and undertake any works required in that behalf forthwith. Thereafter, the matter went into a slumber until October 13, 1995. NEERI REPORT:

27. At this juncture, it would be appropriate to refer to the Report submitted by NEERI on the subject of “Restoration of Environmental Quality of the affected area surrounding Village Bichhri due to past Waste Disposal Activities”. This Report was submitted in April, 1994 and it states that it is based upon the study conducted by it during the period November, 1992 to February, 1994. Having regard to its technical competence and reputation as an expert body on the subject, we may be permitted to refer to its Report at some length:

18. The judgment also dealt with damaging of crops and fields. The finding of the Court was that the entire  19 contaminated area comprising of 350 hectares of contaminated land and six abandoned dump sites outside the industrial premises has been found to be ecologically fragile due to reckless past disposal activities practised by M/s. Silver Chemicals Ltd. and M/s. Jyoti Chemicals Ltd. Accordingly, it is suggested that the whole of the contaminated area be developed as a green belt at the expense of M/s. Hindustan Agrochemicals Ltd. during the monsoon of 1994.

19. Mr. Shanti Bhushan, learned senior counsel appearing for the respondents-industries made the following submissions:

(1) The respondents are private corporate bodies. They are not ‘State’ within the meaning of Article 12 of the Constitution. A writ petition under Article 32 of the Constitution, therefore, does not lie against them. (2) The RSPCB has been adopting a hostile attitude towards these respondents from the very beginning. The Reports submitted by it or obtained by it are, therefore, suspect. The respondents had no opportunity to test the veracity of the said Reports. If the matter had been fought out in a properly constituted suit, the respondents would have had an opportunity to cross-examine the experts to establish that their Reports are defective and cannot be relied upon.; (3) Long before the respondents came into existence, Hindustan Zinc Limited was already in existence close to Bichhri village and has been discharging toxic untreated effluents in an unregulated manner. This had affected the water in the wells, streams and aquifers. This is borne out by the several Reports made long prior to 1987. Blaming the respondents for the said pollution is incorrect as a fact and unjustified. (4) The respondents have been cooperating with this Court in all matters and carrying out its directions faithfully. The Report of the R.S.P.C.B. dated November 13, 1992 shows that the work of entombment of the sludge was almost over. The Report states that the entire sludge would be stored in the prescribed manner within the next two days. In view of this report, the subsequent Report of the Central team, R.S.P.C.B. and NEERI cannot be accepted or relied upon. There are about 70 industries in India manufacturing ‘H’ acid. Only the units of the respondents have been picked upon by the Central and Sate authorities while taking no action against the other units. Even in the matter of disposal of sludge, the directions given for its disposal in the case of other units are not as stringent as have been prescribed in the case of respondents. The decision of the Gujarat High Court in Pravinbhai Jashbhai Patel case shows that the method of disposal prescribed there is different and less elaborate than the one prescribed in this case. (5) The Reports submitted by the various so- called expert committees that sludge is still lying around within and outside the respondents’ complex and/or that the toxic wastes from the Sulphuric Acid Plant are flowing through and leaching the sludge and creating a highly dangerous situation is untrue and incorrect. The R.S.P.C.B. itself had constructed a temporary E.T.P. for the Sulphuric Acid Plant pursuant to the Orders of this Court made in Writ Petition (C) No. 76 of 1994. Subsequently, a permanent E.T.P. has also been constructed. There is no question of untreated toxic discharges from this plant leaching with sludge. There is no sludge and there is no toxic discharge from the Sulphuric Acid Plant. (6) The case put forward by the R.S.P.C.B. that the respondents’ units do not have the requisite permits/ consents required by the Water Act, Air Act and the Environment [Protection] Act is again unsustainable in law and incorrect as a fact. The respondents’ units were established before the amendment of Section 25 of the Water Act and, therefore did not require any prior consent for their establishment. (7) The proper solution to the present problem lies in ordering a comprehensive judicial enquiry by a sitting Judge of the High court to find out the causes of pollution in this village and also to recommend remedial measures and to estimate the loss suffered by the public as well as by the respondents. While the respondents are prepared to bear the cost of repairing the damage, if any, caused by them, the R.S.P.C.B. and other authorities should be made to compensate for the huge losses suffered by the respondents on account of their illegal and obstructionist policy adopted towards them. (8) The decision in Oleum Gas Leak. Case has been explained in the opinion of Justice Ranganath Misra, CJ., in the decision in Union Carbide Corporation etc. etc. v. Union of India etc. etc. [1991] INSC 252; AIR 1992 SC 248. The law laid down in Oleum Gas leak Case is at variance with the established legal position in other Commonwealth countries.

20. The Court dealt with the submissions of the respondents in great detail and did not find any merit in the same.

21. In the impugned judgment, the Court heavily relied on the observations of the Constitution Bench judgment in M.C. Mehta and Another v. Union of India and Others (1987) 1 SCC 395 popularly known as Oleum Gas Leak Case, wherein it was held thus: “We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm the enterprise must be held strictly liable for causing such harm as a part of the social cost for carrying on the hazardous or inherently dangerous activity. If the enterprise is permitted to carry on an hazardous or inherently. dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not….We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-`-vis the tortuous principle of strict liability under the rule in Ryland v. Fletcher [1865] EngR 436; (1868) LR 3 HL 330. We would also like to point out that the measure of compensation in the kind of cases referred to in the preceding paragraph must be corelated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise.”

22. This court in M.C. Mehta’s case (supra) further observed as under:

31. We must also deal with one other question which was seriously debated before us and that question is as to what is the measure of liability of an enterprise which is engaged in an hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or are injured. Does the rule in Rylands v. Fletcher apply or is there any other principle on which the liability can be determined? The rule in Rylands v. Fletcher was evolved in the year 1866 and it provides that a person who for his own purposes brings on to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and, if he fails to do so, is prima facie liable for the damage which is the natural consequence of its escape. The liability under this rule is strict and it is no defence that the thing escaped without that person’s wilful act, default or neglect or even that he had no knowledge of its existence. This rule laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused. Of course, this rule applies only to non- natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority. Vide Halsbury Laws of England, Vol. 45 para 1305. Considerable case law has developed in England as to what is natural and what is non-natural use of land and what are precisely the circumstances in which this rule may be displaced. But it is not necessary for us to consider these decisions laying down the parameters of this rule because in a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry out part of the developmental programme, this rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes but we have to build up our own jurisprudence and we cannot countenance an argument that merely because the law in England does not recognise the rule of strict and absolute liability in cases of hazardous or inherently dangerous activities or the rule as laid down in Rylands v. Fletcher as is developed in England recognises certain limitations and exceptions. We in India must hold back our hands and not venture to evolve a new principle of liability since English courts have not done so. We have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concomitant to an industrial economy, there is no reason why we should hesitate to evolve such principle of liability merely because it has not been so done in England.

23. This Court applied the principle of Polluter pays and observed thus:

“The polluter pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. The ‘polluter pays’ principle was promoted by the Organisation for Economic Co- operation and Development [OECD] during the 1970s when there was great public interest in environmental issues. During this time there were demands on government and other institutions to introduce policies and mechanisms for the protection of the environment and the public from the threats posed by pollution in a modern industrialised society. Since then there has been considerable discussion of the nature of the polluter pays principle, but the precise scope of the principle and its implications for those involved in past, or potentially polluting activities have never been satisfactory agreed.”

24. After hearing the learned counsel for the parties at length, this Court gave the following directions:

“1. The Central Government shall determine the amount required for carrying out the remedial measures including the removal of sludge lying in and around the complex of Respondents 4 to 8, in the area affected in village Bichhri and other adjacent villages, on account of the production of ‘H’ acid and the discharges from the Sulphuric Acid Plant of Respondents 4 to 8. Chapters-VI and VII in NEERI Report [submitted in 1994] shall be deemed to be the show-cause notice issued by the Central Government proposing the determination of the said amount. Within six weeks from this day, Respondents 4 to 8 shall submit their explanation, along with such material as they think appropriate in support of their case, to the Secretary, Ministry of Environment and Forests, Government of India (for short, M.E.F.). The Secretary shall thereupon determine the amount in consultation with the experts of his Ministry within six weeks of the submission of the explanation by the said Respondents. The orders passed by the Secretary, [M.E.F.] shall be communicated to Respondents 4 to 8- and all concerned – and shall also be placed before this Court. Subject to the Orders, if any, passed by this Court, the said amount shall represent the amount which Respondents 4 to 8 are liable to pay to improve and restore the environment in the area. For the purpose of these proceedings, the Secretary, [M.E.F.] and Respondents 4 to 8 shall proceed on the assumption that the affected area is 350 ha, as indicated in the sketch at Page 178 of NEERI Report. In case of failure of the said respondents to pay the said amount, the same shall be recovered by the Central Government in accordance with law. The factories, plant, machinery and all other immovable assets of Respondents 4 to 8 are attached herewith. The amount so determined and recovered shall be utilised by the M.E.F. for carrying out all necessary remedial measures to restore the soil, water sources and the environment in general of the affected area to its former state.

2. On account of their continuous, persistent and insolent violations of law, their attempts to conceal the sludge, their discharge of toxic effluents from the Sulphuric Acid Plant which was allowed to flow through the sludge, and their non-implementation of the Orders of this Court – all of which are fully borne out by the expert committees’ Reports and the findings recorded hereinabove – Respondents 4 to 8 have earned the dubious distinction of being characterised as “rogue industries”. They have inflicted untold misery upon the poor, unsuspecting villagers, despoiling their land, their water sources and their entire environment – all in pursuance of their private profit. They have forfeited all claims for any consideration by this Court. Accordingly, we herewith order the closure of all the plants and factories of Respondents 4 to 8 located in Bichhri village. The R.S.P.C.B. is directed to seal all the factories/ units/plants of the said respondents forthwith. So far as the Sulphuric Acid Plant is concerned, it will be closed at the end of one week from today, within which period Respondent No. 4 shall wind down its operations so as to avoid risk of any untoward consequences, as asserted by Respondent No. 4 in Writ Petition (C) No. 76 of 1994. It is the responsibility of Respondent No. 4 to take necessary steps in this behalf. The R.S.P.C.B. shall seal this unit too at the end of one week from today. The re-opening of these plants shall depend upon their compliance with the directions made and obtaining of all requisite permissions and consents from the relevant authorities. Respondents 4 to 8 can apply for directions in this behalf after such compliance.

3. So far as the claim for damages for the loss suffered by the villagers in the affected area is concerned, it is open to them or any organisation on their behalf to institute suits in the appropriate civil court. If they file the suit or suits in forma pauperis, the State of Rajasthan shall not oppose their applications for leave to sue in forma pauperis.

4. The Central Government shall consider whether it would not be appropriate, in the light of the experience gained, that chemical industries are treated as a category apart. Since the chemical industries are the main culprits in the matter of polluting the environment, there is every need for scrutinising their establishment and functioning more rigorously. No distinction should be made in this behalf as between a large-scale industry and a small-scale industry or for that matter between a large- scale industry and a medium-scale industry. All chemical industries, whether big or small, should be allowed to be established only after taking into considerations all the environmental aspects and their functioning should be monitored closely to ensure that they do not pollute the environment around them. It appears that most of these industries are water-intensive industries. If so, the advisability of allowing the establishment of these industries in arid areas may also require examination. Even the existing chemical industries may be subjected to such a study and if it is found on such scrutiny that it is necessary to take any steps in the interests of environment, appropriate directions in that behalf may be issued under Section 3 and 5 of the Environment Act, the Central Government shall ensure that the directions given by it are implemented forthwith.

5. The Central Government and the R.S.P.C.B. shall file quarterly Reports before this Court with respect to the progress in the implementation of Directions 1 to 4 aforesaid.

6. The suggestion for establishment of environment courts is a commendable one. The experience shows that the prosecutions launched in ordinary criminal courts under the provisions of the Water Act, Air Act and Environment Act never reach their conclusion either because of the work-load in those courts or because there is no proper appreciation of the significance of the environment matters on the part of those in charge of conducting of those cases. Moreover, any orders passed by the authorities under Water and Air Acts and the Environment Act are immediately questioned by the industries in courts. Those proceedings take years and years to reach conclusion. Very often, interim orders are granted meanwhile which effectively disable the authorities from ensuring the implementation of their orders. All this points to the need for creating environment courts which alone should be empowered to deal with all matters, civil and criminal, relating to environment. These courts should be manned by legally trained persons/judicial officers and should be allowed to adopt summary procedures. This issue, no doubt, requires to be studied and examined indepth from all angles before taking any action.

7. The Central Government may also consider the advisability of strengthening the environment protection machinery both at the Center and the States and provide them more teeth. The heads of several units and agencies should be made personally accountable for any lapses and/or negligence on the part of their units and agencies. The idea of an environmental audit by specialist bodies created on a permanent basis with power to inspect, check and take necessary action not only against erring industries but also against erring officers may be considered. The idea of an environmental audit conducted periodically and certified annually, by specialists in the field, duly recognised, can also be considered. The ultimate idea is to integrate and balance the concern for environment with the need for industrialisation and technological progress.”

25. The orders of this Court have not been implemented till date because by filing of number of interlocutory applications the respondent nos.4 to 8 have kept the litigation alive. These respondents have been successful in avoiding compliance of the judgment of this Court for more than fifteen years.

ORDER IN CONTEMPT PETITION
26. The original record of Writ Petition No. 967 of 1989 shows that the R.S.P.C.B. has filed a report of the National Environmental Engineering Research Institute, for short `NEERI’ in this Court on 6.1.1996. It is on this report that reliance was placed by the Court while disposing off the said writ petition. If the report which was submitted in this Court by the R.S.P.C.B. was different from the final report which was submitted by NEERI to the said Board, then it may have been possible to contend that the R.S.P.C.B. and its officers were guilty of fabrication. The affidavit of Mr. S.N. Kaul, Acting Director of NEERI clearly shows that what was filed in this Court was the copy of the final report dated 16.5.1994 which has been prepared by the NEERI. In other words, the NEERI itself states that the report filed in this Court by the Board was a copy of the final report and that there was no fabrication made therein by the Board or any of its officials.

27. It appears that the two scientists had inspected the report in the office of the NEERI and then observed that there has been a fabrication carried out by the Pollution Control Board. From what has been stated hereinabove, the charge of fabrication is clearly unfounded. It is possible that these two scientists may have seen the draft report which would be with NEERI but the original report when prepared would be one which was, ultimately, submitted to the sponsoring agency, namely, the R.S.P.C.B., and it is only a copy of the same which could have been retained by NEERI. Be that as it may, it is clear that what has been filed in this Court as being the final report of the NEERI was the copy of the final report which was received by it. There is no basis for contending that any of the respondents have been guilty of fabrication. The whole application to our mind is devoid of any merit. The contempt petition was dismissed with costs.

28. This Interlocutory Application has been filed on behalf of M/s Hindustan Agro Chemical Ltd. (for short “HACL”) whose industrial units situated in Udaipur were directed to be closed down by this Court on the premise that the said units had caused pollution in village Bichhri. This Court while directing for closure of the industrial units of HACL vide its order dated 13.2.1996 had further held that the units be not permitted to run until they deposit the remediation costs for restoring the environment in the area. The Court accordingly directed for the attachment of the properties of HACL.

29. There is a serious attempt to reopen the entire concluded case which stands fully concluded by the judgment of this Court delivered on 13th February, 1996. It may be pertinent to mention that even the review and curative petitions have also been dismissed. By this application, the applicant has also made an attempt to introduce before this Court the opinion of various experts, such as, Dr. M.S. Govil, Mr. S.K. Gupta, Dr. P.S. Bhatt and Ms. Smita Jain who visited the Bichhri village at the instance of the applicant in the year 2004 to provide a different picture regarding the conditions of water and soil in the area. These experts submitted reports to demonstrate that now hardly any remediation measures are required in Bichhri village or adjoining areas.

30. The applicant in this application is seeking a declaration that as of now there is no pollution existing in the area which may have been caused by HACL and accordingly there is no necessity for this Court to sell the assets of HACL in order to carry out any remediation in the area. This application also is a serious attempt to discredit the NEERI report of 1996 once again.

31. The sole object of filing of the present application is to introduce before this Court recent reports prepared by experts at the behest of the applicant to demonstrate to the Court that before embarking upon remediation measures and for the said purposes putting the properties of the applicant to sell, the status and conditions of water, soil and environment in the area as at present be reviewed with a view to realistically ascertain whether any measures for remediation are called for at all in the area and if yes, then the nature and the current cost of the same may be ascertained.

32. The applicant submitted that the report of the NEERI which was the basis for the earlier orders of this Court does not specify the nature of remediation measures which were considered necessary. The report merely indicates a lump sum amount without giving its break up as being a rough estimate of amount considered by them necessary for carrying out remediation measures.

33. It is stated in the application that the Secretary, MOEF after issuing notices to the parties called for the expert opinion of Water and Power Consultancy (WAPCO) and of Engineers India Limited (EIL), both these institutions were established by the Government of India. Both these institutions wrote to the Secretary that the data available was not sufficient to determine the cost of remediation, if any. The Secretary, who under the directions of the Court was directed to determine the amount within six weeks was left with no alternative but to simply affirm the lump sum amount determined by the NEERI.

34. It is stated that now almost fifteen years have passed since the final judgment of this Court and the situation in the area needs to be inspected again to find out as to whether any remediation is necessary or whether with passage of time nature on its own has taken care of the pollution in the area and because of the same no further remediation is required to be done in the area. This submission is being made without prejudice to the right of the applicant to contend that the applicant had not caused any pollution in the area but the applicant for the limited purpose of this application is ready to assume for the sake of arguments that the applicant had caused pollution in the area and that the nature in the last so many years has taken care of the pollution and on that basis there is no pollution existing in the area at present.

35. One of the issues that came up for consideration before this Court was the liability of the Union of India to take remediation measures in the area even if the applicant were not to pay the remediation costs as determined by the Secretary, MOEF. In these proceedings the counsel on behalf of the applicant made a suggestion to the Court that a fresh team be sent to the units of the applicant to find out whether there is still any pollution existing in the area and also whether any remediation as of today is required to be done or not. It was suggested during the course of hearing that the remediation cost being sought to be recovered from the applicant is not some kind of a decree in which the applicant is a judgment debtor but is merely a cost which the applicant is being made liable to pay on the “Polluter Pays” principle and there is no necessity of payment if there is no pollution existing. Till date there is no working out as to how the cost of remediation has been worked out by NEERI which had been affirmed by the Secretary, MOEF and which had been further affirmed by this Court.

36. According to the applicant, on the basis of the reports of some experts it is quite evident that there is no pollution in and around the factory premises of the applicant and accordingly there is no need for any remediation to be done in the area and the factory of the applicant is required to be handed over to the applicant forthwith so that the applicant may take proper steps to re-start the factory and generate resources to meet the liabilities of the financial institutions and banks.

37. It is further prayed that if this Court for any reason doubts the opinion of the experts placed by the applicant in any manner, then this Court may appoint any reputed expert/experts to visit the area and to submit a detailed report to this Court relating to the pollution existing in the area as of now. In other words, the effort is to reopen the concluded case and that also after the review and the curative petitions have been dismissed by this Court.

38. There are two main prayers in this application, the first prayer is that no remediation is required to be done in and around the industrial units of the applicant on the basis of the four reports placed by the applicant along with this application or on the basis of the report submitted by the expert/experts appointed by this Court; and secondly, that the Court may pass consequential order directing for closing of these proceedings and thus lift the attachment order dated 13.2.1996.

39. Reply Affidavits to the Interlocutory Application have been filed by the Union of India and other respondents. In the reply affidavits of the respondents it is mentioned that on 13.2.1996 this Court directed closure of the units of the applicant for the reason that the said industries had caused environmental pollution in and around the areas where applicant’s units are located. This Court had further directed that the units of the applicant would be permitted to operate only after depositing necessary costs for taking measures to restore the environment of the areas. The judgment of this Court was based upon a report dated 5.4.1994 of the NEERI which was filed by the R.S.P.C.B. on 6.1.1996.

40. The applicant questioned the credibility of the NEERI’s report. It is submitted that the remediation cost for restoring the environmental quality of the area was only Rs.3 crores whereas in the report submitted in this Court the remediation cost was stated to be Rs.37.385 crores.

41. The applicant prayed that in the interest of justice the report dated 25.1.2005 submitted by the expert group to the MOEF be ignored and either accept the reports prepared at the instance of the applicant or fresh direction be issued for constitution of an independent expert group not having any association with NEERI to carry out investigation with relation to the environment in the village Bichhri.

42. According to the applicant, the report of NEERI relied upon by this Court was not the authentic report which was officially prepared. Even the copy which was actually filed in this matter was without any supporting affidavit and the same was merely handed over to this Court at the time of hearing. The applicant made his own enquiry and was officially given the report of NEERI. After comparing the report made available to the applicant from the one filed in this matter it came to light that the report actually filed in this Court was not bearing any resemblance to the conclusion and findings mentioned in the actual report.

43. It was also submitted that there have also been attempts on the part of authorities to shield the role of M/s. Hindustan Zinc Limited in causing environment damage in village Bichhri. This issue needs to be addressed and the same can be possible only if an organization having credibility and not having any association with the NEERI actually carries out a detailed investigation.

44. Reply affidavit has also been filed by the R.S.P.C.B. It is stated in the said affidavit:

3 (i) That M/s. Hindustan Agro Chemical Ltd., Village Bichhri, Tehsil Girva, District Udaipur, Rajasthan; respondent no.4, established its Sulphuric Acid and Oleum Plant in the year 1985 without obtaining prior consent of the State Board under the provisions of Sections 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974; and section 21 of the Air (Prevention an Control of Pollution) Act, 1981;

(ii) That the State Board vide its letter dated 16.2.1987 refused consent to respondent no.4 under the provisions of section 25 and 26 of the Water Act for discharging trade effluent from its Sulphuric Acid Plant.

(iii) That the State Board issued directions vide order dated 26.11.1993, for closure of Sulphuric Acid Plant under the provisions of section 33A of the Water Act, 1974 as it was discharging trade effluent without proper treatment and in excess of the prescribed standards. The District Collector Udaipur implemented the directions of closure of Sulphuric Acid Plant passed by the State Board.

4 (i) That M/s. Hindustan Agro Chemical Ltd., Village Bichhri, Tehsil Girva, District Udaipur, Rajasthan; respondent no.4 established its Solvent Extraction coupled with Oil Refinery Plant in the year 1991 without obtaining prior consent of the State Board under the provisions of section 25 and 26 of the Water Act and section 21 of the Air Act.

(ii) That the State Board vide its letter dated 24.7.1992 refused consent to respondent no.4 under the provisions of section 25, 26 of the Water Act for discharging trade effluent from its Solvent Extraction Plant.

(iii) That the State Board issued directions, vide order dated 26.11.1993, for closure of Solvent Extraction Plant under the provisions of section 33A of the Water Act, as it was discharging trade effluent without proper treatment and in excess of the prescribed standards. The District Collector Udaipur implemented the directions of closure of Solvent Extraction Plant passed by the State Board. 5 (i) That respondent no.4 preferred a petition before this Court being Writ Petition (C) No.76 of 1994 Hindustan Agro Chemical Ltd. & Anr. v. State of Rajasthan & Ors. challenging the directions dated 26.11.1993 of the State Board closing down Sulphuric Acid Plant and Solvent Extraction Plant under the provisions of section 33A of the Water Act, 1974. It was alleged that the action of the State Board closing down Sulphuric Acid Plant and Solvent Extraction Plant was arbitrary and highhanded.

(ii) That this Court during hearing in the matter on 7.3.94, in WP (C) No.76/94 passed the following direction inter-alia:- “We thought of having the complaints of the petitioner as to harassment, examined by an independent Commissioner to ascertain the bona fides of the action taken by the officers of the Pollution Control Board and also to fix their responsibility. But we thought that at this stage it would be appropriate to ask the learned Advocate-General, who appears for the State of Rajasthan, to have the matter examined at his instance and direct the Pollution Control Board to act more constructively and to suggest measures by which the Plant could be re-commissioned immediately.”

(iii) That the said writ petition again came up for hearing on 18.3.94 before this Court. This Court was pleased to pass the following directions inter alia:- “In the meanwhile, the Pollution Control Board is not prevented from and it shall indeed by its duty to indicate what, according to it, are such minimal requirements for grant of permission to re-start the industries or to permit any interim arrangements in this behalf.”

(iv) That in pursuance of the aforesaid order dated 18.3.94, the respondent Board took appropriate steps and granted permission to restart industry subject to certain conditions communicated vide permission order.

It is submitted that the industry was restarted. However, on subsequent inspection it was found that the industry was violating the prescribed norms and also has not bothered to comply with the conditions mentioned in the permission order. As such an application was moved before this Court for appropriate directions in the matter.

(v) That despite all efforts for re-commissioning of the plants, respondent no.4 failed to take measures required for prevention and control of pollution.

(vi) That this court vide order and judgment dated 13.2.96, dismissed the above mentioned writ petition in view of the decision in writ petition (Civil) No.967 of 1989.

6(i) That M/s. Hindustan Agro Chemical Ltd., Village Bichhri, Tehsil Girva, District Udaipur, Rajasthan, respondent no.4, established its Chlorosulphonic Acid Plant in June 1992 without obtaining prior consent of the State Board under the provisions of Section 25 and 26 of the Water Act and section 21 of the Air Act.

(ii) That the State Board issued directions vide order dated 30.12.1992, for closure of Chlorosulphonic Acid Plant under the provisions of section 33A of the Water Act and 31A of Air Act. The District Collector Udaipur implemented the directions of closure of Chlorosulphonic Acid Plant passed by the State Board.

(iii) That respondent no.4 preferred a petition before this Court being Writ Petition (C) No.824 of 1993, Hindustan Agro Chemical Ltd. & Anr. v. State of Rajasthan & Ors., challenging the directions dated 30.12.1992 of the State Board closing down Chlorosulphonic Acid Plant under the provisions of Section 33A of the Water Act, and 31A of the Air Act. It was alleged that the action of the State Board closing down Chlorosulphonic Acid Plant was arbitration and highhanded. (iv) That this Court dismissed the above mentioned writ petition by judgment dated 13.2.96 in W.P. (Civil) No.824 of 1993 in view of the decision in Writ Petition (Civil) 967 of 1989.

7(i) That M/s Silver Chemicals, Village Bichhri, Tehsil Girva, District Udaipur Rajasthan, respondent no.5 came into existence in February 1988 to manufacture H-Acid and continued its operations upto March 1989 without obtaining prior consent of the State Board under the provisions of section 25 and 26 of the Water Act and Section 21 of the Air Act.

(ii) That the State Board vide its letter dated 9.1.1989 refused consent application submitted by M/s. Silver Chemicals under the provisions of Section 25/26 of the Water Act as the unit was discharging trade effluent beyond the prescribed standard and without having installed a plant for the treatment of trade effluent. The State Board under the provisions of section 25(5) of the Water Act also imposed several conditions on the industry and informed it that failure to make compliance of the conditions of the conditions shall render it liable for prosecution. (iii) That the industry however continued its operations and looking to the continued violations of the provisions of the aforesaid Acts, the State Board filed an injunction application under the provisions of section 33 of the Water Act for restraining the industry from discharging polluted trade effluent in excess of the prescribed standards and from causing pollution of underground water n 24.3.89 before the court of Chief Judicial Magistrate, Udaipur.

(iv) That the Court of Chief Judicial Magistrate, Udaipur by order dated 15.6.1989 issued injunction against M/s. Silver Chemicals restraining it from discharging polluted trade effluent without any treatment.

(v) That the State Board also filed a criminal complaint No.176/99 against M/s. Silver Chemicals and its Director on 24.3.89 under the provisions of section 43 and 44 for violation of the provisions of section 24, 25 and 26 of the Water Act.

(vi) That the court of Chief Judicial Magistrate, Udaipur by order and judgment dated 11.8.2004 has convicted M/s. Silver Chemicals with fine of Rs.10 lakh each under section 43 & 44 of the Act. The Court has also sentenced Shri O.P. Agarwal, Director of the said company with simple imprisonment of one year and fine of Rs.10,000/- under section 43 and simple imprisonment of six months and fine of Rs.10,000/- under section 44 of the Act. The company and its Director have preferred criminal appeal no.92 of 2004 under section 374 (3)(a) of the Code of Criminal Procedure before the Sessions Judge, Udaipur. The appeal is pending before the Ld. Sessions Judge.

8(i) That M/s. Rajasthan Multi Fertilizers, Vilalge Bichhri, Tehsil Girva, District Udaipur, Rajasthan respondent no.6, established NKP Fertilizer Plant at the site, without obtaining previous consent of the State Board under the provisions of section 25, 26 of the Water Act and section 21 of the Air Act.

(ii) That the State Board on 20.2.89 issued a notice and directed respondent no.6 to obtain consent of the State Board under the provision of the Water Act for discharging trade effluent from its plant.

9(i) That M/s. Phosphate India, Vilalge Bichhri, Tehsil Girva, District Udaipur, Rajasthan, respondent no.7 established Single Super Phosphate Plant at the site, without obtaining previous consent of the State Board under the provisions of section 25, 26 of the Water Act and section 21 of the Air Act.

(ii) That the State Board on 20.2.89 issued a show cause notice and directed respondent no.7 to obtain consent of the State Board under the provisions of the Water Act for discharging trade effluent from its plant.

10(i) That M/s Jyoti Chemicals, Village Bichhri, Tehsil Girva, District Udaipur, Rajasthan; respondent no.8 established its plant, at the site, in the year 1987, to manufacture Ferric Alum without obtaining previous consent of the State Board under the provisions of section 25 and 26 of the Water Act and section 21 of the Air Act.

(ii) That the State Board vide its letter dated 4.8.1988 issued N.O.C. to respondent no.8 for adequacy of pollution control measures for Ferric Alum Plant. The respondent No.8, however, started manufacturing H-Acid and continued its operation till March, 1989.

(iii) That the State Board vide letter dated 30.5.88 withdrew the NOC for the reason that respondent no.8 violated the conditions of the NOC.

(iv) That the State Board vide its letter dated 30.5.89 also refused application filed by respondent no.8 for discharging trade effluent under section 25, 26 of the Water Act for the reasons, inter alia, that it failed to install pollution control measures and changed its product from Ferric alum to H-Acid without the consent of the State Board.

11. That this Court by its common order and judgment dated 13.2.96 in the aforesaid Writ Petition (Civil) No.967/89, Indian Council for Enviro Legal Action v. Union of India & Others; Writ Petition (Civil) No.76/94 Hindustan Agro Chemical v. State Pollution Control Board & Others and Writ Petition (Civil) No.824/93 Hindustan Agro Chemical v. State Pollution Control Board and Others attached the factories, plant, machinery and all other immovable assets of respondent nos.4 to 8. The State Pollution Control Board was directed to seal all the factories, plants of respondent nos.4 to 8 forthwith. The State Board in compliance of the aforesaid direction sealed the plants of respondent nos.4 to 8 as directed by this Court.

45. The written submissions were also filed by the Union of India and the R.S.P.C.B. in response to the order dated 03.05.2005 in IA No.36. It is stated in the said affidavit:

2. That the Ministry of Environment & Forests, Government of India vide its affidavit dated 29.1.2005 submitted a summary report prepared by a consortium of SENES Consultants Limited, Canada; and NEERI, Nagpur before this Court. The Ministry of Environment & Forest, Government of India and the Rajasthan State Pollution Control Board are making joint submissions herein below for remediation of the environmental damage caused in village Bichhri. Based on the recommendations given in the report of July, 2002, prepared by SENES/NEERI for remediation of degraded environment of Bichhri, District Udaipur, Rajasthan, the following works will be undertaken on priority- wise:

First Priority:

Phase-I: Source Remediation (Short Term) 7 Clean up of water near the plant site with highest H-acid contamination.
7 Remediation of contaminated soil and sludge management within the plant site.
Second Priority:
Phase-II: Hot Spots Remediation (Medium Term) 7 Clean up of ground water at hot spots.
Third Priority:
Phase-III: Residual Contamination Remediation (Long Term) 7 Clean up of residual contaminated water.
Fourth Priority:
Phase-IV (long-term): 7 Clean up of contaminated soil outside plant boundary.

3. While dealing with the first phase called as short- term remedies, it has been divided in two parts namely:- (i) Clean up of water near the plant site with highest H-acid contamination.

(ii) Soil and Sludge management within the plant site.

46. The said recommendation given in the SENES/NEERI report further suggests as follows:

“Considering the available water quality data the following alternatives were evaluated in the preliminary review:

7 Lime soda process plus Fe coagulation 7 Reverse osmosis (RO) 7 Electro-dialysis 7 Ion exchange 7 Activated carbon Sorption and 7 Activated carbon filtration Similarly, for the second short-term measures namely, the remediation of soil and sludge management many alternative suggestions have been made. The said report has suggested the following four alternatives for clean up of soil:

7 Excavation and relocation in a capped landfill.

7 Ex-situ remediation (soil washing) 7 Phyto-remediation 7 Natural attenuation

4. That out of the aforesaid alternative technologies, the most suitable alternative with regard to the human habitation, plantation and vegetation etc., will have to be decided keeping in view the local conditions and priority requirement. This job will have to be done by Technical Advisory Committee having sufficient technical know-how in respect of the remedial measures. The committee may also like to look into the techno-economic feasibility in this regard.

5. In order to go ahead with the above mentioned works on priority-wise, the following steps will be taken:

a) Reconfirmation of National Productivity Council (NPC) New Delhi as the Project Management Consultant (PMC) by the Ministry of Environment & Forests (MoEF). NPC was the PMC for the purpose of conducting feasibility studies by SENES & NEERI in pursuance of the directions dated 4.11.1997 of this Court. The role of PMC will be to – i) Co-ordinate preparatory activities such as bidding and selection of a suitable expert agency for undertaking remediation work before execution of the remediation works.

ii) Organise Technical Advisory Committee meetings from time to time to guide, review and supervise the progress of remediation works.

iii) Co-ordinate activities/works pertaining to actual remediation and submit progress reports to the MoEF.

b) Constitution of a Technical Advisory Committee by the MoEF having representations of MoEF, CPCB, Government of Rajasthan, RSPCB, NEERI, NPC & Technical Experts of National repute in the relevant fields to – i) Evaluation the recommendations of SENES NEERI Report (July 2002);

ii) Finalise the detailed line of action and plan for remediation of environmental damages;

iii) Review the alternative technologies from the technologies recommended in the SENES-NEERI report and to recommend suitable technology for remediation of contaminated water and soil.

iv) Supervise the work of actual remediation.

6. As the remediation of environmental damage would require a large sum of money…

47. All issues raised in this application have been argued and determined by an authoritative judgment of this Court about fifteen years ago. This application has been filed to avoid liability to pay the amount for remediation and costs imposed by the Court on the settled legal principle that polluter pays principle. In other words, the applicant through this application is seriously making an effort to avoid compliance of the order/judgment of this Court delivered fifteen years ago. The tendency must be effectively curbed. The applicant cannot be permitted to avoid compliance of the final order of this court by abusing the legal process and keep the litigation alive.

48. The applicant is in business where sole motto of most businessmen is to earn money and increase profits. If by filing repeated applications he can delay in making payment of huge remediation costs then it makes business sense as far as the applicant is concerned but the Court must discourage such business tactics and ensure effective compliance of the Court’s order. It is also the obligation and bounden duty of the court to pass such order where litigants are prevented from abusing the system. I.A. NO. 44 IN W.P.(C)No.967 OF 1989

49. In this matter the final judgment of the court was delivered on 13.2.1996. A Review Petition filed was also dismissed. Thereafter, a Curative Petition was filed and that was also dismissed on 18.7.2002. The applicant did not comply with the orders passed by this court even after dismissal of curative petition and has filed this application.

50. This application has been filed by respondent No. 4, Hindustan Agro Chemicals Limited. By this application respondent No. 4 sought an investigation into the reports of April, 1994 prepared by the NEERI, which was employed by the R.S.P.C.B. in September, 1992 to evaluate the extent of contamination done by the applicant’s plant in Bichhri village in Rajasthan.

51. It is on the basis of the report that applicant’s units in Bichhri village were closed down and the applicant was asked to pay a sum of Rs.37.385 crores towards the costs of remediation to the government. The reports of April, 1994 had alleged that the applicant’s units polluted the whole area by discharging its H-acid on the land which would cost Rs.37.385 crores to clean-up.

52. According to the applicant various experts employed by the applicant had found no evidence of H-acid pollution from the applicant’s units in the area. In the application, serious effort has been made to discredit the NEERI report. It may be pertinent to mention all objections of the said reports were heard and disposed by the judgment dated 13.2.1996:

“In fact, while one report mentioned the cost of remediation to be 3 crores, the one which was presented to the Court showed it as 37.385 crores.

As per the original report it was reported by RSPCB that most of wells within 1.5 k.m. radius of the plants were contaminated while the modified report says, wells within 6.5 k.m. radius.

While the original report noted that the sludge had been stored under the supervision of the RSPCB whereas the modified report stated that the industry had scattered the sludge in an unmindful- clandestine manner causing gross pollution to avoid penal liability.”

53. According to the reports of the experts, (who visited the site at the instance of the applicant, after the dismissal of Review and Curative petition) the report of the NEERI filed in April 1994 was untenable and unsustainable. According to the applicant the said report was fabricated. In the application it is also mentioned that this is a fraud in which this court had been unwittingly dragged by the officers of the RSPCB and the NEERI to destroy several industries and the livelihood of about 1700 persons and it has been prayed that this court to direct an investigation into the report of April, 1994 prepared by the NEERI at the instance of the RSPCB to examine whether it was false or malafide.

54. A reply has been filed on behalf of the RSPCB. At the outset it has been mentioned that similar challenge by the respondent Nos. 4 to 8 regarding the factum of pollution in village Bichhri and it being attributed to the said respondents had been dismissed by this court on many occasions. This court conclusively reached the finding that the respondent Nos. 4 to 8, by indiscriminate discharge of their polluted trade effluent is in utter disregard and violation of the provisions of the Pollution Control and Environmental Protection Laws had caused intense severe pollution of underground water and of soil in village Bichhri. The veracity of the report of the NEERI has already been upheld by this court. This court on 4.11.1997 passed the following order:

“… … …In the affidavit of Progress Report, the Government of India has proposed that for the purpose of undertaking the work relating to remedial measures for the National Productivity Council (NPC) may be appointed as the Project Management Consultants and on the basis of the feasibility report submitted by the NPC, tenders may be invited for entrusting the remedial work. It is also proposed that a High Level Advisory Committee would be constituted consisting of the representatives from (1) Ministry of Environment & Forests (2) National Productivity Council (3) Central Pollution Control Board (4) NEERI and (5) Rajasthan State Pollution Control Board to review periodically and give directions and also to approve decisions to be taken. According to the said affidavit work would be undertaken in two phases. The cost of Phase-I would be Rs.1.1 crores (Rs.50.00 lakhs for Project Management Consultancy and Rs.60.00 lakhs for feasibility studies) and the cost of Phase-II (Actual Remediation) would come to Rs.40.1 crores. In the additional affidavit of Dr. M. Sengupta detailed reasons have been given why it has not been possible to accept the report of the Experts on which reliance was placed by the respondents. We have perused the said reasons given in the said additional affidavit filed on behalf of the Ministry of Environment and Forests and keeping in view the reasons given therein. We are unable to accept the report of the Experts on which reliance has been placed by the respondents. We accept the proposal submitted by the Government of India for the purpose of taking remedial measures by appointing National Productivity Council as the Project Management Consultant. In our opinion, the Ministry of Environment & Forests, Government of India has rightly made a demand of Rs.37.85 crores. … … …Since, we have accepted the aforesaid proposal of the Government of India, we put it to Shri N.D. Nanavati that in order that further steps as per the said proposal are taken the respondents should immediately deposit a sum of Rs.5.00 crores in advance so that the National Productivity Council may be asked to undertake the work of Project Management Consultant and have the feasibility studies conducted and prepare the Terms of Reference for inviting the tenders. Shri Nanavati, after taking instructions from the representative of the respondents, expressed the inability of the respondents to deposit the said amount and states that they are in a position to deposit Rs.5.00 lakhs only. In these circumstances, the only alternative left is to direct that the Ministry of Environment and Forests shall take the necessary steps to implement the directions contained in the judgment of this Court. All that we will say at this stage is that the decision regarding remedial measures taken on the basis of the NEERI Report shall be treated as final. The I.As. are disposed of accordingly.”

55. In the reply of RSPCB it is mentioned that respondent No. 4 had preferred a Contempt Petition (Criminal) No. 7/1999 entitled Hindustan Agro Chemical v. Alka Kala and others and this court dismissed the contempt petition with the costs computed at Rs.10,000/- while observing that there was no basis for contending that any of the respondents have been guilty of fabrication and the whole contempt application was without any merit.

56. In the reply it is also mentioned that the respondent Nos. 4 to 8 had been operating their industrial plants without obtaining consent from the State Board, as required under the provisions of the Water (Prevention & Control of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution) Act, 1981 and discharging polluted trade effluent indiscriminately without providing any treatment so as to bring it in conformity to the prescribed standards. Discharge of this trade effluent by the respondent Nos. 4 to 8 resulted into severe pollution of underground water and of soil. For the above violation, the State Pollution Control Board filed a Criminal complaint No. 176/1999, under the provisions of Section 43 read with Sections 24 and 44 read with Sections 25/26 of the Water Act before the Court of Chief Judicial Magistrate, Udaipur. The learned Chief Judicial Magistrate, Udaipur by its order dated 11.8.2004 found the accused guilty and convicted him with imprisonment and fine both under Sections 43 and 44 of the Water Act. The said conviction and sentence was upheld by the learned Session Judge, Udaipur in its judgment dated 21.7.2005. Against the judgment dated 21.7.2005 of the learned Sessions Judge, the accused preferred Criminal Revision Petition No. 634/2004 before the Rajasthan High Court at Jodhpur. The Criminal Revision Petition is pending adjudication before the High Court of Rajasthan at Jodhpur.

57. While denying the averments of the application, the RSPCB has relied on paragraphs 14 and 15 of the affidavit dated 18.9.2007 filed by M. Subba Rao, Director, MOEF. The said paras reads as under:

“14. The applicant is making reference and reliance upon the recent affidavit filed by the Ministry of Environment and Forests, Government of India dated 08.03.2007 to contend that the earlier report submitted by the NEERI was a result of falsehood/malafide on the parts of some officers responsible for preparing the report. At the outset it is submitted that neither in the report nor in the affidavit of the Union of India dated 08.03.2007 it has been stated that the earlier report submitted by National Environmental Engineering Research Institute was incorrect. The affidavit submitted by the Union of India on 08.03.2007 has only given the present status. The report submitted by Union of India along with the affidavit has not dealt with the correctness/incorrectness of the earlier reports submitted by National Environmental Engineering Research Institute to this Hon’ble Court. It is submitted that on the basis of the affidavit filed by Union of India on 08.03.2007 and the report submitted therewith, it cannot be contended that the report submitted by National Environmental Engineering Research Institute in April 1994 was incorrect. It is further submitted that the experts of Union of India have also not gone into an examined the merits of the earlier reports.

15. It is seen from paras 46-47 of the judgment of this Hon’ble Court reported in the order dated 13.2.1996 (reported at [1996] INSC 244; (1996) 3 SCC 212 at 227- 231) that a challenge was already attempted by the respondents on the reports of NEERI before this Hon’ble Court at the time of hearing.”

58. It may be pertinent to mention here that on 22.8.1990 this court had appointed Mr. Mohinder Vyas as Commissioner to inspect the wells and assess the degree of pollution created by the operation of H-acid plant and the nature and extent of the remedial operations. In pursuance of the directions, the Commissioner visited the site from 31st August to 4th September, 1990, conducted detailed survey and also collected samples from a number of wells and drains. The Commissioner in his report dated 20.7.1991 indicated that the overall quality of ground water in the area had become highly polluted, the water had become unfit for consumption by man or animal and was not even fit for irrigation.

59. This Court by its order dated 17.2.1992 further directed that the MOEF to inspect the area and ascertain about the existence and extent of Gypsum and Iron based sludge over there. In pursuance of the above directions, a team of experts of MOEF visited the site on 6.3.1992 and assessed the position in regard to storage of sludge collected from various sites and presence of sludge in the factory premises. Samples of water of wells around the factory were also collected for analysis. The Union of India in an affidavit filed before this court in pursuance of the said directions stated as follows:

“… … … That the report would reveal that the extent of pollution in ground water seems to be very great and the entire aquifer may be effected due to the pollution caused by the industry.

… … …As the mother liquor produced during the process (with pH-1.0) was highly acidic in nature and was indiscriminately discharged on land by the unit, it is possible that this might have eroded the soil and caused the extensive damage. It is also possible that organic contents of mother liquor would have gone into soil with water to give radish colour.

In another inspection in July, 1992 carried out by a team of experts of Ministry of Environment & Forests and Central Pollution Control Board, it was observed:

“… … …A part of effluent from Sulphuric Acid Plant is being discharged inside the factory. The effluent dissolves H-acid sludge, which on percolation is likely to cause further pollution of ground water… … …”

60. In pursuance to the order dated 15.7.1992 of this court, the officials of the MOEF conducted inspection on 7.10.1992 and observed as under:

“… … …Untreated effluent from the solvent extraction plant and the sulphuric acid plant were passing through the sludge dump sites unabated, which was resulting in further leaching of colour to ground water. … … …”

61. The MOEF in the month of September, 1993 submitted a report which reads as under:

“5.0 Conclusion

5.1 On the basis of the observations and analysis results, it is concluded beyond doubt that the sludge inside the entombed pit is the contaminated one as is evident from the number of parameters analysed.

5.2 The ground water is also contaminated due to discharge of H-acid plant effluent as well as H-acid sludge/contaminated soul leachates as shown in the photographs and also supported by the results. The analysis results revealed good correlation between the colour of well water and H-acid content in it. The analysis results show high degree of impurities in sludge/soil and also in well water which is a clear indication of contamination of soil and ground water due to disposal of H-acid waste.”

62. The report which was based upon the inspection of the area in September, 1993 revealed many other alarming features. In para 2, under the heading “Site Observations and Collection of Sludge/Contaminated Soil Samples”, the following facts were stated:

“2.1 The Central team, during inspection of the premises of M/s. HACL observed that H-acid sludge (iron/gypsum) and contaminated soil are still lying at different places, as shown in Fig.1, within the industrial premises (photograph 1) which are the leftovers. The area, where the solar evaporation pond was existing with H-acid sludge dumped here and there, was observed to have been leveled with borrowed soil (photograph 2). It was difficult to ascertain whether the sludge had been removed before filling. However, there are visual evidences of contaminated soil in the area.

2.2 As reported by the Rajasthan State Pollution Control Board (RSPCB) representatives, about 720 tonne out of the total contaminates soil and sludge scraped from the sludge dump sites id disposed in six lined entombed pits covered by lime/fly ash mix, brick soling and concrete (photographs 3 and 4). The remaining scrapped sludge and contaminated soil was lying near the entombed pits for want of additional disposal facility. However, during the visit, the left over sludge and contaminated soil could not be traced at site. Inspection of the surrounding area revealed that a huge heap of foreign soil of 5 meter height (photograph 5) covering a large area, as also indicated in Fig. 1, was raised on the sloppy ground at the foothill within the industry premises. The storm water run-off pathway over the area showed indication of H- acid sludge leachates coming out of the heap. Soil in the area was sampled for analysis.

2.3 M/s. HACL has a number of other industrial units which are operating within the same premises without valid consents from the Rajasthan State Pollution Control Board (RSPCB). These plants are Sulphuric Acid (H SO ), fertilizer (SSP) and vegetable oil 2 4 extraction. The effluent of these units are not properly treated and the untreated effluent particularly from the acid plant is passing through the sludge dump area playing havoc (photograph 7). The final effluent was collected at the outlet of the factory premises during operation of these units, at the time of ground water monitoring in September, 1993, by the RSPCB. Its quality was observed to be highly acidic ( H: 1.08, Conductivity: 37,100 mg/l, p SO :21,000 mg/l, Fe: 392 mg/l, COD: 167 4 mg/l) which was also revealed in the earlier visits of the Central teams. However, these units were not in operation during the present visit.”

63. Under para 4.2.1, the reported stated inter alia:

“The sludge samples from the surroundings of the (presently non-existent) solar evaporation and the contaminated soil due to seepage from the newly raised dump site also exhibited very high values of the above mentioned parameters. This revealed that the contaminated soil is buried under the new dump found by the team.”

64. In the reply it is also mentioned that the NEERI submitted its report in April, 1994 on the restoration of environmental quality of the area surrounding village Bichhri, severally affected due to discharge of trade effluent and other industrial wasters by respondent Nos. 4 to 8. The report was submitted before this court in pursuance of its directions in the matter. The report states that the studies were carried out by the NEERI between September, 1992 and February, 1994. The report had been considered by this court at length on its own merits and the observations of the court on the report are contained in the judgment pronounced by it on 13.2.1996.

65. In the reply it is also stated that this court besides considering the report of the NEERI also looked into a number of reports pertaining to inspections, surveys, studies and analysis of wastes and waste waters carried out by the experts of the MOEF, Central Pollution Control Board (for short `CPCB’) and the R.S.P.C.B on various occasions, while hearing the matter and pronouncing the judgment therein on 13.2.1996. Therefore, it is totally incorrect and erroneous to contend that the order dated 13.2.1996 was solely based upon the report submitted by the NEERI. Para IV of the conclusions of the judgment dated 13.2.1996 observed as follows:

“… … …this court has repeatedly found and has recorded in the orders that it is respondents who have caused the said damage. The analysis reports obtained pursuant to the directions of the court clearly establish that the pollution of the wells is on account of the wastes discharged by respondent Nos. 4 to 8 i.e. production of `H’ Acid… … …”

66. In its reply the RSPCB further stated that the respondent Nos. 4 to 8 filed a Writ Petition No. 338/2000 challenging the judgment of this court dated 13.2.1996. This court dismissed the petition, by order dated 18.7.2002, having regard to the principles laid down in Rupa Ashok Hurra v. Ashok Hurra & Another (2002) 4 SCC 388.

67. The RSPCB also stated in its reply that this court by order dated 4.11.1997 directed the MOEF to take necessary steps to implement the directions contained in the judgment dated 13.2.1996 and accepted the proposals submitted by the MOEF for the purpose of taking remedial measures by appointing National Productivity Council (for short NPC), New Delhi as Project Management Consultant. Pursuant to these directions, the MOEF awarded the work of conducting feasibility studies for suggesting alternative methods for remediation of affected environment in Bichhari, to a consortium of consultants namely: M/s. SENES Consultant Limited, Canada and the NEERI, Nagpur. The above consultants in their report stated that an area of 540 hectares had been affected due to industrial waste and needed remediation of contaminated ground water and soil. The said report categorically stated about contamination of ground water and of soil by H-acid. The report has been submitted by the MOEF before this court in January, 2005. This court on 9.12.2004 made the following order:

“… … …The company M/s. Hindustan Agro Chemical Limited, which is one of the respondents in the main Writ Petition has filed a Petition supported by an affidavit of one Shri D.P. Agarwal, a Director in the respondent Nos. 4-8 companies enclosing therewith certain reports of the experts. It is the claim of the applicant that at present, the effects caused by pollution on account of operation of the concerned industries do not exist and remedial measures, as contemplated in the main judgment of this Court need not be undertaken. The respondents namely: UOI, the State of Rajasthan and the Rajasthan State Pollution Control Board as well as the petitioner will give their responses, if any, to this I.A. The Government of India may depute an expert and be along with the expert nominated by the Rajasthan State Pollution Control Board and the nominee of the State Rajasthan shall visit the spot after giving intimation to the Petitioner-Indian Council for Enviro Legal Action and verify the facts stated in the affidavit and report the latest position to the Court by the next date of hearing… … …”

68. An additional affidavit was also filed on behalf of MOEF on the same lines and graphic description of existence of the pollution has affected the ground water to an extent that the entire aquifer may be affected due to the pollution caused by the industry. The report further reveals that the problem in relation to the area in question is basically the contamination of water and the major factor contributing to the cause has been the improper disposal of sludge and liquid wastes from the unit. It has been recommended by the expert team that due to leachable components of the sludge the industry should prepare a double line pit containing impervious liners comprising impervious clay and polyethylene sheets. The sludge should be placed in this lined pit and covered with water proof layering to such extent that no water can percolate through the stored sludge. The soil in the premises of the industry has also been contaminated by the disposal of liquid effluents as well as the sludge on the ground. The contaminated soil needs to be removed and the entire area should be revamped. All industrial activities going on in the premises should be stopped to enable the revamping process.

69. Mr. Shanti Bhushan and Mr. Prashant Bhushan, learned senior counsel in the written submissions filed by the respondent Nos. 4 to 8 have quoted this court’s direction. The same is reproduced as under :- “The Central Government shall determine the amount required for carrying out the remedial measures….The Secretary shall thereupon determine the amount in consultation with the experts of the Ministry………the said amount shall represent the amount which respondents 4 to 8 are liable to pay to improve and restore the environment in the area….the factories, plant, machinery and all other immovable assets of respondents 4 to 8 are attached herewith. The amount so determine and recovered shall be utilized by the MEF for carrying out all necessary remedial measures to restore the soil, water resources and the environment in general of the affected area to its former state.”

70. According to respondent nos. 4 to 8, two reports of the NEERI of the same date were at variance with each other. In one report, the cost of remediation is mentioned as Rs.3 crores whereas in other report presented before the court, the amount was 37.385 crores.

71. Mr. Bhushan, learned senior counsel has submitted in his written submission that according to the original report, it was reported by the RSPCB that most of the wells within 1.5 km radius of the chemical plants of the respondents were contaminated whereas according to the modified report those wells were located within 6.5 km radius.

72. Mr. Bhushan has also submitted that the sludge had been stored under the supervision of the RSPCB whereas according to the modified report the industry had scattered the sludge in an unmindful clandestine manner causing gross pollution to avoid penal liability.

73. Reference has been made to the opinion of some experts whose opinions were obtained at the behest of respondent nos. 4 to 8. Their reports are contrary to the earlier reports given by the other experts.

74. In the written submissions it is mentioned that M/s Hindustan Zinc Limited was responsible for discharging noxious and polluting effluents.

75. According to the applicant-industry, the RSPCB has not taken a consistent stand.

76. In the supplementary submissions filed by Mr. K.B. Rohatagi, the learned counsel appearing on behalf of R.S.P.C.B., it is mentioned that in Interlocutory Application Nos. 36 and 44 the applicant-industry has resurrected the same grounds which have previously been settled by this court in Indian Council for Enviro-Legal Action and others v. Union of India and Others [1996] INSC 244; (1996) 3 SCC 212.

77. Mr. Rohatagi also submitted in the supplementary submissions that the question of liability and the amounts payable by the applicants based on the NEERI report has been decided by the judgment in the writ petition. The review petition against the said judgment was also dismissed by this court. On 4.11.1997 the applicants had even given an undertaking that they would not dispute any fresh estimate for remedial measures as prepared by the NEERI. The question of fraud and tampering of the NEERI report of 1994 has been dealt with by this court while dismissing the contempt petition filed by the applicants against the R.S.P.C.B. Even the Curative Petition filed by the applicants was also dismissed by this court on 18.7.2002.

78. In the supplementary submissions it is also mentioned that through Interlocutory Application Nos. 36 and 44 the applicants are merely trying to evade paying the amounts to be paid as remedial measures by reopening issues already settled by this court. In the submissions Mr. Rohatagi has drawn our attention to para 66 of the said judgment regarding the applicant’s liability, which reads as under:

“66. Once the law in Oleum Gas Leak case is held to be the law applicable, it follows, in the light of our findings recorded hereinbefore, that Respondents 4 to 8 are absolutely liable to compensate for the harm caused by them to the villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove the sludge and other pollutants lying the affected area (by affected area, we mean the area of about 350 has indicated in the sketch at p. 178 of NEERI report) and also to defray the cost of the remedial measures required to restore the soil and the underground water resources.”

79. It is also submitted in the written submissions that the Central Government was directed to determine the amounts for remedial measures for the affected area of 350 hectares, as mentioned in the NEERI report, after allowing the applicants to make a representation. This court in para 70 of the said judgment observed as under:

“Chapters VI and VII in the NEERI Report (submitted in 1994) shall be deemed to be the show cause notice issued by the Central Government proposing the determination of the said amount. Within six weeks from this day, Respondents 4 to 8 shall submit their explanation, along with such material as they think appropriate in support of their case, to the Secretary, Ministry of Environment and Forests, Government of India (MOEF). The Secretary shall thereupon determine the amount in consultation with the experts of his Ministry within six weeks of the submission of the explanation by the said respondents. The orders passed by the Secretary (MOEF) shall be communicated to Respondents 4 to 8 – and all concerned – and shall also be placed before this Court”

80. This court in the said judgment also directed that the factories, plant, machinery and all other immovable assets of Respondents 4 to 8 are attached herewith. The court also observed that the amount so determined and recovered shall  79 be utilized by the MOEF for carrying out all necessary remedial measures to restore the soil, water resources and the environment in general of the affected area in the former state.

81. It is also submitted in the supplementary submissions of RSPCB that this court in para 70 of the said judgment also observed that the applicants have inflicted untold misery upon the poor, unsuspecting villagers, despoiling their land, their water resources and their entire environment, all in pursuance of their private profit. They have forfeited all claims for any consideration by this court.

82. In the supplementary submissions filed by Mr. Rohatagi it is also mentioned that the court even settled the issue of the alleged hostility of the RSPCB towards the applicants and felt no reason to suspect the veracity of the reports submitted by the RSPCB. This court in para 39 of the said judgment observed as under:

“If the respondents establish and operate their plants contrary to law, flouting all safety norms provided by law, the RSPCB was bound to act. On that account, it cannot be said to be acting out of animus or adopting a hostile attitude. Repeated and persistent violations call for repeated orders. That is no proof of hostility. Moreover, the reports of RSPCB officials are fully corroborated and affirmed by the reports of the Central team of experts and of NEERI. We are also not prepared to agree with Shri Bhat that since the report of NEERI was prepared at the instance of RSPCB, it is suspect.”

83. It is further submitted in the supplementary submissions that in para 55 of the said judgment this court specifically held that Hindustan Zinc Limited is not responsible for the pollution at Bichhri village. The court has observed as under:

“No report among the several reports placed before us in these proceedings says that Hindustan Zinc Limited is responsible for the pollution at Bicchhri village. Shri Bhat brought to our notice certain reports stating that the discharges from Hindustan Zinc Limited were causing pollution in certain villages but they are all downstream, i.e., to the north of Bichhri village and we are not concerned with the pollution in those villages in these proceedings. The bringing in of Hindustan Zinc Limited in these proceedings is, therefore, not relevant. If necessary, the pollution, if any, caused by Hindustan Zinc Limited can be the subject- matter of a separate proceeding.”

84. It is also further mentioned in the written submission of RSPCB that the issue of quantification of amounts to be paid by the industry has been settled by this court in its order dated 4.11.1997. The relevant portion of the order reads as under:

“… … …remedial measures taken on the basis of the NEERI report shall be treated as final.

We accept the proposal submitted by the Government of India for the purpose of taking remedial measures by appointing National Productivity Council as the Project Management Consultant. In our opinion the Ministry of Environment and Forests, Government of India has rightly made a demand for Rs.37.385 crores.”

85. It is also mentioned in the supplementary submissions that this court on 3.8.2005 directed that the sale should take place expeditiously to realize the amount for remedial measures. The assessment of areas affected by the pollution and settled by the District Collector at 642 hectares was also accepted by this court vide its order dated 3.8.2005.

86. It may be pertinent to mention that this court had accepted the affidavit of Mr. S.N. Kaul, Acting Director, NEERI regarding tampering with the report and this court by its order dated 1.10.1999 observed as under:

“It appears that two scientists appointed by the petitioner had inspected a report in the office of NEERI and then observed that there has been a fabrication carried out by the Pollution Control Board. From what has been stated hereinabove, the charge of fabrication is clearly unfounded. It is possible that these two scientists may have seen the draft report which would be with the NEERI but the original report when prepared would be one which was, ultimately, submitted to the sponsoring agency, namely the Rajasthan Pollution Control Board and it is only a copy of the same which could have been retained by the NEERI. Be that as it may, it is clear that what has been filed in this Court as being the final report of NEERI was the copy of the final report which was received by it. There is no basis for contending that any of the respondents have been guilty of fabrication. The whole application to our mind is without any merit.”

87. It is further submitted in his supplementary submissions that this court in para 54 of its order dated 13.2.1996 had upheld the integrity of the reports submitted by the NEERI. Para 54 of order dated 13.2.1996 reads as under:

“Moreover, the reports of RSPCB officials are fully corroborated and affirmed by the reports of the central team of experts and of the NEERI. We are also not prepared to agree with Shri Bhat that since the report of the NEERI was prepared at the instance of RSPCB, it is suspect. This criticism is not only unfair but is also uncharitable to the officials of NEERI who have no reason to be inimical to the respondents. If, however, the actions of the respondents invite the concern of the experts and if they depict the correct situation in their reports, they cannot be accused of any bias.

The persons who made the said reports are all experts in their field and under no obligation either to the RSPCB or for that matter to any other person or industry. It is in view of their independence and competence that their reports were relied upon and made the basis of passing orders by this court from time to time.”

88. In the supplementary submissions it is also mentioned that the report of 25th January, 2005 is a joint report by the NEERI, R.S.P.C.B. and officers of Department of Environment, Government of Rajasthan. The team collected soil samples from 7 sites, one sample from lake Udaisagar and 17 well water samples from the impacted and nearby areas. The report concluded as under:

“All the well water samples in the impacted zone have also shown colour from pale yellow to dark brown. As the industries located within the HACL plant premises were the only source of H-acid, HACL alone is responsible for causing pollution by H-acid and its derivatives in the impacted area. Considering the remediation goal of Omg/l for H- acid and its derivatives are potential carcinogenic, all well waters, contaminated with H-acid and its derivatives, require remediation.

Sudden emergence of H-acid in wells W7(Aug.99) and W9 (Aug. 99) clearly indicate that the plume of H-acid contaminated groundwater is moving away from the source of origin and spreading in the direction of groundwater flow. This is further confirmed from another fairly conservative parameter TDS whose emergence has been documented in all the wells (W7, W9, W1, W13 and W16) from time to time. Similar trend could be observed with respect to sulphate and chloride in well water samples collected from these five wells. Comparison of the results obtained in the present study with that of earlier studies establish that the ground water plume contaminated by H-acid and its derivatives is still moving in the direction of ground water flow thereby contamination area being larger than that earlier. This was predicted in the joint report prepared by SENES and the NEERI (SENES and the NEERI, 2002).”

89. This report was submitted to the court along with the affidavit dated 8.3.2007 filed by the Union of India.

90. In the supplementary submissions it is also submitted that due to some alleged variations, the Director of ITRC (Indian Toxicological Research Centre) was asked to make a rapid assessment on 6.5.2006. In response, the Director of ITRC stated that there may be a variation due to a lapse of time between the 2002 and 2005 reports. Based on this, MOEF asked the National Chemical Laboratory, Pune to undertake a study, the results of which (placed before the Court in affidavits of 22.1.07 and 8.3.2007) showed that no aspersions can be cast on the NEERI report of 1994. Further, it would be incorrect to suggest that the remedial measures as imposed on the applicants were limited to neutralizing the presence of H-acid in the soil alone, in fact it is clear from the judgment of 1996 and subsequent reports that what has to be done is:

a) removal of sludge which has also percolated down in the soil; and b) restoration of the area including perforce, making it possible for farmers and others to return to the natural uses of the affected land.

91. It is further submitted in the supplementary submissions of RSPCB that the Interlocutory Applications Nos. 36 and 44 are just another example of obstructive litigation undertaken to avoid responsibility. Since 1996 the applicants have filed various applications and petitions in this court to delay the payment of damages. It is also submitted that any delay caused in the payment of damages for remedial measures has, therefore, been on the part of the applicants. It would be wrong to suggest that the Union is responsible for the delay in sale of assets of the industry. The applicants have violated orders of this court in relation to disclosure of assets dated 18.8.04, 9.12.04 and 17.3.05, because of which it was impossible for the Union of India to sell the applicant’s attached properties.

92. Mr. Rohatagi submitted that the applicants relied upon a series of reports by private consultants, filed subsequent to the decision, which are as follows:
a) IIT Bombay Report of May 2005 suggesting that the samples collected on 5th April, 2005 show that there is no H-acid or other pollutants.
b) A report by Dr. BR Bamniya dated 22.4.04 stating that no soil pollutants or water pollutants found and “…the presence of H-acid has not been recorded in any water sample of well and in tube well.”
c) Report of Expert Group on Water Pollution of March 1981 showing that pollution caused by M/s. Hindustan Zinc Ltd. Further no action has been taken against M/s. Hindustan Zinc Limited on the basis of that report.
d) Report of M/s. Shah Doctor Associates of April, 1994 critical of the analysis in the NEERI report.
e) Report of SP Mahajan of IIT Bombay dated 19.8.1999 stating that no H-Acid found in the well waters.

93. It is further submitted in the supplementary submissions that the NEERI report of 2005 also dealt with three private reports which were rejected on the basis that they were superficial.

94. Mr. Rohatagi further submitted that the liability of the applicants-industries has been fixed far back in 1996. Merely because there may be a diminution in respect of some pollutants due to the passage of time does not, in any way, take away from the responsibility on the applicant to undertake remedial measures for the past and continuing damage to the people and the environment caused by the applicants-industries. The individual claims of farmers may be dealt within individual cases, which would not obviate the need for restoration of the area. This flows from a joint reading of directions of the court in para 71 of the judgment reported in Indian Council for Enviro-Legal Action (supra).

95. According to the RSPCB Interlocutory Application Nos. 36 and 44 are blatant examples of vexatious litigation indulged in to avoid the responsibility fixed by this court. These applications should be dismissed with heavy costs on the applicants.

96. Mr. M.C. Mehta, Advocate has filed written submissions on behalf of Indian Council for Enviro Legal Action. It is reiterated in the submissions that these applications are blatant disregard towards complying with the directions of this court. They have made mockery with the environmental justice delivery system by filing these applications. They have shown no contrition for causing irreparable damage to the life, health and property of the people affected by their commercial activities. The applicants are trying to delay the payment of Rs.37.385 crores for carrying out remedial measures. This court in para 70 of the judgment reported in Indian Council for Enviro-Legal Action (supra) observed as under:

“On account of (the respondents) continuous, persistent and insolent violations of the law….and their non-implementation of the orders of this….

(the respondents) have earned the dubious distinction of being characterized as “rogue industries”. They have inflicted untold misery upon the poor, unsuspecting villagers, despoiling their land, their water sources and their entire environment – all in pursuit of private profit.”

97. Mr. Mehta also submitted in his submissions that the applicants (respondent Nos. 4 to 8) are related to the discharge of untreated chemical effluents in violation of the laws of the land in Bichhri and surrounding villages and caused grave harm to the environment and people in Bichhri and surrounding villages.

98. In the written submissions Mr. Mehta also submitted that the reports procured by the respondent companies by hiring consultants do not hold any weight due to lack of substantial scientific investigations. They cannot in any way question the credibility of nine scientific reports, submitted following extensive field visits, survey and research by  90 scientists from reputed scientific institutions such as the CPCB, NEERI, SENES, RSPCB and the Centre for Science and Environment and other reports, respectively submitted by the district collector and the Court Commissioner appointed by this court.

99. Mr. Mehta also mentioned in his written submissions that the veracity of the contents of the NEERI report has been affirmed in at least four subsequent reports from reputed scientific organizations, MOEF, State of Rajasthan as well as the district collector. 100. Mr. Mehta has also submitted that assuming, though not conceding, that there is currently no pollution in Bichhri village, this cannot absolve the applicants-industries from the obligation to pay monies necessary for eco-restoration and damages caused to the life and health of the people as well as their property in the past. The polluters/respondents recklessly destroyed the environment, surface and underground water and the soil and killed fruit trees, animals and vegetation apart from causing suffering and irreparable damages to the lands, property, life and health of the people in flagrant violation of environmental laws and directions given by various authorities including the orders of this court. The civil and criminal liability upon the respondents for the environmental crimes, irreparable damages caused to the environment, flora and fauna, life, health and property of innocent people living in Bichhri and surrounding villages cannot be condoned at any cost. 101. Mr. Mehta submitted that even if it was possible to accept that all H-acid traces have been removed, the presence of other contaminants in the affected area (including highly toxic wastes emanating from the Sulphuric Acid Plant and other plants) would necessitate remediation. The amount can be deposited in a Fund and utilized for remediation, providing potable water, tree plantation, and such other measures which would be helpful to the environment of the area apart from paying damages to the people. 102. Mr. Mehta has further submitted that this court may impose upon the errant industries as exemplary punitive damages apart from the amount required for eco-restoration by way of remediation of the land, water and the environment. This may be considered in the light of the continuing public nuisance and suffering due to pollution, severely degraded environment, loss to the property, irreparable damage to the ecology and precious natural resources – land, air, aquifers, surface water, flora and fauna – for over twenty years since the original petition was filed. The implications of failing to remediate the affected land, water and environment over such an extensive period of time are far more severe than had the applicants-industries immediately complied with the orders of this court. 103. Mr. Mehta also placed reliance on a judgment of this court in the case of M.C. Mehta v. Kamal Nath and others (2000) 6 SCC 213, in which the court observed as under:

104. Mr. Mehta submitted that having regard to the respondent’s conduct in the present case, it would be reasonable to impose an additional pecuniary penalty on them. Reliance is placed on Minister for the environment and Heritage v. Greentree (No.3) [2004] FCA 1317, wherein the Federal Court imposed a pecuniary penalty against the respondents totaling $450,000 for having illegally cleared declared a Ramsar wetland. A strong factor contributing to the imposition of a substantial penalty was because the actions of the respondent were deliberate, sustained and serious, they took place over a substantial period of time and the respondents did not exhibit any contrition. 105. Mr. Mehta also submitted that the present case would warrant a severe penalty because the respondents carried out their activities without even possessing any appropriate licenses. Respondents must be required to pay exemplary damages so as to act as a deterrent for others, as also to remedy the harm they have caused to the environment and the villagers of Bichhri. 106. Mr. Mehta has also placed reliance on the famous “Love Canal Case” United States v. Hooker Chems and Plastics Corp., 722 F. Supp 960 (W.D.N.Y. 1989). This case was initiated after it was discovered that a school, homes and rental units were built over approximately 21,000 tonnes of chemical waste at Niagara Falls, New York. The Federal Court of New York allowed a claim against the defendants based on public nuisance. This case was ultimately settled with the defendant agreeing to pay $129 million to the Environment Protection Authority. This case led to the development of the Comprehensive Response Compensation and Environmental Liability Act, 1980, more commonly referred to as the “Superfund”, into which polluters contribute monies to enable clean-up of toxic sites. 107. In the written submissions filed by Mr. Mehta he has also mentioned about principle of accountability and it is the duty and obligation of the court to protect the fundamental rights of the citizens under Article 32 of the Indian constitution. Pollution and public nuisance resulting from mis-regulation infringes on the fundamental rights, including the right to life under Article 21 of the Indian constitution. Mr. Mehta also submitted that applicants are liable for causing continuous suffering to the people in Bichhri and surrounding villages.

108. Mr. Mehta also submitted in his written submissions that in several cases of environmental pollution the courts have ordered the payment of damages by the errant industries/individuals responsible for causing pollution in violation of environmental related issues and the money recovered be spent for remediation or eco-restoration and damages be paid to the victims or spent for their benefit. It is the duty of the government to ensure proper administration of this fund in a transparent and accountable manner. The establishment of such a fund would ensure that polluters take responsibility for their actions and that monies derived from penalties, damages and settlement are directly invested towards remediating the environmental damage that has occurred. 109. Mr. Mehta further mentioned in his submissions that creation of such a fund would be consistent with the precautionary principle which has been evolved and accepted by this court. He has also mentioned that similar funds have been set-up in United States of America, Canada, Australia, Malaysia and other countries. 110. Mr. Mehta also made a reference regarding Public Liability Insurance Act, 1991 which makes it mandatory for industries handling hazardous material to be insured against environmental hazards. However, this legislation only provides relief to persons affected by accidents whilst handling hazardous materials, who are most likely to be workers. Members of the local community would not obtain relief under this legislation, though they are also adversely affected by hazardous industries. This is most pertinently exemplified in the present case. 111. In his written submissions Mr. Mehta also submitted that the applicants clearly show defiance of the environmental laws and the orders of this court. Mr. Mehta prayed for dismissal of Interlocutory Application Nos. 36 of 2004 and 44 of 2007 with heavy costs and direct the respondents to deposit Rs.37.385 crores with the MOEF as per the judgment of this court. 112. This case raises many substantial questions of law. We would briefly deal with some of them.

113. We would also like to discuss the concept of Finality of the Judgment passed by the Apex Court.

114. The maxim `interest Republicae ut sit finis litium’ says that it is for the public good that there be an end of litigation after a long hierarchy of appeals. At some stage, it is necessary to put a quietus. It is rare that in an adversarial system, despite the judges of the highest court doing their best, one or more parties may remain unsatisfied with the most correct decision. Opening door for a further appeal could be opening a flood gate which will cause more wrongs in the society at large at the cost of rights. 115. It should be presumed that every proceeding has gone through infiltration several times before the decision of the Apex Court. In the instant case, even after final judgment of this court, the review petition was also dismissed. Thereafter, even the curative petition has also been dismissed in this case. The controversy between the parties must come to an end at some stage and the judgment of this court must be permitted to acquire finality. It would hardly be proper to permit the parties to file application after application endlessly. In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this court by  99 filing repeated interlocutory applications is clearly an abuse of the process of law and would have far reaching adverse impact on the administration of justice.

116. In Manganese Ore (India) Ltd. v. The Regional Assistant Commissioner of Sales Tax, Jabalpur (1976) 4 SCC 124 this court held that the doctrine of stare decisis is a very valuable principle of precedent which cannot be departed from unless there are extraordinary or special reasons to do so.

117. In Green View Tea & Industries v. Collector, Golaghat and Another (2002) 1 SCC 109 this court reiterated the view that finality of the order of the apex court of the country should not lightly be unsettled.

118. A three-Judge Bench of this court in M/s Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi (1980) 2 SCC 167 held that a party is not entitled to seek a review of this court’s judgment merely for the purpose of rehearing and for a fresh decision of the case. Departure from the normal principle that the court’s judgment is final would be justified only when compelling our substantial circumstances make it necessary to do so. Such circumstances may be that a material statutory provision was not drawn to the court’s attention at the original hearing or a manifest wrong has been done.

119. In Union of India & Another v. Raghubir Singh (Dead) by L.Rs. [1989] INSC 192; (1989) 2 SCC 754, this Court held that the plea for reconsideration is not to be entertained merely because the petitioner chooses to reagitate the points concluded by the earlier decision in Sub-committee on Judicial Accountability.

120. In Mohd. Aslam v. Union of India & Others (1996) 2 SCC 749, the Court considered the earlier decisions and held that the writ petition under article 32 of the Constitution assailing the correctness of a decision of the Supreme Court on merits or claiming reconsideration is not maintainable. 121. In Khoday Distilleries Ltd. and Another v. Registrar General, Supreme Court of India [1995] INSC 792; (1996) 3 SCC 114, the Court held the reconsideration of the final decision of the Supreme Court after review petition is dismissed by way of writ petition under article 32 of the Constitution cannot be sustained.

122. In Gurbachan Singh & Another v. Union of India & Another (1996) 3 SCC 117, the Court held that the judgment order of this court passed under Article 136 is not amenable to judicial review under Article 32 of the Constitution. 123. Similar view was taken in Babu Singh Bains and others v. Union of India and Others (1996) 6 SCC 565, a three-Judge bench of this Court held that a writ petition under Article 32 of the Constitution against the order under Article 136 of the Constitution is not maintainable.

124. Another three-Judge bench of this Court in P. Ashokan v. Union of India & Another (1998) 3 SCC 56, relying upon the earlier cases held that the challenge to the correctness of a decision on merits after it has become final cannot be questioned by invoking Article 32 of the Constitution. In the instant case the petitioner wants to reopen the case by filing the interlocutory application.

125. In Ajit Kumar Barat v. Secretary, Indian Tea Association & Others (2001) 5 SCC 42, the Court placed reliance on the judgment of a nine-judge Bench in Naresh Shridhar Mirajkar v. State of Maharashtra and another [1966] INSC 64; AIR 1967 SC 1 and the Court observed as under:

“It is difficult to see how this decision can be pressed into service by Mr. Setalvad in support of the argument that a judicial order passed by this Court was held to be subject to the writ jurisdiction of this Court itself…. In view of this decision in Mirajkar case it must be taken as concluded that judicial proceedings in this Court are not subject to the writ jurisdiction thereof.”

126. The Court in the said case observed that having regards to the facts and circumstances of the case, this is not a fit case to be entertained to exercise jurisdiction under Article 32 of the Constitution.

127. In Mr. “X” v. Hospital “Z” (2000)9 SCC 439, this Court held thus:

“Writ petition under Article 32 of the Constitution against the judgment already passed by this Court cannot be entertained. Learned counsel for the petitioner stated that prayer (a) which seeks overruling or setting aside of the judgment already passed in Mr X v. Hospital Z may be deleted. This prayer shall accordingly be deleted. So also, the other prayers which indirectly concern the correctness of the judgment already passed shall stand deleted. Learned counsel for the petitioner stated that the petition may not be treated as a petition under Article 32 of the Constitution but may be treated as an application for clarification/directions in the case already decided by this Court, viz., Mr X v. Hospital Z (CA No. 4641 of 1998).”

128. In Triveniben v. State of Gujarat (1989)1 SCC 678 speaking for himself and other three learned Judges of the Constitution Bench through Oza, J., reiterated the same principle. The court observed: (SCC p. 697, para 22) “…It is well settled now that a judgment of court can never be challenged under Articles 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar (supra) and also in A.R. Antulay v. R.S. Nayak, the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper….”

129. In Rupa Ashok Hurra (supra), this Court observed thus:

24. … when reconsideration of a judgment of this Court is sought the finality attached both to the law declared as well as to the decision made in the case, is normally brought under challenge. It is, therefore, relevant to note that so much was the value attached to the precedent of the highest court that in The London Street Tramways Co. Ltd. v. London County Council [1898] UKHL 1; (1898 AC 375) the House of Lords laid down that its decision upon a question of law was conclusive and would bind the House in subsequent cases and that an erroneous decision could be set right only by an Act of Parliament.

26. …This Court will not sit as a court of appeal from its own decisions, nor will it entertain applications to review on the ground only that one of the parties in the case conceives himself to be aggrieved by the decision. It would in our opinion be intolerable and most prejudicial to the public interest if cases once decided by the Court could be reopened and reheard:

“There is a salutary maxim which ought to be observed by all courts of last resort — interest reipublicae ut sit finis litium. (It concerns the State that there be an end of lawsuits. It is in the interest of the State that there should be an end of lawsuits.) Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this.”

32. “…When this Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions.”

33. In Maganlal Chhaganlal [1974] INSC 91; (1974) 2 SCC 402 case a Bench of seven learned Judges of this Court considered, inter alia, the question: whether a judgment of the Supreme Court in Northern India Caterers case [1967] INSC 88; (1967) 3 SCR 399 was required to be overruled. Khanna, J. observed: (SCC p. 425, para 22) “At the same time, it has to be borne in mind that certainty and continuity are essential ingredients of rule of law. Certainty in law would be considerably eroded and suffer a serious setback if the highest court of the land readily overrules the view expressed by it in earlier cases, even though that view has held the field for a number of years. In quite a number of cases which come up before this Court, two views are possible, and simply because the Court considers that the view not taken by the Court in the earlier case was a better view of the matter would not justify the overruling of the view. The law laid down by this Court is binding upon all courts in the country under Article 141 of the Constitution, and numerous cases all over the country are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the view taken by this Court. It would create uncertainty, instability and confusion if the law propounded by this Court on the basis of which numerous cases have been decided and many transactions have taken place is held to be not the correct law.”

42. The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment. “We are faced with competing principles — ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principles of natural justice or giving scope for apprehension of bias due to a Judge who participated in the decision-making process not disclosing his links with a party to the case, or on account of abuse of the process of the court. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty. Almighty alone is the dispenser of absolute justice — a concept which is not disputed but by a few. We are of the view that though Judges of the highest court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question, we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in the public interest that a final judgment of the final court in the country should not be open to challenge, yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and would cause perpetuation of irremediable injustice.”

130. A four-judge bench of this court in Sumer v. State of U.P. (2005) 7 SCC 220 observed as under: “In Rupa Ashok Hurra (supra) while providing for the remedy of curative petition, but at the same time to prevent abuse of such remedy and filing in that garb a second review petition as a matter of course, the Constitution Bench said that except when very strong reasons exist, the court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of review petition. In this view, strict conditions including filing of certificate by a Senior Advocate were provided in Rupa Ashok Hurra (supra). Despite it, the apprehension of the Constitution Bench that the remedy provided may not open the flood gates for filing a second review petition has come true as is evident from filing of large number of curative petitions. It was expected that the curative petitions will be filed in exceptional and in rarest of rare case but, in practice, it has just been opposite. This Court, observing that neither it is advisable nor possible to enumerate all the grounds on which curative petition may be entertained, said that nevertheless the petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice, and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner. To restrict filing of the curative petitions only in genuine cases, Rupa Ashok Hurra (supra) provided that the curative petition shall contain a certification by a Senior Advocate with regard to the fulfilment of all the requirements provided in the judgment. Unfortunately, in most of the cases, the certification is casual without fulfilling the requirements of the judgment.” 131. In Sita Ram Bhandar Society, New Delhi v. Lieutenant Governor, Government of NCT, Delhi & Others (2009)10 SCC 501, this Court held thus:

“41. We must also observe that the petitioner has been able to frustrate the acquisition and development of the land right from 1980 onwards by taking recourse to one litigation after the other. The record reveals that all the suits/writ petitions, etc. that had been filed had failed. Undoubtedly, every citizen has a right to utilise all legal means which are open to him in a bid to vindicate and protect his rights, but if the court comes to the conclusion that the pleas raised are frivolous and meant to frustrate and delay an acquisition which is in public interest, deterrent action is called for. This is precisely the situation in the present matter.

42. The appeals are, accordingly, dismissed with costs which are determined at rupees two lakhs. The respondents, shall, without further loss of time proceed against the appellant.”

132. This court in a recent judgment in M. Nagabhushana v. State of Karnataka and others (2011) 3 SCC 408 observed that principle of finality is passed on high principle of public policy. The court in para 13 of the said judgment observed as under:

“That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the color and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties.”

133. In order to discourage a litigation which reopens the final judgment of this court, while dismissing the petition imposed costs of rupees 10 lakhs.
134. We find full corroboration of this principle from the cases of other countries. We deem it appropriate to mention some of these relevant cases in the succeeding paragraphs.

ENGLAND
135. The England cases have consistently taken the view that the judgments of final court must be considered final and conclusive. There must be certainty in the administration. Uncertainty can lead to injustice. Unless there are very exceptional or compelling reasons the judgment of apex courts should not be reopened.

136. In Regina v. Gough, [1993] UKHL 1; [1993] 1 A.C. 646, with regards to setting aside judgments due to judicial bias, the House of Lords held that there “is only one established special category and that exists where the tribunal has a pecuniary or proprietary interest in the subject matter of the proceedings as in Dimes v. Proprietors of Grand Junction Canal , (1852) 3 H.L. Cases 759. The courts should hesitate long before creating any other special category since this will immediately create uncertainty as to what are the parameters of that category and what is the test to be applied in the case of that category.” Lord Goff of Chievely stated that “I wish to draw attention to the fact that there are certain cases in which it has been considered that the circumstances are such that they must inevitably shake public confidence in the integrity of the administration of justice if the decision is to be allowed to stand. Such cases attract the full force of Lord Hewart C.J.’s requirement that justice must not only be done but must manifestly be seen to be done. These cases arise where a person sitting in a judicial capacity has a pecuniary interest in the outcome of the proceedings. In such a case, as Blackburn J. said in Reg. v. Rand (1866) L.R. 1 Q.B. 230, 232: “any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter.” The principle is expressed in the maxim that nobody may be judge in his own cause (nemo judex in sua causa)… In such a case, therefore, not only is it irrelevant that there was in fact no bias on the part of the tribunal, but there is no question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any reasonable suspicion of bias, on the facts of the particular case. The nature of the interest is such that public confidence in the administration of justice requires that the decision should not stand” (p. 661).

137. In R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) (1999) 2 W.L.R. 272, the House of Lords set aside one of its earlier orders. In this case, the majority at the House of Lords had earlier ruled whether Augusto Pinochet, the former dictator of Chile, could be extradited to Spain in order to stand trial for alleged crimes against humanity and was not entitled to sovereign immunity. Amnesty International had been an intervener in this case in opposition to Pinochet. Lord Hoffman, one of the majority judges, was a director of Amnesty International Charitable Trust, an organization controlled by Amnesty International, and Lady Hoffman had been working at AI’s international secretariat since 1977. The respondent was not aware of Lord Hoffman’s relationship to AI during the initial trial. In this case, the House of Lords cited with approval the respondents’ concession acknowledging the House of Lords’ jurisdiction to review its decisions – “In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered.”

138. According to the English law, the judgment of the Apex Court can be reviewed in exceptional circumstances particularly when the judge associated with any of the organizations to be a good ground for reviewing the judgment.

139. In Pinochet test in Regina (Edwards) v Environment Agency and others [2010] UKSC 57, the Supreme Court of the United Kingdom overruled an earlier order of costs made by the erstwhile apex court, the House of Lords, on the grounds that the House of Lords had made a substantive error in the original adjudication. However, this appeal was lodged under Rule 53 of the The (U.K.) Supreme Court Rules, 2009, 2009 No. 1603 (L. 17). Rule 53 provides as follows:

53. (1) A party who is dissatisfied with the assessment of costs made at an oral hearing may apply for that decision to be reviewed by a single Justice and any application under this rule must be made in the appropriate form and be filed within 14 days of the decision. (2) The single Justice may (without an oral hearing) affirm the decision made on the assessment or may, where it appears appropriate, refer the matter to a panel of Justices to be decided with or without an oral hearing. (3) An application may be made under this rule only on a question of principle and not in respect of the amount allowed on any item in the claim for costs.

140. In this case, Lord Hope, citing the Pinochet case stated that: The Supreme Court is a creature of statute. But it has inherited all the powers that were vested in the House of Lords as the ultimate court of appeal. So it has the same powers as the House had to correct any injustice caused by an earlier order of the House or this Court… In this case it seems that, through no fault of the appellant, an injustice may have been caused by the failure of the House to address itself to the correct test in order to comply with the requirements of [certain EU] directives [at para. 35].

CANADA 141. The Canadian Supreme Court is of the same view that judicial bias would be a ground for reviewing the judgment. In Wewaykum Indian Band v. Canada [2003] 2 SCR 259 the court relied on Taylor Ventures Ltd. (Trustee of) v. Taylor 2005 BCCA 350 where principle of judicial bias has been summarized.

142. The principles stated in Roberts regarding judicial bias were neatly summarized in Taylor Ventures Ltd. (Trustee of) (supra), where Donald J.A. stated – (i) a judge’s impartiality is presumed;
(ii) a party arguing for disqualification must establish that the circumstances justify a finding that the judge must be disqualified;
(iii) the criterion of disqualification is the reasonable apprehension of bias;
(iv) the question is what would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, conclude;
(iv) the test for disqualification is not satisfied unless it is proved that the informed, reasonable and right-minded person would think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly;
(v) the test requires demonstration of serious grounds on which to base the apprehension;
(vi) each case must be examined contextually and the inquiry is fact-specific (at para 7).

143. Cases from Australia also support the proposition that a final judgment cannot ordinarily be reopened, and that such steps can be taken only in exceptional circumstances.

144. In State Rail Authority of New South Wales v. Codelfa Constructions Propriety Limited (1982) 150 CLR 29, the High Court of Australia observed:

“… it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprision is disclosed. But in other cases it will be a case of weighing what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional. …”

145. In Bailey v. Marinoff [1971] HCA 49; (1971) 125 CLR 529, Judge Gibbs of the High Court of Australia observed in a dissenting opinion:

“It is a well-settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it. .. ….The rule tests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing. However, the  118 rule is not inflexible and there are a number of exceptions to it in addition to those that depend on statutory provisions such as the slip rule found in most rules of court. Indeed, as the way in which I have already stated the rule implies, the court has the power to vary an order so as to carry out its own meaning or to make plain language which is doubtful, and that power does not depend on rules of court, but is inherent in the court….”
And, further:
“The authorities to which I have referred leave no doubt that a superior court has an inherent power to vary its own orders in certain cases. The limits of the power remain undefined, although the remarks of Lord Evershed already cited suggest that it is a power that a court may exercise “if, in its view, the purposes of justice require that it should do so”.

146. In DJL v. Central Authority (2000) 170 ALR 659, the High Court of Australia observed:

“…It is now recognized both in Australia and England that orders made by ultimate appellate courts may be reopened by such courts in exceptional circumstances to repair accidents and oversights which would otherwise occasion a serious injustice. In my view, this can be done although the order in question has been perfected. The reopening may be ordered after due account is taken of the reasons that support the principle of finality of litigation. The party seeking reopening bears a heavy burden to demonstrate that the exceptional course is required “without fault on his part. …”

147. Lastly, in Lexcray Pty. Ltd. v. Northern Territory of Australia 2003 NTCA 11, the Court appeals of the Supreme Court of the Northern Territory expressly stated:

“…As a final court of appeal the High Court of Australia has inherent jurisdiction to vacate its orders in cases where there would otherwise be an irremediable injustice….”

148. American courts also follows a similar pattern. In United States of America v. Ohio Power Company 353 US 98 (1957), the U.S. Supreme Court vacated its earlier order denying a timely petition for rehearing, on the ground that “the interest in finality of litigation must yield where interests of justice would make unfair, strict application of Supreme Court’s Rules.

149. In Raymond G. Cahill v. The New York, New Haven and Hartford Railroad Company [1956] USSC 56; 351 US 183, the Supreme Court observed:

“…There are strong arguments for allowing a second petition for rehearing where a rigid application of this rule would cause manifest injustice.”

FIJI 150. The Supreme Court of Fiji Islands incorporating Australian and British case law summarized the law applicable to review of its judgments. It has been held that the Supreme Court can review its judgments pronounced or orders made by it. The power of the appellate courts to re- open and review their orders is to be exercised with great caution.

151. The cases establish that the power of appellate courts to re-open and review their orders is to be exercised with great caution. The power, and the occasions for its exercise were considered in In Re Transferred Civil Servants (Ireland) Compensation (1929) AC 242, 248-52; and State Rail Authority NSW v Codelfa Construction Pty Ltd (1982) HCA 51 : [1982] HCA 51; (1982) 150 CLR 29, 38-9, 45-6, where earlier Privy Council cases are referred to. The principles were summarised  121 in Smith v NSW Bar Association (1992) 176 CLR 252, 265 where the High Court of Australia said:

“The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review … these considerations may tend against the re-opening of a case, but they are not matters which bear on the nature or the review … once the case is re-opened … the power to review a judgment … where the order has not been entered will not ordinarily be exercised to permit a general re- opening … But … once a matter has been re- opened, the nature and extent of the review must depend on the error or omission which has led to that step being taken.”

152. The principles were further considered in Autodesk Inc v Dyason (No 2) (1993) HCA 6 : [1993] HCA 6; (1993) 176 CLR 300, 303 where Mason CJ said:

“What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and this … cannot be attributed solely to the neglect of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.”

153. The ratio of these judgments is that a court of final appeal has power in truly exceptional circumstances to recall its order even after they have been entered in order to avoid irremediable injustice.

154. Reviewing of various cases of different jurisdictions lead to irresistible conclusion that though the judgments of the apex court can also be reviewed or recalled but it must be done in extremely exceptional circumstances where there is gross violation of principles of natural justice. 155. In a case where the aggrieved party filing a review or curative petition was not a party to the lis but the judgment adversely affected his interest or he was party to the lis was not served with notice of the proceedings and the matter proceeded as if he had notice. This court in State of M.P. v. Sugar Singh & Others on 9th March, 2010 passed the following order in a curative petition :

“Though there were eight accused persons, only four accused were arrayed as party respondents in the said appeals namely, Sughar, Laxman, Onkar and Ramesh. Other accused, namely,Bhoja, Raghubir, Puran and Balbir were not impleaded as respondents in these Criminal Appeals and consequently notices were not issued to them. This Court, by judgment on 7th November, 2008 in the aforesaid Criminal Appeals, reversed the acquittal of the accused by the High Court and found them guilty of the offences punishable under Section 304 Part-II read with Section 149 of the I.P.C. and sentenced them to undergo imprisonment for a period of six years. The conviction of the accused for the offences punishable under Section 148 as also Section 326 read with the Section 149 of the I.P.C. and the sentence imposed by the Sessions Court in regard to the said offences was upheld by this Court.

We have heard learned counsel for the petitioners. The respondent State, though served with a notice through standing counsel, has not chosen to enter appearance. These Curative Petitions have been filed by accused No.2 (Raghubir) and by accused no.4 and 5 (Sughar Singh and Laxman) on the ground that acquittal of Bhoja, Raghubir, Puran and Balbir have been reversed without affording an opportunity of being heard. We see that there is serious violation of principles of natural justice as the acquittal of all the accused has been set aside even though only four of them were made respondents before this Court and the others were not heard. We are, therefore, constrained to recall the 3 judgment passed by this Court in Criminal Appeal Nos.1362- 1363 of 2004 on 7th November, 2008.

Consequently, the accused Sughar Singh, Laxman, Onkar and Ramesh, if they are in custody, are directed to be released forthwith.

In the result, these Curative Petitions are disposed of and the Criminal Appeal Nos.1362-363 of 2004 are restored to the file for being heard afresh with a direction that the other four accused (Bhoja, Raghubir, Puran and Balbir) be impleaded as respondents and all accused be served with fresh notices.”

156. In the instant case, the applicants had adequate opportunity and were heard by the court at length on number of occasions and only thereafter the writ petition was disposed of. The applicants aggrieved by the said judgment filed a review petition. This review petition was also dismissed. In the instant case even the curative petition has also been dismissed. The applicants now want to reopen this case by filing these interlocutory applications. 157. The applicants certainly cannot be provided an entry by back door method and permit the unsuccessful litigant to re- agitate and reargue their cases. The applicants have filed these applications merely to avoid compliance of the order of the court. The applicants have been successful in their endeavour and have not permitted the judgment delivered on 3.2.1996 to acquire finality till date. It is strange that other respondents did not implement the final order of this court without there being any order or direction of this court. These applications being devoid of any merit deserve to be dismissed with heavy costs.

The other important principles which need elucidation are regarding unjust enrichment, restitution and compound inte rests. 158. Dr. Arun Mohan, Senior Advocate of this court in a recently published book with the title “Justice, Courts and Delays” analytically, lucidly while taking in view pragmatic realities elucidated concepts of unjust enrichment, restitution and compound interest.

159. By the judgment dated 13.02.1996 this court fixed the liability but did not fix any specific amount, which was ordered to be ascertained. It was on the lines of a preliminary decree in a suit which determines the liability, but leaves the precise amount to be ascertained in further proceedings and upon the process of ascertainment being completed, a final decree for payment of the precise amount is passed.

160. By judgment dated 4.11.1997 this Court, accepting the ascertainment, fixed the amount. The order reads as under:

“… … …remedial measures taken on the basis of the NEERI report shall be treated as final.

We accept the proposal submitted by the Government of India for the purpose of taking remedial measures by appointing National Productivity Council as the Project Management Consultant. In our opinion the Ministry of Environment and Forests, Government of India has rightly made a demand for Rs.37.385 crores.”

161. The exact liability was quantified which the applicant- M/s Hindustan Agro Chemical Ltd. was under an obligation to pay. The liability to pay arose on that particular date i.e. 4.11.1997. In other words, this was in the lines of a final decree pursuant to a preliminary decree. 162. On that judgment being passed, the position of the applicant in Application No.44 was that of `judgment-debtor’ and the applicant became liable to pay forthwith.

163. Admittedly, the amount has not been paid. Instead, that payment they sought to postpone by raising various challenges in this court and in the meantime `utilised’ that money, i.e., benefitted. As a consequence, the non-applicants (respondents-states herein) were `deprived’ of the use of that money for taking remedial measures. The challenge has now – nearly 14 years later – been finally decided against them.

164. The appellant they must pay the amount is one thing but should they pay only that amount or something more? If the period were a few days or months it would have been different but here it is almost 14 years have been lapsed and amount has not been paid. The questions therefore are really three:

1.Can a party who does not comply with the court order be permitted to retain the benefits of his own wrong of non-compliance? 2.Whether the successful party be not compensated by way of restitution for deprivation of its legitimate dues for more than fourteen years? and 3.Whether the court should not remove all incentives for not complying with the judgment of the court? Answering these questions will necessitate analysis of certain concepts.

165. It is settled principle of law that no one can take advantage of his own wrong.

166. Unless courts disgorge all benefits that a party availed by obstruction or delays or non-compliance, there will always be incentive for non compliance, and parties are ingenious enough to come up with all kinds of pleas and other tactics to achieve their end because they know that in the end the benefit will remain with them.

167. Whatever benefits a person has had or could have had by not complying with the judgment must being disgorged and paid to the judgment creditor and not, allowed to be retained by the judgment-debtor. This is the bounden duty and obligation of the court.

168. In fact, it has to be looked from the position of the creditor. Unless the deprivation by reason of delay is fully restituted, the creditor as a beneficiary remains a loser to the extent of the un-restituted amount.

UNJUST ENRICHMENT
169. Unjust enrichment has been defined as: “A benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense.” See Black’s Law Dictionary, Eighth Edition (Bryan A. Garner) at page 1573.

170. A claim for unjust enrichment arises where there has been an “unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience.” 171. `Unjust enrichment’ has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 172. Unjust enrichment is “the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience.” A defendant may be liable “even when the defendant retaining the benefit is not a wrongdoer” and “even though he may have received [it] honestly in the first instance.” (Schock v. Nash, 732 A.2d 217, 232-33 (Delaware. 1999). USA) 173. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. 174. In the leading case of Fibrosa v. Fairbairn, [1942] 2 All ER 122, Lord Wright stated the principle thus :

“….(A)ny civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution.”

175. Lord Denning also stated in Nelson v. Larholt, [1947] 2 All ER 751 as under:- “It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular frame-work. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution if the justice of the case so requires.”

176. The above principle has been accepted in India. This Court in several cases has applied the doctrine of unjust enrichment.

RESTITUTION AND COMPOUND INTEREST
177. American Jurisprudence 2d. Volume 66 Am Jur 2d defined Restitution as follows:
“The word `restitution’ was used in the earlier common law to denote the return or restoration of a specific thing or condition. In modern legal usage, its meaning has frequently been extended to include not only the restoration or giving back of something to its rightful owner, but also compensation, reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to, another. As a general principle, the obligation to do justice rests upon all persons, natural and artificial; if one obtains the money or property of others without authority, the law, independently of express contract, will compel restitution or compensation.”

178. While Section (‘) 3 (Unjust Enrichment) reads as under:

“The phrase “unjust enrichment” is used in law to characterize the result or effect of a failure to make restitution of, or for, property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor. It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly.” 179. Unjust enrichment is basic to the subject of restitution, and is indeed approached as a fundamental principle thereof. They are usually linked together, and restitution is frequently based upon the theory of unjust enrichment. However, although unjust enrichment is often referred to or regarded as a ground for restitution, it is perhaps more accurate to regard it as a prerequisite, for usually there can be no restitution without unjust enrichment. It is defined as the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 180. While the term `restitution’ was considered by the Supreme Court in South-Eastern Coalfields 2003 (8) SCC 648 and other cases excerpted later, the term `unjust enrichment’ came to be considered in Sahakari Khand Udyog Mandal Ltd vs Commissioner of Central Excise & Customs ((2005) 3 SCC 738).

181. This Court said:

“`Unjust enrichment’ means retention of a benefit by a person that is unjust or inequitable. `Unjust enrichment’ occurs when a person retains money or benefits which in justice, equity and good conscience, belong to someone else.”

182. The terms `unjust enrichment’ and `restitution’ are like the two shades of green – one leaning towards yellow and the other towards blue. With restitution, so long as the deprivation of the other has not been fully compensated for, injustice to that extent remains. Which label is appropriate under which circumstances would depend on the facts of the particular case before the court. The courts have wide powers to grant restitution, and more so where it relates to misuse or non-compliance with court orders.

183. We may add that restitution and unjust enrichment, along with an overlap, have to be viewed with reference to the  135 two stages, i.e., pre-suit and post-suit. In the former case, it becomes a substantive law (or common law) right that the court will consider; but in the latter case, when the parties are before the court and any act/omission, or simply passage of time, results in deprivation of one, or unjust enrichment of the other, the jurisdiction of the court to levelise and do justice is independent and must be readily wielded, otherwise it will be allowing the Court’s own process, along with time delay, to do injustice.

184 . For this second stage (post-suit), the need for restitution in relation to court proceedings, gives full jurisdiction to the court, to pass appropriate orders that levelise. Only the court has to levelise and not go further into the realm of penalty which will be a separate area for consideration altogether.

185. This view of law as propounded by the author Graham Virgo in his celebrated book on “The Principle of Law of Restitution” has been accepted by a later decision of the House of Lords (now the UK Supreme Court) reported as  136 Sempra Metals Ltd (formerly Metallgesellschaft Limited) v Her Majesty’s Commissioners of Inland Revenue and Another [2007] UKHL 34 = [2007] UKHL 34; [2007] 3 WLR 354 = [2008] 1 AC 561 = [2007] UKHL 34; [2007] All ER (D) 294.

186. In similar strain, across the Altantic Ocean, a nine judge Bench of the Supreme Court of Canada in Bank of America Canada vs Mutual Trust Co. [2002] 2 SCR 601 = 2002 SCC 43 (both Canadian Reports) took the view :

“There seems in principle no reason why compound interest should not be awarded. Had prompt recompense been made at the date of the wrong the plaintiff should have had a capital sum to invest; the plaintiff would have received interest on it at regular intervals and would have invested those sums also. By the same token the defendant will have had the benefit of compound interest. Although not historically available, compound interest is well suited to compensate a plaintiff for the interval between when damages initially arise and when they are finally paid.”

187. This view seems to be correct and in consonance with the principles of equity and justice.

188. Another way of looking at it is suppose the judgment- debtor had borrowed the money from the nationalised bank as a clean loan and paid the money into this court. What would be the bank’s demand.

189. In other words, if payment of an amount equivalent of what the ledger account in the nationalised bank on a clean load would have shown as a debit balance today is not paid and something less than that is paid, that differential or shortfall is what there has been : (1) failure to restitute; (2) unfair gain by the non-complier; and (3) provided the incentive to obstruct or delay payment.

190. Unless this differential is paid, justice has not been done to the creditor. It only encourages non-compliance and litigation. Even if no benefit had been retained or availed even then, to do justice, the debtor must pay the money. In other words, it is this is not only disgorging all the benefits but making the creditor whole i.e. ordering restitution in full and not dependent on what he might have made or benefitted is what justice requires.

LEGAL POSITION UNDER THE CODE OF CIVIL PROCEDURE
191. One reason the law has not developed on this is because of the wording of Section 34 of the Code of Civil Procedure which still proceeds on the basis of simple interest. In fact, it is this difference which prompts much of our commercial litigation because the debtor feels – calculates and assesses – that to cause litigation and then to contest with obstructions and delays will be beneficial because the court is empowered to allow only simple interest. A case for law reform on this is a separate issue.

192. In the point under consideration, which does not arise from a suit for recovery under the Code of Civil Procedure, the inherent powers in the court and the principles of justice and equity are each sufficient to enable an order directing payment of compound interest. The power to order compound interest as part of restitution cannot be disputed, otherwise there can never be restitution.

PRECEDENTS ON EXERCISE OF POWERS BY THE COURT TOMAKE THE BENEFICIARY WHOLE – RESTITUTION
193. This court in Grindlays Bank Limited vs Income Tax Officer, Calcutta [1980] INSC 3; (1980) 2 SCC 191 observed as under :- “…When passing such orders the High Court draws on its inherent power to make all such orders as are necessary for doing complete justice between the parties. The interests of justice require that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court, by the mere circumstance that it has initiated a proceeding in the court, must be neutralised. The simple fact of the institution of litigation by itself should not be permitted to confer an advantage on the party responsible for it. …”

194. In Ram Krishna Verma and Others vs State of U.P. and Others [1992] INSC 99; (1992) 2 SCC 620 this court observed as under :- “The 50 operators including the appellants/ private operators have been running their stage carriages by blatant abuse of the process of the court by delaying the hearing as directed in Jeevan Nath Bahl’s case and the High Court earlier thereto. As a fact, on the expiry of the initial period of grant after Sept. 29, 1959 they lost the right to obtain renewal or to ply their vehicles, as this Court declared the scheme to be operative. However, by sheer abuse of the process of law they are continuing to ply their vehicles pending hearing of the objections. This Court in Grindlays Bank Ltd. vs Income-tax Officer – [1990] 2 SCC 191 held that the High Court while exercising its power under Article 226 the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised. It was further held that the institution of the litigation by it should not be permitted to confer an unfair advantage on the party responsible for it. In the light of that law and in view of the power under Article 142(1) of the Constitution this Court, while exercising its jurisdiction would do complete justice and neutralise the unfair advantage gained by the 50 operators including the appellants in dragging the litigation to run the stage carriages on the approved route or area or portion thereof and forfeited their right to hearing of the objections filed by them to the draft scheme dated Feb. 26, 1959. …”

195. This court in Kavita Trehan vs Balsara Hygiene Products [1994] INSC 353; (1994) 5 SCC 380 observed as under :- “The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within the ambit of Section 144. Section 144 opens with the words “Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, …”. The instant case may not strictly fall within the terms of Section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every court.”

196. This court in Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. and Another (1999) 2 SCC 325 observed as under :- “From the narration of the facts, though it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and on occasion become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. Because of the delay unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also known fact that after obtaining a decree for possession of immovable property, its execution takes long time. In such a situation for protecting the interest of judgment creditor, it is necessary to pass appropriate order so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropriate cases, Court may appoint Receiver and direct the person who is holding over the property to act as an agent of the Receiver with a direction to deposit the royalty amount fixed by the Receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the plaintiff in whose favour decree is passed and to protect the property including further alienation.”

197. In Padmawati vs Harijan Sewak Sangh – CM (Main) No.449 of 2002 decided by the Delhi high Court on 6.11.2008, the court held as under:- “The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the Court. One of the aims of every judicial system has to be to discourage unjust enrichment using Courts as a tool. The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person.”

198. We approve the findings of the High Court of Delhi in the aforementioned case.

199. The Court also stated: “Before parting with this case, we consider it necessary to observe that one of the main reasons for over-flowing of court dockets is the frivolous litigation in which the Courts are engaged by the litigants and which is dragged as long as possible. Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts.”

200. Against this judgment, Special Leave to Appeal (Civil) No 29197/2008 was preferred to the this Court. The Court passed the following order:

“We have heard learned counsel appearing for the parties. We find no ground to interfere with the well-considered judgment passed by the High Court. The Special Leave Petition is, accordingly, dismissed.”

Interest on interest 201. This court in Alok Shanker Pandey vs Union of India & Others (2007) 3 SCC 545 observed as under:- “We are of the opinion that there is no hard and fast rule about how much interest should be granted and it all depends on the facts and circumstances of the each case. We are of the opinion that the grant of interest of 12% per annum is appropriate in the facts of this particular case. However, we are also of the opinion that since interest was not granted to the appellant along with the principal amount the respondent should then in addition to the interest at the rate of 12% per annum also pay to appellant interest at the same rate on the aforesaid interest from the date of payment of instalments by the appellant to the respondent till the date of refund on this amount, and the entire amount mentioned above must be paid to the appellant within two months from the date of this judgment.

It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital.”

Compound Interest 202. To do complete justice, prevent wrongs, remove incentive for wrongdoing or delay, and to implement in practical terms the concepts of Time Value of Money, restitution and unjust enrichment noted above – or to simply levelise – a convenient approach is calculating interest. But here interest has to be calculated on compound basis – and not simple – for the latter leaves much uncalled for benefits in the hands of the wrongdoer. 203. Further, a related concept of inflation is also to be kept in mind and the concept of compound interest takes into account, by reason of prevailing rates, both these factors, i.e., use of the money and the inflationary trends, as the market forces and predictions work out.

204. Some of our statute law provide only for simple interest and not compound interest. In those situations, the courts are helpless and it is a matter of law reform which the Law Commission must take note and more so, because the serious effect it has on administration of justice. However, the power of the court to order compound interest by way of restitution is not fettered in any way. We request the Law Commission to consider and recommend necessary amendments in relevant laws.

205. `Compound interest’ is defined in Black’s Law Dictionary, Eighth Edition (Bryan A. Garner) at page 830 as `Interest paid on both the principal and the previously accumulated interest.’ It is a method of arriving at a figure  147 which nears the time value of money submitted under Head-2 earlier.

206. As noted, compound interest is a norm for all commercial transactions.

207. Graham Virgo in his important book on `The Principles of the Law of Restitution” at pp26-27 has stated and relevant portion is reproduced as under:

“In Westdeutsche Landesbank Girozentrale v London Borough Council [1996] UKHL 12; 1996 A.C. 669 the issue for the House of Lords was whether compound interest was available in respect of all restitutionary claims. By a majority it was decided that, since the jurisdiction to award compound interest was equitable, compound interest could only be awarded in respect of equitable restitutionary claims. Consequently, where the claim was for money had and received the claimant could only obtain simple interest because this was a common law claim. The majority supported their conclusion by reference to a number of different arguments. In particular, they asserted that, since Parliament had decided in 1981 that simple interest should be awarded on claims at common law, it was not for the House of Lords to award compound interest in respect of such claims. But the Supreme Court Act 1981 does not specifically exclude the award of compound interest in respect of common law claims. Rather, it recognizes that the court can award simple interest for such claims. The equitable jurisdiction to award compound interest is still available in appropriate cases.

In two very strong dissenting judgments, Lords Goff and Woolf rejected the argument of the majority. They asserted that, since the policy of the law of restitution was to remove benefits from the defendant, compound interest should be available in respect of all restitutionary claims, regardless of whether they arise at law or in equity. This argument can be illustrated by the following example. In the straightforward case where the claimant pays money to the defendant by mistake and defendant is liable to repay that money, the liability arises from the moment the money is received by the defendant, who has the use of it and so should pay the claimant for the value of that benefit. This was accepted by all the judges in the case. The difficulty relates to the valuation of this benefit. If the defendant was to borrow an equivalent amount of money from a financial institution, he or she would be liable to pay compound interest to that institution. It follows that the defendant has saved that amount of money and so this is the value of the benefit which the defendant should restore to the claimant, in addition to the value of the money which the defendant received in the first place. If it could be shown that, had the defendant borrowed the equivalent amount of money, the institution would only have paid simple interest, it would be appropriate for the interest awarded to the claimant to be simple rather than compound. Usually, however, the interest awarded in commercial transactions will be compound interest.”

208. In Marshall sons and company (I) Limited v. Sahi Oretrans (P) Limited and another (1999) 2 SCC 325 this court in para 4 of the judgment observed as under:

“…It is true that proceedings are dragged for a long time on one count or the other and, on occasion, become highly technical accompanied by unending prolixity at every stage providing a legal trap to the unwary. Because of the delay, unscrupulous parties to the proceedings take undue advantage and a person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of immovable property, its execution takes a long time. In such a situation, for protecting the interest of the judgment-creditor, it is necessary to pass appropriate orders so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropriate cases, the court may appoint a Receiver and direct the person who is holding over the property to act as an agent of the Receiver with a direction to deposit the royalty amount fixed by the Receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the plaintiff in whose favour the decree is passed and to protect the property including further alienation. …”

209. In Ouseph Mathai and others v. M. Abdul Khadir (2002) 1 SCC 319 this court reiterated the legal position that  150 the stay granted by the court does not confer a right upon a party and it is granted always subject to the final result of the matter in the court and at the risk and costs of the party obtaining the stay. After the dismissal, of the lis, the party concerned is relegated to the position which existed prior to the filing of the petition in the court which had granted the stay. Grant of stay does not automatically amount to extension of a statutory protection. 210. This court in South Eastern Coalfields Limited v. State of M.P. and others (2003) 8 SCC 648 on examining the principle of restitution in para 26 of the judgment observed as under:

“In our opinion, the principle of restitution takes care of this submission. The word “restitution” in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the court or in direct consequence of a decree or order (see Zafar Khan v. Board of Revenue, U.P – (1984) Supp SCC 505) In law, the term “restitution” is used in three senses: (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; and (iii) compensation or reparation for the loss caused to another.”

211. The court in para 28 of the aforesaid judgment very carefully mentioned that the litigation should not turn into a fruitful industry and observed as under:

“… … …Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation.”

212. The court in the aforesaid judgment also observed that once the doctrine of restitution is attracted, the interest is often a normal relief given in restitution. Such interest is not controlled by the provisions of the Interest Act of 1839 or 1978.

213. In a relatively recent judgment of this court in Amarjeet Singh and others v. Devi Ratan and others (2010) 1 SCC 417 the court in para 17 of the judgment observed as under:

“No litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of its own wrongs by getting an interim order and thereafter blame the court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a fact situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the court. … …”

214. In another recent judgment of this court in Kalabharati Advertising v. Hemant Vimalnath Narichania and others (2010) 9 SCC 437 this court in para 15 observed as under:

“No litigant can derive any benefit from the mere pendency of a case in a court of law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the court.”

215. In consonance with the concept of restitution, it was observed that courts should be careful and pass an order neutralizing the effect of all consequential orders passed in pursuance of the interim orders passed by the court. Such express directions may be necessary to check the rising trend among the litigants to secure the relief as an interim measure and then avoid adjudication on merits.

216. In consonance with the principle of equity, justice and good conscience judges should ensure that the legal process is not abused by the litigants in any manner. The court should never permit a litigant to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorized or unjust gain for anyone by the abuse of the process of the court. One way to curb this tendency is to impose realistic costs, which the respondent or the defendant has in fact incurred in order to defend himself in the legal proceedings. The courts would be fully justified even imposing punitive costs where legal process has been abused. No one should be permitted to use the judicial process for earning undeserved gains or unjust profits. The court must effectively discourage fraudulent, unscrupulous and dishonest litigation.

217. The court’s constant endeavour must be to ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases. 218. This court in a very recent case Ramrameshwari Devi and Others v. Nirmala Devi and Others 2011(6) Scale 677 had an occasion to deal with similar questions of law regarding imposition of realistic costs and restitution. One of us (Bhandari, J.) was the author of the judgment. It was observed in that case as under:

“While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.

The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years.”

219. We reiterate that the finality of the judgment of the Apex Court has great sanctity and unless there are extremely compelling or exceptional circumstances, the judgments of the Apex Court should not be disturbed particularly in a case where review and curative petitions have already been dismissed. 220. This Court has consistently taken the view that the judgments delivered by this Court while exercising its jurisdiction under Article 136 of the Constitution cannot be reopened in a writ petition filed under Article 32 of the Constitution. In view of this legal position, how can a final judgment of this Court be reopened by merely filing interlocutory applications where all possible legal remedies have been fully exhausted? When we revert to the facts of this case, it becomes abundantly clear that this Court delivered  157 final judgment in this case way back in 1996. The said judgment has not been permitted to acquire finality because the respondent Nos. 4 to 8 had filed multiple interlocutory applications and has ensured non-compliance of the judgment of this Court.

221. On consideration of pleadings and relevant judgments of the various courts, following irresistible conclusion emerge:

i) The judgment of the Apex Court has great sanctity and unless there are extremely compelling, overriding and exceptional circumstances, the judgment of the Apex Court should not be disturbed particularly in a case where review and curative petitions have already been dismissed ii) The exception to this general rule is where in the proceedings the concerned judge failed to disclose the connection with the subject matter or the parties giving scope of an apprehension of bias and the judgment adversely affected the petitioner.

iii) The other exception to the rule is the circumstances incorporated in the review or curative petition are such that they must inevitably shake public confidence in the integrity of the administration of justice if the judgment or order is allowed to stand.

222. These categories are illustrative and not exhaustive but only in such extremely exceptional circumstances the order can be recalled in order to avoid irremedial injustice.

223. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view.

1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.

2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.

3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.

4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system.

5. No litigant can derive benefit from the mere pendency of a case in a court of law.

6. A party cannot be allowed to take any benefit of his own wrongs.

7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.

8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts.

224. It may be pertinent to mention that even after dismissal of review petition and of the curative petition on 18.7.2002, the applicants (respondent Nos. 4 to 8) have been repeatedly filing one petition or the other in order to keep the litigation alive. It is indeed astonishing that the orders of this court have not been implemented till date. The applicants have made all possible efforts to avoid compliance of the judgment of this Court. This is a clear case of abuse of process of the court. 225. The Court in its order dated 04.11.1997 while accepting the report of the MOEF directed the applicant – M/s Hindustan Agro Chemical Ltd. to pay a sum of Rs.37.385 crores towards the costs of remediation. The amount which ought to have been deposited way back in 1997 has yet not been deposited by keeping the litigation alive. 226. We have carefully considered the facts and circumstances of this case. We have also considered the law declared by this Court and by other countries in a number of cases. We are clearly of the opinion that the concerned applicant-industry must deposit the amount as directed by this Court vide order dated 4.11.1997 with compound interest. The applicant-industry has deliberately not complied with the orders of this court since 4.11.1997. Thousands of villagers have been adversely affected because no effective remedial steps have been taken so far. The applicant- industry has succeeded in their design in not complying with the court’s order by keeping the litigation alive. 227. Both these interlocutory applications being totally devoid of any merit are accordingly dismissed with costs. Consequently, the applicant-industry is directed to pay Rs.37.385 crores along with compound interest @ 12% per annum from 4.11.1997 till the amount is paid or recovered. 228. The applicant-industry is also directed to pay costs of litigation. Even after final judgment of this Court, the litigation has been kept alive for almost 15 years. The respondents have been compelled to defend this litigation for all these years. Enormous court’s time has been wasted for all these years. 229. On consideration of the totality of the facts and circumstances of this case, we direct the applicant-industry to pay costs of Rs.10 lakhs in both the Interlocutory Applications. The amount of costs would also be utilized for carrying out remedial measure in village Bichhri and surrounding areas in Udaipur District of Rajasthan on the direction of the concerned authorities.

230. In case the amount as directed by this Court and costs imposed by this Court are not paid within two months, the same would be recovered as arrears of the land revenue.

231. Both these interlocutory applications are accordingly disposed of.

….…………………………………J.
(DALVEER BHANDARI)

…..………………………………..J.
(H.L. DATTU)

New Delhi;
July 18, 2011

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