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Constitutional governance project report
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VERSUS
(ABHAY JAISWAL) SEMESTER III SEC A
INDEX OF AUTHORITIES............................................................................................................................................... ABBREVIATIONS............................................................................................................................................................ STATEMENT OF JURISDICTION.................................................................................................................................. STATEMENT OF FACTS................................................................................................................................................ ISSUES RAISED............................................................................................................................................................... SUMMARY OF ARGUMENTS....................................................................................................................................... ARGUMENTS ADVANCED............................................................................................................................................
& And AIR All India Reporter Anr. Another Coop. Cooperation Corpn. Corporation Cr.P.C Code of Criminal Procedure Govt. Government Id. Ibidem IPC Indian Penal Code SC Supreme Court SCC Supreme Court Cases vs. Versus Vol. Volume Page | iii
The Petitioners have approached the Hon’ble Supreme Court of India under the ambit of Article 32 of the Constitution that allows the petitioner to move this court under writ jurisdiction. Article 32 reads: Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution Page | iv
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It is most humbly submitted by the petitioners that this Court has the powers of Writ Jurisdiction flowing from Article 32^1 which allows the Court to issue writs, directions, orders for the enforcement of fundamental or legal rights.^2 The exercise of writ jurisdiction by the Supreme Court is discretionary in nature.^3 The instant petition is maintainable on three counts, namely: (1) the parties have the locus standi to file the petition; (2) the matter at hand inheres to the contents of Article 21. The counsel of petitioner modestly succumbs that the petition brought in the Honorable Court in the form of ‘PUBLIC INTEREST LITIGATION’ by Pinky Virani is maintainable as it fetches the issue of KEM hospital backed by the Municipal corporation of Mumbai and thus the union of India at larger interest. PIL is a rule of law declared by the courts of record. However, the person (or entity) filing the petition must prove to the satisfaction of the court that the petition is being filed for the public interest and not as a frivolous litigation for pecuniary gain. The 38th Chief Justice of India, S. H. Kapadia, has stated that substantial "fines" would be imposed on litigants filing frivolous PILs. His statement was widely welcomed, because the instance of frivolous PILs for pecuniary interest has increased; a bench of the high court has also expressed concern over the misuse of PILs. The bench has issued a set of guidelines it wanted all courts in the country to observe when entertaining PILs. The concept of public interest litigation (PIL) is in consonance with the principles enshrined in Article 39A of the Constitution of India to protect and deliver prompt social justice with the help of law. Before the 1980s, only the aggrieved party could approach the courts for justice. After the emergency era the high court reached out to the people, devising a means for any person of the public (or an NGO) to approach the court seeking legal remedy in cases where the public interest is at stake. Justice P. N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PILs in court. Filing a PIL is not as cumbersome as a usual legal case; there have been instances when letters and telegrams addressed to the court have been taken up as PILs and heard. (^1) The Constitution of India 1950, Art 32. (^2) HM Seervai, Constitutional Law of India (vol.2, 4th^ edn, 2007). (^3) D.D. Basu, Commentary on the Constitution of India (vol.6, 8th^ edn, 2012). Page | 3
With the advent of Public Interest Litigations^4 , the right to seek redressal for the enforcement of fundamental rights guaranteed in Part III of the Constitution has been extended to any “public-spirited individual” or “association”.^5 In instances of public wrong or injury, if an act or omission by the State runs contrary to the Constitution then any member of the public has locus standi^6 In the case of Vishwanath Chaturvedi v. Union of India^7 , it was held that for the maintenance of a writ petition through a Public Interest Litigation, the Court must take care that: (i) the parties applying for the concerned petition have valid credentials; (ii) the information regarding the matter of dispute is prima facie , accurate; (iii) the information points to a failure of public duty; and (iv) the merits of the case must not be delved upon at the time of admission. In the instant matter, all the above features are met upon close examination. The petitioner, Pinky Virani is not only a social activist working for the public cause but also is the closest watchkeeper of Ms.Aruna Shanbaug and has also written a book on her, and hence has the credibility to file the instant petition. The right to die is the logical corollary to the right to live, which falls under the ambit of Article 21 Therefore, the matter at hand influences Article 21 which is a fundamental right under Part III of the Constitution. It is a part of the State’s duty to uphold fundamental rights as they are inalienable, and the nature of Article 21 is such that it is not waivable under any circumstance whatsoever. Therefore, there is an allegation of a prima facie violation of the State’s duty, and hence, this Public Interest Litigation must stand. (^4) People's Union for Democratic Rights v. Union of India [1982] AIR 1473 (SC). (^5) SP Gupta v. Union of India [1982] AIR 149 (SC); Banwasi Seva Ashram v. State of U.P., [1987] AIR 374 (SC). (^6) PUCL (n 4). (^7) Vishwanath Chaturvedi v. Union of India; [2007] 4 SCC 380. Page | 5
In the instant matter, the right to die, or passive euthanasia through precluded consent or the advice of a next friend in the absence of consent is involved. Though right to life does not involve the right to die^8 , but right to live with dignity protected under Article 21 includes right to live with dignity up to the end of natural life by smoothening the process of dying. The matter at hand involves the aspect of the right to die which must logically go hand in hand with the concept of the right to live. Insofar as the matter pertaining to the maintainability of this suit is concerned, Article 32(1)^9 is such that the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III is guaranteed. Part III inheres to the fundamental rights of the citizens. In the event that there is even an allegation of violation of fundamental rights, it is not only the right, but also the duty of the Supreme Court to look into the matter and see that justice is done. (^8) Gian Kaur vs. State of Punjab [1996] 2 SCC 468. (^9) Constitution of India, 1950. Page | 6
In the case of Gian Kaur vs. State of Punjab^10 , the court expounded that the word “life” in Article 21 has been part of the “right to live with dignity”. Further, the “right to live with human dignity” would mean existence of such a right up to the end of the natural life which would include the right to live a dignified life up to the end of natural life including the dignified procedure of death. A dying man who is terminally ill or in persistent vegetative state can make a choice of premature extinction of his life as being a facet of Article 21, there is no necessity of any legislation for effectuating that fundamental right and more so his natural human right. Indeed, that right cannot be an absolute right but subject to regulatory measures to be prescribed by suitable legislation which however, must be reasonable restrictions and in the interests of the general public. As part of the right to die with dignity in case of a dying man who is terminally ill or in a persistent vegetative state, only passive euthanasia would come within the ambit of Article 21 and not the one which would fall within the description of active euthanasia in which positive steps are either taken by the treating physician or some other person. That is because the right to die with dignity is an intrinsic facet of Article 21. In the case of National Legal Services Authority vs. Union of India^11 it was observed that: Right to health is a part of Article 21 of the Constitution. At the same time, it is also a harsh reality that not everyone is going to be able to enjoy this right due to poverty etc. The State is not in a position to translate into reality this right to health for all citizens. Thus, when citizens are not guaranteed the right to health, they should be given the right to die with dignity. In the case of Paramanand Katara vs. Union of India^12 , it was observed that: (^10) Gian Kaur vs. State of Punjab [1996] 2 SCC 468. (^11) National Legal Services Authority vs. Union of India, [2014] 5 SCC 438. (^12) Paramanand Katara vs. Union of India, [1989] 4 SCC 286. Page | 8
The sanctity of life principle appears in declarations on human rights as the right to life. Under the Indian Constitution, right to life has been provided under Article 21. The sanctity of human life is the arterial vein which animates the values, spirit and cellular structure of the survival of the sanctity principle is founded upon the guarantees of dignity, autonomy and by natural law. But human lives also have instrumental functions. Our lives enable us to fulfil our needs and aspirations. The intrinsic worth of life is not conditional on what it seeks to or is life as a supreme right, which is inalienable and inviolable even in times of Emergency. The word ‘liberty’ is the sense and realization of choice of the attributes associated with the said choice; and the term ‘life’ is the aspiration to possess the same in a dignified manner. The two are intrinsically interlinked. Liberty impels an individual to change and life welcomes the change and the movement. Life does not intend to live sans liberty as it would be, in all possibility, a meaningless survival. There is no doubt that no fundamental right is absolute, but any restraint imposed on liberty has to be reasonable. Individual liberty aids in developing one’s growth of mind and assert individuality. She/he may not be in a position to rule others but individually, she/he has the authority over the body and mind. The liberty of personal sovereignty over body and mind strengthens the faculties in a person. It helps in their cultivation. It is asserted that every individual is entitled to take his/her decision about the continuance or discontinuance of life when the process of death has already commenced and he/she has reached an irreversible permanent progressive state where death is not far away. It is contended that every individual has the right to die with dignity which is an inextricable facet of Article 21. Page | 9
In the case of M. Nagaraj vs. Union of India^13 , the Constitution Bench held that: ‘The Constitution is not an ephemeral legal document embodying a set of legal rules for the passing hour. It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crises of human affairs. Therefore, a purposive rather than a strict liberal approach to the interpretation must be adopted. A constitutional provision must be construed not in a narrow or constricted sense, but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that a constitutional provision does not get fossilized but remains flexible enough to meet the newly emerging problems and challenges.’ In the case of Rangadurai vs. D. Gopalan^14 it was held that: ‘Words grow in context with time and circumstance, that phrases are flexible in semantics, that the printed text is a set of vessels into which the court may pour appropriate meaning. That statute is so sick which is allergic to change in sense which the times demand and the text does not countermand. That court is superficial which stops with the cognitive and declines the creative function of construction.’ Court is not a legislative body nor is it entitled or competent to act as a moral or ethical arbiter. The task of the Supreme Court is not to weigh or evaluate or reflect different beliefs and views or give effect to its own but to ascertain and build the law of the land as it is now understood by all. Message which needs to be sent to vulnerable and disadvantaged people should not, however, obliviously to encourage them to seek death, but should assure them of care and life support. (^13) M. Nagaraj vs. Union of India, [2006] 8 SCC 212 (^14) Rangadurai vs. D. Gopalan, [1979] 1 SCC 308. Page | 11
In light of the facts stated, arguments advanced and authorities cited, the Honourable Supreme Court of India may be pleased to adjudge and declare that:
