An Analysis Of Legislative Efforts Towards Legalisation Of Euthanasia In India By - Akriti Daksh
An Analysis Of Legislative Efforts Towards Legalisation Of
Euthanasia In India
By - Akriti Daksh
According
to Black’s law dictionary, the term “Euthanasia” is defined as “the act or
practice of painlessly putting to death persons suffering from incurable and
distressing disease as an act of mercy”. However, in contemporary times, we
associate this concept with people having terminal illness, or who have become
incapacitated and don’t want to go through the rest of their life suffering.[1]
This
concept of causing unnatural death stands in contrast to the fundamental right
to life which is considered as the most important right of man. Issues such as capital
punishment, homicide, law of war, abortion, euthanasia, animal rights, etc. are
debated time and again in the light of right to life.[2]
Although, at several national
and international platforms, various Legislations, Declarations and Convention
had provided reaffirmations to these rights, the applications of these
instruments are not stringent in States worldwide. So much so that India has no
law yet on this subject. Only with the help of judicial activism, the question
of constitutional validity of right to die with dignity has been decided;
however, an effective statute to deal with the control and regulate practice of
euthanasia in India is still awaited.
A Brief History of Euthanasia in Indian Context
In its
earlier forms, it was used as an omnibus term to signify a death which is
painless. In Classical Indian views, history depicts euthanasia as self-willed
death, though attempts were made to define more parameters.[3] India since the Ancient
times has witnessed different forms of unnatural termination of life by
oneself. Either in the form of Samadhis, Santhara or Sati, the reasons could be
multiple. Indian tradition has many religious practices and every religion
accepts seeking voluntary death in one way or other. As per
Hindu mythology, Lord Rama and his brother took jal samadhi in river Saryu near
Ayodhya. The founder of Maurya Dynasty, Chandragupta Maurya, with his guru Muni
Bhadrabaahu who was the disciple of Jainism adopted self-willed death by
fasting.[4]
In Colonial era,
another example of self-destruction of one’s own body came into light which is the
practice of Sati. It is a custom of burning the body of a widow with her
husband’s pyre. It later got prohibited under Sati Abolition Act[5],
when rights of women were realised by the society. The Common Law system
remains a foundational pillar of Indian legal system. And post- Independence,
these pre-existing laws were granted continuity[6].
1.2 Statutory
Denial of Right to Die in Post-Independent
India
Various legislative Bills
have been introduced during different time period. To enable us to understand the background of
euthanasia it is required to acknowledge where our legislative efforts did lack
and it is equally important to throw light on provisions which deny the right
to die to a person under the Penal code.
The law considers an
attempt to take life, either of oneself or another, as a punishable offence
under the Indian Penal Code, 1860[7].
Any assistance or abetment rendered to such an offender is also punishable. In
the present context, it is relevant to discuss some legal provisions.
The foremost element of
contention in right to die is ‘killing’ or termination of life of a person.
Sections 299 and 300 of IPC makes it a punishable offence if a death is caused
by doing of an act with either the intention to cause such death, or intention
to cause such bodily injury which causes death or with knowledge that he is
likely by such act cause death. Since, in all the cases of euthanasia, the main
aim is to bring about death of the patient, it is explicit that doctor will be
liable for any such act which is done with the same intention.
However, it is
pertinent to note that if there is consent of the patient to such a killing (i.e.
voluntary euthanasia), the case would then fall under Section 300 exception 5
of IPC which would make the culpability of the doctor lesser and he would then
be held liable only for culpable homicide not amounting to murder. The Doctrine
of Necessity prevents a person to be held for murder under the said exception.
Although the death was brought in good faith as described under Section 92 of
IPC, nevertheless, the penal code render no legal protection to such an act of
medical practitioner. The intention is only a material consideration in these
cases to waive off such liability.
Although the suicide is
not defined as a crime under Indian Penal Code, but the attempt or abetment of
its commission is made punishable as a public policy, to discourage taking such
step by masses. Section 306 of IPC punishes the abettor and Section 309 of IPC
punishes attempted suicide as well as its assistance by any other person.
1.3
Legislative Efforts towards Legalising Euthanasia
The first step towards
the legalisation of Euthanasia in India was made in 1985 in response to the
need of patients. A Bill moved in Maharashtra legislature which contained the
provisions providing immunity from civil as well as criminal liability to
doctors practicing euthanasia by way of removal of life-prolonging treatment.
This was to be done one request of patients. The very Bill also contained a
provision of Advanced Medical Directives[8],
which was eventually rejected.
After a long battle of various
prospective patients in the Court of law seeking relief from irremediable pain,
the Law Commission in 2006 published a very rather interesting Report dealing
with ‘Withholding Life-support Measures’ to patients who are terminally ill. They
also took into account that such ‘withdrawal’ of life support system is legal universally
and that it is not concerned with the matter of euthanasia at all.[9]
The Report emphasized on an excerpt of the decision of the House of Lords in Airedale
N.H.S. Trust v. Bland[10],
which was cited by Supreme Court in Gian Kaur v. State of Punjab [11]
in the context of an argument dealing with Physician’s act and ‘Abetment’ of Suicide,
“Airedale N.H.S. Trust
v. Bland was a case relating to withdrawal of artificial measures for
continuance of life by a physician…the principle of sanctity of life, which is
the concern of the State, was stated to be not an absolute one…it is not lawful for a doctor to
administer a drug to his patient to bring about his death, even though that
course is prompted by a humanitarian
desire to end his suffering however great that suffering may be[12]”
In the Report, the Committee was of
the view that Euthanasia and Assisted Suicide should remain to be offences
under the penal law of the country. The
Commission took up the subject for evaluation at the direction of the Indian
Society of Critical Care Medicine and drafted “The Medical Treatment of
Terminally ill Patients (Protection of Patients and Medical Practitioners)
Bill, 2006” containing provisions as to advance Passive Euthanasia to
terminally ill patients, in other terms, legalisation of Passive Euthanasia by
way of withdrawal or withholding medical treatments was proposed by the Commission.
With regard to Active Euthanasia, the Commission
recommended a different line of options to take into consideration while
drafting legislation. However, the proposed Bill couldn’t take the shape of the
legislation till today.
It was later reintroduced along with amendments through the 241st
Law Commission Report in the year 2012, which too wasn’t fruitful.
Over the years, few private member Bills
have been introduced in the Lok Sabha as well. Earliest of them is titled
“Euthanasia (Permission and regulation) Bill”, 2007 by Shri C.K. Chandrappa which
laid down provisions for providing compassionate, humane and painless
termination of life. This applied to patients suffering from incurable and
painful diseases, making person completely and permanently bedridden or to
patients who cannot carry out their daily tasks by themselves. It never passed
from the first stage and eventually got lapsed. In the immediate year, another
Law Commission was formed which studied and presented views on “Humanization and Decriminalization of
suicide”[13]. This
was a suo moto step taken up to study the issue of suicide prevention.
The Commission deliberated on various views which internationally existed.
According to one view, there should be decriminalization of attempt to commit
suicide but on the other it was observed that deletion of such provision would
attract increased rate in suicidal tendencies in the youth since they tend to
be very impulsive due to social pressures. It was pleaded several times that
the people who failed at attempts of suicide need care and compassionate
treatment not walls of prisons to spend time in. Many reasons are responsible
for one to take such a drastic step and sending them to confined prisons will
only elevate their sufferings.
Certain developments compelled the
experts to reconsider whether the deletion was right thing to do or not. These
were increasing crimes related to drug trafficking, terrorism, dowry deaths, etc.
This categorization was totally different from those who seek death due to
depressing conditions prevalent in one’s life.
The Report also highlighted the
efforts of an NGO who was working towards prevention of suicidal deaths. This
was a major issue to be addressed and cannot be worked until the penal
provision is effaced from the statue altogether decriminalizing it. It draws
focus on difficulties if one continues with the said provision. The Commission
came to a view that:
“It is cruel and
irrational to vex a person with punishment on failure to die. It is unjust to inflict
punishment on a person who is already suffering agony…The criminal law must not
work with misplaced overzeal…Section 309 of the Indian Penal code is a
stumbling block in prevention of suicides and holds back improvements in access
of medical care to those who have attempted suicide.”
It was also observed that a person may decide to encompass the feeling of
self-preservation on various accounts such as family discord, destitution, loss
of a dear relation or anything of a like nature. And in this view, it is highly
unreasonable and inhuman to continue with such an archaic law. Having referred
to various case laws regarding ‘Right to die’, Commission suggested that:
“Right to live would
mean right to live with human dignity up to the end of natural life. Thus, it
would include right to die with dignity at the end of life and it should not be
equated with right to die an unnatural death curtailing natural span of life.
Hence, a dying man who is terminally ill or in a persistent vegetative state
can be permitted to terminate it by premature extinction of his life. In fact,
these are not cases of extinguishing life but only of accelerating process of
natural death which has already commenced. In such cases, causing of death
would result in end of his suffering.”
These reports were definitely a way
forward to codify law of Euthanasia which would prevent pain and agony in the
process of dying and necessarily would provide a decent death in dignified
manner, but they didn’t came to any conclusion. However, it was opined that for such
law to function, the legislation must be made with suitable measures.
As per the data provided
on website “Parliament of India, Lok Sabha” managed and controlled by Lok Sabha
Secretariat, till 15th May, 2021, five private members Bills were
introduced in Lok Sabha regarding legalisation of Euthanasia during 2007 to
2020 and none of them reached the stage of debate and discussion yet; three of
which had lapsed eventually. The researcher attempts to discuss the pending
legislative Bills to know what are the merits and demerits of such Bills and
what more is needed to be done.
1.3.1 Medical Treatment of the Terminally Ill Patients
(Protection of Patients and Medical Practitioners) Bill, 2016
The draft Bill of Medical Treatment
of the Terminally Ill Patients (Protection of patients and Medical Practitioners),
2016[14]
is still pending for debate in the Rajya Sabha. This is most detailed Bill
introduced till today in Parliament which consists of provisions regarding
palliative care, passive euthanasia and recording keeping of the details or
procedure adopted.
The Bill provides for protection to
patients and physicians from any liability for withholding or withdrawing
medical treatment.[15]
It lays down guidelines for palliative care[16]
and procedure to be followed throughout execution of the euthanasia. It
contains proper definitions of various terms. The patient above the age of 16
years is made competent,[17]
which is a welcoming step. According to the Bill, the consent or application to
seek euthanasia can be withdrawn afterwards by applying to the concerned High
Court.
However, the Bill even after genuine
efforts lacks at certain points –
1.
The Bill
deals exclusively with the passive euthanasia and has conveniently ignored
active euthanasia and physician assisted suicide. It only talks about
withdrawal of withholding of medical treatment, which is accepted as a right
worldwide.
2.
The
instrument of advance medical directives made by a patient is not made binding
on the medical practitioner[18].
The Advance Medical Directives could be presented to hospitals or to the
medical care providers to guide them in further treatment of the patient when
the executor of the directive is not in a position to express his/her decision.
These are the crucial elements to ensure patient’s autonomy and bodily
integrity. In declaring advance directives non-binding, the relevant provisions
of the Bill would fall foul of the right to die with dignity and right to
autonomy that has been recognised as a part of the right to life. After the
landmark judgement of Common Cause (Registered Society) v. Union of India[19]
validating the advanced medical directives, this Bill needs some modification
on this aspect. “The Treatment
of Terminally-Ill Patients Bill” as introduced by Shri Baijayant Panda in 2016
in Lok Sabha makes directives legally binding[20]
which should be retained for recognition of autonomy of the patients.
3.
Definition
clause contains incomplete and vague terms such as terminal illness or meaningful existence. It is vague,
inconsistent and subjective; using such terminology to interpret the most
important provision may prove fatal. It is very questionable as to why the term
of euthanasia has not been defined in any of the Bills introduced. The term
should be included to interpret in clear light and to prevent mischief in law
in the future circumstances.
4.
In the Draft
Bill, the procedure of administering passive euthanasia is also not secured as
per the researcher.[21]
It does not give proper security to the patient and provide room for misuse by
the family members. Amendment can be made to record such decisions and
communication in camera.
5.
Though the Bill
deals with palliative care, it does not lay down the minimum standards to be
maintained so that the patient after removal of treatment is not left being
uncared and that his dignity of life is properly maintained.
It is a very precise Act and talks about minimum
requirements and needs elaboration for clarity. It does not mandate patient/
physician to consult an independent practitioner before reaching to a decision.
By including High Court in decision making process, it has invariably led to
delaying of the process. The researcher has observed
that there is no critical and reasonable mind applied while framing of this
Bill as the draft only replicates the guidelines given in judgement of Aruna
Shanbaug v. Union of India[22]
and does not take into consideration by the Supreme Court that “Active
Euthanasia can be legalised by establishing proper procedure through
legislative act only”.[23]
1.3.2 The Euthanasia Regulation Bill, 2019
In contrast of it, “The Euthanasia
regulation Bill” 2019[24]
as moved by a private member Shri Bhartruhari Mahtab, Member of Parliament,
though lacks at nearly every procedural effort yet it tries to talks about
active as well as passive euthanasia which is more wholesome in its approach
towards rights of the terminally ill patient. The Bill seeks to allow active euthanasia[25] for terminally ill individuals who are facing
acute suffering due to such illness and passive euthanasia[26]
for individuals in permanent vegetative state. It provides for Constitution of
Evaluation and Review Board to overlook matters incidental thereto[27]
and mandates that euthanasia be applicable to person only after Court of
Session has given its consent. However, the following points are worth to be
noted:
1.
The Bill
drastically fails to define the terms in their proper sense and even does not
define “informed consent”, “terminal illness” “competent person” at the least.
Competency is crucial in matters to seek euthanasia
in any of its form. A non – consensual euthanasia will lead to homicide which
stands in contrast to Section 6 of the concerned Bill which decriminalises
every act of euthanasia performed by the medical practitioner.
The term patient has not been defined instead “a
person” is used in the legislation which along with undefined illness construes
that any person even those who are not terminally ill are permitted to apply
for administration of euthanasia on his body. The aim of the legislation would
get forfeited if the sense is ambiguous and vague.
2.
This Bill too
lacks mention of advanced directive and procedure regulating its execution even
when in 2018 the Supreme Court[28]
had laid down guidelines regarding the same.
3.
The Bill does
not contain any safeguards regarding communication of consent by the patient. The
communication regarding decision for Active and Passive euthanasia should to be
video monitored. The Active Euthanasia being a very sensitive act that may
alternatively become a tool of unauthorised killing could be monitored by audio
visual recordings which is much possible in this technological advanced era.
Also, written reasons as stated by the doctors could be safely kept in forms of
records and evidences.
4.
Bill although is
very open to using Passive and Active both forms of Euthanasia in all kind of
cases, but there needs to be a demarcation of criteria for administration of
both passive or active form of euthanasia. Also, the term ‘Physician Assisted Suicide’
goes missing. Atleast what can be done was to criminalise Physician Assisted
Suicide and decriminalise Passive or Active euthanasia through provisions if
that was clear intention of the proposer of the Bill.
5.
Time limit for
any procedure is not contemplated in the Bill. The absence of mention of period
of filing such application, the period within which the consent can be revoked
or minimum period for which euthanasia cannot be administered were basic
deficiencies this Bill suffers from. The same lacunae can be seen in all the
previous Bills. This only shows the inability of the legislature to draft a
Bill regarding such a complex issue.
In totality, it is an inherently
incomplete piece of draft legislation. It can only be rejected at the very
instance of presentation inferring from the context it talks about.
Conclusion and Suggestions
In Indian
jurisdiction, several attempts have been made to legalise Euthanasia through
legislation, but none of them could materialize into a stringent law yet. One
or the other Bill falls short of minimum requirements to monitor and control
the execution of such a sensitive matter at hand. Though the proposed 2016 Bill
legalising passive euthanasia permit terminally ill
patients to live their final days in dignity, it definitely needs modification
to come in line with the guidelines as laid down by the Supreme Court in Common
Cause judgment in 2018. The legislature has vehemently failed to enact a
concrete law in this regard and failed to borrow any provision from legislative
marvel from States of Netherland, Oregon or Belgium where laws are smoothly
controlling the process and aftermath related to administration of euthanasia
to patients in all its forms.
One of the foremost things which could be done is to
include various provisions and definitions in the draft bill. There is an
immediate need of full-fledged legislation on Euthanasia in India; which should
contain provisions regarding –
a) Allowing
active euthanasia and passive euthanasia on request of the competent patient,
b) Permitting
the physician to assist his patient to die in the least painful way,
c) A provision
for enforcement of advanced medical directive,
d) Provisions
for severe punishment in case a medical practitioner or hospital staff does not
exercise due care in administration of euthanasia or does not follow the
procedure laid down in the Act,
e) Prohibition
on administering euthanasia without officially recording the reasons for it,
f) Constitution
of statutory bodies on State and District level to regulate and adjudicate
matters arising thereto, and
g) Proper
definitions of terms like “euthanasia”, “terminal illness” “active euthanasia”
“passive euthanasia” advanced medical directives” “consent” “competent patient”
“due care” at the least.
Along with legalising all forms of
euthanasia through a legislation, one additional provision could be introduced
in the law regarding administration of “sedatives” so as to minimise pain till
natural death occur. This could be applied to those patients who are not brain
dead, feel immense pain and family members do not want to terminate life of the
patient earlier than natural span through direct modes such as active or
passive euthanasia. The laws on euthanasia of foreign countries viz.
Netherlands, Belgium and Oregon can also be referred in enacting a good and
exclusive law in India.
[1] Dr. Sanjeev Kumar Tiwari and
Ambalika Karmakar, “Concept of Euthanasia in India – A Socio- Legal Analysis”
2 IJLLJS 2 (2015).
[2] Daniel C. Maguire, “Death, Legal and Illegal” The Atlantic Monthly, Feb., 1974.
[3] Eremitism in Hindu India: The
Classical Asrama System and the Law of Manu, available at
: http://www.hermitary.com/articles/asrama_classical_manu.html (Last visited on
April 4, 2021).
[4]
S.S. Das, Euthanasia in Indian Perspective (Special Reference of Religions), available
at:
https://www.researchgate.net/publication/281772512_Euthanasia_in_Indian_Perspective_Special_Reference_of_Religions
(Last visited on May 5, 2021).
[5] Bengal Sati Regulation, 1829; Sati
(Prevention) Act, 1987.
[7] Act No. 45 of 1860 (Hereinafter mentioned as IPC)
[8] Dr. Sarabjit
Taneja, “Should Euthanasia be legalised? Journal
of Constitutional and Parliamentary Studies 57 (2008).
[9] Law Commission of
India, “196th Report on Medical Treatment to Terminally Ill Patients
(Protection of Patients and Medical Practitioners), 2006” (March, 2006).
[10] 1993
(1) All ER 821.
[13] Law Commission of India, “210th
Report on Humanization and Decriminalization of Attempt to Suicide” (October,
2008).
[21] Supra note 13, s.12.