Open Access Research Article
The Supreme Court Of India On Euthanasia: Too Little, Too Late (By-Shankar V Varude)
Published Paper
Article Details
The Supreme Court Of India On Euthanasia:
Too Little, Too Late
Authored By-Shankar V Varude
Index
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Particular
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Page No
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Key Words
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Abstract
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Introduction
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Gains
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Limitations and missed opportunities
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Closing Remarks
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References
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Key Words
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Meaning
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CI
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Constitution of
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CB
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Constitutional
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SCI
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Supreme Court of
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CC
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Common Cause
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The Supreme Court Of India On Euthanasia: Too
Little, Too Late
Abstract
By the legal discourse on euthanasia and largely remains
divorced from the ethics discourse on the subject. While the separate opinion
penned engages extensively with the ethical dimensions of the euthanasia
debate, his conclusion focuses on the constitutional framework to justify the
legal permissibility of passive euthanasia and impermissibility of active
euthanasia, as is the case with the concluding sections of the other three
judgments.
Introduction
On Friday, March 9, 2018 the five-judge Constitution
Bench (CB) of the Supreme Court of India (SCI) chaired by Dipak Misra, the
Chief Justice of India, pronounced its judgment (1) (henceforth CC judgment)
granting, for the first time in India, legal recognition to “advanced medical
directives” or “living wills”, i.e. a person’s decision communicated in advance
on withdrawal of life-saving treatment under certain conditions, which should
be respected by the treating doctor/s and the hospital. It also reiterates the
legal recognition of the right to “passive euthanasia”; and draws upon Article
21 – the right to life – of the Constitution of India (henceforth Constitution)
(2) interpreting robustly that the “right to life” includes the “right to die
with dignity”. Justices Misra and Khanwilkar disposed of the writ petition
filed in 2005 by Common Cause (3) (henceforth CC petition) saying, “The
directive and guidelines shall remain in force till the Parliament brings a
legislation in the field” (1: p 192).
The judgment is a response to the writ petition (3) of a
Delhi-based public interest advocacy organization. Two of the four prayers in
the petition are: One, it sought recognition for the “right to die with
dignity” as a fundamental right within the fold of the right to live with
dignity guaranteed under Article 21 of the Constitution; two, recognition for
living wills and “attorney authorization”. Later, a registered entity called
the Society for Right to Die with Dignity intervened (1) supporting the concept
of passive euthanasia as providing relief from irrecoverable suffering of which
pain is a factor.
It is fair to state that the CC judgment (1) has
responded favorably to the CC petition (3) and is being commended as a
“landmark” verdict. However, we would urge a cautious welcome. In this
editorial we discuss some of the key gains and challenges to translating the
suggested measures into ethically sound practice on the ground. We also reflect
on the missed opportunities, offering insights into matters impacting peoples’
choices relating to healthcare.
Gains
First, this judgment will remain an important milestone
with regard to the interpretation of Article 21 of the Constitution and
bringing the “right to die with dignity” within its fold. Justice Sikri, in his
separate opinion in the CC judgment (1) mentions that Article 21 “has been
interpreted by the Court in most expansive terms, particularly when it comes to
the meaning that is assigned to ‘right to life'” (1:p 219). Further, he invokes
the observation made by Justice K Ramaswamy in the case of CESE Limited and
Others v. Subhash Chandra Bose and Others (4) bringing both physical and mental
health and well-being within the ambit of the “right to life”. It is noteworthy
that this case brought forth a significant point that being in good health
would enable the exercise of the civil and political rights assured by our
Constitution. The other recent judgment (5) of the SCI, generally known as the
Puttaswamy judgment, is widely hailed as a landmark judgment on the privacy of
individuals. This judgment had pronounced that “The right to privacy is
protected as an intrinsic part of the right to life and personal liberty under
Article 21 and as a part of the freedoms guaranteed by part III of the
Constitution” (1:p 3). The CB has argued throughout the present judgment,
informed by the Puttaswamy judgment, that it recognizes the right to privacy as
a fundamental right under Article 21, and has placed on a higher footing, than
ever before in India, the principle of self-determination.
Justices Misra and Khanwilkar in the conclusion of the
common CC judgment (1) draw up pathways of the flow of rights within the scope
of Article 21, while limiting the scope to only “passive euthanasia”. They
argue that the right to life and liberty as envisaged under Article 21
encompasses individual dignity and therefore the right to live with dignity.
Such a right includes, the CC judgment goes on to argue, the smoothening of the
process of dying in cases of a terminal illness or permanent vegetative state
with no hope of recovery. A failure to legally recognize advance medical
directives may amount to the denial of these rights.
Second, it reiterates the legal recognition, in specific
cases, of the “right to passive euthanasia” which was honored in the judgment
in the case of Aruna Shanbaug in 2011 (6). The CC judgment has also extensively
deliberated on the misreading of the Gian Kaur judgment (7) by the two-judge
bench in the Shanbaug case (6). The CC judgment (1) has resolved the discord
and contradictions therein. It affirms unambiguously the right to refuse life
support interventions as a fundamental right.
Third, because the judgment has upheld the legal
permissibility of advance directives with reference to the withholding or
withdrawing of life sustaining treatment, it has implications for the draft
Medical Treatment of Terminally Ill Patients (Protection of Patients and
Medical Practitioners) Bill, 2016 (8) (henceforth Bill of 2016) which is still
pending before Parliament. Clause 11 of this Bill considers advance directives
or medical power of attorney to be void and not binding on any medical
practitioner. Justice Sikri in his separate opinion (1) critiques this blanket
ban in the draft Bill as a disproportionate one. He opines, “It does not
constitute a fair, just or reasonable procedure, which is a requirement for the
imposition of a restriction on the right to life (in this case, expressed as
the right to die with dignity) under Article 21.” (1: p 294). Prospective
revisions to the draft Bill of 2016 (8) will require the scrapping of Clause
11.
The fourth is a more generic point, which is about the
progressive outlook of the Constitution (2) and the need for its dynamic
interpretation in changing contexts. The common CC judgment (1) mentions, “we
may clearly state here that the interpretation of the Constitution, especially
fundamental rights, has to be dynamic and it is only such interpretative
dynamism that breathes life into the written words. As far as Article 21 is
concerned … dynamism can, of course, infuse life into life and liberty as used
in the said Article” (1: p 131). It also notes that, over the passage of time,
the SCI has expanded the ambit of Article 21.
Finally, the CC judgment (1) is also a rich document,
citing wide ranging and fairly up-to-date interdisciplinary scholarly
literature including philosophy, ethics and law to inform various strands of
the arguments. We would like to note that the judgment has sourced materials
from this journal, too. One of the prominent and recurring themes in the
judgment is the concept of dignity which is, interestingly, central to the
arguments in favor of and against the right to die.
Limitations And Missed Opportunities
However, a number of other aspects of the judgment are
either problematic or missed opportunities.
First, although the reiteration of the legal recognition
of “passive euthanasia” is advantageous, the judgment does not take cognizance
of the ongoing debate regarding the futility of the distinction between passive
and active euthanasia. Minimizing human suffering and optimizing individual
autonomy ought to be foundational to the notion of dying with dignity in
specific situations. These two principles serve as the moral imperative of
euthanasia. Justice Chandrachud in his separate opinion in the CC judgment (1)
has sourced, amongst others, Shukla’s (9) critical analysis of the Shanbaug
judgment (6). However, his conclusion does not appear to be informed by this
debate on the futility of the morally constrained distinction between active
and passive euthanasia. Shukla had argued that the neglect of the moral
relevance of the patient’s suffering in the legal discourse on euthanasia in
India is at odds with the consequences of passive euthanasia – patients’
suffering – and warrants looking into the practical implications of legally
permissible passive euthanasia (9).
In our opinion the four key criteria for determining
legal and ethical permissibility invoked in the CC judgment (1) the moral
principle of freedom from suffering, the ability to exercise the right to
self-determination under Article 21 of the Constitution (2), the International
Covenant on Civil and Political Rights (ICCPR) (10), and the applicability of
sections 76, 79, 81, and 88 of the Indian Penal Code (11), which are about
“good faith protections”, are inconsistently applied to passive and active
euthanasia to justify the legal permissibility of the former and
impermissibility of the latter. It may have been possible for the CB to opt for
a consistent position on passive and active euthanasia and qualify it by saying
that the larger context of India did not give the CB sufficient confidence to
make active euthanasia legal at the present time.
Overall, the CC judgment (1) has not been able to resolve
the definitional crisis in relation to active and passive euthanasia, which has
adverse implications for the ethical obligations of a healthcare provider to
her/his patients.
Second, the proposed mechanism for developing and
administering /implementing advance directives in the CC judgment (1) is too
cumbersome for it to be effective in practice.
The Shanbaug
judgment (6) also required a fairly complex process involving approval from a
High Court of the decision to discontinue life support. A review of litigation
after this judgment shows that it has been invoked only once, in a case (12)
that did not involve a terminally ill patient as reported by Sanyal (13). This
implies that decisions in such cases continue to be made outside the courts
post the Shanbaug judgment. With processes being made more cumbersome in the CC
judgment (1) even experts doubt the usefulness of the judgment, as Aayushi
reports (14). As rightly argued by Kumar (15), the involvement of a number of
players in this process would compromise the autonomy of both the patient and
the treating doctor, rendering the CC judgment ineffective and self-defeating.
The Court has limited the scope of advance directives to only the withdrawal of
medical treatment by terminally ill patients, a decision that is likely to
significantly limit the utility of such an instrument.
Third, the judgment has failed to contextualize the
“right to die” debate, taking into consideration the existing inequity in
access to healthcare and the overall organization of the healthcare system in
India. Currently, there is no universal health coverage for citizens of India
except for the government’s most recent announcement of the National Health
Protection Scheme (NHPS) (16). The NHPS has been critiqued both for its overall
lackadaisical conceptual framework and unviability in terms of availability of
a public fund to optimally translate the scheme on the ground (16, 17).
The CC judgment (1), in our opinion, missed the
opportunity to at least make a reference to the fact that a large number of
people in India are forced to embrace an undignified death due to the lack of
resources to access necessary care. Among others, the roots of the latter can
be traced to a poorly funded public healthcare system, and an unaffordable and
unregulated private healthcare system. As a result, the judgment responds, if
at all, to the needs of only of a small segment of the population which may be
able to access care in situations such as when a patient is in a permanent
vegetative state or in a terminal state of an incurable illness.
Finally, we would like express our deep distress at
Justice Sikri’s separate opinion as part of the CC judgment (1), bringing in
the perspective of economics and the need for rationing scarce healthcare
resources. He suggests that euthanasia could also be justified if it is viewed
or discussed in the context of economic principles. He mentions two questions:
“First, because of rampant poverty where majority of the persons are not able
to afford health services, should they
be forced to spend on medical treatment beyond their
means and in the process compelling them to sell their house property,
household things and other assets which may be means of livelihood. Secondly,
when there are limited medical facilities available, should a major part
thereof be consumed on those patients who have no chances of recovery?” (1: p
277)
He develops his argument by invoking views from
scholarship in health economics and health resources rationing. These include
the following perspectives: assessment of the net benefit to the individual
from ethical considerations compared to the net benefit to society from
economic considerations would help determine if euthanasia is beneficial to the
majority in society; and introducing an economic perspective to the debate on
permissibility of euthanasia is not incompatible with ethics discourse on
euthanasia. Sikri argues that legal permissibility justified on grounds of
respecting dignity is further strengthened by the aforesaid economic
considerations. What is most disturbing about this position of Justice Sikri is
that neither he nor any other judge from the CB makes even a passing reference
to the state’s ethical obligation to honor people’s right to healthcare by
putting in place robust policies such as universal health coverage. In the
absence of this, any economic considerations to justify euthanasia are
tantamount to suggesting that those who can’t afford the necessary
comprehensive healthcare are lesser individuals and must put up with suffering
and dying in pain. This position in a way completely absolves the state of its
overall obligations towards its citizens which is a dangerous path for us as a
country to tread. It undermines the very foundation of constitutional values.
Closing Remarks
We have demonstrated that the judgment is shaped by the
legal discourse on euthanasia and largely remains divorced from the ethics
discourse on the subject. While the separate opinion penned by Justice
Chandrachud engages extensively with the ethical dimensions of the euthanasia
debate, his conclusion focuses on the constitutional framework to justify the
legal permissibility of passive euthanasia and impermissibility of active
euthanasia, as is the case with the concluding sections of the other three judgments.
Considering that the final judgment took about a decade
and a half to respond to the CC petition (3), one would have expected more from
it. Overall, the CC judgment (1) fails to refer to: (a) the need for extensive
reforms in the healthcare system in India that would squarely address the
entrenched inequity in access to healthcare; (b) the much-needed multifold
increase in the health
budget; and (c) the obligation of the government to
ensure effective implementation of the palliative care policy which remains a
low or zero priority for health administrators. All of this would be
facilitated by urgently putting in place a mechanism that enables universal
health coverage for all. Also, such universal health coverage ought to bring
into its fold access to palliative care which is central to the debate on
ethical aspects of the right to die with dignity.
The CB had an opportunity to widen the scope of the
discourse to integrate the above aspects into the legal discourse,
strengthening its ethical content and raising important questions for the
government to respond to. Its failure to do so is especially a cause for
concern because the legal discourse on passive euthanasia has traversed a
trajectory that spreads over almost two decades with milestones such as the
196th and 241st Law Commission Reports (18, 19), the various judgments
including those in the Rathinam (20), Gian Kaur (7), and Aruna Shanbaug (6)
cases, and the bill of 2016 (8).
It is of critical significance that the draft bill of
2016 (8) pending before Parliament be revived immediately and discussed
threadbare seeking deeper involvement of the people at large, reconsidering the
misleading distinction between active and passive euthanasia, and pushing the
government to invest in universal access to healthcare, and making people’s
right to equitable and quality care a justiciable right. In the absence of a
systemic overhaul, the CC judgment (1) stands to be either potentially misused
or remain ineffective.
Before we close, we would like to flag a broader question
about the ever-increasing reliance on interventions by the SCI in matters that
ought to be attended to routinely by the other appropriate offices and
parliamentary processes. The CC judgment ends its concluding section by saying
that it has laid out the guidelines for execution of advance directives “in
exercise of the power under Article 142 of the Constitution,” and mentions that
“The directive and guidelines shall remain in force till the Parliament brings
legislation in the field.” Venugopal (21) notes that the Supreme Court’s use of
its vast powers under this Article has done tremendous good to many deprived
sections. However, he argues that it requires restraint to avert encroaching
into parliamentary processes in lawmaking. He has proposed that the government
bring out a white paper in six months or so after the pronouncement of a
judgment which has invoked Article 142 to document the beneficial and adverse
impact of such a judgment.
The fact that interventions from the SCI are sought on
some of the most important matters reflects malfunctioning and / or
non-functioning mechanisms, especially in the lawmaking and redressal systems,
and legislative/parliamentary mechanisms. It is also a reflection of a
weakening of public discourse and ethical consensus. Overdependence on the
judiciary has two constraints: One, the enormous efforts and resources that the
judiciary puts in to responding to such matters must adversely impact those
cases that can only be addressed by the judiciary. Two, it indirectly weakens
if not subverts the parliamentary lawmaking process, one of the powers with
which the government is entrusted.
*The Managing Committee of Forum for Medical Ethics
Society (FMES) includes Sanjay Nagral (Chairperson), Sunita VS Bandewar (General
Secretary), Lubna Duggal (Treasurer), Leni Chaudhuri (Member), Shamim Modi
(Member), Shyamala Nataraj (Member), Barun Mukhopadhyay (Member) and Sunita
Simon Kurpad (Member)
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Article Information
The Supreme Court Of India On Euthanasia: Too Little, Too Late (By-Shankar V Varude)
Authors: Shankar V Varude
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/08/01
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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