SHRITI AAYUSHI, K.L.E. SOCIETY'S LAW COLLEGE, BANGALORE
KAVERI CHAUHAN, UNIVERSITY OF LAW
EDITOR: Vaibhavee Jaipuriar, Sharda University, Greater Noida
Every individual endeavor to live a ‘good life’ and desire to die with dignity, a ‘good death’, or an ‘easy death’. The right to live does not mean just ‘existence’, without the fullest opportunity to grow and develop one’s personality and behavior but with dignity. Euthanasia has been practiced in most countries because of the fact that the patient's suffering ought to be prioritized over the patient life. The quality of life shall be taken care of in critically ill patients. The debate is all about the sanctity of life and the right of self-determination and the dignity of individuals.
The concept of euthanasia revolves around the question that the responsibility to protect one’s life or prolong life as long as possible, even if the quality of life is very poor is justifiable? This ethical dilemma has been a topic of debate among the policy-makers, physicians, ill-patient, and the public or one should just wait for a natural death? The other forgotten aspect of this debate is that in India, where the health care facilities are not provided by Government rather the patient has to pay from his pocket in most of the cases , it results in a considerable financial burden on poor households, often pushing them deeper into poverty.
The Law of a state is the conscience of its people. And the people’s conscience is governed by some principles such as social, ethical, and religious principles. India is a country with diverse cultures, traditions, and religions. There are different aspects according to these principles. The Mahabharata and the Ramayana are also full of instances of religious suicides. Most Hindus believe that unnatural death would damage the Karma of both the doctor and the patient. Whereas on the other side, some Hindus argue that helping to end a painful life would be considered a good deed.
FORMS OF EUTHANASIA:
There are mainly five forms of euthanasia - Active Euthanasia, Passive Euthanasia, Voluntary Euthanasia, Involuntary Euthanasia, and Assisted Suicide.
Active Euthanasia - In this type of euthanasia, the death of a patient is caused directly and deliberately. It is brought into effect by an act. For example- giving a patient an overdose of medicines.
Passive Euthanasia - In this type of euthanasia the patient is not provided with the life-sustaining treatment given by the doctors. This includes removal of life support machines, or feeding tubes, not carrying out any operation to save the lives or provide any kind of drug to prolong the period of life. It is considered that the cause for the death of the patient is because of underlying conditions. It is legal for the doctors to withdraw the life support given to the patients who are in the permanent vegetative state in a landmark judgment.
Voluntary Euthanasia- This type of euthanasia is carried out at the request of the patient who is suffering from an incurable disease. The main essence is the consent given by the patients. The consent should be free from any kind of coercion. If the patient suffering from prolonged disease wants to end his life, then only euthanasia can be done. The choice of voluntary euthanasia is based on self-determination.
Involuntary Euthanasia - In this form of euthanasia, the choice to end the life of the patient is taken by the other person for his benefit. The only underlying reason behind this is that the patient is in an irreversible state and cannot make the choice for the same.
Assisted Suicide or Helped Suicide - The doctors or the medical practitioners put an end to the patient's life by giving them deadly medications. Popularly known as "Doctor-Assisted Suicide. "
CONSTITUTIONAL AND LEGAL PERSPECTIVE OF EUTHANASIA:
As society evolves, so must constitutional doctrine. The Institutions which the Constitution has created must adapt flexibly to meet the challenges in a rapidly growing knowledge economy. Above all, constitutional interpretation is but a process in achieving justice, liberty and dignity to every citizen.
The interpretation of the Constitution cannot be frozen by its original understanding. The Constitution has evolved and must continuously evolve to meet the aspirations and challenges of the present and the future. This is particularly of relevance in an age where technology reshapes our fundamental understanding of information, knowledge and human relationships that was unknown even in the recent past.
· Right to Life-
Life within the meaning of Article 21 is not confined to the integrity of the physical body. The right comprehends one’s being in its fullest sense. That which facilitates the fulfillment of life is as much within the protection of the guarantee of life.
Article 21 not only guarantees the right to life but also provides that state should make provision for the health care to all its citizens. This can be depicted from the following provisions:-
1. Article 21- Protection of life and liberty
2. Article 14- Equality before law
3. Article 39(e)- Directive Principle of State Policy which suggests that the health and strength of workers, men and women, and the tender age of children are not abused.
4. Article 47- Directive Principle of State Policy which provides that it is the duty of the State to raise the level of nutrition and the standard of living and to improve public health.
Pt. Parmanand Katara v. Union of India, the Supreme Court of India ruled that every doctor whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life.
Right to die is not a fundamental right under Article 21 of the Constitution. From the judgment of Bombay High Court in State of Maharashtra v. Maruty Sripati Dubal to the case of Aruna Ramchandra Shanbaugh v. Union of India, concept of euthanasia has been evolved which will be covered under the heading of case laws.
· Section 299, Indian Penal Code, 1860-
Causing any such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Hence, in India Euthanasia is illicit. There is involvement of intention of causing death on the part of doctor to kill the patient.. Only the passive euthanasia, if it is voluntary would create no liability. For the guidelines on passive euthanasia, Aruna Shanbaug’s case has to be referred.
· Exception 5 to Section 300-
This provision deals with death with consent. For the consent, there are two requirements that the person should be of sound mind and above the age of 18 years and he should be willing to takes the risk. When there is valid consent of the deceased then this provision would be attracted and the doctor would be punishes under Section 304 of the Indian Penal Code, 1860 i.e. for culpable homicide not amounting to murder. But this would apply only in the cases of voluntary euthanasia. Cases of non-voluntary euthanasia would not fall under this provision.
· Section 92, Indian Penal Code,1860-
The provision is about the situation of necessity. If something is done in good faith which causes harm to a person without consent of that person is not an offence. The protection provided under this section is based on ‘good faith’ is contradictory to the concept of Euthanasia rendering no legal protection to the mercy killing.
· Section 107, Indian Penal Code,1860-
All personal who knowingly or intentionally participated in the act of mercy killing would be liable under Section 107 i.e. the Abetment of the offence. They could be charged under Section 299 or 304 as well.
· Report No. 241, Law Commission of India, by Justice (Retd.) P.V. Reddi, August 2012:
· Following are the recommendations-
· 1) Passive euthanasia should have legal recognition in our country too but with the safeguards, as suggested by the 17th Law Commission of India and as held by the Supreme Court in Aruna Ramachandra’s case.
· 2) A competent adult patient has the right to insist that there should no artificial life-sustaining measures or treatment and such a decision is binding on the doctors provided that the doctor is satisfied that the consent is valid and the patient has exercised his or her free will. The same rule would also be applicable to a minor above 16 years of age who has expressed his or her wish not to have such treatment provided the consent of one or parents or such minor is to be taken.
· 3) In case of an incompetent person to give his or her consent such as a person in an irreversible coma or in a persistent vegetative state and an ‘informed decision’ has not been taken, the doctors or relative’s decision to withdraw the life support system is not final. They shall get the clearance from the High Court for withdrawing the life-sustaining treatment.
· 4) The High Courts shall take a decision after obtaining the opinion of three medical practitioners and the wishes of relatives of the patient. The High Court, as parens patriae will take an appropriate decision that would be in the best interests of the patient.
INTERNATIONAL SCENARIO OF EUTHANASIA AND ASSISTED SUICIDE
The first country to legalize euthanasia and assisted suicide was the Netherlands through the “Termination of Life on Request and Assisted Suicide Act.” The laws were stringent based on the condition that - A patient must be suffering from an illness that is incurable and causing unbearable pain and the consent for euthanasia must be meted out in full consciousness of the patient.
Both euthanasia and assisted suicide are against the laws of France and also outside the purview of legalizing them. Keeping in mind the view of the right to die with dignity, Leonetti laws were introduced. Provisions of law stated that doctors are allowed to decide about when to limit or stop any treatment that is not useful and to use those drugs that may have side effects and shorten the life span.
Assisted Suicide is lawful in the United States wherein doctors are permitted to give a lethal dosage of medicine to patients who are suffering from an incurable disease. Countries, where helped suicide by Doctors, are considered- Oregon, Washington, Montana, Vermont, California, Colorado, Hawaii.
Oregon is the main state to legalize assisted suicide with the Dignity Act. The patient must fulfill the following conditions in order to settle for death-
1. Must be eighteen years of age or more.
2. Must be a resident of Oregon
3. Must be given his/her consent for the medicinal services for themselves.
4. Must be diagnosed with the incurable disease that will cause death in a year.
Likewise, The Death with Dignity Act was passed in Washington. Vermont legislature also passed an act similar to Oregon that identified the rights of the patients and their control to end the life.
However, Euthanasia is not legal in the United States.
Belgium and Luxembourg introduced laws that permitted palliative care and the rights of the patients.
DEBATE REGARDING EUTHANASIA:
This has been a matter of discussion quite a while whether euthanasia need to be permitted or not. The question comes up as by what ways one should choose whether the life is not worth living or not. Let’s throw some light upon the human perspectives on the same.
The right to die with dignity is the choice to be made by individuals and the state should not interfere with the same. If a person is suffering from a terminal illness, it would cost a lot of expenses to keep them alive. The right of self-determination is considered where human beings have the right to decide when and how they die. Seeing their loved one in a suffering state will cause great pain to the family.
The value and importance of life are weakened by Euthanasia. In order to reduce or remove the pain of people, proper palliative care is available. A lot of pressure is being put on the family members to take a decision regarding this even if they don’t really want to do it. The commitment of doctors and nurses to save the lives of patients would be undermined and the development of new medications and treatments would be discouraged. Euthanasia would put a huge responsibility on the doctors and the fiduciary relation between the doctor and the patient will be in question.
1. The question of whether the right to life includes the right to die under Article 21 was firstly considered by the Bombay High Court in the State of Maharashtra v. Maruti Sripati Dubal.
2. Facts: The petitioner, a Police constable met with an accident and suffered a head injury. Since then, he was under psychiatric treatment. He was diagnosed with schizophrenia and from auditory and visual hallucinations. He was given electric shock treatment. He tried to commit suicide. An offense was registered against him under Section 309 of the Indian Penal Code,1860. He challenged the constitutionality of Section 309 and filed the petition under Article 227 of the Constitution.
3. Held: The Bombay High Court held that the right to life includes the right to die and consequently the court struck down Section 309, IPC.
4. Reasoning: People may wish to end their lives under some circumstances such as disease, cruel or unbearable conditions of life, a sense of shame, or disenchantment with life. The Court held that everyone should have the freedom to dispose of his life as and when he desires.P. Rathinam v. Union of India
Facts: The problem was before the Division Bench, Supreme Court. In the present case, the petitioners had challenged the validity of Section 309, IPC on the ground of violation of Article 14 and 21 of the Constitution. They prayed for the quashing of proceeding under 309 against the petitioner for attempting to commit suicide.
Held: Justice R.M. Sahai and Justice Hansaria in this judgment declared Section 309 as unconstitutional. The right to live also includes the right not to live.
Reasoning: The Court held that the provision, Section 309 is “a cruel and irrational provision”. A person cannot be forced to enjoy life to his detriment, disadvantage, or disliking.
5. Gian Kaur v. State of Punjab
Facts: The appellants Gian Kaur and her husband Harbans Singh were convicted by the Trial Court under Section 306, IPC. They filed appeal to the High Court where the conviction of both has been maintained but the sentence of Gian Kaur alone has been reduced. They challenged the validity of Section 306, IPC and urged to declare the Section 306 as unconstitutional.
Held: The constitutional bench of Supreme Court declared that right to life under Article 21 of the constitution does not include right to die. The bench had overruled the P. Rathinam’s case.
Reasoning: The right to die is inconsistent with the right to life. Mr. Justice J.S. Verma obsereved-
“Right to life is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, incompatible and inconsistent with the concept of right to life”. The challenge to the constitutional validity of Section 309, IPC having been rejected, no serious challenge to the constitutional validity of Section 306 survives. It has already be rejected the main challenge based on P. Rathinam on the ground that ‘right to die’ is included in Article 21.
6. Common Cause (A Regd. Society) v. Union of India
Facts: A writ petition under Article 32 of the Constitution has been filed by Common Cause- a registered society, praying for declaring ‘right to die with dignity’ as a fundamental right within the fold of ‘right to live with dignity’ guaranteed under article 21 of the Constitution. The petitioner had emphasized the need for a law to be passed. According to the petitioner, the citizens who are suffering from chronic disease and/or are at the end of their life span and are likely to go into a state of terminal illness or permanent vegetative state are deprived of their rights to refuse cruel and unwanted medical treatment like feeding, being kept on ventilator and other life-supporting machines.
Held: The writ petition is allowed in the following manner-
a) The right to die with dignity as a fundamental right has already been declared by the constitutional bench judgment of the court in the Gian Kaur case.
b) It has been declared that an adult human being having the mental capacity to make an informed decision has the right to refuse medical treatment including withdrawal from saving devices.
c) A person of competent mental faculty is entitled to execute an advance medical directive in accordance with the safeguards.
Reasoning: The right to self-determination and bodily integrity has been recognized by this court. The procedure and manner of such expression of such right is a question which needs to be addressed to protect the vulnerable, infirm, old, and needs medical care.
The judgments by the Indian courts demonstrated the legal discourse on euthanasia and remained divorced from the ethical discourse. These judgments focus on the justification of passive euthanasia on legal terms. Overall, there is a need for extensive reforms in the healthcare system in India, an increase in healthcare budget, the obligation of the Government in implementing the palliative care policy. The difference between active and passive euthanasia has to be explicitly made to avoid any loopholes. The draft bill of 2016 pending before the Parliament should be revived and involves much consideration on the distinction between active and passive euthanasia.
As per the present legislation on the subject, the law has evolved according to time and circumstances. But it requires clarity on some clogged points. It requires an extensive approach towards the liability of doctors, medical practitioners, relatives, next friend,s and the patient. It requires explicit contention on the boundary between the legality and illegality of the subject. The creation of express provision would remove ambiguity. Any person would not be able to take the benefit or misuse the law which would defeat the purpose of the law.
 Para 130, K.S. Puttaswamy v. Union of India, (2017) 10 SCC  Para 259, K.S. Puttaswamy v. Union of India, (2017) 10 SCC  AIR 1989 SC 2039  1987 CrLJ 549  AIR 2011 SC 1290  (1994) 3 SCC 394  (1996) 2 SCC 648  Writ Petition (Civil) No.215 of 2005, decided on 9 March, 2018