Human Rights in the Constitutional Context

 

(By O.V. Radhakrishnan, Senior Advocate)

 

Enforceability of International commitments of India in relation to human rights is a seminal issue of considerable topical interest. In the Abu Salem extradition matter, the issue has been raised by the Special TADA Court in Mumbai which has evoked debate and discussion about the legal sanctity of the assurances of the Government of India given to the Government of Portugal as precedent condition for his extradition under the International Convention for the Suppression of Financing of Terrorism, 2000, The Government of India and the Government of Portugal are signatories to the above convention and both the countries have ratified it. In the above setting, it is interesting to examine the legal conundrum associated with the human rights within the constitutional frame work.

 

India and Portugal have not entered into a bilateral extradition treaty. The International Convention for the Suppression of Financing of Terrorism, 2000 in the absence of a law made by Parliament under Article 253 of the Constitution of India for implementing the treaty, agreement or convention cannot override the Indian Penal Code or other criminal laws. Consequently, it would be difficult rather impossible to honour the conditions agreed upon by the Government for extraditing the fugitive. Indian criminal jurisprudence requires to be moulded in accordance with the international principles of human rights.

 

Treaty making, implementing of treaties etc. fall under the legislative heads of Entries 13 and 14 of List I of Schedule VII. Article 51 (c) of the Constitution of India provides that the State shall endeavour to foster respect for International Law and treaty obligations in the dealings of organised peoples with one another. The power to legislate in respect of treaties is given in Entries 10 and 14 of List-I of the Schedule VII. Any legislation made by Parliament under Entry 13 List I, Schedule VII read with Article 253 of the Constitution of India to implement an International Treaty /agreement would override and prevail over the law made by the legislatures of the States. Article 253 thus empowers the Union Parliament to invade List-II by making law, which may otherwise be repugnant for the purpose of implementing the treaty obligations. However, making the law by Parliament becomes necessary only when the treaty or agreement impinges upon the rights of the citizens and others or runs counter to the law of the State. Needless to say that such laws cannot breach the barricades erected by Part III of the Constitution. The provisions of the covenants/treaties, which go to effectuate the fundamental rights guaranteed by our Constitution, are justiciable as facets of those fundamental rights even in the absence of a law made under Article 253 of the Constitution of India. Such treaties are "self-executory". Even so, legislation may be passed in aid of implementation though not necessary.

 

The opening words of Article 253," Notwithstanding anything in the foregoing provisions of this Chapter" namely Chapter I of Part XI dealing with Relations between the Union and the States stand in contra distinction to the expression "Subject to the provisions of this Constitution" occurring in Article 73(1) of Chapter I Part V of the Constitution of India. The executive power of the Union is not co-extensive with power of Parliament to make any law under Article 253. The exercise of the executive power of the Union is a function of the President and the President shall in the exercise of his functions, act in accordance with the advice tendered by the Council of Ministers in accordance with Article 74 of the Constitution. Executive power is not defined in the Constitution and Articles 73 and 162 declare the extent of executive power and its distribution between the Union and the States. The executive power connotes the residue of Governmental functions which remain unconsumed by legislative and judicial functions. Therefore, Article 73(1)(b) cannot be construed as investing executive power with the Union extending the power to make laws by Parliament under Article 253. The non-obstante clause appearing in Article 253 is intended to give overriding effect to the provisions in Part XI of the Constitution and that legislative device is not employed in Article 73(1)(b). It follows that the Union requires a specific legislation under Article 253, if it wanted to encroach upon the law of the States or to intrude upon the rights of the citizens and others for carrying out the International treaty obligations.

 

Relatedly, the exclusion of jurisdiction of Courts in respect of all disputes arising out of any treaties, agreement, covenant etc. is a hurdle in honouring the agreements and assurances given in a covenant. The proviso to Article 131 of the Constitution excludes the jurisdiction of the Supreme Court in respect of all disputes arising out of any treaty, agreement, covenant, engagement, sanad or other similar instruments which, having been entered into or executed before the commencement of this Constitution and continues in operation after such commencement. Turning to Article 363, the jurisdiction of all courts to entertain a dispute arising out of treaties, agreement, covenant etc., entered into between Rulers of Indian States and the Government of India is specifically barred. The second limb of the Article bars the jurisdiction of all Courts in respect of a right arising out of a provision of the Constitution relating to a covenant. Exclusion of the jurisdiction of the Courts in respect of the obligations of the Union is emphasized by the non-obstante clause employed in Article 363. Consequently, the remedies available under Articles 32 and 226 of the Constitution of India and through Civil Courts are unavailing in respect of. disputes falling within the gamut of Article 363 of the Constitution of India.

 

In the draft Constitution there was no Article identical to Article 363. Subsequently, the Drafting Committee introduced Art.302(AA) (present Article 363) on October 16,1949 into the draft Constitution. Art.302(AA) came to be introduced when the Constitution recognized the guarantee of Privy Purses and succession to the GADDI in the Merger Agreements and Covenants. It was felt that if any dispute in regard to such agreements and covenants and any dispute as to any right accruing under or any obligation arising out of any provision of the constitution relating to such covenants or agreements are allowed to be litigated before Courts it would upset the political relationship of the dominion of India with the Indian States. The main reason for inserting Article 363 was that the Courts would have become choked with the cases under Article 362 and the Constituent Assembly did not want to open up the Pandora's Box. The Constitution makers wanted to avoid challenge to various provisions in the Constitution based on the merger agreements. It has been observed in Madhav Rao Jivaji Fao Sindia v. Union of India (1971) 1 SCC 85. "That is why Article 363 really embodied the principles of Acts of State which regulated and guided the rights and obligations under the covenants or merger agreements by incorporating the doctrine of unenforceability of covenants or merger agreements coming into existence as Acts of State". The Constitution recognized, respected the guarantees under covenants and agreements by the allied Articles 291, 362, 363 and 366(22). Articles 291, 362 and 366(22) did not form the basic structure of the Constitution. Article 291 relating to Privy Purse sums of Rulers and Article 362 regarding rights and privileges of rulers of Indian States have been repealed by Constitution (Twenty-sixth Amendment) Act, 1971. Article 366(22) was substituted by the Constitution (Twenty-sixth Amendment) Act, 1971. In view of the above drastic changes made in the Constitution, the actual basis for Article 363 does not exist any longer.

 

The Constitution of India though uniquely voluminous is without a chapter on 'human rights'. This does not mean that human rights are not enshrined in our constitution. Human rights are recognised by and enforceable under the Constitution of India. The preamble declares inter alia that the Constitution of India has been aimed at securing human dignity. The very essence of our constitutional system and the democratic conception of our society are founded on human rights. Human rights are but natural rights. Modern human rights embrace national/domestic human rights and international human rights. The civilization of mankind has changed the content and the nature of human rights, expanding their horizon and bringing oat "needs-led" treaties and agreements. "Human rights" were incorporated into the UN Charier (1945). After a hiatus of three years, the Universal Declaration of Human Rights (UDHR) was adopted by the General Assembly of the UNO on December 10,1948. The UDHR contained 30 Human Rights including civil, political, economic, social and cultural rights. The UDHR also included ancillary human rights. Nevertheless, the human rights comprehended by the UDHR remained unenforceable. The validity and authority of rights require protection of law. The glow and fire of the human rights were found in the two International Covenants adopted by the General Assembly of the United Nations at Tehran in 1966. India acceded to both the Covenants subject to Government of India's declaration dated 10-04-1979. The Government of the Republic of India made the acceding to the International Covenant on Economic, Social and Cultural rights and the international covenant on Civil and Political Rights adopted by the General Assembly of the United Nations in its resolution dated 16th December, 1966 conditional upon the observance of the declarations dated 10-04-1979. The provisions in the said covenants shall be so applied to be in conformity with the provisions of Articles 16, 19 and 22 of the Constitution of India. Notwithstanding such acceding to the Covenants, all the human rights incorporated therein did not become part of the law of our country conferring enforceable rights. Several treaty bodies had come into existence like the Convention on the Elimination of all forms of Racial Discrimination, 1966, the Convention of the Suppression and Punishment of Crime of Apartheid, 1973, the Convention on the Elimination of Discrimination against Torture, the Convention on the Rights of the Child, 1989, the International Covenant on Civil and Political Rights 1966 (ICCPR) etc. Ratification of those covenants by the Government of India by itself does not make them enforceable and justiciable.

 

Under our Constitutional system the fundamental rights guaranteed in Part ITI are justiciable and enforceable under Articles 32 and 226 of the Constitution of India. The Directive Principles of State Policy contained in Part IV of the Constitution are non-justiciable although they are "nevertheless fundamental in the governance of the Country". Many of the human rights recognised and included in UDHR have been rehashed in Part III of our Constitution elevating them to the status of fundamental rights. By the Constitution (Forty-fourth) Amendment Act, 1978 brought into force with effect from 20-06-1979, the rights guaranteed under Articles 20 and 21 are made non-derogable rights.

 

The Indian Constitution combines social and economic rights along with political and justiciable legal rights. It is primarily the education which brings forth the dignity of a man and that the framers of the Constitution were aware that more than seventy percent of the people, to whom they were giving the Constitution of India, were illiterate. Realising the above fact situation, the framers of our Constitution incorporated provisions for education in Articles 41 and 45 of Chapter IV of the Constitution. Article 41 obligates the State to make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement and in any other cases of undeserved want. Article 45 mandates that the State shall endeavour to provide early childhood care and education for all children until they complete the age of 6 years. Right to education is now recognised as a fundamental right within the meaning of Article 21 of the Constitution of India, but the Government having no sufficient resources and infrastructure for providing education, the Societies/Trusts are permitted to establish and administer educational institutions. The right to live with human dignity, right to healthy environment which includes pollution free water and air, emergency medical aid, right to health, privacy, right to livelihood, right to fair and speedy trial, right to free legal aid are some of the important faceted rights under Article 21 of the Constitution. Prohibition of traffic in human beings and prohibition against forced labour are the constitutional mandated rights in Article 23 of the Constitution. The directive principles of State Policy are read with the fundamental rights and are treated as justiciable by construing them as supplementary to the rights guaranteed under Part III by way of semi-legislative process undertaken by the Judiciary. Article 31C was introduced by the Constitution (Twenty-fifth) Amendment Act, 1971 with a view to save the laws giving effect to the Policy of the State towards securing all or any of the principles laid down in Part IV of the Constitution and the directives in Article 39(b) and (c) are made enforceable and would override the fundamental rights in Articles 14 and 19 of the Constitution of India.

 

Amongst our fundamental human rights, most people accord the precious place to the 'right to life' itself and while considering the sweep of the right to life, the protection and development of children take precedence. The children who are to disport themselves and to study are made to work as newspaper seller, cobbler, domestic help, beggar and sexual worker for their living. Children are abused for commercial purposes and for sexual exploitation. Article 39 of the Constitution aims at securing the health and strength of workers, men and women and the tender age of children are not abused and the citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. It concentrates attention on providing opportunities and facilities to children to develop in a healthy manner and in conditions of freedom and dignity. The law requires of the childhood and youth being not frustrated their rights by abuse of power. Article 15(3) under Part III of the Constitution enables the State for making any special provision for women and children, The Juvenile Justice Act, 1986, Immoral Traffic (Prevention) Act, 1986 and the Child Marriage Restrained Act, The Kerala Prohibition of Ragging Act, 1998 are legislations made for keeping the children within the swathes from exploitation.

 

The Protection of Human Rights Act, 1993 has been enacted to provide for the constitution of a National Human Rights Commission, State Human Rights Commissions in States and Human Rights Courts for better protection of Human Rights and for matters connected therewith or incidental thereto. National Human Rights Commission was constituted under S.3 of the Act in October, 1993. The rights incorporated either in the Constitution or "embedded in the two Covenants of 1966" (ICCPR or ICESCR) only are brought within the penumbra of the Protection of Human Rights Act, 1993. Twenty eight out of thirty human rights contained in UDHR, have already been incorporated in Part III and Part IV of the Constitution.

 

The Human Rights Commission continues to be an advisory or recommendatory body. The object of the Act, 1993 for better protection of human rights is not fully achieved by the constitution of the Human Rights Commissions. The Act does not contain any penal provision for enforcing the human rights and preventing the transgression or punishing the transgressor, A quotidian functioning of the Human Rights is opposed to the 'plan and purpose' of the Act.

 

The present day need is that the laws on human rights are to be re-vamped for the effective enjoyment of Civil and Political rights.

 

Any rights or obligations created by the treaty are to be made justiciable to meet today's needs and challenges. But then, does not Article 363 of the Constitution of India today represent a volte-face? 

 

Whether the Recent Decision of Supreme Court Regarding

Power of Attorney is a Boon or Bane to those

Complaints Filed on Power of Attorney

 

(By V.S. Thampi, Advocate, Kollam)

 

The recent decision of Supreme Court in Janaki Vashdeo v. Indusind Bank Ltd. (2005 (2) KLT 265 (SC)) regarding Power of Attorney is a death blow to all cases filed on Power of Attorney. The Division Bench of the Apex Court comprising Justice H.K. Sema and Justice D.M. Dharmadhikari has clearly stated that "if the Power of Attorney Holder has rendered some "acts " in pursuance to Power of Attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined." This leads to an innumerable dismissal of fresh complaints filed under S.138 of N.I. Act based on Power of Attorney day by day by the courts. Hence a clarification is required from the higher judiciary regarding in this aspect.

 

I am hereby explaining some of my views regarding the above said matter.

 

Let us first see the circumstances under which the Supreme Court has passed this ruling.

 

Here a suit was instituted before the Debt Recovery Tribunal and the Tribunal passed a decree against the defendant. This was challenged before the Mumbai High Court on appeal, but the High Court upheld the decree passed by the tribunal, against which an appeal was preferred before the Supreme Court in which the court had stated that in order to pass any further orders in this case it is essential to decide first whether or not the appellants have a share in the property on the date were the decree was passed, and if so, to what extend ? Considering the great importance of the above said question the matter was remitted back to the Debt Recovery Tribunal to record a finding in this aspect and directed to forward its decision within 6 months. It is further held in clear cut that the burden of proving that the appellants/defendants have a share in the property is on the appellants/defendants.

 

By remanding the matter to the Tribunal we can assume the imperativeness of those questions in decision making. But when the matter was taken up before the Tribunal the appellants authorized another appellant in the case to appear and depose on behalf of the appellants as Power of Attorney. This was challenged by the learned counsel appearing for the respondent bank, but the tribunal allowed the Power of Attorney to appear and depose on behalf of the appellants. Here we should see the status of the Tribunal it was in trial stage and we know that the probative value of the deposition made in the trial stage is too high/effective than it is made in the pre trial stage, because it has an absolute place in the decision making.

 

Probative/Evidentiary value of the deposition made in different stages

 

The value of the deposition made in different stages may vary. Whenever the court sits in its cognizance stage it need not go deep into or weigh the substance of the evidence adduced. What is required is only, whether the complainant has made out a prima-facie case against the accused, and if there is & prima facie case then the court is bound to take cognizance. Here the probative value of the deposition is somehow dwindled, since it is made in the absence of the accused and not tested/scrutinized by the weapon of cross examination and it has less value in arriving any judgment.

 

As we know that every case has two stages one is pretrial stage (cognizance stage) and another is trial stage. Let us see the pre trial stage.

 

Pre-trial Stage

 

This stage commences right from the filing of the complaint up to the framing of charge. Once the charge is framed this stage culminates and there begins the trial stage. Hence in this stage the court is sitting in order to take cognizance and not to conduct trial, so the deposition made in this stage has less probative/evidentiary value while comparing it with the trial stage. The term 'cognizance' means the judicial notice of an offence or applies the mind to the suspected commission of an offence. Here the alleged offence itself is a suspected one the court cannot hold in black and white or cut and real that it is the accused who had committed the alleged offence because the probative/evidentiary value of the deposition is somehow coloured. In other words unless and until it is tested by cross examination it would not attain its purity and sanctity.

 

Hence the word deposition while come across the two stages it should be construed in accordance with its deserving status. When it comes in the cognizance stage the court should give priority to its position and not to the evidence adduced, obviously it must establish a prima facie case against the accused. It is a settled position in law that in cognizance stage the court need not go deep into the root of the evidence adduced before it, that is to be considered only at the trial stage.

 

Here I would like to draw the attention of the readers to the amended section-145 of N.I. Act. The section is extracted herewith.

 

145. Evidence on affidavit:

 

1. Notwithstanding anything contained in the Code of Criminal Procedure 1973 the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceedings under the said Code.

 

2. The court may if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.

 

The main objects and reasons of Amending Act of 2002 was to reduce the cumbersome procedure prescribed for the courts to deal with such matters and dispose the cases expeditiously in a time bound manner. Keeping in view, the recommendations of standing committee on finance and other representations, the legislature has enacted other sections along with S.145 as procedure for dispensing with preliminary evidence of the complainant.

 

Let us construct S.145

 

Before entering into the section we must be aware about the nature of S.145. It is not a normal provision, but a non-obstante clause.

 

Non obstante Clause

 

A clause beginning with "Notwithstanding anything contained in" is a non-obstante clause. Whenever the legislature enacts a non-obstante clause the intention behind it is to give the enacting part of the section in case of conflict an over-riding effect over the provision or act mentioned in the non-obstante clause. Here the non-obstante clause is "Notwithstanding anything contained in the Code of Criminal Procedure 1973" and the rest of the section is the enacting part. It is equivalent to saying that inspite of the provision or Act mentioned in the non-obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment. Thus a non-obstante clause may be used as a legislative device to modify the ambit of the provision or law mentioned in the non-obstante clause or to over-ride it in specified circumstances.

 

Now it is clear that the enacting part of this section is "the evidence of the complainant may be given by him on affidavit and may ("subject to all just exceptions") be read in evidence in any enquiry, trial or other proceedings under the said Code", but this enacting part is subjected to the above underlined sentence. The phrase "subject to" is used in contradistinction to the phrase "notwithstanding anything in". The phrase "subject to" conveying the idea of a provision surrendering its place to another provision or other provisions to which it is made subject. Here the enacting part surrenders its position/place to the phrase "subject to all just exceptions". Whenever a complaint is filed u/S.190(2)(a) of Cr. P.C the Magistrate has to proceed u/S.200 for examination of the complainant on oath, but the non-obstante clause mentioned in S.145 of N.I Act over-ride the otherwise mandatory provision of S.200 of Cr. P.C and make it lawful for the complainant to give evidence on affidavit.

 

Now we can see the phrase "subject to" used in the enactment portion. By using the phrase "subject to all just exceptions" the enacting part surrenders its position to "all just exceptions". What was the intention of the legislature while enacting S.145 of N.I. Act by using the word "all just exceptions ", it may be on complaint filed by the P.O. A. Moreover the second provision permitting the court to summon and examine any person giving evidence on affidavit. Here the word "any person" is corroborating the intention of the legislature for using the word "all just exceptions".

 

Thus by considering the scope and object of the enactment of S.145 the court should consider the testimony of the Power of Attorney made in the preliminary stage and provide an opportunity to the original complainant to present his case in the trial stage. While passing the above said decision the Division Bench of the Supreme Court might not have expected the far reaching consequences of the above said decision in complaint filed under S.138 of the N.I. Act based on Power of Attorney. Moreover this decision has been passed in a civil suit and the determination of a civil suit depend upon the preponderance of probability. Moreover, the courts should not forget the fundamental purpose of administering or conferring justice. 

 

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?