Aruna Ramchandra Shanbaug: Setting the record straight

Aruna Ramchandra Shanbaug passed away on the 18th of May, 2015, leaving behind innumerable grieving hearts pained at her painful and very slow death. Even though almost all of us would be aware of the facts of the case by now, it would be in the reader’s interest to briefly reiterate the same.

Aruna Ramachandra Shanbaug used to work as a staff Nurse in King Edward Memorial Hospital, Parel, Mumbai. On the 27th November, 1973 she was sexually assaulted by Sohanlal Bhartha Valmiki who worked as a sweeper at the same hospital. On finding that Aruna was menstruating, he forcibly sodomized her. In order prevent her from moving, he wrapped a chain around her neck and yanked her back with it and also twisted it around her neck, due to which the supply of oxygen to Aruna’s brain stopped, thereby damaging it. This led Aruna to a period of, in the words of the media, ‘42 years in coma’. Valmiki was later on arrested from Pune and was convicted and sentenced to 7 years in prison for attempt to murder.

Questions arose regarding the quantum of the punishment and also regarding why he was charged only with attempt to murder rather than with rape. Some reports even stated that the police are supposedly exploring the possibility of adding Section 302 (murder) of the Indian Penal Code to the case, while pages sprung up in social media websites such as Facebook, calling for trying the guilty under the amended section 375 of the Indian Penal Code, which deals with rape, and convict him accordingly.

Rape, back in those days when the post-‘Nirbhaya incient’ amendment of 2013 was not in place, carried a maximum punishment of life imprisonment, which is the same as that laid down in section 307 of the Indian Penal Code dealing with the offence of ‘attempt to murder’. Besides, the fact that Valmiki had ultimately sodomized her meant that he could at best be charged for the commission of unnatural offences under section 377 of the Indian Penal Code, rather than with rape. The 2013 amendment, which has incorporated a forcible act of sodomy within the scope of the definition of the crime of rape other than providing for the death penalty in certain rape cases, was not around in 1973 when the same was inflicted upon Aruna Shanbaug. So, legally speaking, neither could Valmiki be charged with rape nor was the charge of attempt to murder, as was pressed against him, any lesser a charge than a charge of rape, especially with regard to the maximum punishment.

As to the question of why was he not handed down the maximum punishment as laid down in section 307 of the Indian Penal Code, it is a matter of facts and the views of the judge sitting in trial over the case. There is no straight jacket formula with regard to the quantum of punishment which is to be handed down in any given situation and the same varies from case to case.

As far as re-opening the case with a murder charge against the accused is concerned, it is very clearly laid down in Article 20(2) of the Constitution of India that once a person has been prosecuted and punished in connection with the commission of a certain offence, he cannot be prosecuted and punished for the same offence again. Besides, to prove that Aruna’s death was due to the forcible sodomy inflicted upon her by Valmiki some 42 years ago, would be a very long shot, especially in view of the fact that her immediate cause of death was pneumonia, something that even the police have accepted and are supposedly keeping in their mind while deliberating upon the question whether to re-open the case or not.

With regard to the popular demand for trying Valmiki for rape under the newly amended provision of the law dealing with rape, one needs to look no further than Article 20(1) of the Constitution of India. The above stated clause 1 of Article 20 states that ‘No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence’.  A plain reading of the above provision would make it abundantly clear that Valmiki cannot be charged for rape since back in 1973 the definition of rape did not include within its fold, an act of forcible sodomy inflicted upon a woman by a man. Also, it is to be kept in mind that the death penalty, which can be handed down in certain rape cases after the 2013 amendment, wasn’t there in section 375 at that point of time. Hence, he can neither be charged under a law that came into existence through the 2013 amendment nor can he be given a punishment more than what was laid down for the crime of rape in 1973.

The next issue to be referred to is the extensive reporting in the media about Aruna’s ’42 year long coma’. In the case filed by social activist Pinki Virani, who has also written a book on Aruna Shanbaug, the Supreme Court had appointed a panel of 3 doctors who examined Aruna Shanbaug and submitted a report along with a supplementary report to the Court. In the supplementary report it was clearly stated that ‘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’. Having stated the same, the report concerned clarified that Aruna Shanbaug was neither ‘brain dead’, nor was she in ‘coma. She was, at worst, in a ‘Permanent Vegetative State’. The doctors came to such a conclusion based on the fact that neither did she exhibit a state of prolonged irreversible cessation of all brain activity, nor did she show a complete failure of the arousal system. Aruna’s features, as were on display at the time of conducting the medical examination, were consistent with the diagnosis of permanent vegetative state.

Social media was awash with claims that euthanasia continues to be ‘illegal’ in India. Among others, reasons such as euthanasia is in violation of ethics and hence, there is no right to carry out euthanasia in India, have been attributed to the ‘supposed illegality’ of euthanasia in India. In reality however, euthanasia, or at least its passive variant, has been very much legalized by the Apex Court of the country vide its judgment delivered in the Aruna Shanbaug case. The Court held that passive euthanasia would henceforth be allowed in India and in cases where the patient was not in a position to take any decision in this regard, the decision to discontinue life support would be taken either by the parents or the spouse or other close relatives, or in the absence of any of them, by a person or a body of persons acting as a next friend or by the doctors attending to the patient. However, all such decisions shall require the approval of the local High Court concerned, which shall grant approval for carrying out euthanasia or deny the same, after seeking the opinion of a committee of three reputed doctors nominated in this regard by the High Court itself.

The obvious question that may arise in the backdrop of the paragraph above is why was euthanasia not allowed in Aruna’s case when the Supreme Court allowed it for other future cases while dealing with the application filed on Aruna’s behalf? The answer to such a question would be the fact that the Supreme Court, while praising Pinki Virani, the petitioner in the case, for her efforts, refused to hold her to be Aruna’s ‘next friend’ and stated that in the absence of Aruna’s parents and other close relatives, it was the KEM Hospital staff, who had been caring for her day and night for so many years, who could be held to be her ‘next friend’ and any decision in this regard would have to be taken on the basis of an application made by them to the local High Court. However, the KEM Hospital staff never made any application praying for carrying out euthanasia on behalf of Aruna Shanbaug till her natural death earlier this year.

One would hope that the legalization of passive euthanasia is put to better use in the future to help relieve innumerable terminally ill patients cut short their suffering and die a respectable death.