AARUSHI DHASMANAversusUNION OF INDIA AND OTHERS

                      [2013] 5 S.C.R. 371


                    AARUSHI DHASMANA                               A
                                v.
               UNION OF INDIA AND OTHERS
             (Writ Petition (Civil) No.232 of 2012)
                        APRIL 10, 2013
                                                                    B
     [K.S. RADHAKRISHNAN AND DIPAK MIS~, JJ.]

           Human rights - Craniopagus Twins (CTs), two minor girls
   'S' and 'F' - Parental consent not forthcoming either for
  investigation or for surgical operation - Duty of the Court - C
  Right to life - Right to bodily integrity - Wardship Jurisdiction
  ....:. Exercise of - Application of "least detrimental test" - Held:
   The Court has to adopt a balancing exercise - First and
   foremost consideration of the Court is "welfare of the children",
   which overrides the views or opinions of the parents - Parents D
   of 'S' and 'F' are against carrying on any investigation as well
   as surgical operation but, 'S' and 'F' being ward of the Court,
   the Court has got a responsibility to find out whether it is
  possible to save both and if not, at least one, for which
, investigations are necessary - Intrinsic value of both 'S' and E
   'F' is equal, but when medical investigation is carried on, a
   balance sheet has to be drawn up of the advantages and
  disadvantages which flow from the performance or the non-
  performance of a surgical treatment - If the balance shifts
   heavily in favour of one, that has to be accepted, otherwise, F
   both will sink and die - Proper medical inv(3stigation could
   not be carried out by the medical team of Al/MS, mainly,
   because of the parental opposition - Medical team of A/IMS
   could not come out with a solution, they were apprehensive
   of the fact that the investigations had their own risk and had
   also opined that detailed medical treatment would be possible G
   only after thorough investigation - No positive direction can
  be given in the absence of an expert medical opinion
  indicating that either of 'S' and 'F' can be· saved due to surgical
                               371                                  H
    372      SUPREME COURT REPORTS               [2013] 5 S.C.R.


A   operation or at feast one - Directions issued considering the
    facts and circumstances of this case - Constitution of India,
    1950 - Article 21.

         Craniopagus Twins (CTs) are conjoined twins fused
    at the cranium. The Supreme Court, in the instant writ
8
    petition, was concerned with the fate of Saba and Farha,
    Craniopagus Twins (CTs) both female aged 15 years, and
    their survival, unless subjected to surgical separation.

       The AllMS Medical Team stated in its report about the
C risk involved in the operation to separate Saba and Farah
  which according to the Medical Team can be elaborated
  only after detailed investigations, at AllMS, added to that
  it has been stated that the investigations have their own
  risks. The State of Bihar and the Central Government,
o however, have extended their fullest support in meeting
  the expenses for the surgical treatment. AllMS have also
  expressed opinion that they would carry out the
  investigations but for the unwillingness of the parents j
  and the family members.
E
       Disposing of the writ petition, the Court

        HELD: 1. Medical law: Barring a few exceptions, as
    a general rule, the conduct of investigations and
    performance of medical operation on a person, without
F   his or her consent is unlawful. This Court, in this case,
    is however, concerned with two minor girls, conjoint
    twins, faced with a situation where their parental consent
    is not forthcoming either for investigation or for the
    surgical operation. [Para 10] [380-D-E, F]
G
          F. v. West Berkshire Health Authority (Mental Health Act
    Commission intervening) [1989] 2 All E.R. 545 - referred to.

         2. Right to life: Right to life is guaranteed under
    Article 21 of the Constitution of India, so also the right to
H
     AARUSHI DHASMANA v. UNION OF INDIA                  373


bodily integrity. In the absence of any medical report, it A
cannot be said as to whether both Saba and Farah could
be saved or either of them. There can also be conflict of
interests between the CTs that is Saba and Farha, in such
situation the Court has to adopt a balancing exercise to
find.out the least detrimental alternative. This Court is not B
in a position to undertake that exercise in the instant
case, because there is no medical report stating that if
CTs are subjected to surgical operation, one of them
might survive. If there is an authentic medical report that
the life of one could be saved, by surgical operation, c
otherwise both would die, this Court would have applied
the "least detrimental test" and saved the life of one, even
if parents are not agreeable to that course. Every life has
an equal inherent value which is recognised by Article 21
of the Constitution and the Court is duty bound fo save 0
that life. [Paras 11, 12] [380-G-H; 381-B-D]
3. Parents consent and duty of the Court:

     3.1. In the instant case, both, parents, as well as the
brother are against shifting Saba and Farah to AllMS, New       E
Delhi for further investigation and also for further surgical
operation. They believe, the same is risky and both might
not survive. However, Saba and Farah are now wards of
this Court and this Court is exercising Wardship
Jurisdiction as well. The first and foremost consideration      F
of the Court is "welfare of the children", which overrides
the views or opinions of the parents. [Paras 13, 15] [381-
D-E; 382-E-F]

      3.2. In the instant case, since Saba and Farah's
parents are against carrying on any investigation as well       G
as surgical operation but, being Saba and Farah are
ward of this Court, this Court has got a responsibility to
find out whether it is possible to save both and if not, at
least one, for which investigations are necessary. Each
life. has an inherent value in itself and the right to life     H
   374     SUPREME COURT REPORTS               [2013) 5 S.C.R.


A guaranteed under Article 21 of the Constitution is of
  general nature to apply to both Saba and Farah. Intrinsic
  value of both Saba and Farah is equal, but when medical
  investigation is carried on, a balance sheet has to be
  drawn up of the advantages and disadvantages which
B flow from· the performance or the non-performance of a
  surgical treatment. If the balance shifts heavily in favour
  of one, that has to be accepted, otherwise, both will sink
  and die. [Paras 16, 17) [383-G-H; 384-A-B, C-0)

       Gillick v. West Norfolk and. Wisbech Area Health
C Authority (1985) 3 All E.R.; Re Z (a minor) (freedom of
  publication) [1995) 4 All ER 961 and Re B (a minor)
  (wardship: medical treatment) [1981) (1990 3 ALL E.R. 927
  - referred to.

D Lack of Medical Report

       4.1. Proper medical investigation could not be carried
  out by the medical team of AllMS, mainly, because of the
  parental opposition. What they wanted is financial help
E for the maintenance of both Saba and Farah. Financial
  help, of course, has to be extended to them since parents
  are coming from poor circumstances, but when the lives
  of both are stake, can one not save the life of at least one.
  Medical team of AllMS could not come out with a
  solution, they were apprehensive of the fact that the
F investigations had their own risk and had also opined that
  detailed medical treatment would be possible only after
  thorough investigation. [Para 18) [384-D-F]

       4.2. Nobody is concerned with the pain and agony
G CTs are undergoing, not even the parents, what they want
  is financial help as well as palliative care. No positive
  direction can be given in the absence of an expert
  medical op.inion indicating that either of them can be
  saved due to surgical operation or at least one. Directions
H issued considering the facts and circumstances of this
     AARUSHI DHASMANA v. UNION OF INDIA                          375

case. [Para 19] [384-G-H; 385-A]                                       A

                      Case Law Reference:
 [1989] 2 All E.R. 545             referred to         Para 10

 (1985) 3 All E.R.                 referred to         Para 13         B
. [1995] 4 All ER 961              referred to         Para 14

 [1981] (1990 3 ALL E.R. 927 referred to               Para 15

    CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
232 of 2012.                                                           C

    Under Article 32 of the Constitution of India.
                                                            ..

    S.K. Chauhan, Mehul Milind Gupta, R.P. Gupta, Suman
Gupta for the Appellant.                        ·;
                                                                       01
    · Siddharth Luthra, Indira Jaisingh, ASGs, Krishna Kumar,
Anita Shenoy, Gargi Khanna, Sushma Suri, Devika S~hga!,
Sonam Anand, Rohit Sharma, Gopal Singh, Manish Kumar,
Mehmood Pracha, Sumit Babbar for the Respondents.
                                                                       E
     The Judgment of the Court was delivered by

    K.S. RADHAKRISHNAN, J. 1. We are, in this case,
concerned with the fate of Saba and Farha, Craniopagus Twins
(CTs)' and their survival, unless subjected to surgical
separation.           ·                       · ''                     F

     2. Saba and Farha, CTs, both female, are minors,
togetherness, of course, will not bring joy to them or to their
parents, to the family members or the people at large who
happen to see them or heard about them. The doors of this              G
Court have been knocked by a good-Samaritan and sirice this
Court has a fundamental duty"'t~k after'the interest of minor
children, especially whi:m'ftiey are CTs, fighting for their lives.
We spent sleeples.o/1'iights to find out a solution. Seldom society
cares or knows the mental and psychological trauma, in such            H
   376      SUPREME COURT REPORTS                  [2013] 5 S.C.R.


A situations, Judges undergo, especially, when they are called
  upon to decide an issue touching human life, either to save or
  take away.

        3. We are in this case concerned with lives of two minor
  girls, placed in an unfortunate, calamitous anc:! infelicitous
8
  situation. CTs are conjoined twins who are fused at the
  cramium. Medical science says that at least 25% of the CTs
  may survive and can be considered for a surgical separation,
  especially due to advances in medicine, including brain
  imaging, neuro-anaesthesia and neuro surgical techniques, but
C risk is always there.

       4. We were informed, both Saba and Farha had earlier
  attended to by Dr. Benjmin Carson, a U.S. Specialist who had
  noticed that they shared a vital blood vessel in the brain and
D that Farha had two kidneys while Saba had none. Earlier also
  medical experts had ruled that separating Saba and Farha
  would require 5 or 6 operations over nine months, but each
  stage held a one-in-five chance that either of the girls might die.
  Consequently, the family had decided to go against any
E operation, even though it was reported that crown prince of Abu
  Dhabi, Sheikh Mohammed bin Zayed, offered to meet the entire
  medical expenses.

       5. We heard the matter on 30.7.2012 and directed the
  Chief Secretary of Bihar to make arrangements to bring CTs
F to AllMS, New Delhi by an Air Ambulance. Direction was also
  given to constitute a medical team to examine them and to take
  up further follow up action. Arrangements were also made to
  take parents along with them at the expenses of the State for
  their treatment. The parents were, however, not agreeable to
G that arrangement but only wanted financial assistance to look
  after CTs.

      6. The AllMS medical team, New Delhi in compliance of
  this Court order dated 21.8.2012 reached Patna on
H 21.10.2012 to examine CTs. After examining, they submitted
      AARUSHI DHASMANA v. UNION OF INDIA                    377
           [K.S. RADHAKRISHNAN, J.]
the following report dated 31st October, 2012 before this Court,    A
which reads as under:

    "As per the Supreme Court orders in Writ Petition (Civil)
    No.232 of 2012 and instructions of the AllMS
    administration, the following doctors team from AllMS
                                                                    8
    visited Patna, Bihar on 21.10.2012 to examine the conjoint
    twins Saba and Farah both female age 15 years D/o
    Rabia Khatoon.

      1.    Prof. M.V. Padma, Professor of Neurology
                                                                    c
      2.    Prof. Arvind Chaturvedi, Professor of Neuro-
            anaesthesia

      3.    Dr. S.K. Kale, Additional Professor of Neuro-
            surgery
                                                                    D
            After discussion with Mr. S. Luthra, Additional
            Solicitor General, the report sub~itted earlier is
            elaborated as under:

            According to the brother of the patients one of the     E
            twins does not have kidneys, and the twins between
            their brain have one common sagittal sinus
            (biggest vein). Th~re is no evidence/investigation
            to either prove or disprove these statements made
            by the brother.
                                                                    F
      1.    The risk involved in the operation to separate the
            conjoint twins (Craniopaguys) Saba and Farha
            cannot be elaborated without investigations. The
            statements made by the brother regarding kidneys
            and the sagittal sinus also need extensive              G
            investigations.

      2.    The investigations will have to include CT scan, MRI,
            MRI Angiography, 4Vessel IA DSA and
            investigations for other organ functions, and can be
                                                                    H
     378          SUPREME COURT REPORTS                  [2013] 5 S.C.R.

A                   performed by experts at AllMS.

            3.      These investigations have their own risks.

            4.      The parents and the brother are not willing to take
                    any risk including the risk involved in investigations.
B
            5.      A detailed medical report is not possible without
                    investigations.

                    The brother and the parents handed over a written
                    submission requesting for financial help and
c                   palliative care. This submission was attached in the
                    earlier report.

           Signature                 Signature               Signature
      Prof. M.V. Padma          Prof. A. Chaturvedi         Dr. S.S. Kale
D     Prof. of Neurology        Prof. of Neuro-            Addi. Prof.
      AllMS, New Delhi          anaesthesia, AllMS           Neuro-
                                New Delhi,                    surgery
                                                             AllMS, New
                                                             Delhi"
E
          7. We find when the medical team of AllMS visited to
     Patna on 21.10.2012 to examine the CTs they were served with
     a letter by the mother of the CTs, Rabia Khatoon. The letter
     reads as follows:

F          ''To
           The Enquiry Committee (Medical Team}
           AllMS,
           New Delhi.
G       Sub: Help of monthly pension for conjoint sisters
     Sabaa and Farha -reg.

           Sir,

                 It is requested that we do not want our daughters to
.H         get operated because operation is very risky and we do
     AARUSHI DHASMANA v. UNION OF INDIA                     379 -
          [K.S. RADHAKRISHNAN, J.]
    not want to take risk. There are lot of expenses involved A
    for my daughters - food and medicines etc. I request that
    monetary help of Rs.8000/- may be given to my each
    daughter. The financial condition of my home is not good.
    I have big family of ten members. We need help as we
    don't have any means of livelihood.                       B

            I am sure that that you will consider my request
    seriously. I will forever remain indebted to you. My one son
    has been looking after both the sisters & family by
    borrowing money as there is no mean of livelihood. He is C
    still unemployed. He may be helped in. getting employment
    so that both the sisters are taken care of.
                                                Yours faithfully,
                                                          · Sd/-
                                              (Rabia Kha'toon)      o
                               Moh. Samanpura, Raja Bazaar,
                          P .0: BP College, PS Shastri' Nagar,
                                          Distt. Patna~800014
                                           Mob. 9308566555"
     8. Above facts would clearly indicate that the medical team    E
of AllMS could not make any proper investigation of the CTs.
They opined that the investigation would involve CT Scan, MTI,
MRI angiography, 4Vessel IA DSA etc. which could_ be
performed only 'at AllMS. They also expressed the view that
those investigations have their own ·risks and that since the       F
parents and brother were not willing to take any risk, including
the risks involved in the investigation, it would not b~ possible
to make detailed medical report without proper investigations
of the CTs.

     9. The case of Saba and Farha give rise to various G
questions about the rights of the minors, their right to life, their
inter-se rights, inherent value of lives, right to bodily integrity,
balancing of interests, best interest standards, parents views,
courts' duty, doctors duty etc. The questions raised above are ·
inter-connected and inter-related and have their roots in H
    380      SUPREME COURT REPORTS                   [2013] 5 S.C.R


A   medical law, family law, criminal law and human rights law.
    Should we go for the best interest of Saba and Farah, or either
    of them? Can a Court override the wishes of the parents when
    we apply the best interest standard for saving the life of at least
    one?
B
    Medical Law

          10. The AllMS Medical Team has stated in its report dated
    21.10.2012 about the risk involved in the operation to separate
    Saba and Farah which according to the Medical Team can be
C   elaborated only after detailed investigations, at AllMS, added
    to that it has been stated that the investigations have their own
    risks. The State of Bihar and the Central Government, however,
    have extended their fullest support in meeting the expenses for
    the surgical treatment. AllMS have also expressed opinion that
D   they would carry out the investigations but for the unwillingness
    of the parents and the family members. Barring a few
    exceptions, as a general rule, the conduct of investigations and
    performance of medical operation on a person, without his or
    her consent is unlawful. In F. v. West Berkshire Health Authority
E   (Mental Health Act Commission intervening) [1989] 2 All E.R.
    545 at 564 Lord Goff while adopting the words of Cardozo has
    stated "Every human being of adult years and sound mind has
    a right to determine what snall be done with his own body". We
    are, in this case, however, concerned with two minor girls,
F   conjoint twins, faced with a situation where their parental
    consent is not forthcoming either for investigation or for the
    surgical operation.

    Right to Life:

G        11. Right to life is guaranteed under Article 21 of the
    Constitution of tndia, so also the right to bodily integrity. We are,
    in this case, not in a position to say, in the absence of any
    medical report, as to whether both Saba and Farah could be
    saved or either of them. Let us pose the following questions to ·
H   ourselves: Is it in Saba's best interest that she be separated
      AARUSHI DHASMANA v. UNION OF !NOIA                       381
           [K.S. RADHAKRISHNAN, J.]
from Farah? Is it Farah's best interest that she be separated          A
from Saba? Both Saba and Farah are dear to us, but in a
situation where both in the absence of surgical separation might
die, and in case of a surgical operation, one would survive, is
there not a duty on the Court to save at least one.
                                                                       B
     12. There can also be conflict of interests between the CTs
that is Saba and Farha, in such situation the Court has to adopt
a balancing exercise to find out the least detrimental alternative.
We are not in a position to undertake that exercise in the instant
case, because there is no medical report before us stating that
if CTs are subjected to surgical operation, one of them might          C
survive. If there is an authentic medical report before us that
the life of one could be saved, due surgical operation, otherwise
both would die, we would have applied the "least detrimental
test" and saved the life of one, even if parents are not
agreeable to that course. Every life has an equal inherent value       D
which is recognised by Article 21 of the Constitution and the
Court is duty bound to save that life.

Parents consent and duty of the Court
                                                                       D
      13. Both, parents, as well as the brother are against shifting
Saba and Farah to AllMS, New Delhi for further investigation
and also for further surgical operation. They believe, the same
is risky and both might not survive. In Gillick v. West Norfolk
and Wisbech Area Health Authority (1985) 3 All E.R. The Court
                                                                       E
held that "the common law has never treated the parental rights
and powers as sovereign or beyond review or control.

     14. We may also refer to an off-repeated passage of
Bingham MR in Re Z (a minor) (freedom of publication) (1995]
4 All ER 961 at 986:                                                   F

     "I would for my part accept without reservation that the
     decision of a devoted and responsible parent should be
     treated with respect. It should certainly not be disregarded
     or lightly set aside. But the role of the court is to exercise
                                                                       G
    382      SUPREME COURT REPORTS                    [2013] 5 S.C.R.

A         an .independent and objective judgment. If that judgment
          is in accord with that of the devot~d and responsible
          parent, well and good. If it is not, then it is the duty of the
          court, after giving due weight to the view of the devoted
          and responsible parent, to give effect to .its own judgment.
B         That is what it is there for. Its judgment may of course be
          wrong. So may that of the parent. But once the jurisdiction
          of the court is invoked its clear duty is to reach and express
          the best judgment it can.

        That is the law. That is what governs my decision. That is
c     . what I am desperately trying to do. I do not discern any very
        significant difference between the law, as set out above,
        and the Archbishop's fifth overarching moral consideration
        which he expresses in these terms:
D         "Respect for the natural authority of parents requires that
          the courts override the· rights"of parents only when there is
          clear evidence that they are acting contrary to what is
          strictly owing to their children."         '

E       15. Saba and Farah are now wards of this Court and we
  are exercising Wardship Jurisdiction as well. Law of this land
  has always recognised the rights of parent~ with .their wards/
  minors and first and foremost consideration of the Court is
  ''welfare of the children", which overrides the views or opinions
F of the parents .. In Re B (a minor) (wards,hip: medical treatment)
  [1981) (1990 3 ALL E.R. 927 was a case where a child was
  born suffering from Oown's Syndrome and an intestinal
  blockage, required an operation to relieve the obstruction if she
  was to live more than a few days. Doctor opined that if the
  operations were performed, the child might .die within a few
G months but it was probable that her life expectancy would be
  20 to 30 years. Parents, though, it would be kinder to allow her
  to die rather than live as a physically and mentally disabled
  -person, consequently, refused to consent for the operation. The
   local· authority made the child a ward of court and when a
H surgeon decided that the wishes of the parents should be
     AARUSHI DHASMANA v. UNION OF INDIA                       383
          [K.S. RADHAKRISHNAN, J.]
respected, they sought an order authorising the operation to        A
be performed by other named surgeon. Lord Templeman said:

     "Counsel fot the parents has submitted·very movingly ....
     That this is a case where nature has made its own
     arrangements to terminate a life which would be fruitful and 8
     nature should not be interfered with. He has also submitted
     that in this kind of decision the views of responsible and
      caring parents, as these are, should be respected, and that
     their decision that it is better for the child to be allowed to
      die sho.Lild be respected. Fortunately or unfortunately, in
     this particular case the Clecision no longer lies with. the C
    · parents or with the doctors, but lies with the court. 1t is a
      decision which of course must be taken in the light ofthe
      evidence and views expressed by the parents and the
      doctors, but at the end of the day it devplves on this court
      in this particular instance to decide .... .' 1990 (3) All"E.R. D
      927 at 929.

    Lord· Dunn also said:

    "I have great sympathy for the parents in the agonising E
    decision to which they came. As they put it themselves:·
    "God or nature has given the child a way out." But the child
    now being a ward of court, although due weight must be
    given to the decision of the parents which everybody
    accepts was·an entirely responsible·one tliing what they
    considered was the best, the fact of the matter is that this F
    court now has to make the decision. It cannot hid behind
    the decision of the parents or the decision of the doctors;
    and in making the decision of this court'1S. first and
    paramount consideration is the welfare of this unhappy little
    baby." {1990) 3 All EOR~ 9~7 at 929:                          G

    16. We are faced with the same situation in this case;sinee ·
Saba and Farah's parents are against c·arrying on any
investigation as well as surgical operation but, being Saba and
Farah are ward of this Court, this Court has got a responsibility H
    384      SUPREME COURT REPORTS                    [2013) 5 S.C.R.


A   to find out whether it is possible to save both and if not, at least
    one, for which investigations are necessary.

          17. We are adopting such standards because each life
    has an inherent value in itself and the right to life guaranteed
    under Article 21 of the Constitution is of general nature to apply
8
    to both Saba and Farah. But what about the inherent value of
    life of one, who can survive due to surgical separation. Is it not
    necessary to save inherent value of the ward who may survive
    not the other. Intrinsic value of both Saba and Farah is equal,
    but when medical investigation is carried on, a balance sheet
C   has to be drawn up of the advantages and disadvantages which
    flow from the performance or the non-performance of a surgical
    treatment. If the balance shifts heavily in favour of one, that has
    to be accepted, otherwise, both will sink and die.

D   Lack of Medical Report

         18. We are, in this case, concerned with a situation where
    a proper medical investigation could not be carried out by the
    medical team of AllMS, mainly, because of the parental
E   opposition. What they wanted is financial help for the
    maintenance of both Saba and Farah. Financial help, of course,
    has to be extended to them since parents are coming from poor
    circumstances, but when the lives of both are stake, ~n we not
    save the life of at least one. Medical team of AllMS could not
    come out with a solution, as already indicated, they were
F   apprehensive of the fact that the investigations had their own
    risk and had also opined. that detailed medical treatment would
    be possible only after thorough investigation.

         19. We are sorry to note that nobody is concerned with the
G   pain and agony CTs are undergoing, not even the parents, what
    they want is financial help as well as palliative care. No positive
    direction can be given in the absence of an expert medical
    opinion indicating that either of them can be saved due to
    surgical operation or at least one. Considering the facts and
H
     AARUSHI DHASMANA v. UNION OF INDIA                     385
          [K.S. RADHAKRISHNAN, J.]
circumstances of this case, we are, however, inclined to give     A
the following directions:

     1.    Civil Surgeon, Medical Centre, Patna should
           periodically carry on the medical examination of
           both Saba and Farah and send periodical reports,       8
           at least quarterly to AllMS and AllMS would make
           their own suggestion based on the investigation
           which is being conducted by the medical team from
           Patna.

     2.    The State of 8ihar is directed to meet the complete    c
           medical expenses for the treatment of both Saba
           and Farah and also would pay a consolidated
           amount of Rs.5,000/- monthly to look after both
           Saba and Farah.
                                                                  D
     3.    CTscondition as well as the treatment given to them.
           be reported to this Court eve,ry six months.

     4.    The State of ·8ihar is directed to move this Court
           for 'further directions, so that better and more
           scientific and sophisticated treatment could be        E
           extended to Saba and Farah.

    With these directions, this writ petition is disposed of.

8.8.8.                              Writ Petition disposed of.