Title of the Case: Nilabati Behera Vs.

State of Orissa
Citation: AIR 1993, SC 1960
Case No.: WRIT PETITION (Civil) NO. 488 OF 1988
Court: Supreme Court of India
Appellant: NILABATI BEHERA ALIAS LALITA BEHERA
Respondent: STATE OF ORISSA AND ORS.
Bench: J.S Verma, A.S Anand, N. VenkataChala
Date of Judgement: 24/03/1993
Facts:
Petitioner’s son suman Behera aged 22 years was arrested at 8 a.m. on December 1,
1987, for investigation involving the offence of theft and he was detained at the police
outpost.
● He was discovered dead on Next day on a railway track close to Police Outpost
Jeraikela without having been released from detention. Suman Behera’s many
injuries contributed to his untimely death.
● In the instant case, a letter was sent by Smt. Nilabati Behera to the Supreme
Court stated that her twenty-two-year-old son, Suman Behera had died in police
custody after being inflicted with several injuries.
● The respondents claimed that the petitioner’s son was killed after being ran over
by a train after he managed to escape from police custody at around three in the
morning on December 2, 1987.
● If the petitioner’s son did escape from police custody as claimed in his defence,
there is no convincing independent evidence of any search performed by the
police to locate him.
● Suo moto action was taken by the honourable court and turned into a writ petition
in accordance with Article 32 of the Indian Constitution.
● The petitioner claimed compensation for the violation of her son’s fundamental
right to life guaranteed under Article 21.The prayer made in the petition was for
award of compensation to the petitioner, the mother of Suman Behera, for
contravention of the fundamental right to life guaranteed under Article 21 of the
Constitution.
● The burden is, therefore, clearly on the respondents to explain how Suman
Behera sustained those injuries which caused his death.

Contention of Appellant:
The petitioner claimed that it was a case of custodial death in her letter dated
14.9.1988, which was considered as a writ petition under Article 32 of the Constitution.
As a result of the numerous wounds, he sustained while in police custody, her son
passed away. His body was then dumped on the train track. In the petition, it was
requested that she get compensation for violating her and her son’s fundamental right to
life, which is protected by Article 21 of the Constitution.
Contention of Respondent:
● Respondent's defence was that the petitioner’s son managed to escape from
police custody at around 3 in the morning on December 2, 1987, from the Police
Outpost, where he was detained; that he was subsequently unable to be found
despite a search; and that his dead body was discovered on December 2, 1987,
on the railway track, with multiple injuries that suggested he had been run over
by a train. The respondents rejected the accusations of custodial death and
blame for the untimely death of the petitioner’s son.
● The State argued that the medical evidence established that the deceased’s
injuries were caused by lathi blows, but that the nature of the injuries on the face
and left temporal region could not have been caused by the lathis, and that the
death had therefore occurred in the manner suggested by the police in a train
accident and that it was not caused by the lathis.
Whether or not was it a custodial death?
In view of the controversy relating to the cause of death of Suman Behera, a direction
was given by Supreme Court on 4.3.1991 to the District Judge, Sundergarh in Orissa, to
hold an inquiry into the matter and submit a report.
Accordingly, evidence was led by the parties and the District Judge has submitted the
Inquiry Report dated 4.9.1991 containing his finding based on that evidence that Suman
Behera had died on account of multiple injuries inflicted to him while he was in police
custody at the Police Outpost Jeraikela.
The decision of this case, therefore, made sure that the state could no longer escape
liability in public law and had to be compelled to pay compensation when it committed
such gross violations of one’s fundamental rights and very basic human rights.
● Issues: –
1. Whether state is liable to pay compensation for a custodial death?
2. Whether such compensation can be demanded by invoking the article 32 and
226 of the Indian Constitution.
3. If yes,then how and in what manner can the compensation be determined?
Judgement:
After considering all evidences and testimonies, the court reached the same conclusion
that the death of Suman Behera was custodial death.
The supreme court answer this question in an affirmative, providing that the liability of
the state of Orissa in the present case to pay compensation can't be doubted. In coming
to this conclusion the supreme court referred to following decisions:
● Rudul Sah v. State of Bihar and Another, AIR 1983 SC 1086
● Sebastian M. Hongray v. Union of India and Others, AIR 1984 SC 571
● Bhim Singh v. State of J&K, AIR 1986 SC 494
The court further considered the question of quantum of compensation.
The court found that, the deceased Suman Behera was aged about 22 years and had a
monthly income between Rs.1200 to Rs.1500. therefore, a total amount of Rs.1,50,000
was awarded as compensation to the petitioner in the present case. Court further ruled
that the state must also pay the Supreme Court Legal Aid Committee a value of Rs.
10,000 and to take action against the polic officials involved. It was contended that the
evidence adduced during the inquiry doesn’t support the defence of respondents and
there’s no reason to reject the finding of the learned District Judge that Suman Behera
died in police custody as a result of the injuries inflicted upon him. The Supreme Court
also ordered the State of Orissa to initiate criminal proceedings against those who killed
Suman Behara.

RATIO DECIDENDI:

● This case was adjudicated by Justice Jagdish Sharan Verma, Justice A.S.
Anand, Justice, N. Venkatachala
● The court observed through the facts and pieces of evidence of the case with
arguments of both the counsels that there was no cogent evidence of any search
by the police to find Suman Behara and of his escape from police custody.
● The police also reached out much later to take charge of the body, after it was
reported by railwaymen, which raised questions as to its credibility. Further, a
doctor before the court deposed that the injury was caused by a blunt object,
which may have been lathi blows.
● All the injuries found on his body could not have been caused by a train accident.
The court also drew the distinction between the liabilities of the State in public
law as opposed to private law.
● It clearly mentioned that a proceeding under Article 32 before the Supreme Court
or any High Court is a remedy available in public law and the principle of
sovereign immunity does not apply in the case of public law. It is only a defense
in private law based on tort.
● It was also seen that there was a violation of Article 21 as the petioner’s life
deteriorated after her son's death as he was the sole earner and of course his
own right was violated as well because it was a case of custodial death.
● It also stressed that it would be highly unjust to expect a socio-economically
disadvantaged person to pursue ordinary civil proceedings under private law.
Conclusion:
● The honourable court in this case debated whether Article 32 of the Constitution,
which is without prejudice to any other action in relation to the same matter that
is lawfully available, merely extends to a declaration that there has been a
violation and infringement of the guaranteed fundamental rights and rests content
with that by relegating the party to seek relief through civil and criminal
proceedings, or can it go further and grant redress also by the only other legally
available means.
● The award of damages in a proceeding under Article 32 by this court or by the
High Court pursuant to Article 226 of the Constitution is a remedy available under
public law, based on strict liability for violations of fundamental rights, to which
the principle of sovereign immunity does not apply, even though it may be
available as a defence under private law in a tort action.
● It is an obligation of the State to ensure that no infringement of a citizen’s
indefeasible right to life occurs while the citizen is in its custody, unless under the
law. And the judgment of this case of Nilabati Behera v. State of Orissa , is
undoubtedly one of the landmark judgments of the country, for the court stated in
its judgment that compensation can be claimed in case of a custodial death, and
it definitely does stand as a testimony to the fact that in spite of all the drawbacks
of the setup of the Government of this country, there is still a hope for justice.

Title: Union Carbide Corporation v. Union of India

Citation: AIR 1989 SC 674
Court: Supreme Court of India
Appellant: UNION CARBIDE CORPORATION
Respondent: Union of India.
Bench: 1. R.S Pathak
2. E.S Venkataramiah
3. Rangnath Misra
4. M.N Venkatachaliah
5. N.D Ojha
Date of Judgment: 4th December 1989
Facts:
In the year 1934, American Industrial giant Union Carbide Corporation (UCC)
incorporated with the Union of India to form Union Carbide India Limited (UCIL), in
which Union Carbide was a majority shareholder holding a stake of 51%. The main
objective of the company was to manufacture chemicals, batteries, pesticides and other
industrial products. A new plant of UCIL was incorporated in a densely populated area
of Bhopal, Madhya Pradesh in the year 1970. On the night of 2nd December 1984, the
havoc of the gas leak spread and unleashed upon the people of Bhopal. Methyl iso-
cyanate escaped the parameters of the factory killing 2600 people instantly and leaving
thousands of them injured. Later reports disclosed the count of people who died
reached 20,000 and around 60,000 people suffered irrecoverable physical damage.
The zone wherein the plant was situated was for light industrial and commercial utility,
not for dangerous industry. The plant was initially approved only to formulate pesticides
in relatively small quantities. The government was apprehensive in implementing strict
liability despite the principle being in existence since the Stockholm came into
existence.
The Union of India immediately enacted the Bhopal Gas Leak Disaster (processing of
claims) Act on 29 March 1985 (the Bhopal Act) for speedy trial of this case and to
prevent the accused from escaping liability.
The government filed a suit on behalf of all the victims (surviving or deceased). This
power of government was predicated by the doctrine of Parens Patriae i.e. power of the
state to protect its citizens when they are unable to do so themselves. This act was
challenged in the Supreme Court as being ultra vires and violated the fundamental right
of the citizens to choose counsel of their own choice. It was also contended that the
Government of India was also a stakeholder at the UCIL, which resulted in a conflict of
interest. However, the plea was rejected and the Act was held constitutional. The Union
of India decided to fight the case in foreign courts instead of the Indian courts. So, a
single file was made of Union Carbide and presented before Judge Keenan in the USA.
But the case was dismissed by American courts on the ground that it came under the
authority (area) of Indian courts: Forum non conveniens. Thus, in September 1986
judicial proceedings were initiated by the Union of India against UCC in Bhopal District
Court. As a result, $350 million was demanded by the District Court of Bhopal from
Union Carbide as interim compensation for the damages that had been caused due to a
gas leak. So, Union Carbide filed its case in the High Court and the High Court ordered
to reduce the sum of Union Carbide to $250 million instead of $350 million.
The appeal was then filed in the Supreme Court because victims showed dissatisfaction
over the amount. Court
applied the doctrine of absolute liability and granted a compensation order of $470
million which was not even 15% of the original claim. But less than the promised
amount was received by the people and so they were not satisfied. So, the petition was
filed in the Supreme Court in which it was stated that the settlement amount was very
low and, therefore it would not be right to stop the criminal proceedings against UCC.
Issues:
The validity of the settlement order given by the High Court of Madhya Pradesh was
challenged in the case at hand on the grounds:
● Whether the settlement amount was valid and justifiable or not?
● Is the dropping of criminal proceedings against Union Carbide justified?
Judgment:
● The court did not waste any time in writing the judgement, on February 14, 1989,
the court ordered Union Carbide to pay compensation of $470 million before
March 31, 1989. The Supreme Court also held that the amount compensated is
adequate, reasonable and fair; in case any deficiency arises in the rehabilitation
of the victim, the government will take care of that.
● The endeavour was successful and UCC agreed to pay a sum of US $470 million
to the Union of India in settlement of all claims, rights, and liabilities relating to
and arising out of the Bhopal Gas disaster. The terms of the settlement were set
out in the orders of this Court passed on 14th and 15th February 1989
● Petitioners had argued that the dismissal of criminal proceedings against Union
Carbide was not legal and the amount of compensation that was given to each
victim was not appropriate as compared to the injury and disaster that each
victim suffered to which the court said that the amount compensated is just and
adequate. Justice Venkatchaliah gave majority judgment on behalf of himself,
K.N. Singh and N.D. Ojha. The majority opinion directed that the quashing of
criminal proceedings against Union Carbide was not justified and held that the
criminal proceedings must be initiated. On this point, Justice Ahmadi dissented
with the majority and gave the decision that when the Union of India has no link
with UCC, then how can it be held liable to pay the damages? According to him,
all the damages must be paid by Union Carbide and not by the Union of India.
Therefore, the Supreme Court held that the dropping of criminal proceedings is
not justified and quashed the earlier order and directed that criminal proceedings
shall be initiated as soon as possible.

Ratio Decidendi
● The Court explained how it calculated the value of compensation. It considered
the elements of the no. of persons treated at the hospital, an essential indicator,
 and depended on the High Court’s order upon the allegations and claims in the
amended pleadings of the Union of India. It estimated total fatal cases to 3000
and the average remuneration as Rs 1 lakh to Rs 3 lakh which would be approx
70 crores.
● The Apex Court observed the need to evolve a national policy to protect national
interests from such ultra-hazardous pursuits of economic gains and expected
help of jurists, economists, environmentalists, sociologists, and futurologists to
identify areas of common concern and establish criteria that may receive judicial
recognition and legal sanction.

Significance:
The case of Union Carbide Corporation v. Union of India is significant as it dealt with
one of the most catastrophic industrial accidents in history. The judgment highlighted
the importance of holding multinational corporations accountable for the actions of their
subsidiaries and the need for ensuring adequate safety measures in industrial
operations. The case also emphasized the role of courts in addressing complex liability
issues and providing remedies to the victims of such disasters. The Bhopal Gas
Tragedy and its legal aftermath prompted discussions on industrial safety, corporate
responsibility, and the importance of prompt and fair compensation to victims of
industrial accidents.

Title: Vishaka and Others v. State of Rajasthan and Others

Citation: AIR 1997 SC 3011
Court: Supreme Court of India
Appellant: VISHAKA & ORS.
Respondent: STATE OF RAJASTHAN & ORS.
Bench: 1. J. S Verma, CJI
2. SUJATA V. MANOHAR
3. B. N. KIRPAL
Date of Judgment: 13th August 1997
Facts:
Bhanwari Devi, a woman belonging to Bhateri, Rajasthan started working under the
Women’s Development Project (WDP) run by the Government of Rajasthan, in the year
1985.
In the year 1992, Bhanwari took up another issue based on the government’s campaign
against child marriage. This campaign was subjected to disapproval and ignorance by
all the members of the village, even though they were aware of the fact that child
marriage is illegal.
In the meantime, the family of Ram Karan Gurjar had made arrangements to perform
such a marriage, of his infant daughter. Bhanwari, abiding by the work assigned to her,
tried to persuade the family to not perform the marriage but all her attempts resulted in
being futile. The family decided to go ahead with the marriage.
On 5th May 1992, the sub-divisional officer (SDO) along with the Deputy
Superintendent of Police (DSP) went and stopped the said marriage. However, the
marriage was performed the next day and no police action was taken against it. Later, it
was established by the villagers that the police visits were a result of Bhanwari Devi’s
actions. This led to boycotting Bhanwari Devi and her family. Bhanwari also lost her job
amid this boycott.
On 22nd September 1992, to seek vengeance, five men i.e, four from the above-
mentioned Gurjar family- Ram Sukh Gujjar, Gyarsa Gujjar, Ram Karan Gujjar, and Badri
Gujjar along with one Shravan Sharma attacked Bhanwari Devi’s husband and later
brutally gang-raped her.
The police had tried all possible ways to avoid filing any complaint against the accused
which resulted in a delayed investigation. Even after facing so much criticism, Bhanwari
Devi, with her incessant determination to get justice, managed to lodge a complaint.
The medical examination was delayed for fifty-two hours. However, the examiner did
not mention any commission of rape in the report but rather mentioned the age of the
victim.
In the absence of sufficient evidence and with the help of the local MLA Dhanraj Meena,
all the accused managed to get an acquittal in the Trial Court. But this acquittal resulted
in a huge backlash from many women activists and organizations which supported
Bhanwari. These organizations came together and raised their voice to attain justice,
which resulted in the filing of a Public Interest Litigation (PIL).
The PIL was filed by a women’s rights group known as ‘Vishaka’. It laid its focus on the
enforcement of the fundamental rights of women at the Workplace under the provisions
of Articles 14, 15, 19, and 21 of the Constitution of India, it also raised the issue of the
need for the protection of women from sexual harassment at Workplace and how the
acts of sexual harassment towards women at workplace violate the fundamental rights
enshrined under article 14,15,19(1), and 21 of the constitution of India. They requested
the court to frame guidelines for preventing sexual harassment in the workplace. The
real meaning of gender equality must be understood.
Issues:
● Whether sexual harassment at the Workplace amounts to a violation of the
Rights of Gender equality and the Right to Life and Liberty?
● Whether there is a role and responsibility of an employer in sexual harassment
cases or not?
● Whether there is a need for formal guidelines regarding sexual harassment in the
workplace or not?’
Petitioners arguments:
● A writ petition, seeking the writ of mandamus was filed by the ‘Vishaka’ group
which comprised various women’s rights activists, NGOs, and other social
activists. They put forward their argument that the indecent acts of sexual
harassment of women at the Workplace violate the fundamental rights enshrined
under Articles 14, 15, 19(1)(g) and 21 of the Constitution of India. The petitioners
brought the attention of the Hon’ble Court to the loophole that the legislation has
regarding the provision of a safe working environment for women. They
requested the Hon’ble Court to frame guidelines for preventing sexual
harassment at the Workplace.
Respondent’s arguments:
● The learned Solicitor General appearing on behalf of the respondents (with their
consent) in this case did something unusual i.e., supported the petitioners. The
respondent assisted the Hon’ble Court in figuring out an effective method to curb
sexual harassment and in structuring the guidelines for the prevention of the
same.
● Fali S. Nariman – the amicus curiae who was appointed by the court the Hon’ble
Court along with Ms Naina Kapur and Ms Meenakshi provided assistance to the
Hon’ble court in dealing with the said case.
Judgement:
● The judgement of this case was conveyed by chief justice J.S. Verma. The court
observed that the fundamental rights under articles 14(2), 19(3)(1)(g) and 21(4)
of the Constitution of India that, every profession, trade or occupation should
provide a safe working environment to the employees. Non-availability of it
hampered the right to life and the right to live a dignified life. The basic
requirement was that there should be the availability of a safe working
environment at the workplace.
● The lack of a law that would prevent sexual harassment and provide women with
a safe working environment was acknowledged by the Hon’ble Supreme Court of
India. Section 354 and 354A of the Indian Penal Code, 1860 were to be referred
in any case of sexual harassment but these provisions were not specific to the
 issue at hand. This made the Hon’ble Court realize the need for proper and
effective legislation that would deal with sexual harassment.
● The Hon’ble Supreme Court framed the guidelines to prevent sexual harassment
at the Workplace, known as Vishaka Guidelines, that were to be treated as law
declared under Article 141 of the Indian Constitution. These guidelines were the
foundation for The Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 and the CRPC Amendment, 2013 (S- 354
A).
The Vishaka guidelines (1997):
● Duty of the Employer or other responsible persons in workplaces: The
employer or other responsible persons are bound to prevent or deter the
commission of such indecent acts of sexual harassment and to provide the
procedures for the resolution, settlement or prosecution of acts, of sexual
harassment by taking all steps required.
● Definition: For this purpose “Sexual Harassment” means unwelcome sexually
determined behaviour whether directly or indirectly as:
Physical contact and advances;
A demand or request for sexual favours;
Sexually coloured remarks;
Showing pornography;
Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
● Preventive Measures: Employers or persons in charge of the workplace must
take preventive measures for sexual harassment as defined above at the
workplace and its prohibition should be notified, published and circulated in
appropriate ways.
The rules and regulations of Government and Public Sector bodies relating to
conduct and discipline should include rules prohibiting sexual harassment and
provide for appropriate penalties in such rules against the offender.
Appropriate work conditions should be provided in respect of work, leisure, health
and hygiene to further ensure that there is no hostile environment towards
women at workplaces and no employee woman should have reasonable grounds
to believe that she is disadvantaged in connection with her employment.
● Criminal Proceedings: Where such conduct amounts to a specific offence
under the Indian Penal Code or under any other law, the employer shall initiate
appropriate action in accordance with the law by making a complaint with the
appropriate authority.
● Appropriate Disciplinary Action: If there is an occurrence of a violation of
service rules, appropriate disciplinary action must be taken.
● Redressal Mechanism: An organization must have a redressal mechanism to
address the complaints of the victims. This must be irrespective of the fact that
whether the act constitutes an offence under the Indian Penal Code, 1860, or any
 other law as such. Such complaint mechanisms should also ensure time-bound
treatment of complaints.
● Redressal Committee: The complaint mechanism, referred to in (6) above,
should be adequate to provide, where necessary, a Complaints Committee, a
special counsellor or other support service, including the maintenance of
confidentiality. The Complaints Committee should be headed by a woman and
not less than half of its members should be women. Further, to prevent the
possibility of any undue pressure or influence from senior levels, such a
Complaints Committee should involve a third party, either an NGO or another
body that is familiar with the issue of sexual harassment. The Complaints
Committee must make an annual report to the Government department
concerned about the complaints and actions taken by them.
● Worker’s Initiative: Employees should be allowed to raise issues of sexual
harassment at a workers‟ meeting and in other appropriate forums and it should
be affirmatively discussed in Employer-Employee Meetings.
● Awareness: Awareness of the rights of female employees in this regard should
be created in particular by prominently notifying the guidelines and appropriate
legislation when enacted on the subject in a suitable manner
RATIO DECIDENDI:

1. It is a fundamental right to carry any occupation, trade, or profession but the right
highly depends on the availability of a safe working environment. The Right to life
embedded in the Constitution of India encompasses the right to life with dignity.
a. The fundamental responsibility of guaranteeing such safety and protection
of dignity is of the legislature and executive by enacting adequate
legislation and setting up a proper mechanism for the same.
b. After examining various judicial pronouncements and the relevant Article
of the Constitution court opined that gender equality is engrained in the
Constitution of India and protection from sexual harassment is a main part
of gender equality.
c. In the absence of any specific legislation, the court under Article 32 has
the power to enforce any fundamental rights.
● Conclusion:
Through the Vishaka Case, the Hon’ble Supreme Court of India took a great step
towards the empowerment of women by issuing guidelines to curb sexual harassment
at the Workplace. The Hon’ble Court took reference from various international
conventions and laws in the absence of domestic law, then connected it to the law of
the land and gave birth to a new law altogether. The efforts put in by the Indian
judiciary, in this particular case to safeguard women is commendable. The Hon’ble
Court through the Vishaka Guidelines provided a strong legal platform for all women to
fight against sexual harassment boldly. The Vishaka case changed the outlook towards
sexual harassment cases as serious issues, unlike in the past when such cases were
looked upon as petty matters.
Significance: The Vishaka case was a groundbreaking judgment that laid the foundation
for addressing the issue of sexual harassment at the workplace in India. It led to the
formulation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition,
and Redressal) Act in 2013, which provided a legal framework for preventing and
redressing sexual harassment complaints in India. The case played a crucial role in
raising awareness about women's rights and safety at the workplace and emphasized
the duty of employers to create a harassment-free work environment. The Vishaka
judgment remains a significant milestone in the advancement of gender equality and
women's empowerment in India.

Title: Olga Tellis and Ors. v. Bombay Municipal Corporation

Citation: AIR 1986 SC 180
Court: Supreme Court of India
Bench : Y.V. Chandrachud, A.V. Varadarajan, O. Chinnappa Reddy, S. Murtaza Fazal
Ali, V.D. Tulzapurkar
Date of Judgment: 10th July 1985
Facts:
The state of Maharashtra in 1981 and the Bombay Municipal Corporation decided to
evict the pavement dwellers and those who were residing in slums in Bombay. Pursuant
to that, the then Chief Minister of Maharashtra Mr A. R. Antulay ordered on July 13 to
evict slum dwellers and pavement dwellers out of Bombay and to deport them to their
place of origin. The eviction was to proceed under Section 314 of the Bombay Municipal
Corporation Act 1888. On hearing about the Chief Minister’s announcement they filed a
writ petition in the High Court of Bombay for an order of injunction restraining the
officers of the State Government and the Bombay Municipal Corporations from
implementing the directive of the Chief Minister. The High Court of Bombay granted an
ad interim injunction to be in force until July 21, 1981. Respondents agreed that the huts
will not be demolished until October 15, 1981. Contrary to the agreement, on July 23,
1981, petitioners were huddled into State Transport buses for being deported out of
Bombay. The respondent’s action was challenged by the petitioners on the grounds that
it is violative of Articles 19 and 21 of the Constitution and they also claimed under Article
32, the right to livelihood as a part of their right under Article 21 of the Constitution, i.e.,
right to life. Moreover, petitioners contended that sections 312, 313 and 314 of the
Bombay Municipal Corporation Act are invalid as they are violative of Articles 14, 19
and 21 and they also asked for a declaration of the same.

Issues:

1. What is the scope of the right to life under Article 21 of the Constitution? Can the
court interpret Article 21 in a way that includes the right to livelihood?
2. Is the order for the eviction of the pavement the infringement of their right to
livelihood and in turn the encroachment over their right guaranteed under Article
21 of the Constitution?
3. Are sections 312, 313, and 314 of the Bombay Municipal Corporation Act, 1888
for the removal of encroachments from pavements arbitrary and unreasonable?
4. How should the court resolve this dilemma if both parties’ arguments are valid?

The decision of the Supreme Court:

The decision of the Supreme Court in this case was based on the humanistic approach
of the judges and the Apex Court stepped into the activist role. The Hon'ble Supreme
Court held that the slum dwellers must get an alternative shelter if they are evicted from
the pavements. Although, the eviction orders were held to be valid under Articles 14 and
19 of the Constitution. In fact, the right to life was once again enlarged and it’s ambit
widened to engulf the right to livelihood as being a part of the liberty of an individual.
The decision of the Court also focused on the concept of the welfare state and reliance
though not expressly but impliedly was placed on the Directive Principles of the State
Policies under the Constitution.
Court said we hold that:
i) No person has the right to encroach by erecting a structure or otherwise on footpath
pavements or any other place reserved for or marked for a public purpose like for
example a garden or playground
ii) the provision contained in section 314 of the Bombay Municipal Corporation Act is not
unreasonable in the circumstances of the case.
iii) payment dwellers of whom a census was conducted in 1976 should be given
alternate places for settlement but not farther away from the place of their employment.
iv) Slums which have been in existence for a long time say for 20 years or more will not
be removed.
v) the low-income scheme shelter program which is proposed to be undertaken with the
aid of the World Bank will be pursued earnestly and the slum upgradation programme
under which basic amenities are to be given to the slum dwellers will be implemented
without any delay.
vi) in order to minimise the hardships involved in any eviction, we direct that the slums
wherever situated will not be removed until one month after the end of the current
monsoon season.
Ratio Decidendi:
1. The right to life has a much wider scope, it doesn’t only mean that life cannot be
threatened except by a procedure established by law but, as this definition
restricts its ambit. The court recognized that livelihood forms a basis of the Right
to life as no person can sustain life without a livelihood. Not including livelihood
in Fundamental Rights is the easiest way to harm the spirit of Article 21. The
Supreme Court added that deprivation of persons from this right should only be
in accordance with law as depriving of this right can lead to deprivation of the
right to life of a person and not including it in the Right to life is also a
contradiction of Articles 39(a) and 41 of the constitution.
2. The Supreme Court, while establishing more stress on the inclusion of livelihood
in Article 21, also made it clearly visible that such a right can definitely be
deprived by a procedure established according to law. Thus, sections 312(1)
313(1)(a) and 314 which empower commissioner to remove encroachments
from footpaths and public places cannot be regarded as unjust and
unreasonable as these sections are not against the principle of natural justice
but these are acting as exception rule (as the procedure established by law in
certain circumstances). Hence, not arbitrary.
3. The principles set out in Articles 39 (a) and 41 must be considered as
equally fundamental for understanding and interpreting the meaning and
content of fundamental rights. If the State were obliged to provide citizens
 with adequate means of subsistence and the right to work, it would be quite
irreproachable to exclude the right to subsistence from the content of the
right to life.
4. The State can not, by positive action, be obliged to provide adequate means
of livelihood or work to the citizens. However, anyone deprived of their right
to a means of livelihood, except in accordance with the just and fair
procedure established by law, may challenge deprivation as a violation of the
right to life conferred by Article 21.

The Supreme Court of India, in this landmark judgment, held that the eviction and
removal of pavement dwellers and homeless individuals without providing them with
alternative housing or livelihood opportunities violated their fundamental rights. The
court recognized that the right to livelihood was an integral part of the right to life
guaranteed under Article 21 of the Indian Constitution.
The court emphasized that the right to shelter was a basic human right, and the state
had an obligation to provide shelter and livelihood opportunities to the poor and
marginalized sections of society. The eviction drive, without providing alternative
arrangements, would result in rendering people homeless and vulnerable, which was
against the principles of social and economic justice. The judgment reflects greatly the
‘Principle of Utility’ propounded by Jeremy Benthem, where happiness is often
maximized given that instances of pain are lighter and fewer. The judgment delivered by
the Hon’ble Court is said to be the replica of the thought embodied within the ‘Principle
of Utility’. Slum and pavement dwellers constitute almost 1/2 of the entire population of
Bombay. The participation of the interests of such an outsized number of individuals
forced the Court to lean in their favour despite the existence of the particular law for the
eviction of the inhabitants of the pavement. This decision, where the scope of the term
“life” was extended, has also paved the way for the reform of substantive law.

Significance:
The Olga Tellis case was a significant judgment that established the right to livelihood
and the right to shelter as fundamental rights under the Indian Constitution. The
judgment set a precedent for future cases concerning the eviction of homeless and
vulnerable populations, emphasizing the state's duty to provide social and economic
support to the most marginalized sections of society. As a result of this case,
subsequent laws and policies have been framed to protect the rights of pavement
dwellers and homeless people in India and to ensure that any eviction drives are
conducted in a humane and just manner. The whole Benthamite principle applied by
Justice Chandrachud on behalf of all the Justices can be summarized in one sentence
stated in Para 46 of the judgment, “Human compassion (happiness) must soften the
rough edges of justice in all situations.”

Case: Aruna Ramchandra Shanbaug vs. Union of India

Citation: UOI (2011) 4 SCC 454
Date: 7th March 2011
Bench: Justice Markandey Katju, Justice Gyan Sudha Mishra
Relevant Provision: Article 21 of the Constitution of India
Facts:
The petitioner in this case, Aruna Ramchandra Shanbaug used to work as a Nurse in
King Edward Memorial Hospital, Parel, Mumbai. On the evening of the 27th, of
November 1973 a sweeper of the same hospital attacked her and he wrapped her neck
with a dog chain and yanked her back with it. The sweeper also tried to rape her but
when he found out that she was menstruating he sodomized her. To prevent her from
moving or creating any chaos, he twisted that chain really hard around her neck. The
next day, a cleaner found her body lying on the floor unconscious with blood all over. It
was believed that the supply of oxygen to the brain stopped because of strangulation by
the chain and hence the brain got damaged. This incident caused permanent damage
to her brain and led her into a permanent vegetative state (PVS).
After 36 years of the incident, activist-journalist Pinki Virani filed a petition in the
Supreme Court under Article 32 of the constitution alleging that there is no possibility for
her to revive again and get better. So she should be allowed to go with passive
euthanasia and should be absolved from her pain and agony.
To this petition, the respondent parties i.e., KEM Hospital and Bombay Municipal
Corporation filed a counter petition. This led to a rise in the disparities between both
groups. Since there were disparities, the Supreme Court in order to get a better picture
of the situation appointed a team of 3 eminent doctors to investigate and provide a
report of the exact mental and physical condition of Aruna Shanbaug. During this study,
doctors investigated her entire medical history and opined that her brain is not dead.
She responds differently depending on the scenario. She favours fish soups and gentle
religious music, for instance. She has her own way of understanding and reacting to
situations. Also, Aruna’s body language did not show any sign of her willingness to
terminate her life. Neither the nursing staff of the hospital showed any carelessness
towards taking care of her.
Issues:
1. Does Article 21 of the Constitution include the right to die embedded within the
right to life?
2. Should Aruna be allowed to go with passive euthanasia? If yes, with who’s
consent?
3. Should withdrawal of life-sustaining systems and means for a person who is in a
permanent vegetative state (PVS), be permissible?
4. Should passive euthanasia be legalized? What is the difference between passive
euthanasia and active euthanasia?
5. Does the family or next of kin of a person get to make a request to withhold or
withdraw life-sustaining systems, in case a person himself has not placed such a
request previously?
This case established criteria for passive euthanasia and highlighted the difficulties
surrounding euthanasia.
Petitioner’s Arguments:
The petitioner in the Aruna Shanbaug Vs Union of India case contended that the right to
life enumerated under Article 21 of the Constitution defines the right to live a fulfilled life
with utmost dignity. It must, therefore, also include the right to die with dignity.
Individuals suffering from any terminal illness or permanent vegetative state must be
included under the right to die with dignity to end the prolonged suffering and agony.
Ms Aruna lacks any awareness of her surroundings and is even unable to chew her
food; she cannot express anything on her own and is just bedridden for the past 36
years with no scope for improvement. The patient is virtually dead, and the
respondents, by not feeding Ms Shanbaug, will not be killing her.
Respondent’s Arguments:
The Respondent’s arguments in the case, the hospital dean contended that Ms
Shanbaug was being fed and cared for by the nurse and hospital staff for as many as
36 years.
Now that the patient has crossed as many as 60 years of age, she might naturally
succumb to death. The staff had exceptional and utmost responsibility and willingness
to take care of her. Therefore, they opposed and resented the idea of Ms Shanbaug
being euthanized.
They begged the court not to permit the act of killing since the staff had been diligently
and with respect taking care of all her fundamental necessities and prerequisites.
Therefore, if euthanasia has been legitimized, such a step can be profoundly inclined to
abuse.
One medical attendant has even been willing to care for her without being remunerated.
Therefore, it is evident that the petitioner, unlike the hospital staff, neglects to have a
close-to-home connection with the patient and lacks the necessary emotional
attachment. Moreover, since the hospital staff diligently and with utmost dignity took
care of Ms Shanbaug for many years, they looked after her basic needs with care.
Legalization of passive euthanasia can be prone to misuse by family members and
relatives. They pleaded with the court to reject the allowance of euthanasia.
Terminating Ms Shanbaug’s life would be immoral and inhuman since she has a right to
live. Moreover, the hospital staff’s exceptional and selfless service must also be
considered.
Furthermore, since the patient is not in a condition to consent to withdrawal from the life
support system, the big issue is who would consent for Ms Shanbaug.

Judgement:
The court in the Aruna Shanbaug Vs Union of India case, distinguished between active
and passive euthanasia. Active euthanasia can be seen as the positive and deliberate
termination of one’s life by injecting and administering lethal substances. It is
considered to be a crime worldwide except permitted by legislation. In India, active
euthanasia is a straight infringement of Section 302 and Section 304 of the IPC.
The Hon’ble Division Bench of the Supreme Court of India, comprising Justice
Markandey Katju and Justice Gyan Sudha Mishra, delivered this judgement on 7th of
March, 2011. The Supreme Court held that passive euthanasia should be sparingly
used and not become a tool for eroding Article 21 of the Indian Consitution. Therefore,
the court’s assessment of the medical report and the definition of brain death provided
in the Transplantation of Human Organs Act, 1994, clearly explains that Ms Aruna’s
brain was not dead. The court declared that Aruna is not brain dead. She was able to
breathe on her own without a machine’s support, she had feelings and used to show
some symptoms. Though she was in a PVS but still her condition was stable. So the
grounds presented here are not sufficient for terminating her life. It would be
unjustifiable. Further, the court while addressing the issue opined that in the present
case next to the kin of the patient would be the staff of the KEM Hospital, not Pinki
Virani. Thus, the right to take any such decision on behalf of her is vested in KEM
Hospital. In the present case, it was the food on which she was surviving. Thus removal
of life-saving techniques would here mean depriving her of food which is not justified in
Indian Law in any way. Therefore, ending her life was not warranted.

The Supreme Court allowed passive euthanasia in certain conditions. But the court
decided that in order to prevent misuse of this provision in the future, in support of the
“Parens Patriae” concept, the Supreme Court entrusted the authority to decide the end
of a person’s life in the High Court following due procedure.

Whenever any application will be filed in High Court for passive euthanasia, the Chief
Justice of the High Court should constitute a Bench of at least two judges to decide the
matter that whether such termination should be granted or not. The Bench before laying
out any judgement should consider the opinion of a committee of 3 reputed doctors.
These doctors are also nominated by the Bench after discussing with the appropriate
medical practitioners. Along with appointing this committee, it is also the duty of the
court to simultaneously issue a notice to the state, relatives, kin and friends and also
provide them with a copy of the report made by a committee of doctors, as soon as it is
possible. And after hearing all the sides, the court should deliver the judgement. This
procedure is to be followed in India everywhere until any legislation is passed on the
subject.

In the Ultimate decision of this case, by keeping all the important facts of the case in
consideration, Aruna Shaunbaug was denied euthanasia. Court also opined that if at
any time in the future, the hospital staff feels a need for the same, they can approach
the High Court under these prescribed rules. The verdict of this case has helped in
clarifying the issues relating to passive euthanasia in India by providing a broad
structure of guidelines which are to be followed. The court also recommended the
repealing of section 309 of the IPC. This case is a landmark case as it prescribed the
procedure to be followed in an area that has not been legislated upon.
Ratio Decidendi:
The Supreme Court stated the following reasoning for its judgment in the Aruna
Shanbaug Vs Union of India Case:
1. It is pretty implied that all over the world, active euthanasia has been stated as
illegal in the absence of any legislation permitting it. In contrast, even in the
absence of legislation, passive euthanasia has been stated as legal.
 2. The report presented by the committee of doctors stated that Ms Shanbaug’s
brain was then responsive to likes and dislikes, which she can express through
small gestures and sounds like smiling and blinking eyes. Therefore, she was
responding to the outside environment and hence was denied euthanasia.
3. The potential threat of misuse of passive euthanasia cannot be ruled out, which
holds every chance of breaching Article 21 of the Constitution of India in the
event of low ethical standards prevailing in our society and with increasing
corruption. Therefore, there is a dire need for a balanced approach in such a
sensitive issue, which includes a person’s death and life so effective checks
should be incorporated and accordingly guidelines were issued.
4. The bench also put forward its view, that section 309 of I.P.C i.e. attempt to
commit suicide should be deleted; a person in depression committing suicide
needs help not punishment.

Judgement Analysis:

Euthanasia:
Euthanasia, as we all know also known as mercy killing, is an act or practice of
painlessly putting to death persons suffering from painful and incurable disease or
incapacitating physical disorder or allowing them to die by withholding treatment or
withdrawing artificial life-support measures.
It can be of two types Active or Passive. Active Euthanasia is the use of some
hazardous substance or lethal methods to kill a person. Passive Euthanasia is stopping
some medical treatment in the absence of which a person is likely to die. Passive
euthanasia can be both voluntary and involuntary. When the consent from a patient is
taken it becomes voluntary and in cases when a patient is not in a condition to provide
consent and the decision on his/her behalf is taken by some other person, then it is
involuntary.
In Aruna Shanbaug’s case, Supreme Court laid down guidelines for passive euthanasia.
These guidelines provided for the withdrawal of the life support system which can
ultimately lead to a person’s death. This verdict made passive euthanasia possible in
India in certain conditions which will be decided by the High Court. Later in the year
2018, Supreme Court passed another order in the case of Common Cause v. Union of
India, in which the right to die with dignity was again recognized and passive euthanasia
was legalized and the permit was given to withdraw the life support system of those who
are terminally ill and are in life long coma. Along with this the Court also provided with
the concept of “living wills”.

A living will: it is a document that allows a person to make decisions in advance with
regard to what course of treatment he wants in case he gets seriously ill in the future
and becomes unable to take decisions.
Thus, India is now one of the countries in the world which has recognized Passive
Euthanasia. But there are still loopholes in the execution of passive euthanasia. After
the Shanbaug case, it was made mandatory to take High Court’s permission before
every case, so it was a tedious process. And now in this new judgement, it has been
made harder to give passive euthanasia an effect as now it involves the execution of the
directive in the presence of two witnesses, authentication by a Judicial Magistrate,
permission from two Medical Boards and a jurisdictional collector. Thus this delay is a
major problem coming in the way, as it defeats the main purpose of passive euthanasia
which is to end the suffering of the person concerned on the other hand if the process is
made too liberal and easy it is always prone to a great misuse.
Thus we can see on both sides there are problems and issues involved and what we
need is a better way out of this all in order to make the concept of passive euthanasia
effective and efficient.
Right, to Die with Dignity:
Our constitution and laws explicitly provide for the Right to life to all its subjects. It is an
absolute right guaranteed under Article 21 of the constitution and there are no doubts
when it comes to the right to life. But questions always arise whenever we talk about the
Right to Die, which has always been debatable and has not been expressly provided
anywhere in the Constitution and thus has always been an issue of contention for our
lawmakers. The courts in various judgments have interpreted it differently and have
based their opinion accordingly.
The Bombay High Court in the case of State of Maharashtra v. Maruti Sripati Dubal
stated that the Right to life under Article 21 also includes the Right to die. It was
contended that Section 309 of the Indian Penal Code (attempt to commit suicide) is thus
unconstitutional, as it is violative of Article 21 of the Constitution. Court clearly stated in
this judgement that Right to die is just uncommon not unnatural. Subsequently in P.
Rathinam v. Union of India, the Supreme Court also accepted that the Right to live also
includes the Right not to live under Article 21 of our Constitution. But later in the case,
Gian Kaur v. State of Punjab, the Supreme Court overruled P. Rathinam’s judgement
and declared that the Right to life does not include the Right to die but at the same time
court also stated that the Right to life will include life with human dignity and the right to
die with dignity. The court held that the right to die with dignity should be distinguished
from the Right to die and there is a fundamental difference between the two. The right to
die shall include taking away a person’s natural life span, thereby causing unnatural
death. However, the right to die with dignity shall include undertaking a process or
causing a situation to accelerate the process of death in case of patients who are in a
Permanent Vegetative State or under the influence of a coma for a lifetime. Therefore,
the recognition of the right to die with dignity through passive euthanasia could be
applied to terminate the lifelong suffering and mental agony of patients having paralysed
physical conditions or incurable diseases. A person who is in a condition of PVS, if
provided the right to die, will end his suffering and physical and mental agony.
Hence, both these rights are altogether different and should not be misconstrued.
Various nations in the world recognise the “Right to Die with Dignity” as an important
right for an individual, thus creating a way for passive euthanasia.

Conclusion:
Aruna Shanbaug’s case has, for the first time, laid down the guidelines relating to the
procedure for execution of Passive Euthanasia in India. Prior to this, rarely was the
concept brought into concern. The judgment in the concerned case has opened up a
new horizon in regard to the right to die with dignity, thereby expanding the ambit of
Article 21 of the Constitution. This case stood as a landmark judgement as it discussed
the long-drawn issue of passive euthanasia and eventually supported the legalization of
passive euthanasia in India.