Conventional and Unconventional Remedies

Conventional and Unconventional Remedies:

Introduction:

Besides the conventional remedies like Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo Warranto the Indian Supreme Court has innovated many unconventional remedies like Continuing Mandamus, Certioraring Mandamus, curative Petition, Late night petition, etc. This blog contains all the information one needs to know about various writs along with unconventional remedies.

1)Habeas corpus:

The writ of Habeas corpus is used to secure the release of a person who has been detained unlawfully or without legal justification. The word  Habeas Corpus literally means ' to have a body '

Habeas Corpus may also be issued when a person complains of illegal custody or detention by a private person.

The writ is available for enforcement of fundamental right where the order of imprisonment or detention is ultra virus.  

The writ is not available for the detention of person outside the jurisdiction of the court and imprisonment by a court of law on criminal charges 

Issued against: State or any other person against illegal detention

Who can approach: Victim of imprisonment or parents, friends but not by a person completely stranger 

In Kanu Sanyal vs District Magistrate, Darjeeling 1974 SC

The SC held that while dealing with the writ of Habeas Corpus production of the body of the person alleged to be unlawfully detained was not essential.

2)Mandamus:

Mandamus means "to command". 

It is a command issued by a court( High Court or Supreme Court) commanding a public authority to perform public duty belonging to its office

Mandamus is issued to enforce the performance of public duties by authorities of all kinds.

For example, when a tribunal omits to decide a matter which it is bound to decide, it can be commanded to determine the question which it has left undecided.

It shall also step in when the discretion is exercised but the same has not been done legally and validly. Where an order has been passed without complying with the principle of natural justice.

Mandamus can be granted only when a legal duty is imposed on the authority in question and the petitioner has a legal right to compel the performance of this duty. The performance of this duty shall be imperative and not discretionary.

Condition for grant of mandamus:

1) Existence of Legal right 

The existence of legal rights should be imperative and not discretionary in nature.

Example: giving of salary and yearly allowances 

here giving salary is imperative bit allowances is discretionary

State of MP vs GC Mandawar 1954 SC

Fact: The MP government made a rulemaking it a matter of its discretion to grant a clearness allowance to its employee. 

As no right was conferred on government servant to the grant of clearness allowance and no duty was imposed on the government to grant it and as the government had merely taken the power to  grant the allowance at its own discretion, mandamus could not be issued to  compel the government to exercise its discretionary power

2) Demand and refusal for the performance of public duty

3) To perform what is imperative/mandatory public duty 

4) When alternative remedies are not available, if available then no writ of mandamus 

When a writ of mandamus is not granted:

A writ of mandamus will not be granted in the following circumstance:

1)When duty is merely discretionary

2)Not against a private individual or any private organization, because they are not entrusted with a public duty

3)Cannot be granted to enforce an obligation arising out of contract

4)Compel legislature to make any law

Grounds for issuing a writ of Mandamus:

1) Lack or excess use of Jurisdiction

2) Failure to perform a public duty

3) Abuse of Discretion

• Improper purpose
• Acting under dictation(command and control of others)
•  Non-application of Mind
• Malafide intention

Example: Father(legislature) says to son(executive) to cut timber from the garden using the Axe (Law), thus if legislature infers certain discretionary powers on the executive then the executive should exercise that powers in a correct way and should not abuse that power.

4) Violation of the Principle of Natural Justice

3)Certiorari and Prohibition:

The writ of certiorari and prohibition are issued practically on similar grounds. 

The only difference between the two is that;

Certiorari is issued to quash a decision after the decision is taken by a lower tribunal 

while;

Prohibition is issuable before the proceedings are completed

The object of  'Prohibition' is prevention rather than cure. 

For example, the HC can issue prohibition to restrain a tribunal from acting under an unconstitutional law but if the tribunal has already given its decision then certiorari is the proper remedy in such a situation.

When the case is pending before the court but it has not finally been disposed of the SC has to apply both prohibition and certiorari- prohibition to prevent the court to proceed further with the case and Certiorari for quashing what had already been decided.

Thus the object of the writ of prohibition is prevention rather than cure while certiorari is used as a cure. 

Both Prohibition and Certiorari are issued against judicial and Quasi-Judicial bodies. It does not lie against public authorities.

 In R Vs Electricity Commission King's Bench (1924)

Lord Atkin explains the extent of / Condition for the writ of certiorari:

1) Having legal Authority

So the person or authority to whom the writ of certiorari is to be issued should have the legal authority to determine the question affecting the right of the subject.

2) Should have the duty to act judicially

3) Have acted in excess of legal authority

then only he is subject to control/jurisdiction of king's Court

"Having a duty to act judicially" derived from the language of the statute (prevalent in England).

Ridge vs Baldwing(House of Lords)

In this case, it was said that duty to act judicially does not come from the language of statute it comes from the "nature of power"-

Ak kraipak vs Union of India

In this case, the "duty to act judicially" was explained; it means the duty to act 'fairly and justly' and if not then the superior court has the power to issue the writ of certiorari.

Grounds for issuing the writ of certiorari:

1) Lack of Jurisdiction

example: under the law, a person was authorized to grant a license for 3 years but being a personal friend, he granted a license for 5 years to his friend.. - Ram Bharasey vs Har Swarup

2) An error of law apparent on the face of the record

an error of law means; ignorance of the law, disobedience of the law, Misrepresentation, etc.- Shri Krishan vs Kurukshetra University.

3) Fraud

4) Violation of the Principle of Natural Justice

The principle of Natural justice means; minimum protection of the individual against the arbitrary procedure that may be adopted by the Judicial or quasi-judicial and administrative authority while making an order affecting those rights.

Grounds for issuing the Writ of Prohibition:

1)Lack or excess of Jurisdiction

2)Infringement of Fundamental Right

3)Violation of the Principle of Natural Justice 

4)Fraud

5)Contravention of the Law of the Land

 4)Quo Warranto :

The writ lies only in respect of a public office of a substantive character. The writ does not, therefore, lie to question the appointment of a college principle it is not a public office.

The word " Quo Warranto" means 'what is your authority'

The writ calls upon the holder of a public office to show to the court under what authority he is holding that office.

To file a petition for quo warranto, it is not necessary that the petitioner should have suffered a personal injury himself or should seek to redress a personal grievance.

Issued against: a person who holds public office

Grounds for issuing the writ of Quo warranto:

1) The office must be a substantive public office

Substantive public office means; office created by the constitution, the duty should be imposed by law, for the public, which is a mandatory public duty.

2) Office occupied must be substantive Post.

3) Holder of that office not qualified to hold that post.

• Writ of Quo warranto can not be issued if the person had not yet joined the office, as it is only issued to a person who is the holder of an office.

• Writ of Quo warranto is only issued in illegality, not an irregularity

Illegality means; the person who is holding the office is itself holding it in violation of any law, thus being illegal

Irregularity means; person holding the office is perfectly legal but there are some irregularities on the part of authorities.

Some unconventional remedy innovated by the Courts:

# Continuing Mandamus:

It is used by court fro continuous monitoring of the executive performance with respect to the court order. This unconventional remedy has been effective especially in cases related to the monitoring of government performance in environment protection

Example: 

In MC Mehta vs Union of India

The SC ordered for continuous monitoring and evaluation of executive compliance in the development of CNG Gas public transport to check pollution in Delhi NCR Region.

In Bandhu Mukti Morcha Case:

The SC held the right to a safe working environment as a Fundamental Right and accordingly ordered the executive to provide safe working conditions in mines.

The judiciary's active involvement in environmental protection should not be seen as judicial overreach rather it should be understood that judiciary compulsion to order as other organs have failed in realizing the urgency in environmental protection.

# Certiorarified Mandamus:

This expression means a merger of two writs i.e., Certiorari and Mandamus. By issuing of certiorari a decision may be quashed and by subsequent issuance of mandamus an authority may be directed to decide the matter in accordance with the law. This culls out a writ of a completely different nature that is Certiorarified Mandamus.

# Curative Petition:

 ( it is not a writ but an unconventional remedy innovated by the courts)

This concept was evolved by the SC in the matter of

Rupa Ashok Hurra vs AShok Hurra (2002) SC

where the question was Whether an aggrieved person is entitled to any relief against the final judgment/order of the SC after the dismissal of a review petition.

The SC, in this case, held that in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgment in the exercise of its inherent power, for this purpose, the court has devised what has been termed as "Curative petition".

Petition( is filed against order/Judgment) -------> 

Review petition( is a petition of review the petition and now the order is final and now no petition can be filed ) ----------- >

Curative petition ( but under certain cases petition can also be filed against final order which is termed as Curative Petition. Curative means cure, heal. 

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Neo Fundamental Rights enshrined under Article 21

Neo Fundamental Rights 

Right to Food:

Peoples Union for Civil Liberty v.s Union of India

Access to food was 1^st declared a right in the united nation 1948, Universal Declaration of Human Rights.

India has joined to such political affirmation as the 1996 Rome 

Declaration of the World Food Summit.

After the amalgamation of Article 21 and Article 47(DPSP) it could be inferred that albeit Right to food is not an explicit Fundamental right but am implied right under the right to life and personal liberty.

Supreme Court: It’s the duty of state/govt to ensure no one went Hungry.

The fact of the Case:

In 2001, during a visit to Jaipur, it was observed that the food corporation of India godowns which were about 5km outside the city of Jaipur was overflowing with grains. The grains were rotting due to the fermentation of grains stock kept outside of the godown.

There was a village near the godown where the village people were eating in rotation( rotation eating or rotation hunger) 

In 2001, 60 million tonnes were in the FCI godowns where the 

buffer stock required was 20 million tonnes, the govt has 40 million tonnes but still, people were dying of starvation 

In this response to the PUICL in Rajasthan filled a case, which 

came to SC

The question raised by PUCL:

Does not the right to life under article 21 of the constitution includes the right to food?

Does not the Right to Food which has been upheld by the SC, imply that the state has a duty to provide food especially in the situation of drought?

Supreme Court held: 

The chief secretaries of all the state and Union territories were directed to report cabinet secretary that what were the food security scheme and status of them running in their states

In 2003, SC made food under the preview of protection

Right to Shelter:

Shantisar Builders vs Narayan Khimlal Totame  1990 SC

The supreme court has ruled that the right to life is guaranteed in any civilized society, that would take within its sweep the right to food, right to clothing, the right to decent environment and reasonable accommodation to live in.

The fact of the case:

under section20 and 21 of the Urban Land Ceiling and regulation act 1976, the state government exempted certain excess land from the provision of the Act on the condition that the land be used but the builders for the purpose of providing housing for the weaker section of society. But the builders have not done so

Supreme court held: 

It is the duty of the state to construct housing at reasonable rates and make them easily accessible to the poor.

The state has a constitutional duty to provide shelter to make the right to life meaningful.

Ahmendabad Municipal Corp vs Nawab Khan Gulab Khan 1997 SC

The right to shelter is a fundamental right, which springs from the right to residence assured in Article 19(1)(e) and the right to life under Article 21.

Chameli Singh Vs State of Uttar Pradesh

The fact of the case:

The petitioner's land was acquired by the state government under section 4(1) of the Land Acquisition Act. 

Shelter for a human being is not mere protection of his life and limb, It is home where he has the opportunity to grow physically, mentally, intellectually and spiritually. 

The right to shelter, therefore includes adequate living space safe and decent structure, clean and decent surroundings, sufficient light, pure air, and water.

The right to shelter does not mean a mere right to a roof over one's head but the right to all the infrastructure necessary to enable them to live and develop as a human being.

The Supreme Court held:

Right to shelter is a fundamental right that springs from article 21 and article 19(1)(e) i.e., Right to the residence.

The need for a decent and civilized life includes the right to food, water, and a decent environment.

Right to Education: 

Mohini Jain vs State of Karnataka (1992) SC

( also called: Capitation fee case)

In this case, the SC held that the Right to education is a fundamental right under article 21 of the constitution which can not be denied to a citizen by charging a higher fee( known as capitation fee)

The Right to life under article 21 and the dignity of an individual cant not be assured unless it is accompanied by the right to education.

The fact of the case:

Mohini Jain if Meerut(U.P) has challenged the validity of a notification issued by the government under the Karnataka Education Institution(Prohibition of Capitation Fee) Act 1984 which was passed to regulate tuition fee to be charged from student was as follows: candidate admitted against government seats 2000/year, the Karnataka student 25000/year and student from outside Karnataka 60,000/ year.
The petitioner was denied admission on the ground that she was unable to pay the exorbitant tuition fee of 60,000/ year.

It was held by Divisional bench that:

The right to education at all level is a fundamental right of a citizen under Article 21 of the constitution and charging capitation fee for admission to educational institutions is illegal and amounted to denial of citizen's right to education and also a violation of article 14 being arbitrary, unfair and unjust

Uni Krishan vs State of Andhra Pradesh ( 1993) S.C

In this case, SC was asked to examine the correctness of the decision is given by the court in Mohini Jain Case.

The petitioner running Medical and Engineering College in the

 state of Andhra Pradesh, Karnataka, Maharashtra, and Tamil Nadu contended that if Mohini Jain decision is correct and followed by the respective state government they will have to close down their colleges.

Constitutional bench by 3:2 majority partly agreed with the Mohini Jain decision and held that:

Right to education is a fundamental right under article 21 of the constitution as it directly flows from right to life but the court partly overruled the Mohini Jain's Case and held that right to free education is available only to children until they complete the age of 14 years, but after that, the obligation of the state to provide education is subject to the limits of its economic capacity and development.

The obligation created by articles 41, 45 and 46 can discharge by the state either establishing its own institution or by aiding, recognizing or granting affiliation to a private institution. Mohini Jain's case was not right in holding that charging of any amount must be described as a capitation fee.

It is not possible for the private education institution to survive if the charge fee prescribed by government institutions.

The private sector should be involved and encouraged in the field of education. But they must be allowed to do so under strict regulatory control in order to prevent educational institutions from commercializing education.

Right to work:

Delhi Development Horticulture Employee's Union vs Delhi Administration (1992) SC

The Supreme court held:

That daily wage workers employed under the Jawahar Rozgar Yojna have no right to automatic regularisation even though they have put in work for 240 or more days.

 The fact of the case;

The petitioner who was employed on daily wages in the Jawahar Rojgar Yojna filed a petition for their regular absorption as a regular employee in the development department of the Delhi administration.

They contended that right to life includes the right to livelihood and therefore right to work

The SC held  that;

Although broadly interpreting the right to life would include the right to livelihood and therefore right to work but the country has so far not found feasible to incorporate the right to livelihood as a fundamental right because the country has so far not attained the capacity to guarantee it and not because it considers it any the less fundamental to life that state to make effective provision for the securing of the same within the limit of its economic capacity and development

Termination of service by Administration without citing any reason 

 DK Yadav vs J.M.A Industries (1993) SC

The SC has held that the right to life enshrined under Article 21 includes the right to livelihood and therefore termination of the service of a worker without giving him reasonable opportunity of hearing is unjust, arbitrary and illegal.

Delhi Transport Corporation Vs DTC Mazdoor Congress( 1991) SC

In this case, SC held that regulation 9(b) of the Delhi Road Transport Authority (condition for Appointment and Service) Regulation 1952 which conferred power on the authority to terminate the service of a permanent and confirmed employee by issuing a notice without assigning any reason and without giving any opportunity of hearing was wholly arbitrary, unreasonable and violation of Article 14 and therefore void.

 Right to Sleep 

In re Ramlila Maidan Incident 2012

Supreme Court said every citizen has a right to sound sleep because it is fundamental to life 

Sleep is essential for a human being to maintain the delicate balance of health necessary for its very existence and survival.

Right to travel abroad:

Satwant Singh vs APO(1967) SC

In this case, the right to travel abroad was held to be an aspect of personal liberty of an individual and therefore, no person can be deprived of his right to travel except according to the procedure established by law.

Right to choice/ Right to Marry:

Lata Singh vs State of Uttar Pradesh (2006) S.C

The Fact of the case:

A major girl used to live with her brother because of her father's death. She left her brother's home on her will to marry a man of her choice outside of her caste whose name was Braha Nand Gupta. He was having business in Delhi and other places as well. They married in one Arya Samaj Mandir in Lucknow. They had a child out of this wedlock.

The brother of the petitioner was against this marriage.

Supreme Court held:

There is no bar for intercaste marriage provided under the Hindu marriage act or any other law of the land and hence no offense was committed by the petitioner and her husband.

Manoj Babli Honor Killing Case (2007)

Manoj-Babli from Karera village in Kaithal district was brutally murdered by Babli's relative in June 2007. The act was done on order of a khap panchayat, for marrying in the same gotra.

It was held that it was wrongly decided and the panchayat did not have any authority to infringe with another fundamental right.

Right to livelihood:

Olga Tellis vs Bombay Minicipal Corporation 1986 SC

In this case, a constitutional bench has ruled that the word life in Article 21 includes the right to livelihood

The fact of the case:
The petitioner had challenged the validity of Section 313, 414 and 497 of the Bombay Municipal Corporation Act, 1888, which empowers Municipal authorities to remove their huts from the pavement and public places on the ground that their removal amounted to depriving them of their right to livelihood and hence it was violative of Article 21.

It was held that:
The right to livelihood under Article 21 can be curtailed by following just and fair procedure 
It was held that the above section of the Bombay Municipal corporation Act was constitutional since they imposed reasonable restrictions on the right to livelihood of pavement and slum dwellers in the interest of the general public. the public street is not meant for carrying on trade or business.

Right to live in a clean environment

Subhash Kumar vs State of Bihar(1991) SC
The apex court had held that enjoyment of a pollution-free environment is included in the right to life under article21
Right to live is a fundamental right under article 21 and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life

MC Mehta vs Union of India(1988) SC 1037
The SC ordered the closure of tanneries which were polluting water

MC Mehta vs Union of India (1997) SC 734
The SC issued several guidelines and direction for the protection of the Taj Mahal from environmental degradation

Vellore Citizen Welfare Forum vs Union of India (1996) SC
The court took cognizance of environmental pollution being caused by tanneries which were polluting all water resources, rivers, canals, under groundwater and agricultural land.

TN Godavarman Vs Union of India 2006
The SC laid down the precautionary principle and the polluter pay principle.
The precautionary principle means that the state government and the concerned statutory authorities must anticipate, prevent and attack the causes of environmental degradation.

Polluter pay principle means that one who carries on hazardous activities is liable to make good the loss caused to another person by such activity.

The health of Labour working in hazardous activities:

Consumer Education and Research center vs Union of India 1995 SC

Health hazard faced by the workers in the Asbestos factories were brought to the attention of the SC in this case

The Supreme Court held that the right to life under article 21 includes right to human dignity, the court held that right to health, medical aid to protect the health and vigor of a worker while in service or post-retirement is a fundamental right under Article 21 read with Directive principle in article 39(1), 41,43 and 48A.

Disclosure of HIV Positive person:

Mr x vs Hospital Z 1999 SC

The SC was called upon to decide very crucial questions in the modern social context. viz;
Can a doctor disclose to the would-be wife of a person that he is HIV positive?
Does it infringe on the right to privacy of the person concerned?

The fact of the case:
A man was supposed to marry his fiancee but it was called off since he was diagnosed with an HIV positive patient and his doctor discloses this fact to his fiancee.
The court answered both these questions as negative. The court has argued that lady proposing to marry such a person is also entitled to all the human right which are available to any human being.
The right to life guaranteed by article 21 would also include the right to be told that a person with whom she was proposed to be married was the victim of a deadly disease that was sexually communicable.

When the fundamental right clash viz, that of the person concerned(right to privacy) and that of the would-be wife(to live a healthy life also guaranteed by article 21)
The right which would advance the public morality or public interest would be enforced through the process of the court. 

MX of Bombay Vs M/S ZY 1997 Bom. HC

Whether the state can deny job opportunities to an Hiv Positive person 

The fact of the case:
In this case, labor was denied work because he tested HIV positive.
The court has pointed out under article 21 no person can be deprived of his right in livelihood except according to the procedure established by law. (such procedure should be just, fair and reasonable and not unjustified and illegal.)


Right to privacy? Right to be alone:

Kharak Singh vs State of UP 1963 SC

The constitution does not grant in specific and express terms any right to privacy as such. The right to privacy is not enumerated as a fundamental right in the constitution. However, such a right has been culled by SC from Article 21 and several other provisions of the constitution read with DPSP.
for the 1st time, in the 1963 Kharak Singh case, a question was raised
whether the right to privacy could be implied from the existing Fundamental right such as Article 19(1)(d), Article 19(1)(c) and Article 21.
Majority held :
The right to privacy, our constitution did not in terms confer any like a constitutional guarantee.
Minority; Subba Rao J:
Was in favor of inferring the right to privacy from the expression of personal liberty in article 21. 
He said 

"the right to personal liberty takes in not only a right to be free from restriction placed on his movement but also free from encroachment on his private life. However, as already stated, police surveillance of a person by domiciling visit was held void."

Govind vs State of Madhya Pradesh 1975 SC

The SC held that the right to privacy is a limited fundamental right as an emanation(creation) from Article 19(1) (a), (d) and Article21.

The right to privacy is not absolute, a reasonable restriction can be placed thereon in public interest under Article 19(5).

MP Sharma vs Satish Chandra 1954 SC

The majority decision by 8 judge benches held that the right to privacy was not a fundamental right under the Indian constitution.

The ruling recognized search and seizure process as a temporary interference for which statutory recognization was unnecessary

The fact of the case:

This case involved a challenge to the constitutionality of search and seizure of the document from a person against whom FIR has been lodged.

The main issue was whether such a procedure was violative of Article 19(1)(f) and Article 20(3) of the constitution.

State of Maharashtra vs Madhukar Narayan 1999 SC

The SC protected the right to privacy of a prostitute. The court held that even a woman of easy virtue is entitled to her privacy and no one can invade her privacy as and when he likes.

ABC vs State (NCT of Delhi) 2015 SC

Where the father has not exhibited any concern for his offspring. The appellant mother's fundamental right to privacy would be violated if she is forced to disclose the name and particulars of the father of her child.

Telephone Tapping:

RM Mlkani vs the State of Maharashtra

The SC stated that the telephone conversation of an innocent person would be protected by the court against wrongful or high handed interference by tapping of the conversation by the police. But the protection is not for the guilty against the effort of the police to vindicate the law.

Peoples Union for Civil Liberty vs Union of India 1997 SC

The court, in this case, ruled that the right to privacy is a part of the right to life and personal liberty enshrined under article 21.

Once the facts in a given case constitute a right to privacy, Article 21 is attracted and the said right could not be curtailed except according to the procedure established by law.

Right to privacy vis-a-vis Medical examination/DNS testing:

Sharda vs Dharmpal 2003 SC 

whether Section 151 of the Civil procedure could be invoked to compel a person to be subject to a medical examination?

 Sample of blood can be asked for DNA testing and the court has requisite power under section 155 of CPC to issue such direction.

The protection under Article 20(3) does not extend to parties and witnesses in a civil proceeding or proceeding other than criminals.

Righ to Privacy vis-a-vis Sting operation:

Raja Ram Pal vs Hon'ble Speaker Lok Sabha 

The fact of the case:

A news channel Aaj Tak showed some video footage of some person, alleged to be a member of parliament accepting money for tabling, a question or raising issues under the caption Operation Duryodhana cash for question

Held: String operation done in good faith then it is not violative fo Article 21 under the head right to privacy

Right to privacy vis-a-vis Sexual Orientation:

J. Ks Puttaswamy and ohs vs Union of India 2017 SC 

9 judge constitutional bench

Sexual orientation is an essential attribute of privacy. Privacy includes at its core the preservation of personal, the sanctity of family life, marriage, sexual orientation. Privacy also connotes the right to be left alone.

The right to privacy and the protection of sexual orientation lie at the core of the Fundamental right guaranteed by Article 14, 15 and Article 21.

Sexual orientation is a person's sexual identity in relation to the gender to which they are attracted. ex homosexual, bisexual, heterosexual, etc.

Right to Die with Dignity:

If Article 21 confers on a person the right to live a dignified life, does it also confer a right not to live? 

The question of whether the right to die is included in Article 21 of the constitution came for consideration for the 1st time before the Bombay High Court in:

State of Maharashtra V.s Maruty Sripati 1987 Bom. HC 

The BOM. HC held that:
The right to life guaranteed by Article 21 includes aright ti die, and consequently, the court struck down Section 309 IPC which provides punishment for attempt to commit suicide by a person as unconstitutional.
It was Held that everyone should have the freedom to dispose of his life as and when he desires.
The fact of the case:
' A' Bombay police constable who was mentally insane was refused permission to set up a shop an earn a living. out of frustration, he tried to set himself afire in the corporation's office room.

Chenna Jagadeeswar vs State of A.P 1998

The Andhra Pradesh HC held that:
The right to die is no a fundamental right within the meaning of Article 21 and hence Section 309 IPC is not unconstitutional.

P.Rantnam and Nagbhushan Patnail Vs Union Of India 1994 SC 

In this case, the division bench of the SC agreed with the view of the Bombay HC in Maruti Sripati case held that a person has a right to die and declared Sectio309 as unconstitutional which makes attempt to commit suicide a penal offense.
The right to live in Article 21 of the constitution includes the right not to live ie., the right to die or to terminate one's life.

The fact of the case:
In this case, the petitioner has challenged the validity of Section309 on the ground that it was violative of Article 14 and Article 21 of the constitution and prayed for quashing ht proceed initiated against the petitioner( Nagbhushan) under Section309 for attempting to commit suicide

The court held that section 309 of the IPC was violative of Article 21 and hence it is void.
The court argued that the word life in article 21 means the right to live with human dignity and the same does not merely connate continued drudgery(slavery). Thus the court concluded: right to live of which article 21 specks of can be said to bring in its trail the right not to live a forced life

The above was a radical view and could not last for long.

The Ratinam ruling come to be revised by the full bench of the court in 

Gian Kaur Vs State of Punjab 1996 SC 

The question arose that of an attempt to commit suicide is not regarded as a penal offense what happens to someone who abets suicide.
Abetment to commit suicide is made punishable in Section306 of IPC, But then if the principle offense od attempting to commit suicide is void as being unconstitutional vis-a-vis article 21, then how could abetment be punishable logically speaking.
The fact of the Case:
Gain Kaur and Her husband were convicted under section 306 IPC for abetting the commission of suicide by Kulwant, their daughter-in-law

It was argued that Section 306 was unconstitutional as section 209 IPC has already been declared unconstitutional in Rathinam. It was argued that the right to die having bee included in article 21 and section 309 having been declared unconstitutional any person abetting the commission of suicide by another is merely assisting in the enforcement of his fundamental right under article 21

That is sufficient to declare Article 306 IPC as unconstitutional being violative of Article 21. This argument led to ti the reconsideration of the Rathinam ruling and its eventual overruling.
The court has ruled in Gain Kaur that article 21 is a provision guarantee protection of Life and by no means can extinction of life be read to be included in the protection of life.

Right to life is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and therefore inconsistent with the concept of the right to life.

Thus court ruled that Section 309 IPC is not unconstitutional Accordingly Section306 IPC has also been held to be constitutional.
The constitutional bench of the Supreme court has upheld the constitutional validity of section 309 IPC in 
Lokendra Singh Vs State of Madhya Prades 1996 SC

In Gian Kaur the SC has distinguished between euthanasia and attempt to commit suicide. 

Euthanasia is the termination of the life of a person who is terminally ill or in a persistent vegetative state. In such a case, death due to termination of natural life is certain and imminent. The process of natural death has commenced it is only reducing the period of suffering during the process of natural death.
This is not a case of extinguishing life but only accelerating the process of natural death which has been already begun. This may fall within the concept of the right to live with human dignity upon the end of natural life. This may include the right of dying man to dying with dignity hen his life is ebbing out.
But this can not be equated with the right to die an unnatural death curtailing the natural span of life.

Nikhil Soni Vs Union of India 2006 Raj HC
(Ban on Santhara practice)

The practice of santhara is a Jain ritual of voluntary and systematic fasting to death was declared as illegal and directed the state to treat it as an offense punishable under section 309 IPC and its abetment thereof under section 306 IPC
The ruling came in a PIL filled bt Nikhil Soni who had sought a declaration that the practice is illegal on the ground that it amounted to suicide which is a criminal offense and is punishable under section 309 IPC.
Fundamental right it freedom of religion cannot protect a criminal act as it is subject to public order, morality, and health.


Aruna Ramchandra Shanbaug vs Union of India 2011

Passive euthanasia is defined as the withdrawal of medical treatment with the deliberate intention to hasten a terminally ill patient's death

JJ. Katju and Gyan Subha Mishra( Divisional Becha)
ruled that in the case of irreversible illness and after a thorough medical evaluation, passive euthanasia should be permitted. The judgment provided strict guidelines for it, which involved clearance by a high court.\Fact of the case:
Shanbaug, who was 25-year old at the time of the assault, was raped bt a hospital employee and due to lack of oxygen her brain stem was damaged and since then ( 1973- May 18, 2015) was in a permanent vegetative state. 
In this case, SC recognized passive euthanasia and living will( or advance directive)
Passive euthanasia will apply only to a terminally ill person with no hope of recovery. 
Active euthanasia by admitting a lethal injection continues to be illegal in India.

A 'living will' is a concept where a patient can give consent that allows withdrawal of life support system if the individual is reduced to a permanent vegetative state with no real chance of survival.

Common Cause(registered society) Vs Union of India 2018

In this case, passive euthanasia and living will was upheld valid and some guidelines were laid down for termination. 

The right to live with dignity also includes the smoothening of the process of dying in the case of a terminally ill patient or a person in a permanent vegetative state with no hope of recovery.
Thus, the right to die with dignity is a fundamental right.


Right in Medio-Legal Cases:

Parmanand Katara vs Union of India 1989 SC
The SC in this case specifically clarified that preservation of life is of paramount importance . It is the duty of the doctors to preserve life whether the concerned person is a criminal or an innocent person.
Article 21 cast on the sate an obligation to preserve life
Every doctor whether at a government hospital or otherwise has the professional obligation to extend his service for protecting life.

The fact of the case:

A scooterist who was knocked down by a car following the accident the scooterist was taken to the nearest hospital, but was turned away and sent to another hospital 20 km away which was authorized to handle medico-legal cases. The scooterist died while he was being transported to another hospital.

Paschim Banga Khet Mazdoor Samity Vs State of West Bengal 1996 SC

The fact of the case:

A mazdoor fell from a running train and was seriously injured. He was sent from one government hospital to another and finally, he has to e admitted to a private hospital where he had to incur an expenditure of Rs 17000/- feeling aggrieved he filled case under section 32.
The Supreme Court ruled that:

The constitution envisages the establishment of a welfare state and in a welfare state, the primary duty of the government is to provide adequate medical facilities for the people.

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