The Author, Urvashi Trivedi, is a 2nd-year, BA.LLB student at University of Petroleum and Energy Studies, Dehradun. She is currently interning with LatestLaws.com.

Introduction

The term “euthanasia” comes from the liaison of the two Greek words: “eu” and “thantos”, meaning good and death, respectively. It is therefore considered the practice of ending an individual’s life of suffering and misery caused due to a condition that is beyond repair or a terminal illness, through suspension of medical facilities or injection, in order to rid the person off of the intolerable pain. It is often termed as an act of intentional taking of a person’s life in a painless manner, which is not worth living or, ‘mercy killing’ where the individual is set free off the irremediable life condition of suffering and pain.

To understand the complexity of the concept of euthanasia, one must know the classification of euthanasia and the terms related to it.

Physician Assisted Suicide (PAS), wherein the doctor knowingly provides medical assistance to an individual to end their life, who is likely to be experiencing persistent and intolerable suffering and pain. The physician provides for a complete analysis of the medical condition and determines the most painless and effective method of dying.

Voluntary Euthanasia, when the individual wishes through a conscious decision of ending their help with the help of another. It requires full consent and awareness of the concept and process.

Non-Voluntary Euthanasia, whereas the decision of ending an individual’s life is taken by another, like a family member or your partner. This takes place when the individual is in a state of permanent unconsciousness and incapacitated beyond treatment.

Active Euthanasia means where the doctor can directly end an individual’s life. The other names given to this process are, ‘Positive Euthanasia’ or ‘Aggressive Euthanasia’. The doctor may directly intervene and prescribe a painless method to end an individual’s life. The main element under this remains consent of the individual whose sufferings are irremediable and endless. This is a quicker method of dying through a lethal and high dose of drug or by injecting a lethal drug.

Passive Euthanasia or ‘Negative Euthanasia’ or ‘Non-Aggressive Euthanasia’ is the practice of intentionally causing the death of an individual by withdrawing the necessary and essential care, food or water. It is an intentional discontinuation which also implies the removal of artificial life support facilities. It is considered as a slow killer and is more comfortable than the active method. It is only aided when the individual no longer remains mentally and physically alert. There are medical tests and scales like Glasgow Coma Scales (GCS) to ensure the mental vegetative state of the individual.  In many countries and states, this is a legal right provided to individuals usually on medical life support.

In the ancient, or often considered traditional times, euthanasia was labelled as a practice against the culture, religion and even the ethical human values. The transition from it being considered a malpractice to a legal right, was due to the term and extension of the practice of “Palliative Care”. The medical practice of providing care to those patients who suffer from any terminal illness. Under this, the patient’s needs and wants are taken care of and the process of decay and prolonged death is made comfortable in any way possible.

Every individual is born with a basic shield of human rights and amongst all such rights, Right to Life is the most essential right. It is the basic and fundamental right which states that every human being has the right to live and cannot be killed by another being. This right is the umbrella right under which other rights get their light and backing.

Chronology of the Legal Advancements

Article 21 of the Constitution of India provides this right to every person. Soon enough the people of the state began to question, “whether the right to life also entails the right to die?”. This started a massive debate and deliberations on the concept and its relevance in the Indian context. The two cases, M.S.  Dubal v. State of Maharashtra (1986) and Chenna Jagadeeswar v. State of AP (1987), dealt with the positive and negative aspect of the rights given to the people and the violative nature of certain articles, respectively. Both the cases contradict one another on the “Right of Life includes Right to Die” topic.

In the case of M.S.  Dubal v State of Maharashtra (1986), the conflict took place on the negative and positive aspects of the rights that were provided to the people. The court ruled that Right to Life under article 21 also contains the Right not to live. 

The Court observed that “those who make the suicide attempt on account of the mental disorders require psychiatric treatment and not confinement in the prison cells where their condition is bound to worsen leading to further mental derangement. Those on the other hand who make the suicide attempt on account of acute physical ailments, incurable diseases, torture or decrepit physical state induced by old age or disablement need nursing homes and not prisons to prevent them from making the attempts again.”

The submission made in the court regarding the right to live with dignity was as follows,

“By the term 'life' as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world...by the term liberty, as used in the provision something more is meant than mere freedom from physical restraint or the bonds of a prison.”

While in the latter case, the High Court of Andhra Pradesh contradicted the former and established the constitutional validity of the Section 309 of the Indian Penal Code which criminalized the offence of suicide, meaning taking one’s own life.

This debate was furthered in the case of P. Rathinam v. Union of India (1994), which gave the verdict in favor of the motion and legalized assisted suicide. It was later contradicted and overruled in Gian Kaur v. State of Punjab (1996), where it was held that Article 21 cannot include right to die or be killed.

In the case of Gian Kaur v. State of Punjab, the five-judge bench, headed by Justice J.S. Verma, brought the Section 309 of the Indian Penal Code, 1860 back and the judgement that was passed stated that, under the ambit of Article 21 of the Indian Constitution, the part of Right To Live only includes the aspect of life and thereof and nowhere includes the aspect of right to die. It was because of this particular case that passive Euthanasia and Assisted Suicide were made unlawful.

The debate over this topic continued amongst the people on various platforms and soon in the path breaking judgment in the case of Aruna Shaunbaug v. Union of India (2011), the Supreme Court with its 5 judge bench remarked the relevance of the concept of euthanasia and the right to life can be interpreted as the right to a life of dignity and worth. This much awaited judgment which in itself was a hard battle, helped push the awareness quotient on this topic and the debate for the legalization of passive euthanasia thus entered into our society, but with the exception of it being practiced only on terminally ill patients and through the removal of medical life support. The recent case of Aruna Shaunbaug generated a plethora of opinions and also made us look towards the status of the law in other countries and states which have legalized the practice.

In furtherance to such landmark cases, the Law Commission gave various recommendations in its reports time to time.

In the 42nd Report in 1971, it was stated that after reviewing Manu’s code and the law commentaries on it, it held that the commission of suicide was considered valid when the people was diseased and was living under miserable life conditions. It referred to the Vedic texts which upheld the values and importance of the persons who got rid of his own self as someone who would find salvation as they left the earthly pleasures. It considered the legal provisions of suicide as harsh and unjustifiable.

Later in the year 1997, the 156th Law Commission’s report held the validity of the criminalization of the offence of suicide and gave the credit to medical science and law. It supported the judgement given in the Gian Kaur case and the validity of the Penal section and supported the argument further with the prevalent societal evils like drug and trafficking and the existence of terrorism and those who attempted suicide under these events.

In 2008, the Law Commission in its 210th Report recommended the decriminalization of the section which punishes though who commit the offence of attempt to suicide, which is section 309 of the IPC. It also proposed amendments to the IPC.

In 2017, the nation welcomed its Mental Healthcare Act, repealing the previous act and de-criminalizing the “attempt to suicide” section. Section 115 of the act states:

“Notwithstanding anything contained in Section 309 of the IPC, any person who attempts to commit suicide shall be presumed to have severe stress and shall not be tried and punished under this Code; and

The government is duty bound to provide care, treatment and rehabilitation to such a person in order to reduce the risk of recurrence of attempt to commit suicide.”

As every individual has the right to live, they also have the right to form guided and well-aided opinions on matters that concern the most crucial decision of their lives. As citizens of a growing and developing nation, we must be aware and well guided through the examples set by other nations as well as their mistakes. When we look at the rate and usage of the medical facility of practicing euthanasia, we must understand that in this day and age, the misuse of such a practice is more likely than its benefits. To be able to equip the medical institutions with the facilities of euthanasia is a great risk as a collective effort. For a nation like India, it is a slippery slope to tread on as this practice may be done by those who are corrupted or by the weaker minds. It may become a tool in hands of the corrupt to demand and misguide a person’s will and consent in the name of “living will” or “PAS” or even “non-voluntary euthanasia”. As the practice not only encompasses the physical state of an individual but also the emotional and psychological aspects, there needs to be a greater sense of understanding before allowing active euthanasia or ‘living will’.

It is also considered medically unethical and it goes against the notions of nursing, healing and care giving oaths that medical officials undertake. To understand the dilemma of the family and the doctors while prescribing passive euthanasia is a painful and necessary task to the rid the person off of the futile resources and time without any assurance to the normalcy of life in the future. It is the level of mental consciousness that determines whether the individual receives the consent for passive killing. Therefore, such a decision is far more risk bearing and complex when the person is mentally alert.

To better the medical facilities in India with regard to Palliative Care of the terminally ill people can be an alternative approach. In other countries where such practices are legal have their rules and exceptions. In Netherlands and Belgium, it is permitted only in the case of terminally ill children and in Switzerland it is allowed only in the case of advanced malignancy or intractable pain and suffering.

Similarly, euthanasia means the practice of ending the life of a person who is suffering from terminal illness which is irremediable or has persistent pain or suffering and is not a life worth living. Therefore, the question to be understood and addressed are many. The debate remains ongoing on the subject and the factors that one must consider while deciding whether their life is not worth living any longer. The limelight remains on the allowance of active euthanasia and its implications. Whether the approval to this would bring justice to the people suffering or become the cause of the sufferings in the long run. It remains a conflict between the social norms and values, medical needs of the patient and his will and consent. It questions the standards and scales which define and measure the quality of a persons’ life and whether such life can be ended on the individual’s consent.

It is proven that euthanasia provides a way to relieve the individual from the mammoth of sufferings as though they are alive on a burning pyre of intolerable pain. It gives the right to the beings to evaluate their essence of life and live and end it in a dignified manner without any force. The underlying principle of this is the consent and choice of the person. The battle of euthanasia as a legal remedy is tough and complex. It needs careful examination of the status quo of India, the mindset of the people, the acceptance and the presence of required equipment. If at all, it were to be legalized in India, there would be a requirement of stringent and well-structured laws that would guarantee the consent and will of the individual, monitoring the failure of all medical resources and methods to revive the person, intentions of the caregivers and medical officials, proper ways to ensure that no abuse of the law takes place and the review of circumstances under which the euthanasia is to be allowed.


References-

  1. http://www.legalservicesindia.com/article/787/Euthanasia-in-India.html - Euthanasia in India
  2. https://www.britannica.com/topic/euthanasia - Euthanasia
  3. https://www.thehindu.com/opinion/op-ed/should-euthanasia-be-allowed/article22524514.ece - Should euthanasia be allowed?
  4. https://www.latestlaws.com/articles/euthanasia-india-team-latest-laws/ - 'All about Euthanasia in India’
  5. https://www.researchgate.net/publication/320054647_Should_Euthanasia_be_Legalised_in_India- Should we legalize Euthanasia?
  6. M.S Dubal v. State of Maharastra, CrLJ 549 AIR 1987
  7. Chenna Jagadeeswar v. State of A.P, CrLJ 549 AIR 1988
  8. P.Rathinam v. Union of India, 3 scc 394, AIR 1994
  9. Gian Kaur v. State of Punjab, 2 scc 648, AIR 1996
  10. Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 s 140

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Urvashi Trivedi