RIGHT TO LIFE IN TANDEM WITH RIGHT TO DIE- A CONTEMPORARY PERSPECTIVE

Reading time : 12 minutes

Introduction

Article 21 of the Indian Constitution guarantees Right to Life and personal liberty. Various interpretations led the Supreme Court to declare that one person should have the Right to live with Dignity but it does not include Right to die. The concept of Right to Die is based on the opinion that an individual having its own free will should have the right to end their life or undergo voluntary euthanasia.  The Supreme Court of India in Gian Kaur vs State of Punjab (1996)2 SSC 648 held that right to life does not include “right to be killed” or “Right to die”.  This research article takes into consideration the stand of India as a nation analyses it along with the approaches of various other countries and shares a view as to how more comprehensive this as a Fundamental Right should be made. Although in the case Aruna Ramchandra Shaunbag vs. Union of India, Supreme Court allowed Passive Euthanasia. It will also take into consideration various other statutes meant like Indian Penal Code making Attempt to suicide punishable under Section- 309 of the code and the role of judiciary in upholding such provisions of law and the reasons behind such judgments. This research paper will also deal with the concept like Physician assisted Suicide, Mercy Killing, Cancer, Euthanasia, etc.

Being one of the largest democracies and economy of the world, India is not without its poverty problems. So, when looked minutely a micro level of the society, the concept of Euthanasia practiced in India seems to have a detrimental effect on the poor families. There are various types of cases reported in which the patient is not even alive enough to endure the pain faced by them like for instance, Cancer patients in the very last stage of their life and nor the family is financially independent enough to bear the costs of the hospital expenses are forced to continue on their situation. So, can’t those suffering patients have the right to die peacefully and with dignity in last days of their lives? These are some of various issues being pondered upon by the research. Henceforth, it is portraying a need of Active Euthanasia in this sense. Also considering a global perspective right to die is not available to most of the UN member-states, only 4 out 193 states (Netherlands, Belgium, Luxembourg, and Canada) have legalized it but still it continues to be fiercely debated by many legislatures and my counter-activists who oppose such views. This paper will lastly critically evaluate the judgments propounded by the courts and various outcomes and changes which could be made.

Right to life forms a very important part of our life. Right to life is a concept that is based on the idea that one should be entitled to the basic needs one needs for this survival and to live the life with dignity. In the contemporary society because of the current economic situation that our country is facing we need to have these rights there arises a need to have the right to life for every citizen and to make sure that these rights are implemented in the true sense. Right to life essentially means that every person has the right to breath and live as per their own convenience and that the other person including the government cannot take their life. Article 21 of the Indian constitution guarantees right to life and personal Liberty, it also makes sure that these rights are implemented by article 32 which is considered as the heart and soul of our constitution and it entitles every citizen to file writs in their violation.

While right to die essentially means that a person has the right to take his life or to end his to end his life if and when he or she wishes to. Although, the right to die has been connoted with various interpretations and debates have held to analyze its actual meaning. Like for instance right to die could also include issues of suicides, active or passive Euthanasia, palliative care, assisted suicide recently a new category has been developed like that of physician assisted suicide which appears to be an uncertain blend assisted suicide or active Euthanasia. A few scholastics and logicians, for example, David Benatar[1], believe people to be excessively idealistic in their perspective on the nature of their lives, and their perspective on the harmony between the constructive and the contrary parts of living. This thought can be considered as the absence of office with respect to one’s introduction to the world and who ought to have authority over one’s decision to live beyond words.  Advocates commonly partner the option to die with the possibility that one’s body and one’s life are one’s own, to discard as one sees fit. Be that as it may, a genuine state enthusiasm for forestalling unreasonable suicides is frequently easily proven wrong.

Origin and the concept of Euthanasia –

 The term Euthanasia is gotten from Greek roots “eu” signifies “well or great” and “Thanatos” signifies “death” implies great demise. There are in general 5 types of euthanasia such as – (i) Active, (ii) Passive, (iii)Voluntary, (iv) Involuntary and (v)Non – Voluntary. Active Euthanasia implies a positive kind act to end pointless sufferings and an inane presence. It is a demonstration of commission. Passive Euthanasia intends to let pass on. It infers suspending life supporting estimates that will draw out life. It can likewise incorporate a demonstration of exclusion, for example, inability to revive an in critical condition persistent or not completing a day-to-day existence expanding activity, and so on. Voluntary Euthanasia happens when the individual concerned gives his assent for it. Involuntary is rehearsing killing against the desire of the individual. Once more, non-voluntary happens when the individual is in such a condition, that he cannot in any way, shape or form give his assent. His family members may assent for his passing around then.

EVOLUTION OF RIGHT TO LIFE WITH DIGNITY IN INDIA

The apex court with the help of the Article 21 tried to evolve the concept of Right to life through various interpretations and various dynamic changes have been made to provide the citizens of our country what they are rightfully entitled.

For instance, right to life was interpreted and enhanced to include Right to livelihood as interpreted in the case Olga Tellis vs. Municipal Corporation of Bombay and ruled that the right to livelihood is one of the crucial and intrinsic part of right to life, as no person can live without the means of livelihood. Right to shelter was propounded in Chameli Singh vs State of Uttar Pradesh[2] , the court held that right to shelter is well enough included as a fundamental right as we can infer from the right to residence mentioned in Art. 19(1)(e) and right to life of Art. 21.

Also, “Right to privacy” was held to be part of this right which opened a new arena for interpretations as for the citizens right to have privacy in the instance of PUCL v. Association of India[3], the Supreme Court in holding that privilege to protection is a piece of the privilege to “life” and “individual freedom” revered under Article 21 of the Constitution. When the realities in a given case establish a privilege to protection; Article 21 is pulled in. The said right can’t be abridged with the exception of as per technique set up by law.

Right of the prisoners was included in Hussainara Khatoon vs. Province of Bihar[4] , right against detention under article 21 was held as intrusive.

Right to get pollution free water and air or the right to have a clean environment was held to be an important part of this right as can be seen in various MC Mehta cases and the Supreme Court has made a huge commitment to the government assistance of the individuals by utilizing Art.21 for the improvement of nature. In Subhash Kumar v. Province of Bihar[5],the Apex Court held that pleasure in contamination free condition is remembered for the privilege to life under Art.21. Likewise on account of A.P. Contamination Control Board v. M.V. Naidu[6] the Supreme Court has made truly significant recommendations for the improvement of adjudicatory hardware under the different ecological laws.

Right to free legal aid was established in M.H Hoskot v. Territory Of Maharashtra, Justice Krishna Iyer saw that giving free legitimate guide is the State’s obligation and not Government’s cause and held that a detainee was qualified for a duplicate of the judgment and free lawful guide in the event that he couldn’t make sure about lawful colleague. Also, if the person is not financially strong enough to get a lawyer and various other forms of legal support then it is the obligation on part of the government to provide so.

Right to fair and speedy trial is a principal right certain in the assurance of life and individual freedom revered in Art. 21 of the Constitution and any blamed who is denied this ideal is qualified for approach the Court to authorize such right. The Supreme Court held in Hussainara Khatoon v. Home Secretary, State of Bihar as mentioned earlier that fast preliminary is a major right understood in the assurance of life and individual freedom revered in Art. 21 of the Constitution.

The Supreme Court guaranteed also guaranteed the right against sexual harassment in workplace by ruling that the female specialists are not explicitly pestered by their male collaborators at their work places. In Vishakha vs Province of Rajasthan. the Supreme Court held that inappropriate behavior of a working lady at her work environment as adding up to infringement right to life and freedom which is an away from of Arts. 14, 15 and 21 of the Constitution. The Supreme Court held that assault is a wrongdoing against fundamental human rights and is likewise violative of the casualty’s entitlement to life contained in Art. 21.

A new development can be seen in modern scenario, the concept of “Freedom to Die” appears to have risen up out of the privileges of protection, right to have privacy, self-rule and self-assurance. There are many reasons and problems today of various kinds as can be seen:

(I) The individuals who need to end it all themselves. The demonstration of self-destruction is an offense however it is unimaginable to expect to rebuff the person who is fruitful in submitting it. The endeavor to end it all is anyway was culpable under section -309 of I.P.C. In spite of the fact that in certain nations, this isn’t culpable.

(ii) The individuals who can communicate their longing to end it all however are weak because of some explanation and need help from others.

(iii) The individuals who are not able enough to agree to their demise due to physical or mental incapacity.

CURRENT SCENARIO AND CONSTITUTIONAL VALIDITY OF RIGHT TO DIE IN INDIA-

The Indian Constitution under Article 21 mentions that “No person should be deprived of his life or personal liberty except according to the procedure established by law.” [7]It interprets dignity as its fundamental establishment and henceforth, every individual must reserve the option to choose whether or not to acknowledge clinical intercession in the event of terminal sickness. The option to live with pride remembers self-rule for connection to the way toward passing on and deciding to not experience agony and languishing. Such translation is in consonance with Article 1 of UDHR that characterizes a stately life and Articles 6, 7, 17, and 18 of ICCPR that widen the conceptualization of the privilege to a noble life.

The main case which first carried the issue of Right to die, under the watchful eye of the courts is State v. Sanjay Kumar wherein the Delhi High Court censured the section -309 and this choice was trailed by two clashing choices of the Bombay High Court and the Andhra Pradesh High Court in the instances of Maruti Sripati Dubal v. Province of Maharashtra and Chenna Jagadeeswar v. Territory of Andhra Pradesh individually. In the primary case, section 309 was viewed as violative of Article 21 and in the second case it was held constitutionally valid.

In P. Rathinam v. Province of U.O. I[8] , again section 309 was viewed as unlawful and it was reasoned that the correctional laws should be more accommodating. Be that as it may, soon this choice was overruled in Smt. Gian Kaur v. Province of Punjab [9] and it was held that Article 21 does not include Right to Die. It was additionally held that privilege to life is a characteristic right however self-destruction being unnatural end of life is incongruent with it. Anyway, the court seems to have allowed inactive killing. The most recent choice passed by the Apex Court is – ‘Active Euthanasia is unlawful. Passive euthanasia or extermination is admissible; however, it ought to be done under the oversight of the High Court.’ This choice was passed in the renowned Aruna Shaunbag [10]case and the Supreme Court dismissed the request or appeal to permit her leniency murdering.

In the interest of Aruna, her companion Pinki Virani, a social activist, documented an appeal in the Supreme Court contending that the “proceeded with presence of Aruna is infringing upon her right to life with dignity”. The Supreme Court settled on its choice on 7 March 2011. The court dismissed the supplication to suspend Aruna’s life uphold however gave a lot of expansive rules sanctioning detached passive euthanasia in India. The Supreme Court’s choice to dismiss a mind-blowing cessation upholds depended on the way that the clinic staff who treat and deal with her didn’t uphold euthanizing her. She died from pneumonia on 18 May 2015, in the wake of being in a state of insensibility for a time of 42 years.[11] The accompanying rules were set down:

Firstly, a choice must be taken to suspend life uphold either by the guardians or the mate or other close family members, or without any of them, such a choice can be taken even by an individual or a group of people going about as a next companion. It can likewise be taken by the doctors or nurses going to the patient. Be that as it may, the choice ought to be taken real to the greatest advantage of the patient.

Secondly, regardless of whether a choice is taken by the close to family members or next companion to pull back life uphold, such a choice requires of two observer and countersigned by top-of-the-line legal judge, and ought to likewise be endorsed by a clinical barricade set by the clinic.

As per the National Cancer Registry Program of the India Council of Medical Research (ICMR), in excess of 1300 Indians pass on consistently because of malignant growth of cancer. Somewhere in the range of 2012 and 2014, the death rate because of the disease expanded by around 6%. In 2012, there were 478,180 passing’s out of 2,934,314 cases detailed.  So many individuals passed because of cancer. And furthermore, the treatment of cancer is a lot of exorbitant which just rich individuals can manage the cost of and not by the needy or poor individuals. In this way, all things considered we can envision the circumstance of the family who’s cherished one is experiencing disease and they can’t give treatment to them in view of its expense. Furthermore, in the event that it is last stage at that point there is no hope with the exception of bearing the torment.[12]

RIGHT TO LIFE VS. RIGHT TO DIE – THE BONE OF CONTENTION WITH SPECIAL REFERENCE TO SOCIETY AND CULTURE

During the ancient times women in the Indian society women used to burn themselves or the other gender of the society used to exercise discretion continuing their lives or not believing it to be sacred or inspired by attaining heavenly abode primarily drive by the ultimate source i.e., the almighty. But the present Indian culture, driven by religion, won’t acknowledge the idea of active euthanasia as the strict sacred texts oppose it.  Commercialization of euthanasia can occur.  The destitute individuals could turn to this so as to keep away from the monetary troubles of prescription. Old and penniless are some of the times considered as weight and individuals can utilize this to leave their obligations. Allowing such type of killing will degrade human respect and will affront the guideline of holiness of life. It will leave debilitated, crippled individuals more powerless than the remainder of the populace and can likewise give a ‘shroud for homicide’.

Envision a society where patients are routinely euthanized—regardless of whether they need their lives to end or not—if their enduring can’t be reduced without dulling their awareness, disposing of their freedom, or undermining their nobility. In such a general public, safeguards of business as usual may contend that the obligation to forestall enduring and outrage makes the arrangement basic. A convincing reaction would be that, while enduring, insult, and loss of autonomy are unwanted, just the individual suffering them ought to choose whether they are terrible. On the off chance that a patient is skilled to choose, no one other than that patient ought to have the position to choose whether life merits proceeding.

Exactly the same contention, be that as it may, can be progressed against the current practice, common in many nations, of restricting individuals from looking for help to take their lives. Also a few people may conclude that the misery and outrage that describe their lives are not adequately awful to make life not worth proceeding, others in a similar circumstance will regard their condition intolerable. Similarly, as it is inappropriate to constrain individuals to die, so is it wrong to drive individuals to suffer conditions that they see as terrible. Hence by considering the pros and cons relating to the various aspects to legalizing euthanasia in the nation one can clearly deduce the need for some variations in the existing system and facilities available in the country.

THE WORLD’S PERSPECTIVE ON LEGALISING RIGHT TO DIE –

Netherland possibly the first nation ratifying euthanasia and assisted dying in situations where somebody is encountering excruciating torment and there is no possibility of it improving. There is no necessity to be at death’s door, and no compulsory holding up period. Kids as youthful as 12 can demand so, however parental assent is required for those under 16. There are different criteria that must be embraced before it can be endorsed

Also, most likely the principal nation that rings a bell for legalizing assisted dying or euthanasia is Switzerland which permits doctor helps in terminating life without a base age prerequisite, determination or indication state. However, it is esteemed unlawful if the inspirations are mala fide – for instance, on the off chance that somebody helping the passing stands to acquire prior, or on the off chance that they don’t need the weight of thinking about a debilitated person. Euthanasia isn’t legitimate in the nation. In 2018, 221 individuals went to the Swiss center Dignitas for assisted dying.

Belgium permits the same for those with terrible misery and no possibility of progress. Belgium has no age limitation for kids; however, they should have a terminal sickness to meet the measures for endorsement. In Luxembourg and Quebec both it is legitimate in Luxembourg for grown-ups.

The Australian territory of Victoria passed voluntary euthanasia laws in November 2017 following 20 years and 50 bombed endeavors. To fit the bill for lawful endorsement, you must be a grown-up with dynamic limit, you should be an inhabitant of Victoria, and have terrible enduring because of an ailment that gives you a future of under a half year, or a year if experiencing a neurodegenerative disease. Also, a doctor can’t raise but the patient must raise it first and three solicitations to the plan, remembering one for composing, then it should be evaluated by two experienced specialists, one of whom is an authority, to decide your qualification[13].

In France Palliative sedation, in which somebody can request to be profoundly calmed until they die, is only allowed in France. New Zealand as yet required before the bill is passed into law, and it is a long way from ensured that it will succeed.

A COMAPARATIVE ANALYSIS WITH RESPECT TO INDIA- REVIEW OF THE FAMOUS CASES

In USA, few states currently offer lawful assisted euthanasia as in Oregon, Washington, Vermont, California, Colorado, Washington DC, Hawaii, New Jersey, Maine and Montana all have laws or court decisions permitting specialist assisted euthanasia for at death’s door patients. Doctors can compose patients a remedy for the deadly medications, yet a medicinal service proficient must be available when they are controlled. The entirety of the states requires a 15-day holding up period between two oral solicitations and a two-day holding up period between a last composed solicitation and the satisfying of the solution.

One of the earliest cases raised in the US was around 1976, In re Quinlan in which the court although did not grant the permission to allow assisted dying but held according to right to privacy included her right to be removed from the ventilator setting aside the demand raised by her parents to remove all the medical support after 5 months being in a persistent vegetative state. Then one the monument case of Baxter vs. Montana, lawsuit brought forth by four Montana physicians and others who raised a constitutional right to receive and provide aid in dying, in this ignoring the demands raised the Supreme Court of Montana held that physician assisted dying is not against public policy. It raised a lot of public uproar and demands and various leagues and organizations came up in response and support making the sate liable for providing such measures such as “My Death, My Decision” an organization launched in 2009 in England and Wales along with “World Federation of Right to die Societies”[14] .

Also, there was a Death with Dignity Act[15] launched and it was challenged in Gonzales vs Oregon, 2006 and was supported by the Supreme court.

Carter v Canada[16] (AG), 2015 SCC 5 is a milestone Supreme Court of Canada choice where the disallowance of assisted dying was tested as in opposition to the Canadian Charter of Rights and Freedoms (“Charter”) by a few gatherings, including the group of Kay Carter, a lady experiencing degenerative spinal stenosis, and Gloria Taylor, a lady experiencing amyotrophic parallel sclerosis (“ALS”). In a consistent choice on February 6, 2015, the Court struck down the arrangement in the Criminal Code, consequently giving Canadian grown-ups who are intellectually skilled and enduring heinously and enduringly the privilege to a specialist’s help with dying.[17]This decision upset the Supreme Court’s 1993 decision in Rodriguez v British Columbia (AG), which had denied the same.

In the above mentioned, we can clearly see that their existed an awareness in each of the member of the society of every country raising such arguments demanding their Freedom to Die and also these demands were common of both middle class, upper middle class and people from comparatively lower classes too who raised such issues. So, we can clearly see the uniformity and unity in them. Whereas far the Indian society is concerned, there would certainly be cases where even though now passive euthanasia being allowed people still are conspicuous about raising their demands and people mainly with serious economic problems and person suffering from years being bed- ridden for more the 9 or 10 years are after several deliberations provided for such kinds of physician – assisted killing.  

Henceforth couple of countries presently license assisted dying or willful euthanasia, yet most don’t and there occurs various problems which are rarely discussed out openly in the public. Fewer countries might limit helped their facilities to their own residents or inhabitants like Victoria; but Switzerland permits outsiders to utilize its life-finishing offices. The issue associated with it is that an outing to Switzerland forces numerous impediments for individuals enduring somewhere else. Others may come up short on the assets or resources to get to Switzerland. Indeed, even the individuals who could get to the Swiss offices may need to travel and die alone on the grounds that any relative who goes with them could be charged in their nation of origin with aiding a suicide. Furthermore, even without that danger, patients need to travel, frequently huge spans, to kill themselves in an unfamiliar spot instead of in familiar surroundings. Therefore, the way that help euthanasia is accessible some place isn’t a reason for not making it accessible all over the place.

Slaughtering individuals or helping them to end themselves is generally off-base, in light of the fact that proceeded with life is, we expect, for the most part to those individuals’ advantage. It is very improbable; in any case, to imagine that proceeded with life is consistently to an individual’s advantage. Personal satisfaction can tumble to horrifying levels. While there can be sensible contradiction about how poor the quality must be before life does not merit proceeding, it is a foul burden on individuals—an unreasonable infringement of their freedom—to constrain them to bear a day-to-day existence that they have sensibly decided to be unsatisfactory. As needs be, it is officeholder on freedom regarding states to permit helped euthanasia for those whose lives have become a weight to themselves.

Conclusions and Suggestions

“People want the right to die in the time of their own choosing. Too many families have watched helplessly as their relatives die slowly longing for death”- Polly Tonybee

Furthermore, the aforementioned data, facts and views, it can be clearly inferred that there is a discrepancy of views as far as their legalizing are concerned. But generalizing one opinion on the whole world or the country, leads a nation to miss out what individuals are facing and how one case of people seeking relief under any type of euthanasia may differ from another.

As individuals esteem having power over where to live, which occupation to seek after, whom to wed, and whether to have youngsters, so individuals esteem having command about whether to keep living when personal satisfaction break down. That is the reason the privilege to life and the option to die are not two rights, yet two viewpoints or depictions of a similar right. The privilege to life is the option to choose whether one will or won’t keep living. The option to pass on is the option to choose whether one could keep living. In the event that the privilege to life were just an option to choose to keep living and didn’t likewise incorporate an option to choose not to keep living, at that point it would be an obligation to live instead of a privilege to life. The possibility that there is an obligation to keep living, paying little heed to how awful life has become, is an unlikely one without a doubt.

Since the start the makers of our constitution have tried to make it as approachable as it seems in keeping it rigid to prevent its violation and also allowing provisions for interpretations so that it can keep up with the changing dynamics of the society. Hence, we can clearly conclude given the problems faced by the most prominent strata of the society and to uphold the true essence of the constitution, there is vividly a need for change and of acceptability of legalizing euthanasia in some way considering in mind that it is not misused in any sense but in a way provides a relief and opens a new area of interpretation.

The monumental decision of the Supreme Court gives a chance to draft exhaustive enactment which completely perceives the privilege to noble passing. Fundamentally, the choice is a dynamic advance that liberates individuals’ friends and family from the blame of taking troublesome choices and eases specialists of the dread of being pursued for punishable crime. In the words, according to Steve Jobs, “Death is very likely single best invention of life”.


[1] Benatar D. Assisted suicide, voluntary euthanasia, and the right to life. In: Yorke J, ed. The Right to Life and the Value of Life: Orientations in Law, Politics and Ethics. Farnham, U.K.: Ashgate; 2010: 291–310

[2] AIR 1996 SC 1051

[3] AIR 1997 SC 568

[4]AIR 1979 SC 1369

[5] AIR 1991 SC 420

[6] AIR 1999 SC 812

[7] The Constitution of India

[8] AIR 1994 SC 1844

[9] AIR 1996 SC 1257

[10] Aruna Ramchandra Shanbaug v. Union Of India – (2011) 4 SCC 454

[11] Supreme Court disallows friend’s plea for mercy killing of vegetative Aruna”. The Hindu. 7 March 2011.

[12] http://cancerindia.org.in/cancer-statistics/

[13] https://www.theguardian.com/society/2017/nov/23/crossing-the-threshold-victoria-makes-history-with-assisted-dying-law

[14]  “World Federation of Right to Die Societies: member organizations”, Retrieved 1st June,2021

[15]  “Oregon’s Death with Dignity Act”. Oregon.gov

[16] Carter v Canada (AG), 2015 SCC 5

[17] “Supreme Court Judgments”. Supreme Court of Canada. SCC/CSC. February 6, 2015. Retrieved 2nd  July , 2020.

Author: GRISHMA SAHAY, AMITY LAW SCHOOL, NOIDA

Editor: Kanishka VaishSenior Editor, LexLife India.

Absolute liability: Right to life

Reading time: 8-10 minutes.

If the COVID-19 pandemic has taught us anything, then it is to not take life for granted, as it is. The year 2020 surely did bring in a slew of mishaps beginning from the present pandemic, to world war threats and major diplomatic tumbles in the diplomatic sphere. The series of unfortunate events continued as a major gas leak took place in and around Vizag on the 7th of May, 2020 that ended up in a cataclysmic tragedy with thousands under the effect of toxic fumes.

The leak occurred early in the morning on 7th May in a chemical factory called LG Polymers India private limited. The Styrene gas that leaked out from the factory is a residue from the polymer manufacturing process that is undertaken in the factory and is highly carcinogenic in nature. This Styrene becomes even more lethal when it comes in contact with atmospheric oxygen and oxidizes into Styrene Dioxide. Prolonged exposure to Styrene in either its true form or to its dioxide form can cause a variety of afflictions, including, but not limited to, irritation of the mucous membranes, inflammation of the digestive tract, malfunctioning of the central nervous system, etc. According to India’s Manufacture, Storage and Import of Hazardous Chemical Rules 1989, styrene is classified as a ‘hazardous and toxic chemical’.

Right To Safe Environment under the ambit of Article 21

It is essential to view the Vizag Gas Leak Tragedy under the purview of Article 21 of the constitution. Though it can be contested and argued that while drafting the constitution, the founding fathers didn’t necessarily intend Article 21 to take into consideration the ‘Right to Safe Environment’ of an individual, but the very essence of the Constitution of India lies in the fact that our constitution is both, a mixture of rigid and flexible tendencies and thus, the highest interpreter of the constitution, namely, the Supreme Court can interpret the constitution in accordance to what the society demands as time passes. Thus, there is no lack of jurisprudence on the varied interpretations of the scope of Article 21 and whether or not it should cover the Right to Safe Environment.  The philosophy behind considering Right to Safe Environment under the ambit of Article 21 is that ‘Right to Life’ shouldn’t be interpreted in the terms of  bare-bones, basic-subsistence level survival, rather, it needs to cover everything that a man needs for the satisfaction of his being and to ensure a dignified life.

The Supreme Court held that the right to life under Article 21 of the Constitution is a fundamental right and includes the rights to free water and free air from pollution for the full enjoyment of life in the case of Subhash Kumar v. State of Bihar. Thus, according to this doctrine laid down by the Supreme Court, an individual might seek redressal in case his right to a healthy environment is hampered in any way or form, pertaining to the leakage of any toxicant from industrial outlets.

The Doctrine of Absolute Liability and its legal modalities

Absolute liability is a sort of tortuous liability of a person arising out of his wrong doing in which if caught offended, there is no defence available to the wrongdoer. In legal terms, it can be defined as, “Offences in which it is not open to a person to avoid liability on the ground that she or he acted under a reasonable mistake of fact which, if the facts had been as the accused believed them to be, would have made his act innocent”.

Though the concept of absolute liability has existed in other legal systems across the world, India is a new contender to jump onto the bandwagon with the M.C. Mehta v. Union of India case that dealt with the Oleum Gas Leak tragedy that had rattled the core of India. The malefactors behind the tragedy were powerful corporate giants and were getting off comparatively easy with the rule of strict liability as considered to the appalling condition of those affected by the gas leak. Thus, the Supreme Court of India came up with the doctrine of absolute liability so as to ensure that corporates didn’t go unscathed and were held responsible for their wrongdoings.

Essentials for establishing Absolute Liability

The essentials for establishing liability under the doctrine follow the similar lines of those required for establishing strict liability given that absolute liability is an extension of the pre-existing principle of strict liability. The essentials are:-

  1. Possession of Dangerous Substance :- In general terms, the question of strict liability shall only arise when the substance in question is inherently dangerous and poses a threat to human beings in the vicinity of it. In various torts cases filed worldwide, the ones involving the doctrine of strict liability have held “large body of water, gas, electricity, vibrations, yew trees, sewage, flag-pole, explosives, noxious fumes, rusty wires, etc. as dangerous things.
  2. Escape :- It is an essential condition for the tort of strict liability to sustain that, the dangerous thing that was under the possession of the defendant has escaped or leaked from the aforementioned possession and has caused trouble to others. The principle for the same was laid down in Crowhurst v. Amersham Burial Board case.
  3. Non-natural Use of Land ;- In Rylands v. Fletcher case, it was established that land which is put to domestic use, doesn’t qualify for strict liability, whereas, land used for storing or processing industrial amounts of substances are taken into consideration. Also, it is essential to understand that ‘natural’ usage doesn’t cover everything that organically arises out of the land. For instance, if the defendant knowingly plants toxic trees, then he shall be liable for any damage caused by their escape from the premises of his land.
  4. Mischief: – None of the conditions can sustain by themselves if the plaintiff cannot prove that the escape of dangerous substance from the possession of the defendant has caused his to suffer from some tangible damage.
  5. Evolution of the Doctrine of Absolute Liability

It has been testified time and time again that though Indian legal system derives its substance from the English Common Law system that has existed since medieval times, over the years, the stalwarts of Indian Legal System, have shaken off the colonial fetters and shaped the law to accommodate Indian circumstances. The story of evolution of the Doctrine of Absolute Liability is one that enunciates the intricacies that the Indian jurists went into, in order to secure justice for the Indian masses.

Previously, the Indian legal system only considered the Doctrine of Strict Liability as laid in the Rylands v. Fletcher case. But, after the Bhopal Gas Leak Tragedy and the Oleum Gas Leak Tragedy, in a landmark judgement of M.C. Mehta v. Union of India, the rule of Absolute Liability was laid down.

Jurisprudence behind the Doctrine of Absolute Liability

In the M.C. Mehta v. UOI case, Justice Bhagwati opined that it is unjust to deal with cases of 21st century with a law that dates back to 19th century, a time when the industrial revolution was just taking off. In his opinion, the law wasn’t well suited to deal with industrial giants of present day who were involved in wrongdoings way beyond what the Doctrine of Strict Liability could have foreseen and thus, when any defence is maid available to them, it is nothing but a loophole in the legal system and an injustice is committed against those who are affected by the wrongdoing.

Being absolutely liable makes the party anticipate for the worst, even if it is highly unlikely so that possibility of occurring any mishap is reduced to zero.

Difference between Strict Liability and Absolute Liability

The main difference between the concepts is the lack of any defences available to the defendants if found guilty. The Doctrine of Strict Liability gives the benefit of doubt to the defendants by allowing them to plead not guilty by using a number of defences such as, Act of God, Volenti Non Fit Injuria, Benefit of the plaintiff, Statutory Authority, etc. Another point of difference is that under Strict Liability, the damages paid are compensatory in nature, whereas, the damages paid under Absolute Liability are exemplary.

  • Corroborating Absolute Liability and Right to Life

According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in a democratic society.” Iyer, J., has characterized Article 21 as “the procedural magna carta protective of life and liberty. Article 21 of the constitution is the primary unit that defines life and liberty of individuals and all other rights add quality into it. No other fundamental right can stand by itself if this singular article is taken away. Given its basic nature and inalienability, it needs to be protected at all costs and that is the reason why Absolute Liability was ruled to be a part of Article 21.

Judicial activism surrounding the interpretation of Article 21 has helped broaden its scope over the years and now the terms ‘life’ and ‘liberty’ include much more than just mere subsistence. The Right to Life now includes Right to Education. Right to Speedy Trial, Right to Livelihood and Right to Healthy Environment amongst others. The principle of absolute liability was considered as a tool of prevention of mass destruction or avoidance of danger to life of masses and thus stands as a mighty protective wall that apprehends any threat to the Right to Life of an individual.

Critical analysis

Judicial Activism in India has come a long way and doctrines like that of Absolute Liability, stand as a burning testimony of the changing times. The doctrine is a torch-bearing stalwart in the arena of enforcing industrial social responsibility because it creates a factor of apprehension in the minds of industrialists re4garding their dealings with harmful substances because they know that unlike the doctrine of strict liability, the present law has no loopholes that they can exploit and go unscathed.

Also, with the advent of the new doctrine, an entire new arena of interpretation of the Right to Life has opened up. This in turn, is symbolic of the fact that our law system has changed for good and has woken out of its colonial hangover and is taking progressive strides.

Conclusion

Though decades have passed since the doctrine came into being, its applicability is still as relevant as ever and this doctrine has helped the court of law serve justice in cases similar to that of the Oleum Gas Leak case that are concerned with industrial irresponsibility. Presently, in context of the Vizag Gas Leak Tragedy, though the NGT has found prima facie liable under strict liability, jurists are of the opinion that absolute liability would have been a better term to be used given that the NGT had ‘whole-heartedly’ supported the applicability of the doctrine of absolute liability back in 2010.

Author: Monalisa Nanda from Rajiv Gandhi National University of Law, Bhadson Road, Sidhuwal, Patiala.

Editor: Akshat Mehta from Institute of Law, Nirma University.

Analysis: Quarantine v. Personal liberty

Reading time: 6-8 minutes.

“Life without liberty is like a body without spirit.” – Kahlil Gibran

The right to life and personal liberty is most fundamental of all our rights and gives meaning to our very existence.  Everyone comes into the world with a right to his person which includes the liberty of moving and using it at his own will. This Fundamental Right is guaranteed under Article 21 of the Constitution, which states “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

According to A.V.Dicey, “Personal liberty, as understood in English law, means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification”

 Bhagwati, J., said Article 21 “embodies a constitutional value of supreme importance in a democratic society.”

Being the most progressive provision of our Constitution, this right has been held to be the heart of the Constitution.  It is the only Article that has received the widest possible interpretation to include various rights like Right to Dignity of Life, Right to Travel, Right to Privacy, etc. The Constitution has made the judicial process as the protector of personal liberties. 

Maneka Gandhi v. Union of India: The right to live is not merely a physical right but includes within its ambit the right to live with human dignity. Personal liberty makes for the worth of the human being and travel makes liberty worthwhile. 

A.K.Gopalan v. State of Madras:  The ‘personal liberty’ in Art.21 primarily means the freedom from any kind of physical restraint or coercion, including arrest and detention, which essentially consists in the freedom of movement and locomotion. It also includes a bundle of several other positive rights, such as the right to eat, drink, sleep, work, etc., which would go to make up a man’s liberty.

Kharak Singh v. the State of U.P.: The term “life” means more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.

D.B.M. Patnaik v. A.P.: Even a convict is entitled to the precious right guaranteed by Article 21, he shall not be deprived of his life or personal liberty except according to the procedure established by law.

COVID-19 quarantine

In December 2019, a novel Coronavirus known as SARS-CoV-2 was first detected in Wuhan, People’s Republic of China. It caused an outbreak of the Coronavirus disease (COVID-19) which has now spread globally.

The World Health Organization determined that the outbreak of COVID-19 constitutes a Public Health Emergency of International Concern in January and on March 11, 2020, it announced the COVID-19 as a Pandemic.

To prevent the introduction of the disease to new areas and to reduce human-to-human transmission, many countries have taken multiple public health measures such as Quarantine and total Lockdown.  By the United Nations Charter and International law principles, Member states have the sovereign right to implement their health policies, even if this involves the restriction of movement of individuals. Article 3 of the International Health Regulations, 2005 specifies rules for implementation of quarantine, ensuring it to be respectful of the dignity, human rights and fundamental freedoms of persons.

Quarantine involves the restriction of movement, or separation from the rest of the population, of healthy persons who may have been exposed to the virus, with the objective of monitoring their symptoms and ensuring early detection of cases. Persons who are quarantined need to be provided with health care; financial, social and psychosocial support; and basic needs, including food, water, and other essentials.

The global containment strategy includes the rapid identification of laboratory-confirmed cases and their isolation and management either in a medical facility or at home. WHO recommends that contacts of a COVID-19 positive patient be quarantined for 14 days. 

Constitutional validity of Quarantine

All citizens of India have a Fundamental Right  “to assemble peaceably” and “to move freely throughout the territory of India”, guaranteed under Article 19(1) (b) and 19(1) (d), respectively.

Quarantine being a limitation on free movement and assembly prima facie violates this fundamental right. However, Article 19 (3) says “Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order”. Similarly, Article 19(5) gives the state power to make such laws in the interest of the general public.

Moreover, Public Health and sanitation, hospital and dispensaries are items under List II of the Constitution and hence, States are empowered to make laws on these subjects.

Epidemic Diseases Act, 1897:  This is the main legal weapon the government possesses today. The objective of this Act is to provide for better prevention of the spread of dangerous epidemic diseases. Any state government, when satisfied that any part of its territory is threatened with an outbreak, may authorize all measures, including quarantine, to prevent it.

Section 2 empowers a state to inspect people and segregate suspected patients. Measures and regulations for the inspection, vaccination, and inoculation of persons, including their segregation in a hospital, temporary accommodation, or otherwise can also be taken.

The government of India declared the Coronavirus disease as a ‘notified disaster’ under the National Disaster Management Act, 2005. This Act’s purpose is to coordinate the response to natural or man-made disasters and capacity-building in disaster resiliency and crisis response. 

Sanctions against violation of Quarantine

While dealing with an emergency caused by the outbreak of a dangerous disease, the state may seek the cooperation of the public. If the desired cooperation is not forthcoming, a regulation may be imposed. For example, Section 144 (Cr.P.C.) empowers the administration to impose restrictions on the personal liberties of individuals to prevent injury or danger to human life, health, and safety or disturbance of public tranquility.

Failure to obey or comply with such restrictions constitutes a punishable violation under the following sections of the Indian Penal Code, 1860.

Section 188: Whoever disobeys a direction promulgated by a public servant, if such disobedience causes or tends to cause danger to human life, health or safety, shall be punished with imprisonment for a term up to six months, or with fine or both.  Any person who disobeys any order or regulation under the 1897 EPD Act may be charged under this section.

Section 269: Whoever unlawfully or negligently does any act likely to spread the infection of any disease dangerous to life, shall be punished with a term up to six months, or fine, or both.

Section 270: Whoever malignantly does any act which is, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment for a term up to two years, or fine, or both.

Conclusion

“Desperate times breed desperate measures.” Quarantine, across the globe, is proving to be the best bet in the containment of Coronavirus disease. It might be interfering with our liberty but such a reasonable restriction is even permissible under our Constitution. In the interest of general public and order, it is also our duty as a citizen to cooperate with the government and help stop this outbreak.

Author: Sweksha from Law Centre-II, Faculty of Law, University of Delhi.

Editor: Tamanna Gupta from RGNUL, Patiala.