legal cell: 09/01/2008

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Thursday, September 11, 2008

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Wednesday, September 10, 2008

Law Commission Reports

If you cannot find what you are looking for on this website, please contact the Law Commission Communications Team or The Stationery Office http://www.tso.co.uk.
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LAW COMMISSION OF INDIA REPORTS (101 - 169)

LAW COMMISSION OF INDIA REPORTS (101 - 169)
Report Number
Subject
101
Freedom of speech and expression under article 19 of the Constitution
102
Section 122(1of the code of criminal procedure 1973
103
Unfair terms in contracts
104
The judicial officers protection act 1850
105
Quality control and inspection of consumer goods
106
Motor Vehicles Act,1939
107
Law of Citizenship
108
Promissory Estoppel
109
Obscene and indecent advertisment and display: Section 292-293, Indian Penal Code.
110
Indian Succession Act, 1925
111
The Fatal Accidents Act,1855
112
Section 45 of the Insurance Act,1938
113
Injuries in police custody suggested section
114
Gram Nyayalaya
115
Tax courts
116
Formation of an all India Judicial service
117
Training of judicial officers
118
Method of appointement to subordinate courts
119
Access to exclusive forum for victims of motor vehicles act, 1939
120
Manpower plaining in judiciary a blueprint
121
A new forum for judicial appointments
122
Forum for national uniformity in labour adjudication
123
Decentralisation of administration of justice: Disputes involving centres of Higher Education
124
The High court arrears-a fresh look
125
The Supreme court-a fresh look
126
Government and public sector undertaking litigation policy and strategies
127
Resource allocation for infra-structual services in judicial administration
128
Cost of legislation
129
Urban legislation mediation as alternative to adjudication
130
Benami transaction a blueprint
131
Role of legal profession in administration of justice
132
Need for amendment of the provisions of the Chapter IX of the Code of Criminal Procedure, 1973 inorder to ameliorate the hardship and mitigate the distress of neglected women, children and parents
133
Removal of discrimination against women in matters relating to guardianship and custody of minor children and elaboration of the welfare principles
134
Removing deficiencies in certain provisions of the workmen's Compensation Act, 1923
135
Women in custody
136
Conflicts in High Courts Decisions on Central Laws
137
Need for creating office of ombudsman
138
Legislative protection for slum and pavement
139
Urgent need to amend order XXI, Rule 99(2), Code of Civil Procedure
140
Need to amend order V , rule 19A of the Code of Civil Procedure, 1908
141
Need for amending the law as regards power of courts to restore criminal revisional applications and criminal cases dismissed for default in appearance.
142
Concessional treatment for offenders who on their own initiative choose to plead guilty without any Bargaining
143
Legislative safegaurd for protecting the smal depositors from exploitation
144
Conflicting judicial decisions pertaining to the Code of Civil Procedure, 1908
145
Article 12 of the Constitution and Public Sector Undertakings
146
Sale of Women and Childern
147
The Specific Relief Act 1963
148
Repeal of certain pre-1947 central act
149
Removal of certain deficiencies in the Motor Vehicle Act, 1988
150
Suggesting some amendments to the Code of Civil Procedure, 1908
151
Admiralty Jurisdication
152
Custodial Crimes
153
Inter-country adoption
154
The Code of Criminal Procedure, 1973 (Act No 2 of 1974) Vol I
154
The Code of Criminal Procedure, 1973 (Act No 2 of 1974) Vol II
156
The Narcotics Drugs and Psychotropic substanc
156
The Indian penal code-Vol I
156
The Indian penal code-Vol II
157
Section 52 Transfer of Property Act ,1882
158
The Amendment of the Industries (Development and Regulation Act, 1951)
159
Repeal and amndment of laws Part 1
160
Amendements to the All India Council for Technical Education Act, 1987
161
Central Vigilance Commission and Allied Bodies.
162
Review of Functioning of Central Administrative Tribunal
163
The code of Civil Procedure (amendment) bill,1997
164
The indian divorce act 1869
165
Free and compulsary education for childern
166
The corrupt Public Servants (Forfeiture of Property Bill)
167
The Patents(amendment)Bill ,1998
168
The Hire purchase Act,1972
169
Amendment of Army,Navy and Airforce Acts

Monday, September 8, 2008

Laws violating Constitution's framework open to review: SC

January 11, 2007 11:25 IST
Last Updated: January 11, 2007 16:11 IST

In a landmark judgment with far reaching implications, the Supreme Court on Thursday ruled that any law placed under the Constitution's Ninth Schedule after April 24, 1973, providing immunity from legal challenges are subject to scrutiny of courts if they violated fundamental rights.

In an unanimous verdict, a nine-member Constitution bench headed by Chief Justice Y K Sabharwal rejected the government's claim that certain laws, even if they infringed the fundamental rights of citizens, cannot be subjected to judicial review, if the legislations were placed under the Ninth Schedule.

The judgment, which came a day after apex court ruled that Parliament's decisions were subject to judicial review, assumes significance in the wake of laws like the one in Tamil Nadu, which provides 69 per cent reservations, and has placed the law under the Ninth Schedule to circumvent judicial review.

The apex court had earlier held that social reservations shall under no circumstances exceed the permissible limit of 50 per cent.

To overcome the ruling, the then Jayalalithaa government placed the law under the Schedule.

Several other states had come out with their own laws on land reforms, land ceilings and other local legislations purportedly infringing upon fundamental rights, and had put them under the Ninth Schedule to avoid judicial scrutiny.

The ruling could affect over 250 legislations enacted by the Centre and various states, and put under the Schedule.

These include Central Coal Mines Act 1974, Additional Emoluments Act 1974, COFEPOSA Act 1974, Sick Textile
Undertaking Act 1974, UP Imposition of Sealing on Land Holdings Act 1974, Orissa Land Reforms Act 1965 and ESMA.

The bench held that although the government was entitled to place laws in the Ninth Schedule, such legsislations if they violated the fundamental rights guaranteed under Articles 14, 15, 19, 20 and 21 of the Constitution are liable to be struck down by courts.

An NGO -- Common Cause had challenged such legislations.

The Supreme Court constituted a nine-member bench to decide on the constitutional validity of the issue.

The NGO had asked whether laws included in the Ninth Schedule on or after April 24, 1973, were entitled to the protection under Article 31-B, which offers immunity against fundamental rights.

The petitioner also wanted to know whether the inclusion of a law in the Schedule was violative of Article 14, 19 and 31 and destroys the basic structure of the Constitution.

Delivering the verdict in a packed courtroom, the bench said the government while putting a law under the Ninth Schedule should adopt a middle path to maintain a balance between the fundamental rights and Directive Principles "that
has to be tilted towards the citizen."

Refusing to accept the government's contention that such laws enjoyed absolute immunity, the bench said that any legislation, which was not compatible with the basic structure of the Constitution can be declared null and void by the courts.

"The power to grant absolute immunity is not compatible with the basic structure of the Constitution," the bench observed.

Expressing its strong resolve to protect the Constitutional guarantees accorded to the citizen, the bench said, "Law put in the Ninth Schedule has to be tested on the touchstone of the basic structure as even a minor change can destroy the basic structure."

The cut-off date April 24, 1973 has been fixed for the Ninth Schedule as it was on that day a 13-member Constitution bench of the Supreme Court gave a historic ruling in the Keshavananda Bharti case that Parliament had no power to amend the basic structure of the Constitution.

The Ninth Schedule emanates from Articles 31 A and 31 B, which were introduced by the Constitution's (first amendment) Act 1951, with effect from June 18, 1951, to ensure that certain laws were valid even if it violated the fundamental rights of a citizen.

In other words, Parliament arrogated to itself the power to amend the Constitution in any manner it liked, irrespective of the fact whether it overrode the fundamental rights.

Incidentally, in 1952, the Supreme Court in the Shankari Prasad Singh Deo vs Union of India case held that Articles 31 and 31 B were constitutionally valid amendments.

Since a constitutional amendment was an exercise of constituent power, Fundamental Rights under Part III were not immune from such amendment. The effect of that judgment was that Article 13 (2), which prohibited the state from making legislations abrogating the fundamental rights, will not apply in the case of laws placed in the Ninth Schedule of the Constitution.

Secondly, it was held in the said judgment that the powers of the High Court and the Supreme Court were not in any manner infringed and all that was done by insertions of Articles 31 A and 31 B were that a certain class of cases had been excluded from being given the protection of fundamental right.

However, subsequently in 1967 in the Golak Nath case by a majority opinion a 11-member Bench of the apex court ruled that Parliament had no power to amend Part III of the Constitution such as to take away or abridge fundamental rights.

The view was further strengthened in the Kesavananda Bharti case and the Indira Gandhi vs Raj Narian case wherein it was held that Parliament's power to make laws and amend the Constitution cannot take away the fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity.

THE CONSTITUTION (TWENTY-FOURTH AMENDMENT) ACT, 1971

Statement of Objects and Reasons appended to the Constitution
(Twenty-fourth Amendment) Bill, 1971 which was enacted as
THE CONSTITUTION (Twenty-fourth Amendment) Act, 1971

STATEMENT OF OBJECTS AND REASONS

The Supreme Court in the well-known Golak Nath's case [1967, 2 S.C.R.
762] reversed, by a narrow majority, its own earlier decisions
upholding the power of Parliament to amend all parts of the
Constitution including Part III relating to fundamental rights. The
result of the judgment is that Parliament is considered to have no
power to take away or curtail any of the fundamental rights guaranteed
by Part III of the Constitution even if it becomes necessary to do so
for giving effect to the Directive Principles of State Policy and for
the attainment of the objectives set out in the Preamble to the
Constitution. It is, therefore, considered necessary to provide
expressly that Parliament has power to amend any provision of the
Constitution so as to include the provisions of Part III within the
scope of the amending power.

2. The Bill seeks to amend article 368 suitably for the purpose and
makes it clear that article 368 provides for amendment of the
Constitution as well as procedure therefor. The Bill further provides
that when a Constitution Amendment Bill passed by both Houses of
Parliament is presented to the President for his assent, he should
give his assent thereto. The Bill also seeks to amend article 13 of
the Constitution to make it inapplicable to any amendment of the
Constitution under article 368.

NEW DELHI; H. R. GOKHALE.

The 22nd July, 1971.

THE CONSTITUTION (TWENTY-FOURTH AMENDMENT) ACT, 1971

[5th November, 1971.]

An Act further to amend the Constitution of India.

BE it enacted by Parliament in the Twenty-second Year of the Republic
of India as follows:-

1. Short title.-This Act may be called the Constitution
(Twenty-fourth Amendment) Act, 1971.

2. Amendment of article 13.-In article 13 of the Constitution, after
clause (3), the following clause shall be inserted, namely:--

"(4) Nothing in this article shall apply to any amendment of this
Constitution made under article 368.".

3. Amendment of article 368.-Article 368 of the Constitution shall be
re-numbered as clause (2) thereof, and-

(a) for the marginal heading to that article, the following marginal
heading shall be substituted, namely:-

"Power of Parliament to amend the Constitution and procedure
therefor.";

(b) before clause (2) as so re-numbered, the following clause shall be
inserted, namely:-

"(1) Notwithstanding anything in this Constitution, Parliament may in
exercise of its constituent power amend by way of addition, variation
or repeal any provision of this Constitution in accordance with the
procedure laid down in this article.";

(c) in clause (2) as so re-numbered, for the words "it shall be
presented to the President for his assent and upon such assent being
given to the Bill", the words "it shall be presented to the President
who shall give his assent to the Bill and thereupon" shall be
substituted;

(d) after clause (2) as so re-numbered, the following clause shall be
inserted, namely:-

"(3) Nothing in article 13 shall apply to any amendment made under
this article.".

Constitutionality of a Constitutional Amendment

Constitutionality Of Constitutional Amendment: A Case Study

Present Article involves very wide variety of Constitutional issues into it. It covers constitutionality of a Constitutional Amendment. It also involves the extent to which the Parliament has the power to amend Constitution. It tries to see Constitutional Amendment in the light of following Basic Structure. And also looks at concept of Pith and Substance as to whether a law enacted for purposes of enforcing D.P.S.P. u/A.39 can be declared valid if it is able to establish a nexus with A.31 C of Constitution.

Topic of Article involves a case study. And, case is Minerva Mills Ltd v. U.O.I[1]. It is a 5 Judge Bench unanimous decision. In this case the question of law that was discussed was of validity of S. 4 and S. 55 of the 42nd Constitutional Amendment.

Judgment for majority was written by C.J. Chandrachud. Out of 5, four judges were Gupta, Chandrachud, Untwalia, and Kailasam J.J. And 5th Judge was J. Bhagwati, who with his great intellectual capacity to link law with philosophy gave a separate judgment to held S.4 and S.55 of 42nd Constitutional Amendment as Ultra Vires of Constitution.

Case covers wide areas of Constitution. It covers what is basic structure and give criteria are as to what particular feature can be termed as part of basic structure. Whether Fundamental Rights[2] or Directive Principles of State Policy[3] are important? What is the limit of power of Parliament to amend the Constitution and is their any limitation to that power of Parliament or not? Whether the amendments that have been brought to 9th Schedule of the Constitution are they supposed to pass Keshavananda Bharti[4] Case Test or not?

Basically these two Sections of 42nd Constitutional Amendment introduced a dramatic change in the feature of Indian Constitution and gave a wide power to Parliament to amend Constitution.

S.4 of amendment was drafted in such a way that it subordinated A.14 andA.15 of Constitution. And S.55 introduced A. 368(4) and (5) which in turn took away power of judiciary of Judicial Review and by that Parliament was allowed to destroy the basic feature of Constitution

And A.368 was also amended and (4) & (5) to A.368 were inserted by S.55, after Constitutional Amendment which reads: -
(4) No amendment of this Constitution including the provisions of Part III; made for purporting to have been made under this article (whether before or after the commencement of Section 55 of the Constitution (Forty-second Amendment) Act, 1976) shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.

Issues
# Whether S.4 and S.55 of the Forty Second Constitutional Amendment Act, 1976 is constitutionally valid and do they destroy the Basic Structure of Constitution?
# Whether Parliament has an unlimited power u/A.368 to amend Constitution?
# In case of conflict, what will have priority, D.P.S.P. or F.R’s?
# Is it necessary to pass the Test of Basic Structure for any Constitutional Amendment Law?

Arguments
Mr. Palkhivala who appeared on behalf of the petitioners argued that: The amendment introduced by Section 4 of the 42nd Amendment destroys the harmony between Parts III and IV of the Constitution by making the fundamental rights conferred by Part III subservient to the directive principles of State Policy set out in Part IV of the Constitution. The Constitution makers did not contemplate a disharmony or imbalance between the fundamental rights and the directive principles and indeed they were both meant to supplement each other. The basic structure of the Constitution rests on the foundation that while the directive principles are the mandatory ends of government, those ends can be achieved only through permissible means which are set out in Part III of the Constitution. In other words, the mandatory ends set out in Part IV can be achieved not through totalitarian methods but only through those which are consistent with the fundamental rights conferred by Part III. If Article 31C as amended by the 42nd Amendment is allowed to stand, it will confer an unrestricted licence on the legislature and the executive, both at the Centre and in the States, to destroy democracy and establish an authoritarian regime. All legislative action and every governmental action purport to be related, directly or indirectly, to some directive principle of State policy. The protection of the amended article will therefore be available to every legislative action under the sun. Article 31C abrogates the right to equality guaranteed by Article 14, which is the very foundation of a republican form of government and is by itself a basic feature of the Constitution.

He further argued that it is impossible to envisage that a destruction of the fundamental freedoms guaranteed by Part III is necessary for achieving the object of some of the directive principles like equal justice and free legal aid, organising village panchayats, providing living wages for workers and just and humane conditions of work, free and compulsory education for children, organisation of agriculture and animal husbandry, .and protection or environment and wild life. What the Constituent Assembly had rejected by creating a harmonious balance between parts III and IV is brought back by the 42nd Amendment,

Finally it was urged that the Constitution had made provision for the suspension of the right to enforce fundamental rights when an emergency is proclaimed by the President. Under the basic scheme of the Constitution, fundamental rights were to lose their supremacy only during the period that the proclamation of emergency is in operation. Section 4 of the 42nd Amendment has robbed the fundamental rights of their supremacy and made them subordinate to the directive principles of State policy as if there were a permanent emergency in operation. While Article 359 suspends the enforcement of fundamental rights during the Emergency, Article 31C virtually abrogates them in normal times. Thus, apart from destroying one of the basic features of the Constitution, namely, the harmony between Parts III and IV, Section 4 of the 42nd Amendment denies to the people the blessings of a free democracy and lays the foundation for the creation of an authoritarian State.

These contentions were stoutly resisted by the learned Attorney General appearing on behalf of respondents stating that: Securing the implementation of directive principles by the elimination of obstructive legal procedures cannot ever be said to destroy or damage the basic features of the Constitution. Further, laws made for securing the objectives of Part IV would necessarily be in public interest and will fall within Article 19(5) of the Constitution, in so far us Clauses (d) and (e) of Article 19(1) are concerned. They would therefore be saved in any case. The history of the Constitution, particularly the incorporation of Articles 31(4) and 31(6) and the various amendments made by Articles 31A, 31B and the amended Article 31C, which were all upheld by this Court, establish the width of the amending power under Article 368. The impugned amendment therefore manifestly falls within the sweep of the amending power.

The learned Attorney General further argued that a law which fulfils the directive of Article 38 is incapable of abrogating fundamental freedoms or of damaging the basic structure of the Constitution inasmuch as that structure itself is founded on the principle of justice- social, economic and political. Article 38, which contains a directive principle, provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. A law which complies with Article 38 cannot conceivably abrogate the fundamental freedoms except certain economic rights and that too, for the purpose of minimizing inequalities. A law which will abrogate fundamental freedoms will either bring about social injustice or economic injustice or political injustice. It. will thereby contravene Article 38 rather than falling within it and will for that reason be outside the protection of Article 31C. In any event, each and every violation of Article 14 or Article 19 does not damage the basic structure of the Constitution.

Learned Additional Solicitor General argued further that: For extracting the ratio of Keshavananda Bharati[5] one must proceed on the basis that there were at many cases as there were declarations sought for by the petitioners therein. The majority in regard to Article 368 is different from the majority in regard to the decision in respect of Article 31C. The binding ratio in regard to Article 368 as well as the ratio resulting in upholding the validity of the first part of Article 31C will both sustain the validity of Section 4 of the 42nd Amendment. In regard to fundamental rights, the ratio of the judgments of 1 out of 13 Judges, i.e., all excepting Jaganmohan Reddy J. will empower amendment of each one of the articles Part III, so long as there is no total abrogation of the fundamental rights which constitute essential features of the basic structure of the Constitution. Abrogation of fundamental rights which do not constitute essential features of the basic structure or abridgement of fundamental rights which constitute such essential lectures is within the permissible limits of amendment. The unamended Article 31C having been upheld by the majority in Keshavananda Bharati both on the ground of stare decisis and an the ground of contemporaneous practical exposition, the amended Article 31C must be held to be valid, especially since it has not brought about a qualitative change in comparison with the provisions of the unamended article. A harmonious and orderly development of constitutional law would require that the phrases ‘inconsistent with’ or take away which occur in Articles 31A, 31B and 31C should be read down to mean ‘restrict’ or ‘abridge’ and not ‘abrogate’. If two constructions of those expressions were reasonably possible, the Court should accept that construction which would render the constitutional amendment valid.

The learned Counsel further argued that: The directive principles, including the one contained in Article 38, do not cover the exercise of each and every legislative power relatable to the Seventh Schedule of the Constitution. Besides, the directive principles being themselves fundamental in the governance of the country, no amendment of the Constitution to achieve the ends specified in the directive principles can ever alter the basic structure of the Constitution. The unamended Article 31C is valid in reference to laws relatable to Article 39(b) and (c), no dichotomy can be made between laws rein table to these provisions on the one hand and laws relatable to other directive principles. A value Judgment is not permissible to the Court in this area.

It was finally urged by the learned Additional Solicitor General that judicial review is not totally excluded by the amended Article 31C because it will still be open to the Court to consider:
(I) whether the impugned law has 'direct and reasonable nexus' with any of the directive principles;
(ii) Whether the provisions encroaching on fundamental rights are integrally connected with and essential for effectuating the directive principles or are at least ancillary thereto;
(iii) Whether the fundamental right encroached upon is an essential feature of the basic structure of the Constitution; and
(iv) If so, whether the encroachment, in effect, abrogates that fundamental right.

Both the Attorney General and the Additional Solicitor General raised a preliminary objection to the consideration of the question raised by the petitioners as regards the validity of Sections 4 and 55 of the 42nd Amendment. It is contended by them that the issue formulated for consideration of the court; “whether the provisions of the Forty-second Amendment of the Constitution which deprived the Fundamental Rights of their Supremacy and, inter alia, made them subordinate to the directive principles of State Policy are ultravires the amending power of Parliament?” is too wide and academic. It is urged that since it is the settled practice of the court not to decide academic questions and since property rights claimed by the petitioners under Articles 19(1)(f) and 31 do not survive after the 44th Amendment, the court should not entertain any argument on the points raised by the petitioners.

Judgment
Court observed for first issue that Constitutional amendment involved Articles 13, 14, 19, 31-A, 31-B, 31-C, 32, 38, 132, 133, 134, 141, 226, 352 and 368 of Constitution of India. Vires of Articles 368 (4) and 368 (5) which was introduced by Section 55 of Constitution of India (43rd Amendment) Act is under challenge. Article 368 (5) conferred upon Parliament an unlimited power to amend Constitution. And, Article 368 (4) deprived Courts of its power of judicial review over constitutional amendments But, article 368 (5) was struck down as Parliament had only limited amending power. And, such limited power cannot be enlarged into absolute power by expanding its amending powers. Parliament cannot destroy Constitutions basic structure and limited power cannot be converted into unlimited power. Article 368 (4) prohibiting judicial review violates basic structure. So, S.C. held, Articles 368 (4) and 368 (5) as unconstitutional.

For second and third issue court observed that Parliament has power to amend constitution but this power is not unlimited and unfettered. It is restricted by Basic Structure of Constitution. Question of Directive principles of State policy also rose, whether directive principles can have supremacy over fundamental rights? Merely because directive principles are non-justiciable it does not mean that they are subservient to fundamental rights. But, destroying fundamental rights in order to achieve goals of directive principles amounts to violation of basic structure. And, giving absolute primacy to one over another would disturb harmony. And, goals of directive principles should be achieved without abrogating fundamental rights. Directive principles enjoy high place in constitutional scheme. But, both fundamental rights and directive principles are to be read in harmony. So, S.C. observed amendments in Article 31C introduced by Section 4 of 42nd Amendment Act as Unconstitutional.

S.C. observed that Judicial Review is a part of Basic Structure of Constitution. It was further stressed that it is the function of the judges to pronounce upon the validity of laws. If the Judiciary is deprived of that power then the Fundamental Rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water. A controlled constitution will become uncontrolled. The court ruled that extension of shield of A.31 C to all Directive Principles of State Policy (D.P.S.P.) was beyond the amending power of Parliament u/A.368 of Constitution. Because by giving premises to all D.P.S.P. over Fundamental Rights in A 14 and A 19 , the basic or essential feature of Constitution viz Judicial Review will be destroyed.
--------------------------------------------------------------------------------
[1] A.I.R. 1980 3 SCC 625
[2] Hereinafter termed as F.R
[3] Hereinafter termed as D.P.S.P
[4] (1973) 4 S.C.C 225
[5] MANU/SC/0445/1973

When judges play king:Suicide becomes a Constitutional right

For the past decade, the political battle over what is called the "right to die" has been raging across our nation. Those who deny the exis-tence of such a right have lately had some reason to hope that the grim tidal wave of "progress" predicted by the Hemlock Society and the ACLU would not come to pass. Only one state has enacted an assisted suicide statute and similar proposals have been rejected by several others. The governor of New York commissioned a task force to study the issue and the members unanimously agreed against recommending a change in New York law to permit assisted suicides.

But once again, federal judicial action threatens to trump the democratic process and imperiously declare a national winner in this bitterly divisive debate. In the case of Compassion in Dying v. State of Washington, the United States Court of Appeals for the Ninth Circuit decided on March 9th that "there is a constitutionally protected liberty interest in determining the time and manner of one's own death," and struck down Washington's prohibition of physician assisted suicide for the terminally ill. Instead of submitting itself to the constraints of the Constitution--whereby most issues of grave societal consequence are to be struggled with by the people until broad public consensus is reached--the Ninth Circuit has seized the king's crown and issued an edict designed to end debate.

The following is a synopsis of the court's stunning rationale--its self-described "reasoned judgment," which it has the temerity to claim is based on history and precedent.

Here is its historical analysis:

The court notes that in Ancient Greek and Roman society, philosophy and literature, suicide was considered noble in many instances. Then, interestingly, it points to the zeal for martyrdom among the early Christians as clear evidence of a Church-sanctioned, natural human desire to hasten death.

The court admits that St. Augustine spoke out against suicide and the overzealous martyr, but it explains this by declaring that his concerns were "utilitarian," that is, he did not want the Church's ranks to be depleted. (I am not making this up.) As the court sees it, the unfortunate utilitarianism of Augustine eventually developed into full-blown medieval anti-suicide doctrine, resulting in such deplorable practices as burying suicide victims at crossroads and driving stakes through their hearts.

This dark dogma was dispelled by the enlightenment, which tore at the superstitious underpinnings of the Church's irrational opposition to suicide. By the nineteenth century, courts and legislators had stopped enforcing anti-suicide statutes. Now, (the court seems to say) the time has come to complete the "good work" begun at the enlightenment, and legally recognize everyman's right to a comfortable death.

Liberal jurists, not generally known for their commitment to historical analysis, have evidently found that it can be quite useful in this age of deconstruction.

I doubt whether this is what Justice Scalia had in mind when he lamented Constitutional analysis divorced from history and tradition.

But here is the philosophy:

I quote: "We see no ethical or constitutionally cognizable difference between a doctor's pulling the plug on a respirator and prescribing drugs to cause death." Death results in both cases. Death is the intent in both cases.

Such unrespectable analyses give credence to the accusation that federal judges have taken on the role of amateur philosophers. Crucial, life and death distinctions agonized over by theologians, philosophers and medical ethicists are casually waved away by these judicial idealogues.

Further muddying the ethical waters, the court rejects the term "suicide." Without saying exactly why or how, it asserts that "right to die" or "hastening one's death" are more "accurate" terms. Indeed, it finds that the term suicide is not an "appropriate legal description of the conduct at issue." (Too lucid, probably.)

Anyone else reminded of "pro-choice" instead of "pro-abortion;" "fetus" rather than "child"?

The Interests of the State:

Possibly the most disturbing aspect of the opinion is the court's rejection of the state's reasons for prohibiting physician assisted suicide. Every reason given is twisted into a reason for protecting the "right to die."

The state argued that the disabled and poor will be vulnerable to those who see their lives as useless. The court found this argument to be a "recycl(ing of) one of the more disingenuous and fallacious arguments raised in opposition to the legalization of abortion." As they see it, the real concern is that the disabled and poor "will not be afforded a fair opportunity to obtain the medical assistance to which they are entitled--the assistance that would allow them to end their lives with a measure of dignity." And, in any case, they are confident that "adequate safeguards" will guard against the remote occurrences of abuse.

The state argued further that the medical profession will be compromised when physicians become killers. Dead wrong, said the court. First, the presence of impartial professionals will protect the vulnerable from abuse. Second, the medical profession is compromised, not by participation in this "humane" activity, but by criminal statutes that prevent it from fulfilling "professional obligations" and "make covert criminals out of honorable, dedicated, and compassionate individuals." Finally, said the court, those who prophesy that physician assisted suicide will destroy the medical profession do not know their history. The same argument was used against the legalization of abortion, but "once the Court held that a woman has a constitutional right to have an abortion, doctors began performing abortions routinely and the ethical integrity of the medical profession remained undiminished... The slippery slope fears of Roe's opponents have, of course, not materialized... The legalization of abortion has not undermined our commitment to life generally... Similarly, there is no reason to believe that legalizing assisted suicide will lead to the horrific consequences its opponents suggest." (I quote at length lest I be accused of exaggerating.)

The precedent:

Although the court gave lip-service to the line of decisions regarding the refusal of medical treatment (with Cruzan being the principal decision), the focal point of its analysis of legal precedent was Planned Parenthood v. Casey, the controversial Supreme Court abortion decision in which Roe v. Wade survived by a single vote. In analyzing a person's constitutional liberty interest, the Casey Court wrote that: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." This has become the mantra of constitutional law--the right to "define oneself" and the right to be left alone. No reference to the impact of individual actions on society as a whole. The uninhibited self is the sole arbiter of the validity of actions.

The Ninth Circuit endorsed this philosophy in its closing line: "Those who believe that death must come without physician assistance are free to follow their creed, be they doctors or patients. They are not free, however, to force their views, their religious convictions, or their philosophies on all the other members of a democratic society, and to compel those whose values differ with theirs to die painful, protracted, and agonizing deaths."

The court personalized its painfully long analysis (I often wished the plug had been pulled on this opinion 40 or 50 pages sooner) with stories of individuals who could not obtain physician assisted suicides and were thus "forced" to kill themselves in horrible ways--shotguns in the mouth, leaps off bridges and plastic bags over the head. In the court's view, the state's unwarranted fears that some may be coerced into suicide cannot compare to the misery inflicted on these individuals and their families. And should a doctor misdiagnose a patient's condition, such an error "is likely to benefit the individual by permitting a victim of unmanageable pain and suffering to end his life peacefully and with dignity at the time he deems most desirable."

In other words, maybe he wasn't terminal, but--oh well--he died peacefully.

Mixing pseudo-history, pseudo-philosophy, pseudo-constitutional law and story-telling, the court takes over ninety pages to find a constitutional right to die. The "right" is limited to the terminally ill, but one can expect the next decision to hold that there is no distinction between terminal illness and short-term illness or between physical pain and psychological pain. The individual must be allowed to define his own vital boundaries.

Meanwhile, in arriving at this decision, the court portrays those who disagree with it as insufficiently dispassionate, and has the gall to "hope that whatever debate may accompany the future exploration of the issues we have touched on today will be conducted in an objective, rational, and constructive manner that will increase, not diminish, respect for the Constitution."

The allegedly not-so-dispassionate panel opinion which was reversed by this decision was authored by Judge Noonan, a highly respected jurist and (gasp) a Catholic. Judge Noonan needed only a few pages for his brilliant opinion, in which he concluded that "In the two hundred and five years of our existence no constitutional right to aid in killing oneself has ever been asserted and upheld by a court of final jurisdiction. Unless the federal judiciary is to be a floating constitutional convention, a federal court should not invent a constitutional right unknown to the past and antithetical to the defense of human life that has been a chief responsibility of our constitutional government." Many accused Judge Noonan of letting his faith get in the way of his judgment. Richard John Neuhaus commented that he hoped Noonan's Catholic morality had had a bearing on his decision-- "not because of his position on the issue but because he understands that judges have a moral duty not to make up constitutional rights."

Sadly, it is likely that the Supreme Court will reject Judge Noonan and go the way of the Ninth Circuit. Indeed, the path of the Ninth Circuit is a path that the Supreme Court itself had cleared. It is a path antithetical to the long-term survival of civil society, whereby such society is robbed of the ability to define itself in any way and instead must submit to the myriad choices of individuals who care not for its ruin. This is the constitutional quest for liberty: leave me alone and I will leave you alone. This quest could hardly be in sharper contrast to that of John Paul II, who wrote in The Gospel of Life:

"The roots of the contradiction between the solemn affirmation of human rights and their tragic denial in practice lies in a notion of freedom which exalts the isolated individual in an absolute way, and gives no place to solidarity, to openness to others and service of them. While it is true that the taking of life not yet born or in its final stages is sometimes marked by a mistaken sense of altruism and human compassion, it cannot be denied that such a culture of death, taken as a whole, betrays a completely individualistic concept of freedom, which ends up by becoming the freedom of 'the strong' against the weak who have no choice but to submit." (Chapter I, section 19)

Mark Fischer is a Pittsburgh attorney, an alumnus of the class of '89 and Contributing Editor of the Concourse.

By the same author:
• The 'role' of rock: Beauty and truth in the not so fine arts, (I,2)
• Rock music: A response to Andrew Minto, (I,3)
• When judges play king: Suicide becomes a Constitutional right, (I,4)
• A defense of a diversified core, (I,7)
• More on the curriculum debate, (II,2)
• Trumpeting all the right views will not solve the crisis facing America, (II,5)
• The importance of engaging questions about our campus culture, (IV,7)
• A new kind of scandal, (VII,1)

An Insight On Constitution of India, various Reviews and articles....

Article 21 Of The Constitution:
Indian democracy wedded to rule of law aims not only to protect fundamental rights of its citizens but also to establish an egalitarian order,...

Constitutional Background
The constitution was passed by the Constituent Assembly on 26 Nov 1949 and is fully applicable since 26 Jan 1950...

Making Of The Constitution
The Constituent Assembly which had been elected for undivided India and held its first sitting on 9th Dec.1946, re-assembled on the 14th August 1947...

Preamble
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens...

Fundamental Rights
Fundamental Rights, are more elaborate than those of any other existing written Constitutions of the World...

Fundamental Duties
A countervailing factor has been introduced by the 42nd amendment Act of 1976, known as the Fundamental Duties...

Directive Principles
These Principles are in the nature of instruments of instruction to the govt...

Parliament
The Parliament of India consist of The President and two houses....first function of The Parliament is that of providing the Cabinet and holding them responsible...

Political Parties
General elections in May 1996 made the Bharatiya Janata Party (BJP) the biggest party capturing 161 seats along with...

A Complete Summary Review
A complete review of the entire Constitution Has been given article wise...

(*) Uniform Civil Code
(*) Principles of Jermy Bentham and S.C of India
(*) Repeal Of POTA - Justified
(*) Politics Of Constitutional Amendments In India

Preamble- A Key To Open The Minds Of The Framers Of The Constitution:
The Preamble to a Constitution embodies the fundamental values and the philosophy, on which the Constitution is based,

Supreme Court the Final Pedestal of Justice:
A law may be defined as an assemblage of signs, declarative of a volition, conceived or adopted by the sovereign in a stage...

Constitution-Judicial Democracy:
Judiciary is that branch of government that interprets the laws or says what the laws mean & democracy means a form of government...

Doctrine Of Basic Structure (Constitutional Law): It is very difficult to state a single and accurate definition of the term ?law? as it is a general term and has different connotations for different people.....

Racism - Society’s Cancer:
Racism refers to beliefs, practices, and institutions that negatively discriminate against people based on their perceived or ascribed race....

Dual Citizenship:
The status of being a citizen of a specific nation state, signifies a person’s legal status and carries with it numerous consequences.....

Writ Of Habeas Corpus For Securing Liberty: The concept of writ essentially originated in England & to issue appropriate writ.....

Nature Of The Indian Constitution: Judicial Exposition:
The Constitution of India is not an end but a means to an end, not mere democracy as a political project but a socio-juridical

Doctrine Of Constitutional Tort:
Under the English Common Law the maxim was "The King can do no wrong" and therefore, the King was not liable for

Right to die- " To be or not to be?"
The care of human life and happiness and not their destruction is the first and only legitimate object

Sustainable Development and Indian Judiciary:
Right to wholesome environment is a fundamental right protected under Article 21 of the

Austianinan Concept Of Sovereignty:
Austin places the notion of sovereignty at the basis of his theory of law. Austin borrowed from

Legality Of Foreign Judgments
The article/paper aims to study the binding nature of the foreign judgments i.e. judgments given by the courts in foreign countries

The Right to Die

1. The Issue: Does the Constitution protect the decision to end one's own life, at least if one is terminally ill or in great pain?LINK
2.

Justice O'Connor and the 'Right to Die': Constitutional Promises Unfulfilled LINK
3. Right to die- " To be or not to be?"

In the advent of delving into what has unfurled into one of the most controversial issues that could have tremendous ramifications on basic ethical concepts and most importantly, the sanctity of life…. The precious words of Thomas Jefferson strike a chord.
"The care of human life and happiness and not their destruction is the first and only legitimate object of good governance."

In juxtaposition, the words "Right to Die" evoke an exactly opposite sentiment. How can it be a right if you are using it to give up your rights? The above right has been used as a guise or a camouflage to include various concepts that are opposed to preservation of life. Euthanasia, Physician Assisted Suicide (PAS), Suicide, though conceptually different, are species of the same genre.

The Indian Perspective:
In India, the sanctity of life has been placed on the highest pedestal. " The right to life" under Article 21 of the Constitution has received the widest possible interpretation under the able hands of the judiciary and rightly so. This right is inalienable and is inherent in us. It cannot and is not conferred upon us. This vital point seems to elude all those who keep on clamoring for the "Right to Die".

The stance taken by the judiciary in this regard is unquestionable.

In Gian Kaur vs. State of Punjab, a five judge Constitutional Bench held that the "right to life" is inherently inconsistent with the "right to die" as is "death" with "life". In furtherance, the right to life, which includes right to live with human dignity, would mean the existence of such a right up to the natural end of life. It may further include "death with dignity" but such existence should not be confused with unnatural extinction of life curtailing natural span of life. In progression of the above, the constitutionality of Section 309 of the I.P.C, which makes "attempt to suicide" an offence, was upheld, overruling the judgment in P. Rathinam's case.

The factor of immense significance to be noted here is that suicide, euthanasia, mercy killing and the like amount to unnatural ebbing of life. This decision thereby overruling P.Rathinam's case establishes that the "Right to life" not only precludes the "right to die" but also the right to kill."

Interestingly in P.Rathinam's case, even when a Division bench affirmed the view in M.S Dubal v. State of Maharashtra that the "right to life" provided by the Constitution may be said to bring into its purview, the right not to live a forced life, the plea that euthanasia be legalized was discarded. It was held that as euthanasia involves the intervention of a third person, it would indirectly amount to a person aiding or abetting the killing of another, which would be inviting Section 306 of the I.P.C.

In Naresh Marotrao Sakhre v. Union of India, Lodha J. affirmed that "Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is effected."(Emphasis added).

The above inferences lead to one irresistible conclusion i.e. any form that involves unnatural termination of life, whether an attempt to suicide, abetment to suicide/assisted suicide or euthanasia, is illegal. The fact that even an attempt to suicide is punishable goes to show the extent of credibility accorded to the sanctity of life and the right to life as a whole. This apart, the decriminalization of euthanasia is unworkable in the Indian perspective, even on humanitarian grounds, as it involves a third person.

Though, there has been no legislation pertaining to euthanasia in India, the term keeps on coming back for public approval like a recurring decimal.

An impracticable solution:
The implication of the term "euthanasia" is itself shrouded in ambiguity. Derived from the Greek word "euthanatos" meaning "good death". To reiterate the judicial pronouncements in the Indian context, good or happy death would imply the ebbing of life the natural way.

In its earlier form, it was used as an omnibus term to signify a painless death. In its modern context, the term is used a deliberate euphemism to reduce the culpability of an act". an act which is a subset of murder, by injecting the term "mercy". The fact remains" Euthanasia/ Mercy killing is about giving license for the right to kill.

Euthanasia is defined as an "intentional killing by an act/ omission of person whose life is felt is not to be worth living." The above attribution consequentially includes just about any one who has a suicidal impulse. Moreover the term "person" is inclusive of any and everybody and is not solely restricted to "patients." The legalization of the above would result in nothing but pandemonium.

There have been views propagating the practice of passive euthanasia (letting some one die) to be morally permissible and active euthanasia (killing someone), morally impermissible. It is submitted that these distinctions are irrelevant and unnecessary as t of both acts inevitably center around a single element- an intention to kill.

The above premise has been aptly summed up by Professor James Rachels5 who believes…. The active and passive dichotomy is a distinction without a difference.

Proponents and "Right to die" groups argue that, a patient in unbearable agony and excruciating pain or "terminally ill", the saving- grace is euthanasia on compassionate grounds.

It is submitted that the problem here is" the term "terminally ill" has no precise definition. For instance, Jack Kervorkian, a famous proponent of euthanasia, defined "terminal illness" as "any disease that curtails life even for a day". Some laws define "terminal" as one from which death will occur in a "relatively short time" or "within a span of six months".

The nub of the point is that all these definitions scream ambiguity and medical experts have acknowledged that it is virtually impossible to predict the life expectancy of a particular individual.

Interestingly, euthanasia activists have dropped references to terminal illness, replacing them with such phrases as "gentle landing", "hopelessly ill"' desperately ill" and "meaningless life."

It is reinforced that this issue hovers around an invaluable asset called "life". Just as a mistaken diagnosis is possible, so is a mistaken prognosis. It must be remembered that death is final and a chance of error too great to approve the practice of euthanasia.

Technology has come of age:
On the flip side of the coin, an undeniable transition is evidenced in the augmentation of medicine and technology. What was excessive in medicine fifty years ago may be ordinary and routine today. The idea here is that what is excessively burdensome and offers little hope for one may be less burdensome and more hopeful for a second patient in a different state of health.

A startling revelation...... Research has shown that ninety-percent of the pain can be alleviated by proper pain control methods. Appropriate care can make a huge difference. This goes to show that medicine and technological breakthroughs have a fitting reply to almost every problem and the extent of medical commitment is unassailable.

In contradistinction, if every terminal patient were prodded to a "gentle landing", impetus to research, which is the answer to curative medicine, would be foiled. If legalized, doctors would be forced to perform such acts against their consent that would amount to a violation of the Hippocratic Oath. Incidentally, it was as early as 400 B.C., when the renowned Greek physician stipulated in his Oath ........" I will give no deadly medicine to anyone if asked, nor suggest any such course."
The fact remains that the practice of euthanasia has been ostracized since time immemorial and Oregon, Belgium and The Netherlands are the only jurisdictions in the world where laws specifically permit euthanasia or assisted suicide.

It may be pertinent to mention that the most vital point is the repercussions that could take place once something as controversial is legalized. The matter is not an issue of force but an issue of the way laws can be expanded once something is declared legal. In India, where abuse of the law is the rule rather than the exception and where conniving relatives clamor to lap up an heirloom, the abovementioned argument holds great weight age.

To elucidate, in England, the House of Lords in Airedale NHS Trust v. Bland permitted non-voluntary euthanasia in case of patients in a persistent vegetative state. Subsequently, the Supreme Court of Ireland in Re A Ward of Court expanded the persistent vegetative state to include cases where the patient possessed limited cognitive faculties.

In Netherlands, the Supreme Court in a 1984 ruling held that euthanasia could be lawful only in cases of physical illness. However, a decade down the line, the Supreme Court in Chabot's case held that it could even extend to cases of mental illness.

Thus, there is evidenced a conceptual degradation of the right to live with dignity.

The sole qualitative argument in favor of euthanasia, is the fact that if procedures are stringent and foolproof and with proper mechanisms in place, then the legalization of the same could be effected in India. For instance, in The Netherlands the request for euthanasia should come only from the patient and be free, voluntary, and persistent; it should be the last resort and should be performed by a physician in consultation with an independent physician colleague who has experience in the field.

Poles Apart:
It is humbly submitted that the implementation of the above mechanism in India is utopian and thus the two situations incomparable. It is ironical to note that ninety percent of the patients succumb to death without receiving any primary health care. Thus the logical derivation of this aspect would be that India does not have an appropriate health-care mechanism in place, let alone foolproof procedures for euthanasia.

In the presence of the above bottlenecks and policing rampant in our country, the appropriate course of action would be to develop proper "care ethics", ensuring a "dignified existence and termination" of life. Let us augment the above and resultantly, the concept of euthanasia will be nothing but a distant reality.

All in all....... "No life that breathes with human breath has ever truly longed for death."

4. Right to Die - Legal and Moral Aspects

Introduction:-
In my project I do not intend to give only the legal side of the right to die. I want to probe into the emotional side too. Because that is what it actually is. All the fundamental rights guaranteed to the citizens of India reflects our needs, our aspirations, our right to be able to do something and by defining its boundaries this right is curtailed which in turn curtails our desires.

What I do intend to tell you through this project is something which is my personal opinion. I consider myself as just any other person expressing my opinion on a burning issue and what I want to analyse is how will legalizing �right to die� affect me and the society I live in?For, at the end of the project I will have to admit that I am not in a state where I would want to die or ask for assistance for terminating my life so I can only empathies with those unfortunate people who are in that state and since I represent the masses I would be in a better position to paint the larger perspective-the common good which needs to be considerd before legalizing the right to die. But then again to understand the picture one has to know about the history, the whole reason why right to die and euthanasia suddenly emerged in India and why is it that till date the court refuses to legitimize it and the legislature refuses to legalize it. But my project's main focus is on: what will happen if right to die is legalized in India?

� We the people of India
Ours is a democracy which means that it is by the people, of the people and for the people. Constitution locates power that resides in the people. It is the people's power for people's benefit. Constitution creates rights and duties. All most all our demands get converted into rights-even our feelings, emotions is governed by the rights and duties we have.

Constitution is a social document. It is the society in its political aspect. We can't understand its nature without understanding the chief characteristics of the society. If the constitution is such that it has taken into its consideration, the social set up, then only will it stand the test of time. constitution and society grows, develops together and gets intertwined in each other. The constitution takes into account change and developments in the society. Instances of them are:-

a) Right to education: below the age of 14yrs has been guaranteed by Article 21-A. recent developments are about guaranteeing education in the technical, higher educational institutions.
b) Right to clean environment
c) Right to life : is widely interpreted to include the right to dignified living-this includes rights guaranteed to prisoners, inmates of protective homes, right to release and rehabilitation of bonded labourers , right to legal aid, and the right to know.
d) Right to go abroad.
e) Right to privacy.
f) Right against solitary confinement.

The aforesaid is enough to state that Article 21 has enough of positive content in it. the originating idea in this regard is the view expressed by Field J. in Munn v. Illnois, (1876) 94 US 113, in which it was held that the term 'life' (as appearing in the 5th and 14th amendments to the United States Constitution) means something more than 'mere animal existence'. This view was accepted by a Constitution Bench of this Court in Kharak Singh v. State of U.P., MANU/SC/0085/1962 to which further leaves were added in Board of Trustees Port of Bombay v. Dilip Kumar, MANU/SC/0184/1982 Vikram Dev Singh v. State of Bihar, MANU/SC/0572/1988; and Ram Sharan v. Union of India, MANU/SC/0406/1988. In these decisions it was held that the word 'life' in Article 21 means right to live with human dignity and the same does not merely connote continued drudgery. It takes within its fold "some of the finer graces of human civilization, which makes life worth living", and that the expanded concept of life would mean the "tradition, culture and heritage" of the concerned person.

It would be relevant to note the decision in State of Himachal Pradesh v. Umed Ram, MANU/SC/0125/1986. It was observed (here in paragraph 11 that the right to life embraces not only physical existence but the quality of life as understood in its richness and fullness by the ambit of the Constitution; and for residents of hilly areas access to road was held to be access to life itself, and so necessity of road communication in a reasonable condition was held to be a part of constitutional imperatives, because of which the direction given by the Himachal Pradesh High Court to build road in the hilly areas to enable its residents to earn livelihood was upheld. What can be more positive and kicking?

We may also refer to the article of Dr. M. Indira and Dr. Alka Dhal under the caption: "Meaning of life, suffering and death" as read in the International Conference on Health Policy, Ethics and Human Values held at New Delhi in 1986. This is what the learned authors stated about life in their article;--

"Life is not mere living but living in health. Health is not the absence of illness but a glowing vitality the feeling of wholeness with a capacity for continuous intellectual and spiritual growth. Physical, social, spiritual and psychological well being are intrinsically inter woven into the fabric of life. According to Indian philosophy that which is born must die. Death is the only certain thing in life."

Going by the above it is clear that this human dignity will be lost if on is left to suffer in old age, crippled and abandoned or in any point in our lives when we are suffering from a incurable disease. If Article 21 can be interpreted as has been done in many cases above, then why can right to die not be included? After all every one has the right to live with dignity. But in India things are not that simple. One has to take into consideration not the interest of a few but that of the 1 billion people whose lives will positively or negatively be affected by such a decision.

To draw out a definite conclusion, one has to analyse the pros and cons of legalizing �right to die�.

�I have the right to die
As we have already seen, no country's Constitution can be an enduring Constitution if it does not take into cognizance the interest of the people for whom this Constitution has been framed. And so there are various arguments given by people who believe that one should have the right to die. Their arguments go as follows:
1. If I have been guaranteed right to life, I should be guaranteed the right to die as well
C A Thomas, 86-year-old retired school teacher of Thrissur, who was the first one in India to demand the right for voluntary death had argued that Article 21 indeed bestowed on every citizen a right to life and method of death. Our Constitution guarantees the right to life. The right to life is incomplete without the right to death. The karma of life is a wheel that is completed only when birth is complemented by death. The right to die is built into the right to live.

Supreme Court in Gian Kaur v. State of Punjab3, said that it is well settled that the right to life guaranteed by Article 21 of the Constitution does not include the right to die. The Court held that Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of the imagination can extinction of life be read into it. To give meaning and content to the word 'life' in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself.

The 'right to life' including the right to live with human dignity would mean the existence of such a right up to the end of natural life. This also includes the right to a dignified life up to 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 equaled with the 'right to die' an un-natural death curtailing the natural span of life.

It is argued that right to die respects the individual's right to self-determination or his right of privacy. Interference with that right can only be justified if it is to protect essential social values, which is not the case where patients suffering unbearably at the end of their lives request to die when no alternatives exist. Not allowing the right to die would come down to forcing people to suffer against their will, which would be cruel and a negation of their human rights and dignity. Every person has a right to live with at least a minimum dignity and when the state of his existence falls below even that minimum level then he must be allowed to end such tortuous existence. In such cases relief from suffering (rather than preserving life) should be the primary objective.

At this juncture it would not be out of place to mention that the liberty to die, if not right strictu sensu, may be read as part of the right to life guaranteed by Article 21 of the Constitution of India. True that the Supreme Court has held that such an interpretation of Article 21 is incorrect18, but it is submitted that one may try to read the freedom to die as flowing from the rights of privacy, autonomy and self-determination, which is what has been done by the Courts of United State and England. The Constitution states certain unalienable rights to life, liberty, and the pursuit of happiness. Since we have this right to life, it is our right to decide what we want to do with our lives. And people should be free to live their lives as they themselves think best.

2. If I have been reduced to a corpse, suffering from an incurable, interminable disease, I don't deserve to live with so much pain

3. Our religion supports a person who wants to die
C. Thomas a Christian, quoted the Gita and Ramayana to prove that " vanavas ", the ancient Indian tradition of merging with the Supreme was the most honourable system. "It is the western jurisprudence we now follow without thinking that considers taking one's own life a crime". In his argument he said that Jain preists after reaching a certain age starved themselves to death and the rishis and munis of those times also willfully ended their lives after attaining enlightenment.

4. I fear death and the pain that will come with it, I want to have a sound sleep
C. Thomas believed that death would be a pleasant experience if one were to die at an advanced age on his won volition with some medical help once he or she thought had fulfilled all possible duties of life. Most of the old people today spend their lives fretting about their death and that causes a lot of mental agony and suffering. Guaranteeing a person the right to die would dismiss the fear of death and mourning now prevalent in people.

5. I want to donate my organs before the disease affects it
Venkatesh, a 25-year-old muscular dystrophia patient, wanted to be granted the right to die. He sought to enforce the right so that he could donate organs before they were affected by his illness. The plea was rejected a day before his death by the Andhra Pradesh high court. The court ruled that the petition sought to violate the Transplantation of Human Organs Act, 1995, which had no provisions that allowed individuals to donate organs before they were brain dead. The court's caution in this case is understandable considering the implications of easing restrictions in organ transplant. However, the order indirectly reiterated the stated legal position that an individual had no right to end his life voluntarily. This is not the only case where someone of their free will wanted to donate their organs, to serve a noble cause and wasn�t allowed to do so. Otherwise in our country illegal trade of human body parts and organs is taking place at a massive rate and when a person approaches law and seeks its help, he is denied the same.

You do not have the right to die; you only have the right to live
1. I do not want to die, I want to live but they won't let me
What stands as the biggest fear in the minds of the people is the exploitation that will occur once right to die is legalized in our country. One example is that many of our age old social customs like sati pratha may get legitimacy once right to die is legalized. In a recent case of Roop Kanwar who performed sati in Rajasthan, there were many local people who supported her and asked everyone to do what she had done so bravely and uphold the Hindu traditions and long followed customs of the village. It can be falsely propagated by Hindu fanatics to serve their purpose saying that a woman has a right to die by throwing herself in the funeral pyre of her husband while the whole while she herself did not consent to it. It is the vast majority of illiterate people who will be targeted. They will be told to give up their lives for their religion and they will do so very gladly saying that they have a right to die, whatever be the reason.

The Sati (Prevention) Bill, which mandates:
1. one to five years imprisonment for any woman who attempts sati;
2. the death penalty or life imprisonment for abetment of Sati;
3. one to seven years imprisonment for glorification of Sati; and
4. Suspension of civic rights of anyone convicted of abetting or
glorifying Sati, i.e. disqualification from holding any public office. However this very piece of legislation will stand negated once right o die is legalized in our country.

2. India is a poor country where there are many feeding mouths and resources are less
In light of the increasing pressure on hospital and medical facilities, it is argued that the same facilities should be used for the benefit of other patients who have a better chance of recovery and to whom the said facilities would be of greater value. Thus, the argument runs, when one has to choose between a patient beyond recovery and one who may be saved, the latter should be preferred as the former will die in any case.

But one should not forget that in a country like India where there is tremendous pressure on the available medical facilities, it is all the more necessary for the maximum utilisation of the limited facilities.

3. There is a risk of abuse of this right
It is again, a conflict between the humane, the ethical and the legal. it is not always that the patient wants to die. The relatives of the patient are also allowed to decide whether to let the patient live. In addition, even where the consent is that of the patient it may be one obtained by force. Use of physical force here is highly unlikely. But emotional and psychological pressures could become overpowering for depressed or dependent people. Moreover, financial considerations, added to the concern about being a burden, could serve as a powerful force that would lead a person to �choose� to die.

Moreover, it is argued that when a healthy person is not allowed to commit suicide then why a diseased person should be allowed to do so. It is pointed out that suicide in a person who has been diagnosed with a terminal illness is no different than suicide for someone who is not considered terminally ill. Depression, family conflict, feelings of abandonment, hopelessness, etc. lead to suicide regardless of one's physical condition. Studies have shown that if pain and depression are adequately treated in a dying person as they would be in a suicidal non-dying person the desire to commit suicide evaporates. Suicide among the terminally ill, like suicide among the population in general, is a tragic event that cuts short the life of the victim and leaves survivors devastated.

It is feared that placing the discretion in the hands of any individual would be placing too much power in his hands and he may misuse such power. This fear stems largely from the fact that the discretionary power is placed in the hands of non-judicial personnel (any individual in this case). This is so because we do not shirk from placing the same kind of power in the hands of a judge (for example, when we give the judge the power to decide whether to award a death sentence or a sentence of imprisonment for life). Generally people who attempt suicide or want to commit are under a lot of emotional stress. For example a patient receiving chemotherapy might want to end his life because of the physical and mental trauma but once he feels better, he might change his mind. Decisions in case of such patients are fluctuate. Also relatives can use the law to achieve their own interests. In India, the crime rate is increasing faster than the population growth. The one main reason behind the crime rate is greed. The old people are very vulnerable.

The near kith and kin want to usurp their property and other possessions. We come across this in almost everyday in news papers. Once euthanasia is legalised, old people will become the main targets. A doctor will declare a patient terminally ill for a paltry some. It will have dangerous repercussions on the society. We should respect life. Life is the most precious thing the God has bestowed upon us.

A youth of our age, depressed to see his parents fight every night, depressed as he does not have a job and has the burden of his family on his shoulders, depressed as he failed in board exams, will not think twice before killing himself! And this will result in gross degradation of a human beings life. His family and society at large will lose an otherwise bodily and mentally healthy person whose rich experience in life and his own skills can be a great asset.

4. slippery slope argument
The slippery slope argument, in short, is that permitting suicide would over the years lead to a slide down the slippery slope and eventually we would end up permitting even non-voluntary and involuntary euthanasia.

5. mind, body and soul
. We are discussing here the rights of a very few people vs. the whole possibility of murders and suicides that can follow from such a law. Besides, if one understands the life and soul and how it works, one will understand that Euthenasia is actually irrelavant and unnecessary. The Spirit or Soul in us decides when to leave. When the MEST life (this physical universe) gets too challenging, the should carves in and gives up to find another body and to start afresh. That's the way the spirit/life works. So if that be the case, the death will come as soon as the Soul decides it. And the fact is that the Soul does not continue in a body a minute longer than it can bear to be there. One could argue about the pain of those around the suffering and dying person. But it's not of our selection that someone we love is suffering. It's a part of life. But legalizing this would mean a gaping hole that many can take advantage of.

In the end, we also would do well to remember the following words of Mahatma Gandhi:
Death is our friend, the truest of friends. He delivers us from agony. I do not want to die of a creeping paralysis of my faculties a defeated man.

So the outcome as it seems
It seems to me that suicide probably ought to remain illegal, because many people who attempt it (especially young people) are either a) not fully in charge of their faculties, b) treatable patients with one or another form of mental illness, and c) would probably thank us later for resisting their attempt. These aren't strong arguments (it can still be argued that suicide "doesn't hurt anyone but the doer"), but they are good enough for me. The state should do everything it can to discourage people from committing suicide. On the other hand, it shouldn't penalize people who attempt it and fail. If the 'crime' of suicide is punished, you run the risk of the old totalitarian joke: he tried to commit suicide, and failed, so they executed him.

So perhaps suicide should remain generally illegal (but not punishable), and there should just be an exception granted to people who are terminally ill and in excruciating pain (like L. Venkatesh). But doctors often disagree on what defines terminal illness. And while there will certainly be some cases where death is inevitable, there will be many cases where death is fairly far off in the future, and there is some hope, however small. Moreover, critics can object that there is always the possibility of a medical miracle -- that 1 in 10,000 chance that a patient will recover -- so isn't it worth keeping the patient alive in case that happens? Opening up the Right to Die as an exception in the law against suicide would only work if the likelihood of death were overwhelmingly high, and if the "miracle cure" argument were thrown out on a cost/benefit basis.

Thus, it seems like a viable argument to say that the right to die should remain generally illegal because of the confusion that could ensue if it were legalized. This is the status quo, and the suffering of people like Venkatesh is unfortunate, but perhaps justified because it does serve the greater common good.

On the other hand, if I could be convinced that doctors could specify the cases where euthanasia is the best option with upwards of 99% certainty (this would require a classification of terminal illnesses and probably the statistical ascertainment of survivability), then may be legalizing righ to die would also serve the common good.

The basic moral question that arises is whether by legalizing a person's right to die, we will degrade a human beings life and stop respecting human life. No one can deny that there is nothing more precious than the gift of life which every human being enjoys. Why then should man decide when his life should end? Most religious people believe that life is sacred and one should not waste time in planning about their death but planning about how to enjoy life. Terminating life is not an answer to pain. All along life's journey man will suffer pain whether it is physical or mental or emotional or psychological. Will legalization of right to die be done to relieve oneself from the physical pain only?A person weakened by illness may not be in a position to review his decision to kill himself. Decision to die by coming under some financial or social obligation is also very dangerous. Somewhere down the line we may end up violating the right to life while legalizing the right to death.

When life is woe and hope is dumb, the world says go! The grave says , come! Whose voice will you hear? Will you be a faint heart and say that I want the right to die or will you in your sorrow and misery and pain be a brave heart and say, dear god give me two more precious moments because I want to cherish the precious gift of life.

legal cell