Table of contents

Sr. no. 1 2 3 4 5 6 Headings Introduction What is Realism? The Netherlands experience Legitimacy of judicial activism Conclusion Bibliography Page no. 2 2-3 3-4 4-6 6-7 8

SLS,PUNE |Prashant K Singh, Roll no-35, LLM-1st year

Regulating Euthanasia: The Realist Perspective

Introduction:
Realist School of Jurisprudence deals with law as it is in actual working and its effects. The aim of this school is to reform the law by first understanding its effects on society. The law is what is declared by the judges. There are various factors which influence the judges in taking the decisions. This school studies these factors. With increasing globalization there is a breakdown of the traditional family system which provided care and support for members of all ages. Currently there is no law that deals with situations wherein a person who is in a terminal stage of a disease and has no hope of recovery, wants to end his life. That is known as euthanasia. There are various ways in which this can be done and this remains largely unregulated. This situation was analyzed by the court in the case of Aruna Shanbaug. Here the court permitted passive euthanasia under strict conditions. There is going to be a huge increase in such cases in the future and this is an area that needs attention. This paper will analyze this issue in the context of the Realist School and as given in the case of Aruna Shanbaug. In the absence of any law, is there a need to leave such issues to the legislature or is it appropriate that the judges declare the law? If we were to define euthanasia in very simple terms we can say that, euthanasia is a deliberate intervention that is undertaken with the intention of ending the life of a patient generally to alleviate unbearable suffering of the patient.1

What is Realism?
The Realist movement is a part of the sociological approach and it is sometimes called the Left wing of the functional school. It concentrates on a scientific observation of law in its making and working. The advocates of the realist movement study the forces which influence judges in reaching their decisions.

House of Lords Select Committee on Medical Ethics

SLS,PUNE |Prashant K Singh, Roll no-35, LLM-1st year

The realist movement is positivist in the sense that it regards law as it is and not as it ought to be. Law is the product of many factors and therefore the realists are interested in those sociological factors which influence law. The share with the sociologists an interest in the effects of social conditions of law as well as the effect of law on society. The approach of the realist is essentially empirical and after considering the features of realist approach we can apply it in Indian society. Law is a means to social ends and every part of it has constantly to be examined for its purpose and efforts and judged in the light of both and their relation to each other. Society changes faster than law and so there is a constant need to examine how law meets contemporary social problems. There is a lot of concern about the validity of law. Law has binding force insofar as it is valid. An invalid law is not binding. There is no such thing as the binding force behind law. Many attempts have been made to find out where the binding force resides. Natural law lawyers have asserted that it lies in natural law. If asked why natural law is binding, the answer is a confession of faith. Natural law is said to be binding per se. Morality cannot be substituted in place of natural law, as law is treated as binding whether or not it is consistent with morality. The binding force of law is the will of the society. Realists approach to law is in a positive spirit. It is not concerned with any theory of justice or natural law. It demands a comprehensive approach and examination of all the factors which leads to decisions.

The Netherlands experience:

Among the first countries to legalize euthanasia after Nazi Germany was Netherlands. The ill effects of the law are exceeding the benefits. Care for the terminally ill had declined significantly since the euthanasia law came into effect. Cases of euthanasia have significantly increased since the law was brought into force and allegations that there have been thousands of cases of involuntary euthanasia and many killings of disabled newborn children have prompted an enquiry by its health ministry.
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The minister who was the chief architect of this law has conceded that the decision to legalize euthanasia may have been taken in haste. Enough protection and care was not provided to those who wanted to die a natural death. Palliative care was so inadequate in Netherlands, according to a doctor studying this practice that often people asked for euthanasia only out of fear.2 3 As observed above in public support for euthanasia is often due to fear of the dying process and fear of pain among others. Many of these arise from the complete failure of the medical profession to adequately use advances in the medical field.

Legitimacy of judicial activism:

As we know that the supreme court of India became the most powerful apex court in the world. Unlike the US Supreme Court or the House of Lords in England or the highest courts in Canada or Australia, the supreme court of India can review even constitutional amendments and strike it down if it undermines the basic structure of the constitution.4 The realist school of jurisprudence exploded the myth that the judges merely declared the preexisting law or interpreted it and asserted that the judges made the law. It stated that the law was what the courts said it was. This is known as legal scepticism and was really a reaction to Austins definition of law as a command of the political sovereign. According to Analytical jurisprudence a court merely found the law or merely interpreted the law. The Indian supreme court not only makes law, as understood in the sense of the realist jurisprudence, but actually has started legislating exactly in the way in which a legislature legislate. Judicial law-making in the realist sense is what the court does when it expends the meanings of the words personal liberty or due process of law or freedom of speech and expression. When the court held that a commercial speech was entitled to the protection of

http://www.dailymail.co.uk/news/article-1234295/Now-Dutch-turn-legalised-mercy-killing.html as accessed on August 31, 2011 3 http://www.dailymail.co.uk/news/article-1288217/Dutch-euthanasia-cases-surge-13-cent-year--promptinginquiry-law.html As accessed on August 31, 2011 4 Kesavananda bharati V. Kerala, AIR 1973 SC1460

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freedom of speech and expression5, it was judicial law making in the realistic sense. Similarly, the basic structure doctrine6 or the parameters for reviewing the presidents action under article 3567 or the wider meanings of the words life, liberty, and procedure established by law in article 21 of the constitution by the supreme court8are instances of judicial law making in realist sense. When, however, the court lays down guidelines for inter-country adoption,9 against sexual harassment of working women at the work-place,10 or for abolition of child labour,11 it is not judicial law-making in the realist sense but amounts to legislating like a legislature. In a strict sense there are instances of judicial excessivism that fly in the face of the doctrine of separation of powers. The doctrine of separation of powers envisages that the legislature should make law, the executive should execute it, and the judiciary should settle disputes in accordance with the existing law. In reality such watertight separation exists nowhere and is impracticable. Broadly it means that one organ of state should not perform a function that essentially belongs to another organ. While law making through interpretation and expansion of the meanings of open textured expressions such as due process of law, equal protection of law, or freedom of speech and expression is a legitimate judicial function, the making of an entirely new law, which t he supreme court has been doing through directions in the above-mentioned cases, is not a judicial function. True, the court has not supplanted but has merely supplemented the legislature through such directions. It has said in each case that it legislated through directions only because no law existed to deal with situations such as inter-country adoption or sexual harassment of working women and that its direction could be replaced by legislation of the legislature. Survey of the decisional law of the Indian Supreme Court has brought us to the conclusion that the court has clearly transcended the limits of the judicial function and has undertaken functions that really belonged to either the legislature or the executive. Its decisions clearly violated the limits that the doctrine of separation of powers had imposed on it.

5 6

Tata Press Ltd. V. Mahanagar Telephone Nigam (1995) 5 SCC 139 : AIR 1995 SC 2438. Kesavanand Bharati V. Kerala supra n. 1. 7 S.R.Bommai V. India supra n. 2. 8 Maneka Gandhi V. India, AIR 1978 SC 597 : (1978) 1 SCC 248. 9 Laxmi Kant Pandey V. India, AIR 1987 SC 232. 10 Visaka V. Rajasthan (1997) 6 SCC 241 : AIR 1997 SC 3011. 11 M.C.Mehta V. Tamil Nadu (1996) 6 SCC 756 : AIR 1997 SC 699.

SLS,PUNE |Prashant K Singh, Roll no-35, LLM-1st year

Admitting all these aspects, it is acknowledged that judicial activism is welcomed not only by individuals and social activist who take recourse to it but also by governments, political parties, civil servants, constitutional authorities such as the president, the election commission, the national human rights commission, statutory authorities including the tribunals, commissions, or regulatory bodies, and other political parties.

Conclusion:
Judicial activism is not an aberration. It is an essential aspect of the dynamics of a constitutional court. It is a counter-majoritarian check on democracy. Judicial activism, however, does not mean governance by the judiciary. It also must function within the limits of the judicial process. Within those limits, it performs the function of legitimizing or, more rarely, stigmatizing the actions of the other organs of government. The judiciary is the weakest organ of the state. It becomes strong only when people repose faith in it. Such faith of the people constitutes the legitimacy of the court and of judicial activism. Courts have to continuously strive to sustain their legitimacy. They do not have to bow to public pressure, rather they have to stand firm against any pressure. What sustains legitimacy of judicial activism is not its submission to populism but its capacity to withstand such pressure without sacrificing impartiality and objectivity. Courts must not only be fair, they must appear to be fair. Such inarticulate and diffused consensus about the impartiality and integrity of the judiciary is the source of the courts legitimacy. We also have to admit that judges are human beings as fallible as other human beings are. If we have good judges, we have bad judges too. Judges are bound to have their predilections and those predilections are bound to influence their judgements. The courts themselves have imposed restraints on their powers in order to minimize the chances of vagaries arising out of subjective lapses of prejudices of the judges. The courts are bound to follow precedents, they are bound to follow the decisions of the higher courts, and they are bound to follow certain rules of interpretation. Further, decisions of courts are reasoned and are often subject to appeal or review. These restrictions ensure that the lapses would be minimal. Criticism of the judgements of the courts would further act as corrective to objectionable judgements. Through such processes the courts sustain their legitimacy.
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Euthanasia leaves no opportunity to correct a diagnosis that is provided negligently or which proves incorrect over a period of time. Euthanasia could also be used against patients who do not have an immediate life threatening condition. This was seen in the Netherlands where originally euthanasia was for patients suffering from an incurable disease. However a court decision approved euthanasia for a suicidal patient suffering from depression and not any physical illness.12 The ill effects have already been seen as discussed above where the Netherlands has already instituted an inquiry into the law. Harm that can be caused by legalizing euthanasia far exceeds the little benefits that would be conferred. With the rapid commercialization of society, euthanasia can be misused for furthering certain interests. Assisting a person to die is considered by many to be unacceptable societal responses to human suffering. As compared to caring for terminally ill patients and providing all possible assistance a lethal dose of medication would provide a simplistic solution to complex dilemmas. The medical profession would be extended from the realm of cure to dispensing death for the problems that are endemic to the human condition. It is fundamentally wrong for a person to assist the suicide or take the life of another howsoever bonafide the motives. This proscription is fundamental to our social fabric. Such practices foster disrespect for human life and render it dispensable. Death is being intended to be turned into a problem that needs to be managed rather than an unchallengeable part of human life. Dignity for human life precludes those policies that allow it to be disposed of so easily.

12

W. Drozdiak Dutch seek freer mercy killing: court case could ease limits in assisted suicide, euthanasia, Washington Post October 29, 1993, A.29

SLS,PUNE |Prashant K Singh, Roll no-35, LLM-1st year

Bibliography:

SLS,PUNE |Prashant K Singh, Roll no-35, LLM-1st year