By Sean Kulkarni and Rina Shah

Supreme Court of India Recognizes Permissibility of “Passive Euthanasia” in Landmark Right to Die Case

On March 7, 2011, the Supreme Court of India dismissed a “right to die” petition brought by a surrogate of Aruna Shanbaug, whose tragic confrontation with an attacker in 1973 left the petitioner in a persistent vegetative state (“PVS”) in a Mumbai hospital where she continues to remain on life support.  Aruna Ramchandra Shanbaug v. Union of India & Ors., (2011) INSC 222.  Under limited circumstances, however, the Court acknowledged that Indian law may permit the withdrawal of life-sustaining care and treatment from a patient that is unable to consent to such a withdrawal.

The petition before the Court, raised on behalf of Shanbaug by the Indian writer and public interest advocate Pinky Virani, alleged that Shanbaug’s right to live under Article 21 of the Constitution included a corollary right to die.  The Court disagreed, stating that the right to live necessarily includes a fundamental right to live with human dignity, but the contours of Article 21 fall short of encompassing a right to die.  As a result, the Court acknowledged that the petition could have been dismissed summarily on the basis that the petitioner failed to demonstrate a violation of a fundamental right, as required by Article 32 of the Constitution.  “In view of the importance of the issues involved,” however, the Court chose to examine and opine on the merits of the case.

Following an emotional and harrowing description of the circumstances of the 1973 attack and a detailed medical summary regarding Shanbaug’s condition, the Court certified the following principal legal issues for review:

• Whether the withholding or withdrawal of life-sustaining therapies from a PVS-afflicted patient would be “permissible or ‘not unlawful;’”
• Whether a patient’s conscious and voluntary wish to reject life-sustaining treatments in the event of a future PVS affliction should be respected;
• In the event a patient has not previously expressed such a wish, whether the request of a family member or next of kin to withhold or withdraw life-sustaining treatments from a PVS-afflicted patient should be respected; and
• Whether the KEM Hospital staff in Mumbai (respondents in the case and petitioner’s principal caretakers), a third party advocate such as Ms. Virani, or some other party possessed the requisite authority to determine Shanbaug’s best wishes, where Shanbaug’s parents were deceased and she had been abandoned by her extended family following the 1973 assault.

Addressing the issues in turn, the Court first recognized that a competent adult may indeed choose not to consent to life-saving treatment, either through the form of a living will or through an appointed surrogate.  In the present case, however, the Court had no record of Shanbaug’s particular wishes with respect to life-sustaining treatment.

To address the permissibility of withdrawing life-sustaining medical care, the Court consulted an extensive range of decisions from other countries, including the United States, the United Kingdom, Belgium, Switzerland, the Netherlands, Austria, Italy, Germany and Canada.  Drawing from euthanasia-related laws and practices in these jurisdictions, the Court distinguished “active” euthanasia, such as the administration of a lethal injection or physician-assisted suicide, from “passive” euthanasia, in which proactive, life-sustaining treatments are withdrawn, thereby rendering a PVS-afflicted patient unable to survive in circumstances where an otherwise able individual could do so.

In Shanbaug, the Court broke significant ground by recognizing a family member or next of kin’s ability to choose passive euthanasia for a PVS-afflicted patient, subject in all cases to the Supreme Court’s approval in accordance with Article 226 of the Constitution.  The Court acknowledged Parliament’s proper role in crafting or amending India’s euthanasia law, but until such time as Parliament chooses to act, Shanbaug will serve as binding law.

Having recognized Shanbaug’s right to receive passive euthanasia at the request of an appropriate surrogate, the Court proceeded to deny the specific petition filed by Ms.Virani and decree that Shanbaug would continue to receive life-sustaining treatment at KEM Hospital.  The Court reached its conclusion after determining that the KEM Hospital staff had demonstrated sufficient devotion and care to the sustainment of Shanbaug’s livelihood over the course of her ailment, such that the hospital staff, rather than the petitioner’s surrogate, had effectively become Shanbaug’s next of kin for purposes of determining her options for end of life care.  As the KEM medical staff expressed a wish for Shanbaug to remain in their company and care, Ms. Virani’s petition was dismissed.

http://www.supremecourtofindia.nic.in/outtoday/wr1152009.pdf

State Bank of India Immune from Fraud Claim Under Foreign Sovereign Immunities Act (“FSIA”)

On April 21, 2009, Rajiv Gosain filed a fraud claim against the New York and Mumbai branches of State Bank of India (“SBI”) in connection with a series of commercial and contractual disputes with SBI and the liquidation by SBI in India of TechInvest India Private Ltd. (“TechInvest”), Gosain’s majority-owned industrial laminates company.  The U.S. District Court for the Southern District of New York dismissed the fraud claim on FSIA grounds, and the United States Court of Appeals for the Second Circuit affirmed.  Gosain v. State Bank of India, New York Branch, et al., 2011 U.S. App. LEXIS 1641 (2d Cir. 2011).

Gosain alleged that SBI and its officers engaged in a multiyear scheme of misrepresentation that substantially harmed Gosain’s business activities in both India and the United States.  According to Gosain, in 1991, SBI reneged on its contractual obligation to release him from a personal guaranty he provided in connection with an SBI loan to a New Jersey corporation from which Gosain had resigned as an officer and director.  When SBI sought to obtain a default judgment against Gosain in a New York State Court, Gosain claimed that SBI used a false address to effectuate service on him.  When SBI sought to have its New York State default judgment recognized by an Indian court in 1997, Gosain claimed that SBI allegedly misinformed the Indian court that he was an Indian citizen residing in India rather than a U.S. citizen residing in the United States.

By 1999, Gosain had inherited a 74% common stock interest in TechInvest from his father in India.  In connection with the share transfer, Gosain offered to replace his father’s personal guaranty on SBI’s existing loan to the company with his own personal guaranty.  Rather than accept his guaranty, Gosain alleged that SBI withdrew its financial support for TechInvest, froze the company’s bank accounts, and refused to allow TechInvest to seek alternative financing, thereby forcing the company into involuntary restructuring.  After valuing TechInvest’s assets at approximately US$ 1.6 million, SBI and the restructuring trustee auctioned off the company’s assets for the equivalent of US$ 90,000 (a 95% discount from valuation price).  Gosain alleged that a co-defendant had bribed a local SBI branch manager prior to the auction and obtained title to TechInvest’s land holdings shortly after conspiring with SBI to rig the auction to generate the low sale price.

SBI moved to dismiss Gosain’s complaint, asserting immunity as an agency or instrumentality of a foreign sovereign.  Conceding that SBI is eligible for FSIA protection as a majority-owned entity of the Indian Government, Gosain pursued his fraud claim under an exception to the FSIA’s immunity protection for actions based upon an act outside the United States in connection with commercial activity of the foreign state that causes a direct effect inside the United States.

The District Court found that SBI’s role as a secured creditor for TechInvest was sufficient to satisfy the commercial activity exception for FSIA purposes.  However, the District Court dismissed Gosain’s claim on the basis that SBI’s allegedly tortious commercial activity in India did not have a legally sufficient “direct” or “immediate” consequence or effect inside the United States.  While the alleged auction-rigging scheme caused a substantial devaluation of Gosain’s interest in TechInvest, the potential proceeds of the auction had in fact been deemed ineligible for repatriation to the United States pursuant to Indian regulatory requirements.  The Second Circuit stated that even if SBI had been specifically obligated to remit any surplus funds to Gosain inside the United States, the fact that the auction failed to yield any such proceeds signified that SBI had not necessarily breached an agreement to pay particular funds into a U.S. account.  As a result, although each legally significant act alleged in Gosain’s complaint occurred outside the United States, he did not allege that such acts had a direct or immediate effect on SBI’s actions inside the United States for purposes of invoking the FSIA exception.

Supreme Court of India Grants Injunction in Favor of Publisher of “Eenadu” Newspaper on its Trademark Infringement Claim Against Manufacturer of “Eenadu” Branded Incense Sticks

On appeal from the High Court of Andhra Pradesh, the Supreme Court of India has reinstated a trial court’s injunction against the manufacture and sale of incense sticks (agarbathis) bearing a proprietor’s “Eenadu” brand label.  T.V. Venogopal v. Ushodaya Enterprises Ltd. & Anr. (2011 INSC 211).  The case represented a partial victory for Eenadu Margadarshi Group (“EMG”), a well-known Andhra Pradesh media and publishing company, because EMG had sought to enjoin distribution of the incense sticks throughout India, not just within Andhra Pradesh as ordered by the Hyderabad City Judge and affirmed by the Supreme Court.  EMG had filed its trademark infringement claim under the Trade & Merchandise Marks Act, 1958, later superseded by the Trade Marks Act, 1999.

The Court found the label Eenadu — which means “today” or “daily” in Telegu — had become synonymous in Andhra Pradesh with the daily “Eenadu” newspaper and “Eenadu” television channel (popularly known as “ETV”), each published or broadcast, respectively, by EMG.  As a result, the Court determined that appellant, a Bangalore-based sole proprietor who had registered an “Eenadu” trademark for his incense business in 1993, impermissibly used the profitable brand name that EMG had carefully built amongst television and media consumers in Andhra Pradesh.

Writing for the Court, Justice Dalveer Bhandari provided a lengthy and detailed overview of influential trademark infringement decisions in India, the United Kingdom and the United States involving a range of multinational automotive and household consumer brands.  The case featured a broad discussion of the concepts of consumer “confusion” and brand “dilution” that might result from a business owner’s efforts to adapt or replicate a well-established global or regional brand for purposes of promoting his or her own products in a distinctive line of business (e.g.. “Honda” pressure cookers or “Benz” undergarments).

The Court recognized that “eenadu’s” generic, everyday meaning (“today” in Telegu, or “this land” in Kannada, Malayalam and Tamil) could serve to distinguish the brand name from corporate labels such as “Volvo” or “Harrod’s” that tend to occupy a single, unambiguous meaning in the minds of consumers.  Indeed, the Court acknowledged that “eenadu” was a plausible descriptive label for appellant’s product because the incense sticks were designed for use by devotees performing daily puja offerings.  “Eenadu” had in fact been used in the marketplace to describe everyday products such as “eenadu turmeric” or “eenadu tobacco”, or popular culture staples such as the “Eenadu Feature Film” or the well-known Kannada song of “Eenadu Kannada, Eeneeru Kannada” (This Day is Kannada; This Water is Kannada).

EMG, however, introduced evidence that appellant had attempted to register the name “Eenadu” for additional classes of goods which the appellant had no apparent capability of producing, and had adopted the very same artistic script and font for the “Eenadu” label as used by EMG in its brand logo.  The Court also noted as indicative the 90% decrease in profits suffered by appellant following imposition of the trial court’s injunction.  On review of such evidence, the Court determined that appellant’s marketing scheme “was calculated to lead purchasers to believe that its agarbathies are in fact products of the newspaper company…[i]n such a situation, it is the bounden duty of the court not only to protect the goodwill and reputation of the Andhra company but also to protect the interest of the consumers.  The consumers have to be saved from such fraudulent and deceitful conduct.”

http://judis.nic.in/supremecourt/imgs.aspx

An Update on 2G Spectrum Licensing Proceedings before the Supreme Court of India

Justices G.S. Singhvi and A.K. Ganguly of the Supreme Court of India have been closely monitoring developments in the central government’s ongoing investigation into the 2G spectrum licensing scandal that continue to roil India’s political system since reports of the telecommunications scandal surfaced last November.

Upon reviewing a status report from the Central Bureau of Investigation (CBI) and the Enforcement Directive (ED), Justices Singhvi and Ganguly confirmed that there “seem[ed] to be a violation of several laws”, including documentary and procedural violations in the public tender process for the licenses, apparently conducted primarily by Andimuthu Raja, former cabinet minister for communication and information technology.

A report submitted by the Comptroller and Auditor General (CAG) estimated the Indian government lost Rs. 176,379 crore (approximately US$ 40 billion) in 2008 when the government issued the 2G licenses on a “first come, first served” basis to national telecom firms at substantially undervalued rates.  The CBI is investigating whether some or all of the 122 licenses issued on January 11, 2008 were distributed to select firms that had been tipped off as to a series of unexpected and last-minute changes to the licensing tender process rules that resulted in the exclusion of a number of competitive, high-value bids.  Firms which successfully received licenses are alleged to have immediately resold the licenses at substantially higher rates to foreign telecom firms that desired to expand their respective market shares in the world’s second largest market for mobile subscribers.

The scandal came before the Supreme Court by a private complaint for prosecution of Raja filed by Janata Party head Subramanian Swamy under § 190 of the Criminal Procedure Code.  In his March 17, 2011 testimony, ED Senior Counsel K.K. Venugopal reported to the Supreme Court that large-scale violations of the Foreign Exchange Management Act and the Prevention of Money Laundering Act had taken place during the license allocation process.  The recent joint CBI/ED status report is believed to have suggested that the scheme involved illegal money transfers spread over a number of foreign jurisdictions with cooperation by several foreign-owned banks.

The Central Bureau of Investigation (CBI) has told the Supreme Court that it will file chargesheets against former cabinet minister Raja and what it described as two unnamed “beneficiary” companies.  The Supreme Court has indicated that a Special Court should be set up in order to try the various parties accused of taking part in the 2G licensing scheme. (Sources: United News of India; Legal India; Deccan Chronicle).

Case notes written by Sean G. Kulkarni, except for the Aruna Ramchandra Shanbaug euthanasia case, which was written by Rina Shah.  Sean may be reached at sean.g.kulkarni@gmail.com, and Rina may be reached at rinashah85@gmail.com.