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May 30, 2015

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

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 she was 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 raised suspicions immediately. But, those investigating the case did not choose to worry about such things. Another reason that Sohanlal was 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. Perhaps he did so to try and save her impending marriage so Aruna could avoid being socially rejected.

But, these are the facts. And, yes, you have read it right. The grammar of shame was laid to rest on Aruna, 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 uplifting and comprehensible: she was, after all, one of them; and any of them could have been her. However, using this care as an argument against euthanasia, following author and activist Pinki Virani’s 2011 approach to the Supreme Court seeking permission for a “mercy killing” to end Aruna’s pain, has been baffling and misplaced.

Giving the best possible care to a patient in a vegetative state is an act of utmost humanity. But, does this act 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 die by any means. The inferences made by them about Aruna’s gestures say nothing about her capacity to make informed choices, forget about one about continuing to live in a persistent vegetative state or ending her life.

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

Thankfully, the Supreme Court got the questions right when making its decision to allow passive euthanasia for terminally ill patients under strict guidelines, as it dismissed 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 Arunawho, as per the Court, “have clearly expressed their wish that Aruna Shanbaug should be allowed to live."

Where was Aruna in all this though? She had effectively died 42 years ago, even if parts of her body were still alive. Neither could one know if the “alive” part of Aruna, as per KEM Hospital staff, wanted justice or not. Nor could one know if Aruna was even capable of wanting anything. Violent crimes, however, are crimes against the State and not against 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. It is an important debate in cases of terminally ill patients and painful illnesses, and the debate must take place in India. That debate is not applicable to this crime. Rape is a crime that must be dealt as a crime, not as an illness of the victim. Aruna was not terminally ill; her tormentor battered her into a vegetative state.

Has much anything related to the criminal justice system changed in India since Aruna was sexually assaulted four decades ago? Right up to 2013, investigations into cases of sexual assault began with the notoriously intrusive two fingers test, which requires a doctor to insert two fingers into a woman’s vagina, to apparently determine whether the victim was “used to sexual intercourse” or not! It took nationwide outrage following the gory gangrape and murder of a young woman in Delhi for the test to go. Without those protests, the criminal justice system would have been two fingers testing well unto the unforeseeable future, and then some.

And, even this two finger test would only take place if the rape survivor was lucky enough to get medically examined by an overburdened, underfunded, and insensitive public health system country (as examinations from private medical practitioners are not admissible in courts). And, these lucky survivors are pushed from one government hospital to the other for getting their medical examination done, something that is laborious and humiliating, and reveals their identity to numerous persons. This remains the case even with the two fingers test scrapped and becomes too heavy a cost to bear in a society that shame the victims, and not the perpetrators.

Dismal remains the capacity of law enforcers to conduct forensic investigation, mandatory for making a watertight case against perpetrators of rape. Police botch up in collection of key evidence like fingerprints, photographs of the 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 basic activities, mess up whatever is left of the investigation. It doesn’t take rocket science to know the result of such investigation, does 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%. It stood at 27.1% in 2013 and that was after a little improvement from 24.2% in 2012. The only thing worse than the dreary conviction rates is the fate of the rape cases pending trial in courts. The rates were 83.4% in 2014, with a slight improvement from 85.1% in 2012.

So what are the chances of an Aruna getting justice today? If she were to be raped today, she would have less than half the chance of getting her rapists convicted in comparison to 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 bring into our discourse.

Aruna died 42 years ago but has been killed again and again subsequently. She was killed every time a victim of sexual assault failed to get justice in India since she was reduced to a vegetative state. She died most recently with Nirbhaya in Delhi. She died along with many 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 legitimate and necessary but inappropriate in this case.

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