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A Publication
on The Status of
Adivasi Populations
of India




Aruna Shanbaug’s Death An Indictment Of Justice, Not An Argument For Euthanasia

By Samar

22 May, 2015

Aruna Shanbaug’s death does not either present a case for legalizing euthanasia or offer a case against it. Her death has nothing to do with that discourse, legitimate as it may be. Aruna Shanbaug’s case is about the rule of law in India. Her death, following 42 years of life in a vegetative state, confined to a hospital bed, is about the rot that the Republic carries in the form of its criminal justice system.

Aruna did not end up in her vegetative state because of her being afflicted by some illness. She was not an unfortunate victim of an accident. She had gone comatose because a criminal had raped and battered her so brutally that oxygen supply to her brain got cut off and damaged it forever.

The rapist, Sohanlal Bhartha Valmiki, a ward boy at the King Edward Memorial Hospital where Aruna worked as a nurse, did not get punished for his crime; he did not even get charged with rape. One reason for this was because the police did not bother to investigate the crime scene independent of the hospital’s version and find out if there was something more to the crime than robbery and assault. The condition of the comatose employee found in the hospital basement should have raisedsuspicions immediately. But, those investigating the case did not choose to worry about such things. Another reason that Sohanlalwas only charged with attempt to murder was that the then Dean of the King Edward Memorial hospital, where both Aruna and her rapist worked, decided to conceal anal rape. He did it,perhaps, to saving her impending marriage and so Aruna could avoid being socially rejected.

So, yes, you read it right, the grammar of shame was laid to rest on her, the victim of a rape most brutal, and not with the perpetrator. It was she who needed to be saved from social rejection for a gory offence committed by someone else.Sohanlal, incidentally, successfully escaped from public eye after serving his sentence of two concurrent 7-year terms for assault and robbery because the prosecutors did not bother to keep his photograph. Understandable, given it was the same prosecution that did not bother to investigate the crime scene.

Aruna did get the best medical care possible for patients in her state following the assault. So thorough was the care in fact, as various news reports point out, Aruna did not get a single bed sore all these years. The care rendered to her by the nurses of KEM hospital is quite understandable as she was one of them. Using this care, however, as an argument against euthanasia when author and activist Pinki Viranimoved the Supreme Court seeking permission for a “mercy killing” to end Aruna’s pain in 2011 was plain baffling at best and sick at worst.

Giving best possible care to a patient in a vegetative state is an act of utmost humanity. Does this act, though, allow the caregivers to appropriate Aruna’s right to speak for herself? The hospital staff, despite all their claims, could not know whether Aruna wanted to live or not by any means. The inferences made by them about Aruna’s gestures say nothing about her capacity to make informed choices, forget about such a huge one about continuing to live in the persistent vegetative state or end her life.

This is equally true for the other side of the argument. Nothing from her gestures could confirm if she was in pain and wanted to die. The debate over euthanasia, in Aruna’scase, was thus utterly misplaced, given she had no voice of her own.

Thankfully, the Supreme Court got the questions right in its decision of allowing passive euthanasia for terminally ill patients under strict guidelines even while dismissing Ms. Virani’s petition. The Court had focused more on who Aruna’s “next friends” really were and left the decision to them. The decision to keep Aruna alive by keeping her on life support was, nonetheless, a decision made by the KEM Hospital staff, the next friends of Aruna who, as per the Court, “have clearly expressed their wish that ArunaShanbaug should be allowed to live."

Where was Aruna in all this though? She had effectively died42 years ago, even if parts of her body were still alive. One would never be able to know if the ‘alive’ part of Aruna, as per KEM Hospital staff, wanted justice or not. Nor would one ever get to know if Aruna was even capable of wanting anything. Violent crimes, however, are crimes against the state and not an individual alone. That is why the state, not the victim, prosecutes the accused in criminal cases.

Aruna’s case is about the failure of the justice system and not about euthanasia. Let that debate happen too in cases of terminal patients and painful illnesses. It is not applicable to this crime.Rape is a crime that must be dealt like a crime, not as an illness of the victim. Aruna was not terminally ill; her tormentor battered her into a vegetative state.

Has anything much has changed in India since Aruna was sexually assaulted a full four decades ago? Nothing much as is evidenced by the fact that investigations into cases of sexual assault began with the notoriously intrusive two fingers test which requires a doctor to insert two fingers into a women’s vagina apparently to determine whether the victim was 'used to sexual intercourse’ or not till 2013! It took the outrage caused by a particularly gory gangrape and murder of a young woman in Delhi in December 1012 for the test to go.

And that is if the rape survivor was lucky enough to get medically examined by an over burdened, underfunded and insensitive public health system of the country as the same from private medical practitioners are not admissible in the courts. The survivors are often pushed from one government hospital to the other for getting the medical examination done with this causing serious threat to revelation of their identity. That becomes, often, too heavy a cost to pay in a society that shames victims, and not perpetrators for the crime.

Equally dismal remains the capacity of law enforcers to conduct forensic investigation, mandatory for making a water tight case against the perpetrators. Police often botches up in collection of key evidence like finger prints, photographs of crime scene, semen, clothes and so on. Transport and storage of the same, for a police force that is chronically short of funds for even the most basic activities, mess up whatever is left of the investigation. It would not take rocket science to know the end result of such investigation, will it?

The chances of justice for the rape survivors have, predictably, declined by more than half since Aruna was assaulted in 1973. The conviction rate for cases of sexual assault was 44.3 percent. It stood at 27.1 percent in 2013 and that was after a little improvement from 24.2 percent in 2012. The only thing worse than the dreary conviction rates is the fate of those rape cases pending trial in courts. The rates were 83.4 percent in 2014 again with a slight improvement from 85.1 in 2012.

So what are the chances of an Aruna getting justice today? Less than half had she been assaulted 40 years ago. That is the ‘progress’ the republic has made in dealing with crimes against women and that is what Aruna’s tragic life and death must have brought into discourse.

It should have because Aruna died 42 years ago but was killed again and again subsequently. She was killed every time avictim of sexual assault failed to get justice in India since. She died most recently with Nirbhaya in Delhi. She died along withmany other Nirbhayas we will never know across the country. She was killed with Thangjam Manorama in Manipur raped by the very same people obligated to protect her and every Indian citizen.

Aruna’s death is a somber occasion to bring the debate back to the rot in our criminal justice system that victimizes the victims and lets the perpetrators go scot-free. It is a somber occasion to change the grammar of shame associated with sexual assault and move it to the perpetrators. It is a moment to recognize the need for making our criminal justice system work or else we will keep having misplaced debates over euthanasia on countless Arunas.

P.S. Again, the debate over euthanasia is a very legitimate one but is absolutely misplaced in this case.

Samar is Programme Coordinator - Right to Food Programme Asian Legal Resource Centre / Asian Human Rights Commission, Hong Kong 











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