PASSIVE EUTHANASIA IN INDIA - A LEGAL AND CRITICAL EVALUATION BY - SOVI DEVASIA & GEORGE KO
PASSIVE EUTHANASIA IN INDIA - A
LEGAL AND CRITICAL EVALUATION.
AUTHORED
BY - SOVI DEVASIA & GEORGE KO
In 2018, the Supreme Court recognized
the legality of 'passive euthanasia' for terminally-ill patients, holding that
the 'right to die with dignity' forms a part of the right to life under
Article 21 of the Constitution of India. The request for untimely ending of
life has become a matter of debate among different individuals in present-day.
This debate includes many aspects of the society such as legal, ethical, human
rights, religious, health, social and cultural aspects etc.
Article 21 of Indian constitution protects
any person from deprivation of his life or liberty except by the procedure
established by law. Right to life
mentioned in our constitution also includes right to live with dignity. This
also includes the right of a dying man to die with dignity. However, the 'right
to die with dignity' isn't to be mistaken for the right to die an unnatural
demise shortening the regular range of life. Consequently, the idea of right to
life is integral to the discussion on the issue of Euthanasia. One of the disputable
issues in the recent has been the subject of authorizing the Right to Die or
Euthanasia.
"Euthanasia and assisted suicide
are never acceptable acts of mercy. They always gravely exploit the suffering
and desperate, extinguishing life in the name of the 'quality of life'
itself."
- Pope John Paul JJ
PASSIVE
EUTHANASIA
Euthanasia, also known as mercy
killing is a way of putting someone painlessly into death. This act is done for
a person who is suffering from painful and incurable disease allowing them to
die by curbing treatment or by withdrawing artificial life support equipment.
The word euthanasia originated from the Greece which means good death.
The practice of euthanasia can be
classified into the following two categories:
1.
Active
Euthanasia: Active euthanasia is a method that involves taking active steps to
end a life.
This involves taking
positive steps to end a patient's life, such as by administering them a dose of
medication through their intravenous line that will kill them. Active euthanasia
is also sometimes referred to by the term "aggressive euthanasia”.
2.
Passive
Euthanasia: Passive Euthanasia is defined as the deliberate act of causing
someone's death by withholding or withdrawing artificial life support, such as
a ventilator, from a patient who is terminally ill. In a case like this,
something that is essential to save a patient’s life is not done.
In spite of the fact that
the vast majority of countries have made passive euthanasia legal, either
through legislation or judicial interpretation, the question of whether or not
active euthanasia ought to be legalized continues to be a topic of
debate.
The
three broad forms of Euthanasia are:
·
Voluntary
Euthanasia: When a patient makes the conscious decision to end his/ her own
life, this is known as "voluntary euthanasia". The individual who is
making the request needs to be in unbearable pain and be in a terminal
condition that is recognized by the medical community.
·
Non-voluntary
Euthanasia: “Non-voluntary Euthanasia” is a subset of the practice known as
"voluntary euthanasia", which involves the termination of a person's
life when that person is unable to express their preferences and must instead
rely on some form of proxy request to end their life, most likely for reasons
related to their health and presumably for their own benefit.
·
Involuntary
Euthanasia: In the case of “Involuntary Euthanasia”, a patient is considered to
be suffering from a terminal illness or in excruciating pain for an extended
period of time, but has not been given a direct or indirect invitation to end
their life. In this context, the term "lack of consent" refers to a
patient's inability to genuinely give assent. This can include protracted and
prolonged periods of sleep or coma in which the patient's preferences are
unclear.
Legal
Evaluation on Passive euthanasia.
1. aspectsarguments made in the
2011 verdict that legalised passive euthanasia in India(And Against Active
Euthanasia)
· For over 40 years – precisely 41
years and 173 days, for not a moment of suffering ought to be discounted –
Aruna Shanbaug remained locked up in ward number 4 of KEM hospital, Parel,
Mumbai. Her struggle to die ended on May 18, 2015. The absence of bed sores on
Aruna’s dying body was celebrated and the nurses’ tremendous “attachment” to
her was much exalted. All this, despite the bitter fact that Aruna lived a
life, to use Peter Singer’s words, “so miserable as not to be worth
living”
· In March 2011, the Supreme Court of
India for the first time recognised the legality of passive euthanasia in the
case of Aruna Ramchandra Shanbaug v Union of India., owing to Pinky
Virani’s indefatigable efforts, the Supreme Court of India deemed passive
euthanasia legal. A detailed discussion of the different ways of implementing
passive euthanasia is due, given the equivocality of the term in the legal
document.
· In 2018, the Supreme Court recognized
the legality of ‘passive euthanasia’ for terminally-ill patients, holding that
the ‘right to die with dignity’ forms a part of the right to life under Article
21 of the Constitution of India.
2. The key points of the
judgement In Favor Of Passive Euthanasia (And Against Active Euthanasia)
The court also laid down
detailed guidelines for passive euthanasia, both in cases where the patient
left an ‘advance directive’ or a ‘living will’ stating that life support should
be withdrawn if they fall terminally ill, and in cases where no such directive
was left behind. The court further eased norms for this process in January
2023.
· The condition for the fulfilment of
the act is that the patient should be in a Permanent Vegetative State(PVS).
· The court also gave meaning to the
term "passive euthanasia" which allows withdrawing of life support
system to a patient which is necessary for the continuity of their life.
· It allowed the practice of passive
euthanasia but not active euthanasia.
· The court allowed the decision of
executing passive euthanasia on a patient only if a person is either the parent
or spouse or other close relatives or in absence of any of them, the decision
can also be taken by a person or body of persons acting as a next friend of the
patient.
· The court also asserted that the
decision of discontinuing life support of a patient can be taken by a doctor
who is acting in the best interest of the patient.
· The power of giving assent in
execution of passive euthanasia is in the hand of the High Court of a state.
When a High Court receives an application, the Chief Justice of the respective
court must constitute a bench of minimum two judges who will further decide to
grant approval or not. The bench will nominate three reputed doctors to form a
committee and submit a report of their observations to the court.
· A notice regarding the report
submitted by the committee must be given to the close relatives of the patient
and the state. After hearing of the parties in a given matter the High court
can give its verdict.
· The court also made a recommendation
to the central government to repeal the existing section 309 of Indian Penal
Code, 1860.
3. inconsistencies in the
verdict’s Arguments In Favor Of Passive Euthanasia (And Against Active
Euthanasia
Several inconsistencies
in the verdict’s arguments in favor of passive euthanasia (and against active
euthanasia). Beyond the legal debates that ensued, euthanasia needs serious
moral reflection in India.
· In accordance with the provisions of
Article 21 of the Constitution, the right to life and liberty would be devoid
of any significance if it did not also protect the dignity of the individual.
In the case of K.S. Puttaswamy v. Union of India[2], the Supreme Court of India
reiterated the principle that human dignity is an indispensable part of Article
21. Right to live with dignity is also said to include the smoothening of the
process of dying in the case of a terminally ill patient with no hope of
recovery. The legal position as it stands today is that “right to life” does
not include “right to die”, but “right to live with dignity” does include
“right to die with dignity”.
· The Right to one's physical and
mental health is also guaranteed by the Constitution, being covered under
Article 21 and protected under Part III of the Constitution. In the context of
decisions regarding health and medical care, the exercise of self-determination
and autonomy by a person includes the right to decide whether and to what
extent he or she is willing to submit to medical procedures and treatments that
are consistent with the individual's goals and values. This right applies both
in the abstract and in concrete terms.
· It has been determined that the Right
to privacy is an essential component of the Right to life and liberty, as
outlined in Article 21, and safeguarded by Part III of the Constitution. This
ensures that individuals retain their autonomy when it comes to making
decisions concerning the private sphere of death, in addition to maintaining
their bodily integrity.
· In the case of State of Maharashtra
v. Maruty Sripati Dubal[3], the Bombay High Court ruled that under Article 21,
the Right to life encompasses the Right to die in and of itself, as a result,
the Court invalidated and declared as ultra vires section 309 of the Indian
Penal Code, 1860.
· The writ petitioners in P. Rathinam
v. Union of India[4] argued before the Supreme Court that Section 309 of the
Penal Code, 1860 was unconstitutional on the grounds that it went against
Articles 14 and 21 of the Constitution of India.
· The Constitution Bench deliberated
and considered the correctness of the decision rendered in P. Rathinam’s
(supra) in the case of Gian Kaur v. State of Punjab[5]. In the case of Gian
Kaur (supra), the Appellants were found guilty by the lower court of an offence
punishable under Section 309 of the Indian Penal Code, 1860, which conviction
was challenged interalia on the ground that Section 309 of the Indian Penal
Code is unconstitutional.
· Taking cue from the judgment in
Vishakha v. State of Rajasthan[7], the Court laid down the law, while allowing
passive euthanasia i.e. the circumstances when there could be withdrawal of
life support to a patient in permanent vegetative state. The question as to
whether one can seek right to die has been dealt with in the context of Article
21 of the Constitution, namely whether this provision gives any such right. The
Court in Aruna Shanbaugh’s case (supra), maintained the position as held in
Gian Kaur (supra), that “right to die” had not been accepted as an integral part
of “right to life” and thus, in so far as active euthanasia was concerned, the
same was not accepted, however, passive euthanasia under certain circumstances
has been accepted.
4. LAWS to address
inconsistencies in the verdict’s Arguments In Favor Of Passive Euthanasia (And
Against Active Euthanasia
· Major development in the debate took
place when the Seventeenth Law Commission of India in 2012 published its 241st
report on the issue of euthanasia. In the report, the Law Commission in the
context of provisions of the Indian Penal Code, clarified that where a
competent patient takes an 'informed decision' to allow nature to have its
course, the patient
· is, under common law, not guilty of
attempt to commit suicide (under section 309 IPC) nor is the doctor who omits
to give treatment, guilty of abetting suicide (under section 306 IPC) or of
culpable homicide (under section 299 read with Section 304 of IPC).
· Thereafter, in a Miscellaneous
Application [9] filed by Indian Society of Critical Care Medicine, seeking clarification
of the judgment in Common Cause (supra) directives vide judgment dated
24.01.2023, the Supreme Court has simplified the procedure for execution of
Living Will and Advanced Directive since the directions as passed originally
had become virtually unenforceable owing to the complexity of the procedure
prescribed in the original judgment. Several changes and modifications were
introduced by the five-Judge bench to the original procedure as prescribed in
the 2018 judgment.
CRITICAL
Evaluation on Passive euthanasia.
Critical analysis of Passive
Euthanasia as a converging need.
The concept of passive euthanasia has
its moral as well as social consequences. The concept has many loopholes which
does not allow an individual who is suffering from a disease to come at peace
with the situation. The idea of taking a patient's life due to an incurable
disease is in itself presumptuous. It presumes the consent of the patient by
overlooking the immoral consequences of their act.
1.
LIMiTATions on EUTHAnasia administration.
· We seem to intuitively understand
that the pain of aching knees is qualitatively different from the pain of
chronic cancer, paralysis or coma. Perhaps it is impossible to analyze and
define what this difference really is, both in medical and moral terms. Despite
this ambiguity, the medical fraternity must deal intimately with pain – by
studying its causes as well as the preventive, curative and healing measures,
by treating it and by simply witnessing it.
· By virtue of their profession, are
doctors morally obliged to “care” for patients, “heal” their pain and thereby,
sustain their lives “unconditionally”? It is important to note at the outset
that the discourse on euthanasia begins by answering this question in the
negative; thence follows another, more perplexing question. What are the
morally permissible methods of implementing euthanasia, given that the patient
is certain to die a slow and painful death because of her/his irreversible
medical condition (like that of Aruna)?
· Inevitably, it is acts of commission
on the part of the doctor that can provide the best possible death, which is
the moral objective of euthanasia. In order to meet this objective, doctors
must be seen as agents who possess the moral integrity and technical expertise
to judge when and how the patient’s life ought to be terminated, depending on
the patient’s medical condition.
2.
Unnatural termination of life
The act of discontinuing
the necessary life support system from the patient goes against the principles
of religious teachings. The notion that a human does not hold a right to decide
the death of another being in any circumstance holds belief in our society.
A family member or a next
friend decision over a patient's death in some cases can be for the benefit of
them involving issues over property matters, etc. No individual should hold a
right to decide a person's death. Death is a process that should come naturally
to a person and not by withdrawal of a life support system.
3.
Malicious intent of medical professionals
There are cases where due
to a negligent act by a medical professional the patient suffers sometimes
fatal consequences. A doctor can cover his negligence which can lead to a
permanent destruction to an individual's life without any accountability. There
are no guidelines mentioned by the court for the accountability of those
medical professionals who commit negligence and to cover their act put a
patient's life on stake by removing life support. This will in future may
disturb the trust of citizens for medical institutions.
4.
Lack of information provided to the patient
A doctor has the duty to
explain and make the patient understand all the treatments available, the
procedures undertaken and the possible outcomes of any operation that they have
to undergo in order to cure their disease. Failing in doing so a doctor should
not make the patient sign a 'living will' under any condition.
This goes against the
hippocratic oath which a medical practitioner undertake owing to their
responsibility. A 'living will' should only be signed by a patient when he is
fully aware of the consequences which he may have to bare.
5.
Against the principles of human rights
This concept goes against
the principles of human rights which are the birth rights of an individual. The
Right To Life is violated by giving a person the right to decide death of
another person. A patient's Right to dignity and liberty also gets violated by
allowing any other person the right to decide another person's fate. The value
of an individual's own wil6l is diminished by this concept.
6.
Accountability of the state
The state should be held
accountable for providing the necessary medical treatment that is imperative
for an individual's health. There should be an equal opportunity of medical
care given to all strata of society. The government must also ensure equal
treatment of every patient that comes for help in a hospital.
There are instances where
the government has failed to provide necessary medical assistance that was
required in order to treat a patient which had led to his condition being
incurable. In such a case there cannot be enough arguments to justify a
patient's surrender to passive euthanasia.
7.
social environment
·
This
reasoning is followed by absurd claims and sweeping generalisations, such as
“Indian society is emotional and care-oriented” and the “unfortunate low level
of ethical standards to which our society has descended, its raw and widespread
commercialisation, and the rampant corruption” is lamented.
·
Owing
to an undeserved preoccupation with the doctor’s agency in administering
different types of euthanasia, the verdict ignores the two most fundamental
ethical concerns of euthanasia, the patient’s suffering, and the moral principle
that guides the doctors’ integrity in treating such suffering.
·
If
the doctor is to maintain her/his integrity, the patient’s suffering must be
accorded priority over the patient’s life, which in turn, needs to be given
priority over the doctor’s agency. Only then can the different types of
euthanasia be evaluated in terms of which method is best suited for a
particular patient’s medical condition.
Arguments
in Favor of Euthanasia
1. End of Pain: Euthanasia provides
a way to relieve the intolerably extreme pain and suffering of an individual.
It relieves the terminally ill people from a lingering death.
2. Respecting Person’s Choice: The
essence of human life is to live a dignified life and to force the person to
live in an undignified way is against the person’s choice. Thus, it expresses
the choice of a person which is a fundamental principle.
3. Treatment for others: In many
developing and underdeveloped countries like India, there is a lack of funds.
There is a shortage of hospital space. So, the energy of doctors and hospital
beds can be used for those people whose life can be saved instead of continuing
the life of those who want to die.
4. Dignified Death: Article 21 of
the Indian Constitution clearly provides for living with dignity. A person has
a right to live a life with at least minimum dignity and if that standard is
falling below that minimum level then a person should be given a right to end
his life.
5. Addressing Mental Agony: The
motive behind this is to help rather than harm. It not only relieves the
unbearable pain of a patient but also relieves the relatives of a patient from
the mental agony.
6. Ethical Challenges
· Medical Ethics: Medical ethics
call for nursing, caregiving and healing and not ending the life of the
patient.
· In the present time, medical science
is advancing at a great pace making even the most incurable diseases curable
today.
· Moral Wrong: Taking a life is
morally and ethically wrong. The value of life can never be undermined.
Concluding
remarks
1. Euthanasia challenges traditional views
on death and medicine. Public discourse that considers religious, ethical, and
cultural perspectives is crucial.
2. There is a need for strict guidelines
and safeguards are needed to prevent abuse or coercion.
3. Ensuring access to quality palliative
care, which focuses on comfort and symptom relief, should be a priority
alongside any discussion of euthanasia.
4. Notwithstanding the verdict’s
arguments in favor of passive euthanasia, acts of commission on the part of
doctors are inevitable, if the best possible death is to be provided. Only if
the patient’s suffering is prioritized over the patient’s life, would it become
clear that passive euthanasia defeats the very purpose of euthanasia by
unnecessarily prolonging a miserable life till death finally takes over.
We need to abandon the overwhelming
preoccupation with the doctor’s agency in administering euthanasia, to ensure
that euthanasia is not reduced to another way of dying in miser