Living Will and passive euthanasia

• Passive euthanasia is a condition of withdrawal of medical treatment with the deliberate intention to hasten the death of a terminally-ill patient.
• Passive euthanasia is legal in India
• Active Euthanasia entails the use of lethal substances to either voluntarily or involuntarily end a life.
• Active euthanasia is illegal in India
• SC in a recent judgment said passive euthanasia and advance living will are "permissible" as human beings 'have the right to die with dignity'
• The top court said 'living will' will be permitted but with the permission from family members of the person who sought passive Euthanasia and also a team of expert doctors who say that the person's revival is practically impossible.
• A living will is a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express informed consent.
• Article 21: "no person shall be deprived of his life or personal liberty except according to procedure established by law"
• SC in 2011 recognized passive euthanasia in Aruna Shanbaug's case by which it had permitted withdrawal of life-sustaining treatment from patients not in a position to make an informed decision
• 241st report of the Law Commission stated that passive euthanasia should be allowed with certain safeguards
• A proposed law: Medical Treatment of Terminally Ill Patient (Protection of Patients and Medical Practitioners) Bill, 2006.

Positivism and sociology

Article 20 of the constitution of India:Protection in respect of conviction for offences

The article has 3 clauses which read as below:

(1) No person shall be convicted of any offense except for violation of the law in force at the time of the commission of the act charged as an offense, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offense

(2) No person shall be prosecuted and punished for the same offense more than once

(3) No person accused of any offense shall be compelled to be a witness against himself

Explanation:

Article 20 has taken care to safeguard the rights of persons accused of crimes. Persons here means the citizens, non-citizens as well as corporations. Please note that this article cannot be suspended even during an emergency in operation under article 359. Article 20 also constitutes the limitation on the legislative powers of the Union and State legislatures.

(1) Ex-Post facto Law: 

Article 20 (1) says that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. This is called Ex-Post facto Law. It means that legislature can not make a law which provides for punishment of acts which were committed prior to the date when it cam into force. This means that a new law can not punish an old act.

(2) Doctrine of Double Jeopardy:

Article 20(2) says that no person shall be prosecuted and punished for the same offence more than once. This is called Doctrine of Double Jeopardy. The objective of this article is to avoid harassment, which must be caused for successive criminal proceedings, where the person has committed only one crime. There is a law maxim related to this – nemo debet bis vexari. This means that no man shall be put twice in peril for the same offence. There are two aspects of Doctrine of Jeopardy viz. autrefois convict and autrefois acquit. Autrefois convict means that the person has been previously convicted in respect of the same offence. The autrefois acquit means that the person has been acquitted on a same charge on which he is being prosecuted. Please note that Constitution bars double punishment for the same offence. The conviction for such offence does not bar for subsequent trial and conviction for another offence and it does not matter the some ingredients of these two offences are common.

(3) Self Incrimination Law:

Article 20(3) of the constitution says that no person accused of any offence shall be compelled to be a witness against himself. This is based upon a legal maxim which means that No man is bound to accuse himself. The accused is presumed to be innocent till his guilt is proved. It is the duty of the prosecution to establish his guilt.

Triple talaq and the constitutionality of personal laws

The Supreme Court on Tuesday set aside the practice of instant triple talaq saying it was violative of Article 14 and 21 of the Indian Constitution.

However, invoking Article 142 to injunct Muslim men from divorcing through talaq-e-biddat, the Chief Justice said the fact that even the Muslim world has shed talaq-e-biddat and there is no excuse for independent India to lag behind.

The issue was whether talaq-e-biddat was violative of the fundamental and human rights of gender equality and dignity of Muslim women.

Two judges ( Justice Nariman and Justice Lalit) set it aside terming it unconstitutional, Justice Joseph set it aside on ground that it is against the teachings of Quran. CJI JS Khehar and Justice Abdul Nazeer backed triple talaq. “Triple talaq was part of Muslim personal law and hence enjoys status of fundamental rights,” said CJI Khehar. CJI wanted Parliament to bring about a law to deal with triple talaq.

The initial confusion about the verdict happened after CJI Khehar, who read his part first, said triple talaq can’t be struck down as unconstitutional and asked Parliament to make law.What the Indian Constitution says


Under the Constitution, religious freedom is subject to all other Fundamental Rights. Article 25 — which guarantees Freedom of Practice and Propagation of Religion — does not protect religious practices since they can negatively affect the welfare of citizens. Article 14, which guarantees the Right to Equality, overrides Article 25 because triple talaq denies a Muslim woman's equality before the law.


Similarly, Article 25 is subject to Article 15 (1) which says that the State "shall not discriminate against any citizen on grounds only of religion, race, caste, sex..." Since triple talaq does not work in the favour of women, it violates Article 15 (1) of the Constitution.


SC called practice 'worst' form of dissolution of marriage


On 12 May 2017, the Supreme Court said the practice of triple talaq was the "worst" and "not desirable" form of dissolution of marriages among Muslims, even though there were schools of thought which termed it as "legal".


There are "school of thoughts (which) say that triple talaq is legal, but it is the worst and not desirable form for dissolution of marriages among Muslims," a five-judge Constitution bench, headed by Chief Justice JS Khehar, said on the second day of continued hearing on the matter.


Muslim personal law governs Indian Muslims


Muslim law in India comes from the Muslim Personal Law (Shariat) Application Act, 1937 which says that in so far as matters concerning marriage, divorce, inheritance and other personal matters, the law governing Muslims in India shall be the Muslim personal law or the Shariat.


Triple talaq not followed in Pakistan


The practice has been denounced in Pakistan, which describes itself as an Islamic Republic. The former Chief Justice of Pakistan Jawwad S Khawaja had said that "triple talaq was never a part of pure Islamic history and was not considered valid as per Islamic law." He further added that, "Instant talaq or triple talaq has not been considered valid in Islam and it is not considered to be the best form of divorce under Islamic law. If you look at what jurists have opined in the 1,000-year old history that it was never acceptable and it has never been the most accepted of talaq in any era of Islamic history,”


Here are the six petitioners in the triple talaq case


According to The Indian Express, there are six petitioners in the case, including five women. They are: Shayara Bano, Ishrat Jahan, Gulshan Parween, Aafreen Rehman, and Atiya Sabri. Zakia Soman-led Bharatiya Muslim Mahila Andolan (BMMA) is the sixth petitioner.


Modi backs Muslim women in Triple Talaq issue


The Triple Talaq issue found a notable mention in the Independence Day speech. Reiterating his government's support to the movement against Triple Talaq, ,Modi added that India will also support Muslim women in their struggle.


"I believe India will fully support the women in their struggle. The women of this country created a revolution against Triple Talaq. There was an atmosphere against Triple Talaq in the country with even the media supporting the women,"he said.


Arguments before SC show Muslim minds still unwilling to think outside religion's framework


Be it triple or quadruple talaq, it must happen inside a courtroom. The issue of talaq must come within the mainstream judicial framework and cannot be left to be determined by extra-judicial courts. Otherwise, not only would the Muslim wife be left at the mercy of unilateral divorce, the husband would also be left with the humiliating experience of effecting divorce on his own or through clerics.


The fallacy in Khan's argument, therefore, is that he wants the rights of women under Quran where the practice is essentially discriminatory. So long as the law does not give equal rights to Muslim woman and the Muslim husband can pronounce his own judgement, the issue cannot be resolved. One hopes that the Supreme Court addresses this aspect of the problem.


Shayara Bano's plea is key to the verdict


The most important plea during the hearing was one filed by Shayara Bano. According to her plea in the Supreme Court, her husband divorced her through triple talaq. Bano contended that “the Muslim husband’s right to ask for divorce by uttering talaq three times in a row is completely unilateral, unguided, absolute and has no rationale. It cannot be identified with Muslim culture and is not part of Muslim law. So it is not part of religion and hence not part of the right to practise or propogate religion and deserves no protection,” The Indian Express quoted her as petition as stating.



Three forms of talaq


There are three forms of talaq (divorce) — Ahsan, Hasan and Talaq-e-Biddat (triple or instant talaq). Ahsan and Hasan are revocable. Biddat – pronouncing divorce in one go by the husband – is irrevocable. Biddat is considered ‘sinful’ but permissible in Islamic law. The All India Muslim Personal Law Board (AIMPLB) holds that for the Hanafis, who make more than 90% Sunnis in India, triple talaq is a matter of faith followed for 1400 years.


For over 65 years, women, who comprise approximately 8% of the population under the2011 census, have remained extremely vulnerable. “Muslim women want to have a life equal to that of another woman, say a Christian or a Hindu wife," the government had argued in court.


The Centre had claimed that instant talaq was not fundamental to Islam. It promised to bring a new divorce law for Muslim men in case the court strikes down the three forms of talaq – Ahsan, Hasan and Biddat.


The government argued that Muslim marriage and divorce is codified under Section 2 of the Shariat Act of 1937 and came within the ambit of 'law' under Article 13 of the Constitution. Hence, they should abide by the principles of dignity and non-discrimination.


The AIMPLB had countered that triple talaq is a matter of faith like the Hindu belief that Ayodhya is Ram's birthplace. The courts and government should leave reform to the community.They quoted Bombay High Court's unchallenged decision in Narasu Appa Mali case that personal law should not be tinkered with.


Where will Muslim men go for divorce if you (court) strike down talaq and the Parliament refuses to pass a new law? AIMPLB asked.


Justice Kurian had ignited a spark by suggesting an alternative that a Muslim bride, at the time of the wedding, should be allowed to lay down a condition in the nikah nama that she would not be subjected to instant talaq in case the marriage hits a rough patch.


Days after the court reserved the case for judgment, the AIMPLB filed an affidavit informing that they would issue a public advisory to qazis to advise bridegrooms against instant talaq and also add a condition in the nikah nama to exclude instant talaq. The AIMPLB even threatened social boycott on Muslim men who resort to instant talaq.

Nolan Principles in public service and 4 cardinal virtues of Aristotle

The Committee on Standards in Public Life (CSPL) an advisory non-departmental body of the UK Government was established in 1994 to advise the Prime Minister on ethical standards of public life.

CSPL published its first Report in 1995 titled "The Seven Principles of Public Life", also known as the "Nolan principles". They were:

• Selflessness – Holders of public office should act solely in terms of the public interest. They should not do so to gain financial or other benefits for themselves, their family or their friends.

• Integrity – Holders of public office should not place themselves under any financial or other obligation to outside individuals or organizations that might seek to influence them in the performance of their official duties.

• Objectivity – In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit and facts, not on personal judgments

• Accountability – Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.

• Openness – Holders of public office should be as open as possible about all the decisions and actions they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.

• Honesty – Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

• Leadership – Holders of public office should promote and support these principles by leadership and example.

My take: In a world that is extremely biased and promoting 'Wolf warrior diplomacy' civil servants with strong value systems upholding the Nolan principles are a rare species and dearly wanted. Added to the above is extreme importance of 'compassion' and 'apathy' towards the general public that they owe to serve.

Also, the 4 cardinal virtues of Aristotle becomes important for civil servants to fearlessly serve the people. The 4 cardinal virtues of Aristotle includes: prudence (wisdom), temperance (self-discipline and self-control), fortitude (courage) and justice.  

Shah Bano and the aftermuth

• Brief intro: Shah Bano, a 62yr old Muslim divorcee had filed a petition in the court asking for maintenance from her estranged husband according to Sec 125 of CrPC. The MP HC asked her husband to pay the maintenance to her. But her husband denied it on the grounds that with divorce, his relationship with her had ended and keeping any kind of contact with her is haram according to Islam. But the SC upheld the judgment given by the MP HC and asked her husband to pay the maintenance.

• Nullification of the judgment: The government being in the election year, nullified the SC judgment by passing the Muslim Women (Protection of Rights on Divorce)Act, 1986. According to the act, the Muslim divorced woman was entitled to maintenance only during the period of iddat (90 days), as per Shariat law.

• Aftermath: However, in the later judgments of Daniel Latifi case and Shamima Farooqui case, the SC interpreted the act in a manner reassuring the validity of the case and upheld the Shah Bano judgment and The Muslim Women (Protection of Rights on Divorce) Act 1986 was nullified.

• Conclusion: Shah Bano case is a landmark judgment as it upheld the fundamental rights of a woman over personal laws. It also created a platform for discussion of the need for uniform civil code in India, which could bring in equality and equal rights in issues like marriage, divorce, adoption, inheritance etc.

Uncertain