CONSTITUTIONAL VALIDITY OF RIGHT TO DIE IN INDIA: A LEGAL STUDY By: Srishti Sori
Authored
By: Srishti Sori
LLM From HPNLU,
Shimla.
ABSTRACT
The fundamental Right to life is regarded as the one of the most
important fundamental right, a right which cannot be compromised with except
according to the procedure established by law.[1]
Right to life and personal liberty is an article which has been interpreted
widely by the Supreme Court and many other rights are included within this
article and one of them is right to die, this right is totally opposite of
right to life but right to die is a facet of right to life with dignity. The
concept of right to die in India is still evolving, especially with regard to
concept of right to die. The present research focuses on the development of
aspect of right to die in India and to study the constitutional status of the
controversial right to die in India.
MEANING OF
RIGHT TO LIFE WITH RELATION TO RIGHT TO DIE
Death is termination of life which
can be categorized into two kinds that is natural and unnatural death. Natural
death occurs from natural causes such as age or disease whereas unnatural death
may include accident, murder etc, basically death can be caused by the action
as well as inaction of a person. Human
life is valued foremost and therefore the law has Indian Penal Code which
prescribes punishment for harming or ending the life of human being and Article
21 of the Constitution considers Right to life and Liberty as the most
important fundamental right under the Indian Constitution which states that “No
person shall be deprived of his life and liberty accept according to the
procedure established by law”. Right to life is a Natural Right which are
inherent from the time of birth. The polar opposite of the right is right to
die. There has always been controversy between the two rights and whenever the
question of constitutional validity of right to die has been raised in the
court of law, there had always been different views of different court.
RELIGIOUS
ASPECT
Right to die has historical
significance to it, each religion has its own views on the concept of right to
die. Under Christianity euthanasia is not a good thing, they are mostly against
euthanasia. The belief is that life is given by God, it is a gift from God
therefore it must be well protected and if one thinks of euthanasia, it means
the person is questioning the gift of God, no one cannot permit killing of an innocent
human being.[2] The
Islamic religious philosophy does not recognize person’s right to die
voluntarily, it can be interpreted from the verses in the Holy Koran which
supports the fact that Life is scarred and euthanasia and suicide are not
included among the reasons allowed for killing in Islam, secondly Koran states
Allah decides how long each of us will live.[3]
Therefore the Islamic religious beliefs are against the concept of Euthanasia.
Under Hinduism there are some
instances where some believe that it breaches the teachings of ahimsa and some
believe that helping to end painful life a person is taking a good decision and
therefore fulfilling their moral obligations, the best example is the Sati
system, it was an act of self-immolation.
Prayopavesa, which means fasting to death is an accepted way for a Hindu
to end their life in certain circumstances.[4]It
is not considered as a suicide because in Hindu religious belief Prayopavesa is
a nonviolent way of dying by use of natural means. The views about euthanasia
in Buddhism is also similar to that in Hindu religion, some people states that
compassion is one of the main teaching in Buddhism which justifies euthanasia
because the person suffering from pain is relieved but the other view in
Buddhism is that it is immoral to destroy a human life, irrespective of the
quality of the individual’s motive.
When it comes to euthanasia, belief
of Shinto religious organization in Japan should be mentioned. Under the
religious belief in Shinto most of the people agree with the act of voluntary
euthanasia. The practise called as Seppuku was a ritual suicide by
disembowelment, this form of suicide practised in ancient time in Japan has
been nurtured in Japan’s sociocultural tradition as one of the socially and
culturally prescribed and positively sanctioned role-behaviour in hierarchical
organization as well as in highly formal and tightly knit human group and
classes.[5]
Whether it is Seppuku, Sati or Prayopavesa, the concepts related to right to
die and euthanasia highly depend on the morals and religious belief. These
religious beliefs are also reflected on how the court today interpret the
concept of right to die and euthanasia in India.
RIGHT TO
DIE: LEGAL INTERVENTIONS
The first time ever question for
right to die was raised in the Bombay High Court in the case of State of
Maharashtra v Maruty Sripati Dubal[6]
where the petitioner, (a constable) in Bombay City Police Force met with a road
accident and suffered head injuries where he recovered from the head injuries
but remain mentally ill. Afterwards during his treatment, he was diagnosed with
ailments such as schizophrenia. The methods of his treatment also included
electric shock treatment and also heavy dosage of tranquilizers. The case is a
result of criminal prosecution on account of attempted suicide by the
petitioner outside office of Municipal Commissioner, Greater Bombay. Section
309[7] of
Indian Penal Code was questioned and its constitutional validity was challenged
in this case. The case referred to the judgements like Munn v Illinois[8]
where it was stated that the term life is meant more than mere animal existence
and by the term liberty under right to freedom of life and liberty is meant
more than mere freedom from physical restraint or the bonds of prison. The similar
lines were reiterated in the case of Kharak Singh v State of U. P[9].
The jurisprudence applied by the court was that like freedom of business and
occupation includes right not to do business and right to freedom of speech
includes right to remain silent on the similar front it should follow that
right to live as recognised under article 21 will also include right not to
live that is right to die or terminate one’s life. Consequently, the court
struck down the section 309 of IPC which provided punishment for attempt to
commit suicide by a person as unconstitutional. The judges felt that the desire
to die is not unnatural but merely abnormal and uncommon. They held that
everyone should have the freedom to dispose his lives as and when he desires.
The Bombay High Court was of the view that right to life should also include
right to die however the view on right to die of Bombay High Court was not
shared by Andhra Pradesh High Court.
In the case of Chenna Jagadeeswara v.
State of A. P[10] held
that right to die is not a fundamental right within the meaning of Article 21
and hence Section 309 of Indian Penal Code is not unconstitutional. The court
in this case explained right to life and suicide by giving explanation that
many thefts committed due to unhealthy co- existence of the rich but on the
social ground offence against property cannot be pardoned. In relation to
section 309 of Indian Penal Code it held that there are incidents of hunger
strikes, threatening self- immolations for which this very section exist and if
this section is declared as a ultra vires then no action can be taken against
the people who threatens for such acts, the court further stated that section
309 of Indian Penal Code does not mandate the court to punish attempt suicide,
it just lays down the upper limit of such punishments and stated that right to
life does not include right to die and upheld the validity of section 309
Indian Penal Code.
The first major intervention by the
Supreme Court was in the case of P. Rathinam v. Union of India[11].
In this case again the constitutional validity of Section 309 Indian Penal Code
was challenged and the court conferred with the opinion of Bombay High Court in
Maruty Sripati Dubal case, though the case discussed on whether attempted
suicide and suicide should be considered as a crime or not but suicide and
euthanasia are the two discussions important to analyse the right to die under
Indian Constitution, the judgement tried to justify that attempted suicide as
not a crime and also stated that person has a right to die citing various case
laws, jurist opinion, historical perspective of suicide to give reasoning to
their judgements. The judges observed that:
“Morality has no defined contours and it would
be too hazardous to make a bold statement that commission of suicide is per se
an immoral act. If human beings can be treated inhumanly, as a very larger
segment of our population is, which in a significant measure may be due to
wrong acts of others, charge of immorality cannot be, and in any case should
not be, levied, if such human beings or likes of them, feel and think it would
be better to end the wretched life instead of allowing further humiliation or
torture.”[12]
The court held section 309 of Indian
Penal Code as violative of Article 21 and hence void explain the reasoning that
“Section 309 I.P.C. deserves to be effaced from the Statute Book to humanise
our penal laws. It is a cruel and irrational provision and may result in
punishing a person again who has suffered agony and would be undergoing with
more problems because of his failure to commit suicide.”[13]
Through the above discussion it is clear that right to die is as tricky as it
gets, the decisions are based on the moral principle and are also somewhat
influenced by the personal thinking of the judges. The discussion on right to
die is based on historical and religious perspective on dying and less of the
legal arguments.
The P. Rathinam’s case was overruled
by the judgement in Gian Kaur v. State of Punjab[14]
in which again the validity of right to die came into question and the
discussion on euthanasia started.
EUTHANASIA
The word Euthanasia has been derived
from the Greek word ‘Eu’ meaning good and ‘Thanatos’ means death combining and
creating meaning that is ‘good death’. According to definition in Britannica
Euthanasia also called as mercy killing, is an act of practise of painlessly
putting to death persons suffering from painful and incurable disease or
incapacitating physical disorder or allowing them to die by withholding
treatment or withdrawing artificial life support measures.[15]
It is a gentle, easy and painless
death. It implies the procuring of an individual’s death, so as to avoid or end
pain or suffering, especially of individuals suffering from incurable diseases.
Oxford dictionary defines it as the painless killing of a person who has an
incurable disease or who is in an irreversible coma. According to the House of
Lords select Committee on Medical Ethics, it is “a deliberate intervention
under taken with the express intention of ending life to relieve intractable
suffering”. Thus, it can be said that Euthanasia is the deliberated and
intentional killing of a human being by a direct action, such as lethal
injection, or by the failure to perform even the most basic medical care or by
withdrawing life support system in order to release that human being from
painful life. It is basically to bring about the death of a terminally ill
patient or a disabled. It is resorted to so that the last days of a patient who
has been suffering from such an illness which is terminal in nature or which
has disabled him can peacefully end up his life and which can also prove to be
less painful for him.
Thus, the basic intention behind
euthanasia is to ensure a less painful death to a person who is in any case
going to die after a long period of suffering. Euthanasia is practiced so that
a person can live as well as die with dignity. In brief, it means putting a
person to painless death in case of incurable diseases or when life become
purposeless or hopeless as a result of
mental or physical handicap.
TYPES OF
EUTHANASIA
On the basis of procedural decision
euthanasia can be of two kinds one is active euthanasia and another is passive
euthanasia, further on the basis of consent it is Voluntary euthanasia, Non-
Voluntary Euthanasia and Involuntary Euthanasia.
·
Active
Euthanasia
Active Euthanasia is killing a
patient by active means for example injecting a patient with a lethal dose of
drugs. Active Euthanasia is very controversial and, in many countries, active
euthanasia is not allowed or is illegal. Active euthanasia if allowed can
happen only upon the request of the patient and following conditions are
necessary for active euthanasia: Patient must be suffering from unbearable pain
and incurable disease, in other sense all the other measures must be have been
exhausted which could have been used to save the patient’s life.
·
Passive
Euthanasia
Passive Euthanasia is the intentional
ending of one person’s life by another, motivated solely by the best interest
of the person who dies, through the deliberate withholding of a life-
preserving substance or procedure.[16] It occurs when an action that could have
prevented death is not taken or an intervention that is keeping death at bay is
withdrawn. It can involve turning off respirators, halting medications,
discontinuing food and water so the patient dies because of dehydration or
starvation, it can also give large doses of morphine to control pain of the
likelihood that the painkiller can cause fatal respiratory problems. Generally,
the procedure for passive euthanasia is adopted for person who is terminally
ill patient further the method can also be applied for patients who are in a
persistent vegetative state of mind.
·
Voluntary
Euthanasia
Voluntary Euthanasia is that instance
of euthanasia in which a clearly competent person makes a voluntary and
enduring request to be helped to die (or by extension, when an authorised proxy
makes a substituted judgment by choosing in the manner the no longer competent
person would have chosen had he remained competent), a second key value is the
competence of the person requesting assistance with dying.[17]
Simply voluntary euthanasia refers to the circumstances wherein the patient
himself request for his death either by way of Active Euthanasia or passive
Euthanasia.
·
Non-
Voluntary Euthanasia
It occurs when the person is
unconscious or otherwise unable to make a meaningful choice between living and
dying, and an appropriate person take decision on their behalf, the absence of
consent of the patient upon whom Euthanasia is being conducted refers to
Non-Voluntary Euthanasia.
POSITION OF
EUTHANASIA GLOBALLY
Right to die has not been mentioned expressly
into any of international humanitarian laws, but right to live with dignity is
the right which has been mentioned under the international law under covenants
which protects and secure the life of everyone. Hence taking into account right
to live with dignity, countries have incorporated euthanasia in their laws. It
is currently legal in seven countries. First country to legalise Euthanasia was
Netherlands in the year 2002, afterwards it was Belgium, Luxemburg (2009),
Columbia (2015), Canada (2016), Victoria (2017), Western Australia (2019). In a
recent February 2020 the Spanish legislature is debating a bill that would
legalize euthanasia and assisted suicide and similar legislation is also being
discussed in Portugal.[18]
Netherlands
It became first country to legalise
euthanasia and assisted suicide. It imposed a strict set of conditions that the
patient must be suffering unbearable pain, their illness must be incurable and
the demand must be made in full consciousness by the patient. Lethal cocktail,
palliative sedation has become common practise in hospitals. Patients with a
life expectancy of two weeks or less are put in a medically induced coma and
all nutrition and hydration is withdrawn.
United States
Euthanasia in US remains illegal
however doctors are allowed to prescribe lethal dose of medicine to terminally
ill patients in five US states. Oregon, Washington, Vermont, Montana New
Mexico, California, Colorado, New Jersey, Maine and Montana are the states
which offer legally assisted suicide.
Germany and Switzerland
The law in Germany in relation to
suicide tends to distinguish between assisted suicide and active assisted
suicide. In Germany and Switzerland, active assisted suicide that is doctor
prescribing and handling over a lethal dose of drug is illegal. But in certain
circumstances it allows assisted suicide as long as there are no ulterior
motives.
Belgium
Belgium legalised Euthanasia in 2002
and passed legislation for the same. According to the law doctors can help
patients to end their lives when they freely express wish to die because they
are suffering unbearable pain. Secondly a patient can also receive euthanasia
if they have clearly stated it before entering a coma or similar vegetative
state. Belgium is the first country to legalise euthanasia for children.
Canada
It allows euthanasia and assisted
suicide for adults suffering from grievous and irremediable conditions whose
death is reasonably foreseeable.
Australia
The State of Victoria in Australia
passed voluntary euthanasia laws in November 2017 after 20 years and 50 failed
attempts. Under the law to qualify for legal framework one have to be adult
with decision making capacity and one have to be resident of Victoria and have
intolerable suffering due to illness that gives a lie expectancy of less than
six months and in case suffering from neurodegenerative illness, it will be 12
months.
There are many other countries
considering to deal with dignity in laws like Utah, Arizona, Minnesota,
Indiana, Kentucky etc.
EUTHANASIA
ANS ITS LEGAL POSITION IN INDIA
The concept of euthanasia was
discussed in famous case of Aruna Ramchandran Shanbaugh v. Union of India[19]
where the case started with the writ petition filed by Ms. Pinki Virani of
Mumbai claiming that to be the next friend of the victim with a prayer to stop
feeding the victim and let her die peacefully. The summary of the fact of the
case were that the victim was a staff nurse at King Edward memorial hospital,
Mumbai where she was sexually assaulted by a worker working in the same
hospital, she was strangulated by a chain during her assault which stopped the
oxygen supply to her brain and she was left brain dead. The incident happened
when she was about 36 years of age and the time of the judgement of the court,
she was 60 years of age.
After studying about her medical
condition, she met most of the criteria of being in a persistent vegetative
state. Her parents were dead and her close relatives has no interest in her.
Regarding withdrawal of life support to a person in PVS or who was unable to
take decision on their own, The Supreme Court in two judge Bench decision,
Justice Markandey Katju and Justice Gyan Sudha Misra, laid down passive
euthanasia to continue till the law made by parliament on the subject, the
guideline were:
·
A
decision has to be taken to discontinue life support either by parents or the
spouse or other close relatives, or in the absence of any of them, such a
decision can be taken even by a person or a body of persons acting as a next
friend. It can be taken by the doctors attending the patient. However, the
decision must be taken in a Bona fide manner in the best interest of patient.
·
It
was hospital staff taking care of the victim for long, they were her friends
who could take such decisions but they clearly expressed their wish that the
victim to be allowed to live.
·
Even
if decision taken by the near relatives or doctors or next friend to withdraw
life support, such a decision requires approval from High Court concerned as
there is always a risk that the provision may be misused by some unscrupulous
persons with the help of some doctors by fabricating material to show that it
was terminal case with no chance of recovery. This is in the interest of the
protection of the patient, protection of the doctors, relative and next friend,
and for reassurance of the patient’s family as well as the public. This is also
in consonance with the doctrine of Parens Patriae[20].
The High Court under Article 226 of Constitution can grant approval for
withdrawal of life support to such an incompetent person.
·
A
petition can be made to the High Court to pass suitable orders under Article
226 of the Constitution praying for an order or direction and not for any writ.
Hence, Article 226 gives abundant power to the High Court to pass suitable
orders on the application filed by the near relatives or next friend or the
doctor or hospital staff praying for permission to withdraw the life support to
an incompetent person.
After Aruna Shaunbaugh case another
landmark judgement on euthanasia was Common Cause (A Regd. Society) v. Union of
India[21]
where ‘Common Cause’, registered society filed a writ petition for the common
welfare of the people, filed a writ petition under Art. 32 of The Indian
Constitution to legalize passive Euthanasia and to legally validate living
wills. The petitioner contended that it was not claiming the right to die as a
part of right to life but asserting the claim that the right to die with
dignity is an inseparable part of right to live with dignity. The petitioner
further contended that execution of a living will and or Advance Directive has
become a necessity. Chief Justice Deepak Misra gave judgement for himself and
Justice A.M. Kahnwilkar, Justice A.K. Sikri, Justice Dr D.Y. Chandrachud and
Justice Ashok Bhushan gave separate judgements but concurred with the judgement
of Chief Justice.
In case of living will, the court
used the word “Advanced Medical Directive” in their judgement. The court
referred the law in foreign jurisdictions and Indian cases. The court laid down
the procedure for execution of Advanced Medical Directive and provided the
guidelines to give effect to passive euthanasia where there are advance
directives and where there are none which would remain in force till the
legislation by the parliament in the field. The court stated the previous
decided cases on right to die, the Gian Kaur[22]
reflects the right of a dying man to die with dignity when on the verge of
death and in case of terminally ill patient or a person in Persistent
Vegetative State where there is no hope of recovery, making the process of
death come faster and reducing the period of suffering constitutes a right to
live with dignity.
In this case the bench laid down that
Euthanasia could be made lawful only by legislation, in Gian Kaur case it did
not lay down the passive euthanasia can be introduced only by legislation.
Further the court laid down difference between active and passive euthanasia
where it stated that active euthanasia entails a positive affirmative act while
passive euthanasia relates to withdrawal of life support measures or
withholding of medical treatment for artificially prolonging of life, simply in
active euthanasia a specific overt act is done to end patient’s life whereas in
passive euthanasia something is not done which is necessary for preserving a
patient’s life. Giving right to die with dignity importance, it was states that
a competent person, an adult has the right to refuse specific treatment or opt
for an alternative treatment. The emergency principle will only come into
effect when it is in no way possible to obtain the consent of the patient. But
if the patient has already made an Advanced Directive which is free from any
kind of doubt in relation to his state that whether he wishes to be treated
further or not then such directive will be taken into account. Article 21 is
not about right to life and liberty; it includes within its facet right to live
with dignity.
As right to life includes right to
live with dignity, the right to live with dignity also includes smoothening the
process of dying in case of a terminally ill patient or person in a persistent
vegetative state who shows no sign of recovery. Even though the right to life
is kept on the highest pedestal but in vase of terminally ill patient or person
in persistent vegetative state the importance shall be given to Advanced
Medical Directive and self-determination.
It was stated in the judgement that
when passive euthanasia as a situational palliative measure becomes applicable,
best interest of the patient shall override the State interest. The judgement
makes it clear that in India the right to live with dignity includes in itself
right to die also. The court issued directions enumerating safeguards in
execution of advance directive, the content of advance directive of recording
and preservation of it, its effect, and refusal of permission to withdraw
medical treatment by Medical Board, revocation or inapplicability of advance
directive when there is no advance directive.
CRITICISM
The judgement given by the court is
more than 500 pages long, it covers examples from throughout the world, covers
the historical aspects and even use the reference of a Hindi song in its
judgement. In an article by Faizan Mustaffa that the problem of euthanasia is
an elite problem.[23]
It is surely a problem for the rich because the poor person does not even reach
a State where he can afford himself a life support system. The judgement not so
important yet received a lot of media attention as well as the judges went on
to write a long judgement over the subject matter. The judgement was also cased
on mythological examples and instances as mentioned. Therefore, the religious
and mythological aspects also played important role in the judgement. The
two-concept discussed in judgement were right to die with dignity and living
will, Advanced directives will not affect the society in India in majority, it
will be the law made only for certain class of people.
CONCLUSION
The legislation on passive euthanasia
is still pending. The legislation titled Treatment of Terminally Ill patient
Bill, 2016 is still pending in the Parliament. The objective of the Bill is to
assist for the right of a dignified death. Law Commission of India report in
2012 has also dealt with the issue earlier. The concept of right to die in
India has been very confusing as studied by the case laws. Some courts have
stated right to die as not a part of right to life under the Constitution of
India while some argues that it is part of right to life mentioned under
Article 21. As of now through Common Cause judgment the Supreme Court has
established that Right to live with dignity within its facet include right to
die. However, this right must not be confused with permission to do suicide,
the right has a lot of conditions applied to it. It is only for the patients
who are in persistent vegetative state with no chance of recovery.
The concept of death cannot be ruled
by law and therefore a lot of mythological aspects are touched by the courts
when deciding on the issue of Euthanasia. The concept of taking one’s life is
also connected with morality, therefore the judge’s personal opinion also
influenced the judgements in which right to die was concerned as it could be
observed one judgement was overruled by another till it was finally decided in
Common Cause case. Right to live with dignity has been given much importance in
the judgement related to right to die, therefore it can be concluded by saying
that Right to die has been accepted as part and parcel of Right to live with
Dignity in India.
BIBLIOGRAPHY
Books referred:
·
Pandey,
Dr J.N., Constitutional Law of India (Central Law Agency, Allahabad, 56th
edn., 2019)
·
Rao,
Mamta, Constitutional Law, (EBC Publishing (P) Ltd., Lucknow, 2nd
edn., 2021).
Articles/ Papers/ Transcripts
Referred:
·
Brassington, I, “What passive euthanasia
is”, 21 BMC Med Ethics 41 (2020). Available at <https://bmcmedethics.biomedcentral.com/articles/10.1186/s12910-020-00481-7
>
·
Faizan
Mustafa, “Is the right to Die an Issue for the Poor?”, The Wire, March 23,
2018. Available at <https://thewire.in/law/is-the-right-to-die-an-issue-for-the-poor >
·
Penny Lewis, “Assisted dying: what does
the law in different countries say?”, BBC, Oct. 6, 2015. Available at <https://www.bbc.com/news/world-34445715
>
·
Sarah Mroz, Sigrid Dierickx, luc Deliens,
et.al., “Assisted dying around the world: a status questionis”, 10 Annals of Palliative
Medicine (2021).
Statutes Referred:
·
The
Constitution of India
·
The
Indian Penal Code, 1860 (Act 45 of 1860).
Websites referred:
[1] The Constitution of India, art.
21.
[2] General Christian View, “Religious
Perspective on Euthanasia”, Institute of Clinical Bioethics, March 14,
2011. Available at <https://sites.sju.edu/icb/religious-perspectives-on-euthanasia/ > (last visited on May 10,
2021).
[3] Kiarash Aramesh and Heydar Shadi,
“Euthanasia, An Islamic Ethical Perspective”, 6 Iran J Allergy Asthma Immunol
35-38, (2007).
[4] Religions, “Euthanasia, assisted
dying, and suicide”, BBC, Aug 25, 2009. Available at <https://www.bbc.co.uk/religion/religions/hinduism/hinduethics/euthanasia.shtml > (Last visited on May 10,
2021)
[5] Toyomasa Fuse, “Suicide and
culture in Japan: A study of Seppuku as an institutionalized form of suicide”,
15 Soc Psychiatry 57-63 (1980).
[6] AIR 1997 SC 411
[7] Attempt to commit suicide.
[8] (1877) 94 US 133
[9] 1963 AIR 1295.
[10] 1988 Cr. LJ 549
[11] 1994 AIR 1844.
[12] Ibid., para 88
[13] ibid
[14] (1962) 2 SCC 648
[15] Euthanasia, Defined by Britannica.
Available at < https://www.britannica.com/topic/euthanasia > (Last visited on May 12,
2021).
[17] Voluntary Euthanasia, Stanford
Encyclopaedia of Philosophy. Available at
<https://plato.stanford.edu/entries/euthanasia-voluntary/ >
[19] AIR 2011 SC 1290.
[20] The doctrine implies that the king
is the father of the State and is under the obligation to look after the
interest of those who are unable to look after themselves, it means if a
citizen is in need of someone who can act as parents and make decisions,
sometimes it is the State who is best suited for that role.
[21] AIR 2018 SC 1665.
[22] Gian Kaur v. State of Punjab,
(1996) 2 SCC 648