Keeping Pace with the Tides --The New Indian

Admiralty Bill 2005

 

(By V.J. Mathew, Advocate, Ernakulam )

 

The Ministry of Shipping, Road, Transport and Highways has recently presented a Bill by name 'Admiralty Bill 2005' before the Parliament. The Bill is intended to consolidate and amend the law relating to admiralty jurisdiction of courts in legal proceedings in connection with ships, their arrests, detention, sale and matters connected thereto and various claims including claims against the ship and claims by a ship for loss and damage to the cargo carried on board a ship.

 

The Admiralty Laws in India are at present based on more than a century old British Acts such as the Admiralty Offence(Colonial) Act, 1849, Admiralty Jurisdiction (India) Act 1860, Admiralty Court Act, 1861, The Colonial Court of Admiralty Act 1890, The Colonial Court of Admiralty(India) Act, 1891, The Provisions of Letters Patent, 1865 in so far as they apply to the Admiralty Jurisdiction of the Bombay, Calcutta and Madras High Courts. The origin of admiralty courts was in England and the Court of Lord High Admiral began to hear all disputes connected with sea and ship. The deputy of Lord High Admiral was appointed as the Judge of English High Court of Admiralty. The court of jurisdiction over tortuous act done upon high seas was the Admiralty Court. The intense rivalry between the High Court of Admiralty and the Court of Common Law with regard to their respective jurisdictions led to the passing of an Act in 1389 entitled what things the admiral and his deputy shall meddle. It continued to exercise jurisdiction in civil areas to which common law did not apply. In 1391, the British Legislature passed an Act couched in more restrictive language so as to demarcate the admiralty jurisdiction.

 

In 1648 an Ordinance was passed which provided that the court of admiralty shall have cognizance and jurisdiction against the ship in all causes likewise in contracts made beyond the seas concerning shipping or navigation, or damages happening thereon, or arising at sea. This Ordinance was later set aside, but a bill was introduced in British Parliament to carry out in legal form the same provisions. In 1833, a Select Committee of the House of Commons appointed to consider the question, presented a report recommending the extension of the jurisdiction of the Admiralty Court. Thereafter Admiralty Court Act, 1840 came into force and the geographical extent of the jurisdiction of High Court of Justice was worldwide and extended its jurisdiction to claims for damage received by any ship or seagoing vessel within the body of a country.

 

As the admiralty jurisdiction is rooted in the International Law Maritime and is largely based on the principles of law of the sea, much of the jurisdiction can be understood against the backdrop of International Law Maritime. One of the fundamental principles in International Law Maritime is that all ships have a right of innocent passage through territorial waters of a sovereign State, but while passing through such territorial waters of a sovereign State, they must owe allegiance to the sovereign State. An important corollary of this principle is that the sovereign State exercises jurisdiction over the foreign ships both with regard to civil and criminal causes. In order to obviate the difficulty of foreign ships not being amenable to jurisdiction, International Maritime Law developed the principle of "maritime lien" which had a far-reaching effect. It is on account of this maritime lien only that an Admiralty Court can enforce the claim for damage against a ship on high seas. The common law courts neither recognized such a lien, nor are they capable of giving effect to or enforcing the 'maritime lien'. The maritime lien was enforced in the Admiralty Court by proceedings in rem and it was only by virtue of later development in the law maritime that a choice was given to the aggrieved person to enforce a maritime lien in respect of damage either against the ship or to proceed 'in personam' against the owner of that ship.

 

Admiralty Jurisdiction is based inter alia on statute and international conventions adopted by International Maritime Organisations (IMO). Regrettably, no efforts were taken by the Indian Legislature to formalize and streamline admiralty law by statutes, until the passing of the Merchant Shipping Act, 1956 which is only a partial remedy and not a complete code. The 1890 and 1891 Acts of Colonial Admiralty Courts equated the powers in Admiralty exercised by the High Courts of Bombay, Calcutta & Madras and thereafter only these High Courts were exercising admiralty jurisdiction under the above Act. The land mark judgment of Supreme Court in 'M.V. Elizabeth' case by his Lordship Dr. Justice Kochu Thommen has brought about a sea change in the admiralty law . The unsatisfactory state of law of admiralty jurisdiction came to the notice of Supreme Court in 1992 in' M.V. Elizabeth' case {M.V. Elizabeth & Ors. v. Harwan Investment and Trading Pvt. Ltd) reported in AIR 1993 SC 1014, 1993 Supp. (2) SCC 433, Dr. Justice T. Kochu Thommen, in his Lordships famous judgment held that all Indian High Courts can exercise admiralty jurisdiction.

 

The Supreme Court noticed that in India statutes lagged behind International law in comparison to other maritime nations. Several international conventions as noticed by the Supreme Court are yet to be ratified in India. Despite this lacuna, the Supreme Court was of the opinion that though the International conventions had not been adopted by legislation, the principles incorporated in the conventions being derived from the common law of nations they are enforceable . The Supreme Court noticed the provisions of sections 443 and 444 of the Merchant Shipping Act, 1958 and held that in the absence of any statute in India comparable to English statutes on Admiralty jurisdiction, there is no reason why the words "damage caused by a ship" appearing in Section 443 of the Merchant Shipping Act 1958 should be so narrowly construed as to limit them to physical damage and exclude any other damage arising by reason of the operation of the vessel in connection with the carriage of goods. In the opinion of the Supreme Court the expression 'damage' is wide enough to include all maritime questions of claims.

 

In 'M.V. Elizabeth's case the Supreme Court's intention was to liberate the jurisdiction of the Indian High Courts from the time warp in which it was said to have been frozen by reason of the Colonial Courts of Admiralty Act 1890 and 1891 and the total vacuum in statute law thereafter. It is clear from 'M.V. Elizabeth's case that every person, thing and foreign vessel entering Indian waters comes within the jurisdiction of the High Court of coastal State by the very act of its entering the Indian territorial waters. In such a case if any one has any 'maritime claim' against such a ship or its owner, he can seek the enforcement of such claim by the arrest or attachment of the ship by the High Court. The limit of the territorial waters is the line every point of which is at a distance of 12 nautical miles from the nearest point of the appropriate baseline (discussed in the judgment by his lordship Sasidharan, J. reported in 2003 (3) KLT 174). The arrest can only be ordered by the authority having/exercising admiralty jurisdiction and which exercises sovereignty over the territorial waters. It is precisely for this reason that all ships within the territorial waters of India were held liable to be arrested in the exercise of admiralty-jurisdiction of all High Courts exercising such jurisdiction as part of the sovereign powers of the country.

 

While British Acts have been revised from time to time, the admiralty laws /maritime laws applicable to India remained unchanged. Before the judgment of the Supreme Court only Bombay, Madras and Calcutta High Courts were invested with the jurisdiction that was exercised by High Court of Admiralty in England. It is after the judgment of the Supreme Court in 'M.V. Elizabeth's case by His Lordship Dr. Justice. T. Kochu Thommen, the other Indian High Courts started exercising admiralty jurisdiction throughout its 5700 km of sea coast covering 11 major ports and 163 minor ports in India. It is sad to note that even after the passing the said judgment by Supreme Court in 1992, (M.V. Elizabeth & other v. Harwan Investment and Trading Pvt. Ltd) reported in AIR 1993 SC 1014,1993 Supp.(2) SCC 433, our High Court has not framed any rules to entertain such admiralty matters and suits, litigations related with maritime - shipping industry. The Supreme Court in 'M.V. Elizabeth' had advised on the need to codify and clarify the admiralty laws of the country. The matter was accordingly referred to Law Commission and its 151st report was tabled in Parliament in August 1995 and the Law Commission recommended for enactment of a new Admiralty Act of India. The present proposed Admiralty Bill 2005 is to give effect to the said recommendations.

 

The object of the proposed Admiralty Bill is to consolidate and amend the law relating to admiralty jurisdiction of all courts, legal proceedings in connection with ship, their arrest, detention and sail and other matters connected thereon or incidental thereto including any claim for damage caused to a ship during her stay, business or voyage, any claim for damage caused by a ship including civil liability and claim for loss of life or personal injury in consequence of a wrongful act, neglect or default in a ship, claim for loss or damage to goods carried on board a ship, claim arising out of any agreement relating to the carriage of goods and in respect of any port dues, fee and other charges to the port, claim by a master or member of the crew of a ship for wages and general average and claims arising out of bottomry and other claims relating shipping.

 

The new Admiralty Bill inter alia, provides for vesting of civil jurisdiction in respect of various types of claims pertaining to shipping industry in High Courts, and power of Supreme Court to transfer any proceedings from one High Court to another and power of High Court to confer Admiralty jurisdiction in consultation with Chief Justice of India on any principal civil court of this State. The Admiralty Court shall have all the powers of a civil court in dealing any application before it and passing such interim and other orders as it may consider necessary and appropriate to protect the interest of the parties. An appeal shall lie from any judgment, decree or final order of a single Judge of the High Court or any other court exercising admiralty jurisdiction to a Division Bench of the High Court. The new Admiralty Bill also spells out Admiralty Jurisdiction and mode of exercising it, conditions in respect of claims in an action in rem and jurisdiction in personam and also provides for application of Code of Civil Procedure and assistance to exercise reference to arbitration and appeal.

 

The new Admiralty Bill of 2005 is intended to rise to the occasion for the purpose of implementing Admiralty Jurisdiction of High Court and to facilitate proper adjudication of admiralty, shipping - maritime related matters, litigations as expeditiously as possible considering the international maritime importance in the trade and such litigations has to be given priority and has to be disposed at the earliest. For the speedy trial and disposal of maritime matters under admiralty a particular court of the High Court has to be designated as Admiralty Court for deciding matters coming under admiralty jurisdiction, apart from the normal work. At present in the absence of an exclusive court, admiralty - shipping cases get stagnated and thereby causes great loss to all those in the industry. The present lukewarm attitude towards the maritime industry and shipping - admiralty matters has to be changed especially in the light of upcoming projects like Vallarpadam International Container Transhipment Terminal and other shipping related huge projects, which will change the very face of maritime industry in Cochin and India.

 

The proposed legislation would bring about a sea change in the dimensions of the admiralty jurisdiction of our High Court. Both the Bench and the Bar will have to get themselves equipped for taking up the new challenges.

 

Relevancy of S.66 of Kerala Court Fees & Suits Valuation

Act in the Light of the Hike in Court Fees - A Study

 

(By Geordi George Joseph, Advocate, Muvattupuzha)

 

The hike in court fees by the recent amendment caused heavy burden to the litigants and they are somewhat reluctant to approach the Civil Court for the redressal of their grievance fearing the remittance of heavy court fee. At this juncture I would like to discuss a way to save court fees by adopting the following technique.

 

Chapter VII of the Kerala Court Fees& Suits Valuation Act deals with refunds and remission.

 

S.66: Refund in case of delay in presentation of plaint etc.

 

(1) Where a plaint or memorandum of appeal is rejected on the ground of delay in its representation or where the fee paid on a plaint or memorandum of appeal is deficient and deficiency is not made good within the time allowed by law or granted by the Court or the delay in payment of the deficit fee is not condoned and the plaint or memorandum of appeal is consequently rejected, the Court shall direct the refund to the plaintiff or the appellant, of the fee paid on the plaint or memorandum of appeal which has been rejected. (Emphasis given to the relevant portion)

 

Order VIII Rule 11(c) Rejection of Plaint

 

The plaint shall be rejected on the following cases:-

 

(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time fixed by the Court, fails to do so.

 

In the light of the above section let us discuss about the way to get refund of court fees in a suit for damages where the valuation of the suit is Rs.8 lakhs and the chance for getting a decree is remote or where the matter is settled by the parties outside the Court. If compromise is filed then the plaintiff can get refund of only half the court fee as per the provisions of S.69 of KCF & SV Act. Instead by adopting the following technique he can get the entire court fee refunded.

 

Here the court fee payable is Rs.78400.

 

(ie.Rs.l5000*4%=60O+35000*8%=2800+750000*10%=75000:-Total=Rs.78400)

 

First of all the valuation of the suit should be increased by amending the suit under Order VI Rule 17 of CPC by bringing a new head in damages on the same cause of action. The Court will normally allow the amendment petition even on costs. Thereafter the Court will post the case for carrying out amendment. The plaint will be amended accordingly. Then the Court will post the case for making good the deficiency in court fee caused by the amendment. On the proposed day for remitting the court fee no court fee will be paid making the plaint deficient in court fee. So the Court will be constrained to reject the plaint under Order VII Rule 11(c). Naturally what will follow is a refund of the entire court fee of Rs.78400 as per the provisions of S.66 of Kerala Court Fees & Suits Valuation Act, 1959. So by the joint application of Order VI Rulel7, Order VII Rule 1(c) of CPC the plaintiff will be able to get the entire court fee refunded as per the provisions of S.66(1) of KCF & SV Act.

 

I don' t claim myself to be the inventor of this theory. Instead many a shrewd lawyer might have adopted this simple technique for saving court fee thereby causing heavy loss to the State exchequer. So my humble suggestion is that necessary amendment may be made in the law to avoid the application of this theory by making it mandatory for the plaintiff to remit the balance court fee along with the amendment of the plaint. 

 

A Constitutional Perspective of Euthanasia & 'Right to Die'

 

(By Sangeetha Mugunthan, Hidayatullah National University, Raipur)

 

Abstract

 

Life and death were regarded as spheres not of human beings but of God before the advance of medicine. Now days, with an increase in the demand for Physician Assisted Suicide, life and death no longer seem to be accorded the same moral sanctity as earlier. Ever since the organic debate over this controversial issue has been kindled, the deliberation has heated up and brought to light the pros and cons of mercy killing.

 

Law poses many problems in this regard, mostly because it often comes into contradiction with morality. One of the most fundamental problems arising out of this conflict between law and morality is euthanasia. Under the veil of 'Right to Die', euthanasia and related concepts opposed to the preservation of life, call into consideration the words of Thomas Jefferson:

 

'The care of human life and happiness and not their destruction is the first and only legitimate object of good governance.'

 

This write-up seeks to bring out the inherent paradox that lies in the existence of such a right to give up one's life. Its essence however, goes into understanding the impracticability in the existence of such a right to die in the Indian society.

 

Introduction - Euthanasia in its Present Content

 

Every human being is desirous to live and enjoy the fruits of life till he dies. But sometimes a human being wishes to end his life by use of unnatural means. The intentional termination of a patient's life, by an act or omission of medical care, is called 'mercy killing' or 'euthanasia'. Derived from the Greek term euthanatos (eu- good and thanatos-death), euthanasia has the simple meaning of a good death with dignity1. The Encyclopedia of Crime and Justice defines euthanasia as 'an act of death which will provide relief from a distressing or intolerable condition of living'2.

 

In its pure meaning, euthanasia was used as a vehicle signifying painless death to patients, who were terminally ill, for whom life would be more painful than death. With changing times in the modern context, the definition has come to encompass impulses of suicide and its inviolability has degraded so as to regard this as a subset of murder or a license authorised with a right to kill. The boundary of euthanasia, earlier being restricted to 'patients', has gradually expanded to include 'persons'. Moreover, a new problem has cropped up with the difficulty in defining who may be in excruciating pain or unbearable agony so as to be regarded as 'incurably ill' attracting the termination of his life on compassionate grounds3. The crux of the issue is that all the definitions available have led to ambiguity and it has become virtually impracticable to neglect the possibility of misuse in the event of legalisation.

 

The demand for a good or happy death would imply receding the natural way of dying. A detailed analysis of the few judicial pronouncements in this regard will reiterate the view that though the higher judiciary has taken note of the fact that there has been a gradual increase in the demand for mercy killing in the Indian society, in the present era, India is neither prepared and nor fully equipped to undertake the drastic venture of legalising it. In a hot pursuit of this Utopian ideal, it is most likely that we would tread the path of chaos and mayhem.

 

Euthanasia - The Debate & Its Legal Implications

 

Euthanasia presents a paradox in the code of medical ethics in the form of a contradiction within the Hippocratic Oath4 because there is a promise on part of specialists to prolong and protect life even when a patient is in the late and most painful stages of a fatal disease. Thus, while an attempt to prolong life violates the promise to relieve pain, relief of pain by killing violates the promise to prolong and protect life5.

 

The belief in the special worth of human life is at the heart of every civilised society. It is this fundamental value which has paved a foundation for all laws. Every human being in the world has a right to be seen as a person before the law. Thus, no one can decide that any particular human or group of humans are not persons. Everyone has the right to life and this right is to be protected by law. The right to life is inviolable to the extent that it cannot be taken away and inalienable in the sense that it cannot be given away and remains largely inseparable6.

 

Scholars arguing pro-euthanasia emphasise that life does not only mean life with mere flesh and bones, but a life with full human dignity and honour. If a person cannot live with this honour and dignity, he or she should have the right to medical assistance in dying7. Therefore, according to them, more emphasis should be laid on quality of life rather than sanctity of life.

 

This argument can be countered by drawing attention to the opinion prevalent in the international community where the sanctity of life has been placed on a high pedestal. Article 3 of the Universal Declaration on Human Rights states that Everyone has the right to life, liberty and security of person. Similarly, the European Convention for the Protection of Human Rights and Fundamental Freedoms has declared through Article 2(1) that Everyone s right to life shall be protected by law.

 

India has responded in the same manner by guaranteeing the right to life under Article 21 of the Constitution. This right to life undoubtedly encompasses within its ambit the right to lead a dignified life8. Yet it would seem illogical that merely because this goal cannot be achieved, right to die peacefully with medical assistance should be included within the realm of Article 21. The very idea of doctors providing a lethal dose to those persons who no longer wish to live and who have given their consent for the same is both unconstitutional and illegal under Indian law9. This can be supported by bringing into question the applicability of our penal law.

 

In cases of euthanasia, there is an intention on part of the doctor to kill and such killings are done after a careful thought which would mean that there is clear premeditation, an important element in first degree murder. Thus, such cases would clearly fall under the first clause of S.300 of IPC.

 

Criminal law unlike civil law does not accept consent as valid defence in case of homicide. Hence, in accordance with S.87 of IPC consent cannot be pleaded as defence in a case where the consent is given to cause death or grievous hurt. With regard to death, the restriction is absolute and unconditional, though consent may have the effect of merely reducing the gravity of the offence.

 

The plea of the defendant, his motive being honest will not be accepted. Moreover, it is often said, in a case of euthanasia, the plea to relieve a person from painful life is no merit in defeating the charge of murder. Courts have always held that any active shortening of life makes an act homicide, no matter for how much short time the victim would have lived.

 

In this regard, courts have also drawn attention to Sections 306 and 309 of IPC which provide punishment for the offense of abetment of suicide and an attempt to commit suicide. It is well settled that euthanasia, involving the intervention of a third person, indirectly amounts to abetment of the killing of another. However, in Naresh Marotrao Sakhre v. Union of India10, Justice Lodha brought about a clear distinction between euthanasia and suicide where it was observed that: Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating one's own life without the aid or assistance of any other human agency. Euthanasia or mercy killing on the other hand, means and implies the intervention of other human agency to end the life. The two concepts are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever maybe the circumstances in which it is effected.

 

It is also argued that one of the achievements of modern medical technology is the use of artificial support systems to prolong the existence of life." Although, it is true that the bulk of these technical resources should not be wasted on the treatment of those patients who have no scope of recovering back to normal condition, in a welfare society, providing a better health care is the responsibility of the state and nobody, even at his deathbed can be denied this facility. Nevertheless, it must be acknowledged that if mercy killing is legalised, it would help in reducing the high cost and expenditure of medical care incurred by the Government.

 

Till date, no consensus has been reached which makes one question the possible role that law can play in resolving this issue. It has on occasions, been claimed that the courts are ill equipped to deal with the highly sensitive and rather ambiguous concept of euthanasia. Society has reached a critical stage, being asked whether in the name of mercy, one of the oldest of medicine's prohibitions should be overturned, or whether in protecting its traditional role of only healing life and not taking it, the prohibitions should be upheld. At stake are some of our most important ethical, legal and social issues.

 

Can there be a Right to Die in India?

 

In the present scenario, under Article 21 of the Indian Constitution, right to die cannot be a fundamental right. This rationale can be traced back to a series of cases, the first of which came up for consideration before the Bombay High Court in the matter of Maruti Shripathi Dubai v. State of Maharashtra12. In this case, though the Court13 opined that the right to life guaranteed by Article 21 includes the right to die, it did not clearly explain as to how even at the level of plain logic, life includes death. It is clearly apparent that the two cannot coexist and death implies the absence of life.

 

The Andhra Pradesh High Court decided in contradictory terms in Chenna Jagadeeswar v. State of Andhra Pradesh14 where it took the view that: To confer a right to destroy oneself and to take it away from the purview of the Courts to enquire into the act would be one step down in the scene of human distress and motivation. It may lead to several incongruities and it is not desirable to permit them.15 Therefore, it was held that S.309 IPC is valid and does not offend in violation of Article 21 of the Constitution.

 

In the year 1994, the case of P. Rathinam16 came up for consideration before a two-judge bench of the Supreme Court. In his highly controversial judgment, Justice B.L. Hansaria invalidated S.309 IPC, declaring it to be unconstitutional on the ground that it violates the fundamental right to life. It was held that: S.309 IPC deserves to be effaced from the statute book to humanise our penal laws. It is a cruel and irrational provision, and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide.17

 

The controversy was finally resolved on March 21s11996, through the decision in Gian Kaur v. State of Punjab18, overruling P. Rathinam and this decision has been the law of the land till date. It has been stated that the right to life, under Article 21 of the Constitution, does not include right to die or right to be killed as the very nature of such a right is inherently inconsistent with the right to life. As a result, the court has made it clear that the right to life, including the right to live with human dignity, would include the existence of such a right till the end of natural life. The Court reiterated its view in context of euthanasia that the argument to support the views of permitting the termination of life in such cases of a dying man, who is terminally ill and is totally dependant on life support systems, by accelerating the process of natural death, when it was imminent and unavoidable, was not available to interpret Article 21 to include the right to curtail the natural span of life.

 

The above inferences lead to one conclusion: any form that involves unnatural termination of life is illegal, as a result of which there is no right to die." The extent of credibility accorded to the sanctity of life and the right to life as a whole is shown from the culpability of offences. Besides, it would be apt to comment that decriminalisation of euthanasia is unworkable in the Indian perspective, even on humanitarian grounds, as it involves a third person and the chances of misuse exist to a large extent.

 

Lessons from Outside

 

The concept of euthanasia is not new a phenomenon only in the Indian territory but is in its natal or experimental stage in other countries also. That is the reason why the issue of mercy-killing has become the subject of fierce debate for many years now in several countries. The French Parliament, for example, is busy debating a draft bill legalising euthanasia where the illness is of an incurable nature. Netherlands was the first European country to legalise euthanasia in 2002 while Belgium passed a law permitting voluntary euthanasia and assisted suicide in May 2002. Similarly, in the US, Oregon is the only state to permit assisted suicide, though euthanasia remains illegal.20 Some of these experiences learnt by Netherlands, United States, and Belgium would help us to a significant extent in influencing the possibility of existence of euthanasia laws in India.

 

Euthanasia, the unofficially tolerated practice in Netherlands was legalised by the Dutch Parliament setting a historic landmark sometime in November 2000. It can be inferred from the experience in the Netherlands, where there has been relatively little effort to improve pain and symptom treatment, that legalisation of physician assisted suicide might weaken society's resolve to expand services and resources aimed at caring for the dying patient21.

 

In England, following a series of decisions of the House of Lords it is now settled that a person has the right to refuse life-sustaining treatment as part of his rights of autonomy and self-determination22. The House of Lords has also permitted non-voluntary euthanasia in case of patients in a persistent vegetative state23. Moreover, in a recent decision, a British High Court has granted a woman paralyzed from the neck, the right to die by having her life support system switched off24.

 

In 1996, the Northern Territory of Australia became the first jurisdiction to explicitly legalise voluntary active euthanasia when it passed the Rights of the Terminally 111 Act, 1996. Though the validity of the Act was upheld by the Supreme Court of Northern Territory in Wake v. Northern Territory of Australia25 a subsequent federal constitutional challenge to the legislation had succeeded. The Federal Parliament of Australia had subsequently passed the Euthanasia Laws Act, 1997 repealing the Northern Territory legislation26.

 

Laws in the United States maintain the distinction between passive and active euthanasia. While active euthanasia is prohibited, the courts have ruled that physicians should not be legally punished if they withhold or withdraw a life-sustaining treatment at the request of a patient or the patient's authorised representative27. These decisions are based on increasing acceptance of the doctrine that patients possess a right to refuse treatment as part of their right to self-determination.

 

As of mid-1999, only one U.S. State, Oregon, had enacted a law allowing physicians to actively assist patients who wish to end their lives. However, Oregon's law concerns assisted suicide rather than active euthanasia. It authorised physicians to prescribe lethal amounts of medication that patients then administer themselves. Movements seeking to legalise assisted suicide and euthanasia in America have succumbed to a blow by the US Supreme Court in its decisions in Washington v. Ciucksberg28 and Vacco v. Quill29. Through these cases, State laws in New York and Washington, which had banned physician assisted suicide, have been held to be in consonance with the provisions of the Constitution.

 

Moreover, some of the complex jurisprudential issues have come to light in the context of the American debates on euthanasia and the court decisions in Nancy Cruzan30 case and in Wanglie, Re.31. The case of Nancy Cruzan is an eye-opener for all those who have imagined an easy journey for a right to die. In the Cruzan case, the hospital authorities were not willing to comply with the parent's request to let Nancy die in peace. However, in Wanglie, Re die situation of claim of right to die got reversed, with the unconscious patient's physician expressing an opinion that she should not continue to receive life sustaining treatment although her family believed that this is not what she would have wanted.

 

In India, there will be all round ignorance and totally inadequate and inefficient medical information system which will in turn impair (he patient's claim to a clear and informed death-wish. Euthanasia must be the last resort where other alternatives to alleviate die patient's situation must be considered and found wanting.

 

Concluding Remarks

 

Any discussion on euthanasia, if it is to move from the domains of a purely academic exercise, has to be construed in a socio-economic context where every human life has an equal value32.

 

Euthanasia, in Indian perspective is acknowledged by people in some circumstances where it might be the most appropriate solution for certain individual patients. Yet there is no doubt that it tends to devalue the sacrosanct nature of life. A close perusal of the arguments against euthanasia clearly indicates that the sanctity of life notwithstanding, die opposition primarily breeds from the trepidation of misuse if permitted under law. It is feared that placing greater limits of discretion in the hands of a doctor would entail vesting a greater degree of power in his hands, as a result of which there is a larger possibility of misuse.

 

As a beginning, it is suggested that a quasi-judicial officer be appointed by the appropriate authority under the proposed statute to supervise all cases of euthanasia within a feasible territory. Such officer must be reasonably well versed with the nuances of medical science. Any doctor who feels that his patient's request to die should be fulfilled would report such a case to the said supervising officer. If the officer so referred feels that the patient is beyond recovery i.e., mere is no alternate treatment available and that death would be a more suitable option for him, the supervisor should issue a certificate allowing the doctor to let the patient die.

 

The line between the morally right, morally less wrong, morally wrong and the criminal is very thin indeed. In the words of Lord Mustil "The whole matter cries out for exploration in depth not only of a new set of ethically and intellectually consistent rules, distinct from the criminal law, but also of a sound procedural framework within which the rules may be applied to individual cases'. Thus, the legalisation of euthanasia can take place in India only when maximum possible steps are undertaken so as to prevent the abuse or misuse of vested powers by non-judicial authorities.

 

Observation

 

It would be fitting to quote the 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.'

________________________________________________________________________

1. Euthanasia Website Material, November 2001, Produced for the Society for the Protection of Unborn Children, by the Southern Cross Bioethics Institute

 

2. There are several types of euthanasia such as voluntary/involuntary euthanasia, assisted suicide, active/passive euthanasia, by omission or by action.

 

3. Jack Kervorkian, a famous proponent of euthanasia, defined terminal illness as 'any disease that curtails life even for a day'. On the other hand, some therapeutic laws define terminal as one from which death will occur in a 'relatively short time' or 'within a span of six months'.

 

4. The Hippocratic Oath is dated between 600 and 100 BC. It is thought that Hippocrates wrote the Oath and formed a medical school around this distinctive set of ethical principles. An excerpt from this oath expressly brings out the contradiction:

"I will use treatment to help the sick according to my ability and judgment, but I will never use it to injure or wrong them. I will not give poison to anyone though asked to do so, nor will I suggest such a plan... But in purity and in holiness I will guard my life and my art. "

 

5. Dick Sobsey, 12 Problems with Assisted Suicide, excerpt from the brief submitted to The Special Senate Committee on Euthanasia and

Assisted Suicide (Canada)

 

6. The right to life or the right to die?, by Lina Mathias, The Hindu, Sunday May 1, 2005

 

7. Euthanasia Rebellion Defeated, BBC News, 14th December, 2004

 

8. In Kharak Singh v. State of U.P. (AIR 1963 SC 1295), it was held that 'Life is something more than mere animal existence'.

 

9. Euthanasia in India, by Dr. A.K.Tharien, Christian Fellowship Hospital Oddanchatram, Tamil Nadu.

 

10. 1995Cri. L.J. 96 (Bom.)

 

11. Issues in Law and Medicine, Multi-Society Task Force, p. 1501-1994

 

12. 1987CriU743

 

13. Ibid.,PerSawantJ.

 

14. 1983 Cri. L J. 549

 

15. Ibid., Per Amareshwari, J., Para 34

 

16. P. Rathinam v. Union of India (1994) 3 SCC 394.

 

17. Ibid, at Para. 111.

 

18. (1996) 2 SCC 648, 5 Judge Constitutiona] Bench comprising of J.S. Verma, G.N. Ray, N.P. Singh, Faizanuddin and G.T. Nanavati, JJ.

 

19. Refer to Right to Life or Death?: For Bharat Both Cannot Be 'Right', by B.B. Pande (1994) 4 SCC (Jour.) 19.

 

20. The time has come to legalise euthanasia, The Financial Express Editorial, December 18th 2004.

 

21. Foley & Hendin, from Treatment of Pain at the End of Life: A Position Statement from the American Pain Society

 

22. George S. Healthcare NHS Trust v. S.[1998] 3 All ER 673

 

23. Airedale NHS Trust v. Bland [l993] 1 All ER 821

 

24. Report in The Hindusthan Times, New Delhi, March 23rd 2002

 

25. (1996) 109 NTR 1

 

26. (1997) 23MonLR 2

 

27. Euthanasia moves up the medical agenda (1993) 341 Lancet 482

 

28. 138 L Ed 2d 772

 

29. 138L Ed 2d 834

 

30. Cruzan v. Director, Missouri Dept. of Health 110 S. Ct. 2841, 2852 (1990)

 

31. A case before tine Minnesota Supreme Court quoted by Alexander Morgan Capron in Medical Decision -Making and the Right to Die after Cruzan Law, Medicine and Health Care, Vol. 19:182, Spring-Summer, 1991, pp. 5 to 8

 

32Jay Johansen, Euthanasia: A Case of Individual Liberty? 

 

Buprenorphine Addicts: Don't You Want to See them

De-Addicted, Learned Spl.Prosecutor?

 

(By T.D. Robin, Advocate, Ernakulam)

 

(Ref. Buprenorphine Bane of Kerala - 2005(4) KLT Journal 53)

 

Olden days, days when I thought she were in love with me, I used to scribble. Mostly letters to her; seldom those which me alone would dare call poems. Whatever it be, I learned one thing. Behind everything that we write which comes from the very heart of our heart, there is a lot of pain. A pain which will ultimately subside only when we complete the writing.

 

Today, when I sit with my pen and paper ready, and 2005 (4) KLT Part 13 & index, page 53 journal Section shining with the caption "BUPRENORPHINE - THE BANE OF KERALA" written by the reputed Spl. Public Prosecutor (Narcotics) , High Courts of South Zone, Sri. P.N. Prakash, I am feeling the same pain. Coupled with it is a trepidation, a 'should I or should not I’ feeling which confuses me. But the fact that there is something legally incorrect, something which is factually wrong and practically against commonsense in the above article has put to rest the confusion and given me the strength to scribble what I feel in my own humble way.

 

The words Buprenorphine or its trade names like tidigesic, Bunogesic etc. may not make a mark in many except Judges, lawyers who handle drug cases, doctors, drug mafia, peddlers and addicts. It is akin to morphine. It is a post operative analgesic or to put it in a layman's language, an injection given to a patient who has undergone operation to kill away his pain.

 

Accidentally or intentionally if a normal person takes an injection, that moment, he falls a pray to this 'bane' as the author rightly calls it. I had wondered and tried to collect from my clients what exactly was the pleasure that they derived from it. I was told that the most exciting effect of the drug was that it gave boundless confidence to the taker. Suppose he is on to buy a shirt. He enters the shop. Not even a few seconds are wasted; the selection is made spontaneously and with absolute satisfaction. Likewise, he is in the company of his friends one of whom asks him to pick the pocket of a person. There are no second thoughts. The thing is done. Consequences are not thought of.

 

The effect of an injection ordinarily lasts for four hours. Then starts the craving for the next one. Step by step it increases and a completely addicted person may take upto 8 injections per day. The cost of an ampule containing 2 ml is around Rs.15. But its availability from Medical shops is strictly on production of medical prescriptions. The next option is only purchase from peddlers. There, the amount varies from Rs.100 to Rs.250/- per vial and even more depending upon the urgency and inevitability of the taker.

 

The taker can be a menace to the society. There is no doubt. He would be unmindful of involving in crimes. The chances of disseminating dreaded diseases like HIV and AIDS are high because of the common use of syringes. Buprenorphine is a bane. It is a bane to the society. I AGREE cent per cent with senior Prosecutor Mr. Prakash on that aspect. But I DISAGREE with utmost respect when he calls it "THE BANE OF KERALA". Thank God the other states of South zone are free from this bane.

 

No small quantity : I want to write a lot. But I want to be short too. The author of course advanced his arguments in Shaji's case before this Court. His article is in effect a reproduction of his well prepared and to-the-point arguments. (Shaji 's case had its birth at District & Sessions Court Ernakulam.) Admittedly Buprenorphine is available in liquid form, its sold content being only 0.3 g per ml. In the last but one sentence of the first paragraph in page 54, the author says "one vial (ampule) of Bupernorphine will contain 2 ml (approximately 1.5 gm) of Buprenorphine preparation in liquid form. For one thing, the use of the word approximately does not suit the pen of an authentic writer especially when much matters upon it. The liquid contents of the ampules were weighed at the District and Sessions Court, Ernakulam. Each ml. weighed 1.08 gms. Therefore the total weight of the ampule containing 2 ml is 2.16 gms. Buprenorphine is available in medical shops in 2 ml ampules only. (Smallest unit) Conceding the arguments of the author, that the whole weight of the liquid and the substance together has to be measured (for arguments sake) , the weight of one ml is 1.08 gms. The small quantity prescribed for Buprenorphine is one gram. But we are now stranded herewith 2.16 gms. What can be the expected result. If we go by the theory of whole weight of the preparation. Buprenorphine will have no small quantity. Even according to the author, the weight of 2 ml is approximately 1.5 gms.

 

Dear Author, before writing this article, or advancing your arguments at Shaji 's case or at any time after the amendment 2001 came into force, have you come across S.64A?. Had you ever felt in your mind that at least some of the addicts who are still languishing in jail want to get rid of this nasty habit and return to normalcy?

 

Before the amendment in 2001 the law on this aspect was so stringent. Minimum and deterrent punishments were prescribed for possession of even small quantities of drug. Notification regarding small quantity came into existence in 1996. Before that, the power to prescribe small quantities not already prescribed in the Act was given to respective District Medical Authorities, who according to their whims and fancies fixed them as 3, 4 or 5 ampules, (based on experience of author in courts). An interesting aspect is that, in spite of these stringent provision, the crime rate did not go down or rather went up. (The author would be better equipped with clear data).

 

That must be the reason why the Parliament in its wisdom thought it fit to amend the Act by Act 9 of 2001. Certain reasons have been enumerated by the Parliament in the Objects and Reasons which prompted it for this amendment. I think the learned Author might not have perhaps read it. But do take it, Mr. Special Prosecutor, the Judges of Kerala High Court have read it and had it in their mind when they rendered the judgment which you have attacked in your article.

 

It reads "The NDPS Act 1985 provides deterrent punishment for various offences relating to illicit trafficking in Narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of a minimum of ten years rigorous imprisonment which may extend upto twenty years. While this Act envisages severe punishment for drug traffickers, it envisages reformative approach towards addicts,. In view of the general delay in trial, it has been found that the addicts prefer not to invoke the provision of the Act. The strict bail condition under the Act add to their misery. Therefore it is proposed to rationalize the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. This requires rationalization of the sentence structure provided under the Act. It is also proposed to restrict the applications of strict bail provisions to the offenders who indulge in serious offences".

 

With this back ground let us examine Section 64 A of the Amendment Act 2001 and the consequences that would have ensured if Shaji's case was held to be good law.

 

S.64A. Immunity from prosecution to addicts volunteering for treatment

 

Any addict, who is charged with an offence punishable u/S. 27 or with offences involving small quantity of narcotic drugs or psychotropic substances, who voluntarily seeks to undergo medical treatment for de-addiction by the Government or a local authority and undergoes such treatment shall not be liable to prosecution under any other section for offences involving -mall quantity of narcotic drugs or psychotropic substances.

 

Provided that the said immunity from prosecution may be withdrawn if the addict does not undergo the complete treatment for de-addiction.

 

(Section 27 prescribes punishment for consumption of any narcotic drug or psychotropic substance; first limb prescribes, punishment with the imprisonment which may extend upto one year or with fine which may extend to twenty thousand rupees or with both and the second limb prescribes punishment for a term which may extend to six months or with fine which may extend to Ten thousand rupees or with both, depending upon the nature of the drug used).

 

Answers to the arguments advanced lie in the article itself. Author admits that the solvent for Buprenorphine is water. I hope he would not advance an argument that water is a psychotropic substance. Admittedly, the Parliament was aware of these facts. Author also says Buprenorphine has to exist in solid or liquid medium. The chemical Analysis reports in the cases show that the Buprenorphine content in those medium can be extracted and weight calculated in terms of gms. Invariably, C.A. Reports show the weight of Buprenorphine as 0.3 mg/ml. or less (I have never come across any higher quantity. 0.5 gms etc., mentioned in the article, again, I may say must be a factual mistake). To cut it short, if Parliament intended the whole weight of the solution, it would have put it so in black and white. The only conclusion is that what the Parliament intended was the weight of the substance called buprenorphine alone and not the weight of the whole liquid medium. A contrary view will make S.64 A redundant.

 

The substance of his arguments lies in his compulsion to read section 2 (xx) which defines preparation and 2 (xxiii) which defines psychotropic substances together. May I invite the attention of the reader to item No. 111 (One hundred and eleven) in the Table of the Act which prescribes the quantities. It reads "Preparations made from the extract of tincture of Indian Hemp" .If the author's argument is to stand, the word preparation used therein was unnecessarily inserted by the Parliament. If not, the effort made in this article by this author should be deemed to be more correct. In this context, may I reproduce two lines Justice Badar Dureez Ahmed of the Hon'ble High Court of Delhi in (2005(4) Crimes 598. While a recovery of 4 gms of heroin would amount to a small quantity, the same 4 gms mixed up with say 250 gms of powdered sugar would be quantified as a "commercial quantity". And where would this absurdity stop?

 

Author said 'Dosage' has not been defined in the Act. You approach a doctor with a complaint of slight fever. He prescribes you Paracetamol pills to be taken three times a day for three days. The pill that you take one time is the 'dose' and the pills that you have to take for three days is the 'dosage'. Should we find fault with the Parliament for not defining these silly matters?

 

The Author, based on his daily life experience and seeing Medical Practitioners prescribing Antibiotics has opined that the prescription does not refer to the weight of the drug in milligram but to the 'potency' of the drug in milligrams. He continues to say "So the fundamental fixed factor for multiplication adopted by the Apex Court in the above three cases, (Ouseph v. State of Kerala, Hussain v. State of Kerala, Sajan Abraham v. State of Kerala) is erroneous." Taking into consideration his argument which is based on daily life experience and Medical prescriptions I have most carefully weighed them in golden scales with the three decisions on the other side. Sir, the scales show that the Hon'ble Supreme Court is on the winning side.

 

In the last paragraph, there is an element of lamentation seemingly created by Article 141 of the Constitution tried to be overcome by a quotation of Justice Brennan of the Supreme Court of America "We on this court are not final because we are infallible: We are in fallible because we are final". It reminds me of a case where our own Supreme Court had committed a serious error and then corrected it after the harm was practically caused. A person was found to have committed perjury before the Apex Court and the Apex Court straight away sentenced him to 6 months imprisonment. After undergoing the sentence an application was moved before the Apex Court and the court clarified that the proper procedure to be followed u/S.340 Cr. P.C. was to remit the matter for trial to a Magistrate Court. So there is nothing to feel disheartened if ones feels that his arguments has not been considered well. There might be a break some day.

 

I was present all through in the court when Sri. Prakash was advancing his arguments. His performance was excellent and so convincing. As a young brother of the same profession I do adore and love him. I want him to understand that it is the saline prayers claded in the tears of hundreds of parents whose children had somehow or other turned out to be addicts and who have now become de-addicted and are waiting for immunity from prosecution that has prompted me to scribble these lines. So please help me and other lawyers who are trying to defend those addicts. Let us try and see if we can make at least a few real and responsible citizens out of them.

 

Law is Neither a Boon Nor Bane

 

(By Karunakaran Bevinje, Advocate, Kasaragod)

 

This is in response to the article in 2006 (1) KLT Journal page 3 authored by Mr. V.S. Thampi, Advocate Kollam. The learned author has commented on the decision of the Supreme Court reported in 2005 (2) KLT 265 (SC) regarding the appreciation of evidence of a power of attorney. In the 1st Para of the Article, the learned author described the decision as a "death blow to all cases filed on power of attorney". The description given by the author in the article is opposed to the dictum laid down in the decision of the apex court.

 

The apex Court's decision on the interpretation of word "act" occurring in O.III R.I CPC is clear, unambiguous and however does not create any fallacy of law. The decision has resulted in removing doubts on the question and has reflected sound reasoning. The thorough reading of the decision makes it clear that apex court has not made prohibition in giving evidence by power of attorney holder on behalf of his principal. What is forbidden is from being a witness in the capacity of the principal. In other words it is meant to say that the power of attorney holder cannot be a substitute of his principal for giving evidence. The word "act" occurring in O.Ill R.1 of CPC does not extend to allow the power of attorney holder to be a proxy of his principal. The dictum laid down in apex court's ruling reported in 2005 (2) KLT 265 stands only as a corollary to the well settled law as to inadmissibility of hearsay evidence. The expression in the ruling that "cannot depose for the principal in respect of the matter which only the principal can have personal knowledge" in effect permits the power of attorney holder to give evidence of such matters if both the principal and agent have equal knowledge of such matters.

 

A prosecution before a criminal court undertones two stages. One is stage of inquiry and other is stage of trial. Every proceeding in a criminal case before framing charge falls within the stage of inquiry. The trial starts after the framing of charge. In a prosecution under S.138 of N.I. Act the evidence by affidavit is permitted under S.145 of the Act. Even during the inquiry stage, the complainant need only to prove facts by affidavit to make out a prima facie case. The power of attorney is not entitled to file a complaint, he can also give evidence to make out a prima facie case. For the purpose of taking cognizance under S.138 N.I. Act, the complainant has to make out only a. prima facie case against the accused. S.146 of the Act makes it clear that bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, is a prima facie evidence of fact of dishonour. On this effect evidence by the power of attorney holder is sufficient to meet the mandates of S.200 Cr. PC and to proceed under S.204 of Cr. P.C.