Vicissitudes in the Right of Congenital Twins: a Quivering Dalliance Of Justice & Rights

Abstract

The right to life is the most sacrosanct right guaranteed to the people by the Constitution of India, which is not assailable by any entity save by the procedure established by law. Technological and medical advancements have posed new questions concerning the right to life, including the right to health, privacy, and dignity. The interface between these rights poses serious questions w.r.t. congenital twins wherein the court is called upon to decide whether to kill one child to ensure the health and well-being of another. In the case of Aarushi Dhasmana v. Union of India, 2013 (5) SCALE 536, the apex court had an opportunity to deal with these questions, which, however, did not do so due to the non-availability of medical records. Considering the questions raised in this case, the author tries to go into the nature and extent of the right to life under the Indian Constitution, as well as the concepts of justice (not the rule of law), to lay down some general principles to govern cases involving competing rights to life of the two babies. The author discusses theories of justice, including utilitarianism and liberalism, and thereby reconciles these theories to conclude what needs to be done in such cases. For this, support is drawn from the apex court’s decision relating to euthanasia, which also involves the lawful killing of another.