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EUTHANASIA AND ITS ATTRACTIVENESS IN INDIA
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EUTHANASIA AND ITS ATTRACTIVENESS IN INDIA
AUTHORED BY - MEGHA DEY*
ABSTRACT
Life is the
precious gift donated by divinity to mankind one has to protect and preserve this with kindness and
dignity. Ethics and morals impose an obligation
on the medical practitioners to assist the maintenance of life free from sufferings and pains. In case of
absence of medically qualitative life pacing
into vegetative state the soul is liberated from slow and horrible sufferings. In such situation the patient
is given with right to choose quick and
easy death. This is popularly known
as good-death, that is to say Euthanasia.
Euthanasia involves some significant issues
like death with dignity, right to
die freedom of choice between
life and ending the life right to be killed. Death is only the way
to change a body. The soul never dies
it is eternal. In present society in some situations it is defended that the person should have right to choice death.Thus.in this context proper law and the guidelines should be prescribed by the parliament and its government to avoid its misuses.
1.
INTRODUCTION
Is ending life a solution to suffering? Life is the most precious gift
granted to human by god and to enjoy
the same is the biggest pleasure they can have. Every individual tries to maximize the enjoyment of his life and make it count by doing something worth.
Considering the divine element involved
with life, every human cherish it,
but also to respect it. It is not only
the person concerned, but also the state which has to respect it is to fulfill
the requirement only that most of
the states of the world ensure a “right to life” to their citizens and provide with protection of law
against any encroachment on this
right. State try to assure that life
is enjoyed and every person is
enabled to utilize his life by doing whatever he considers worth within the spheres of the law. They
protect the life of people from any
outsider attack or intervention. But there might arise a possibility when the attack on this right is not from the
out sider but from insider. The situation
being talked about here is when the person himself wants to end up his life.
Any attack on this right to life is not taken lightly
by the state and provisions are made to punish all such
attempts For example, almost all the jurisdiction
have made murder and crime, homicide which falls short of murder due to some technical reasons is
also culpable. It shows that any outside
attack is just not tolerated at all. But the position is not clearing the other situation i.e. when the attack is
from within. Self-destruction acts like suicide
and euthanasia can be included in this category. While the stand of law on the outside attack is animus there
are different in opinion as to be inside
attacks. There are countries where attempt to suicide is not a crime and is seen as an expression of one?s
choice and liberty whileon the other hand there are countries
which consider it to be outside
the scope of liberty andas an intrusion
into the states monopoly of taking lives.
There is another form of inside attack on the other hand on the right to life: -Euthanasia or mercy killing is a
very late entrant in the legislative debate.
Since long it has attracted the attention of jurist and scholar but it could not pierce the legislative
boundaries until very lately. It was in 2002
that the world saw its first euthanasia which legalized active
euthanasia and the same has been at
target of pro-life camp. There have been. Allegations that legislation is an act on the humanity and the sanctity of
life. The legislation which brings an
unnatural end to life is an intervention with the divine plan as they allow the human to decide about their death, a matter which is otherwise supposed to be dealt by god. The opponents
base their arguments on various
premises like morality, ethics, religious, ideologies and fear of abuse of the power Euthanasia has attracted the
attention of not only the legal school, but also has been on the focus
of various religious authorities also. Almost all the religious have their own separate
ideologies which treat life and the importance attached to it in a peculiar
way. Some religion is very orthodox and
treat god only as the authority to decide as to the matter of life and provide no scope for the individual
discretion to end his life earlier than the
natural span. At the same time there is no religion mainly the one originated
in the Eastern parts of the world which though associate death with god but they see death not as
spiritual moment where human are closest to god they see it as a time were
the pain endured by the person gives
hima chance to wash away all his sins of the present life and get rid of cycle of rebirth and attain salvation.
2.
LEGAL ASPECTS OF EUTHANASIA IN INDIA
The legal position
of India cannot and must not be studied in isolation. India has drawn its constitution from the
establishments of various countries and the
courts have time and again referred to various foreign decisions[1].
In India, euthanasia is undoubtedly illegal. Meanwhile
in cases of euthanasia or mercy killing is an intention on the part of the doctor to
end the life of the patient, such
cases would clearly fall under clause first of section 300 of the Indian Penal Code, 1860. However, as
in such cases there is a valid consent
of the deceased Exception 5 to say section would be attracted and the
doctor or the medical professional would be punishable under section 304 for culpable homicide not amounting to
murder. But it is only cases of voluntary
euthanasia that would attract exception 5 to section 300[2].
Cases of non-voluntary and
involuntary euthanasia would be struck down by proviso one to section 92 of the IPC and thus be rendered illegal. The
law in India is also very clear on
the aspect of assisted suicide. Right to suicide is not a right available
in India- it is punishable under the Indian Penal Code, 1860. Provision of punishing suicide is contained in sections 305, 306
and 309 IPC has been brought under
the scanner with regard to its constitutionality. Right to life is an important right enshrined in Constitution of
India. Article 21 guarantees the
right to life in India. It is argued that the right to life under article 21 includes the right to die.
Therefore the mercy killing is the legal right
of a person. After the decision of a five judge bench of the Supreme Court in Gian Kaur v. State of Punjab it
is well settled that the “right to life” guaranteed
by article 21 of the Constitution does not include the “right to die”. The Court held that Article 21 is a
provision guaranteeing protection of life and personal liberty
and by no stretch of the imagination can extinction of life
be read into it. In existing regime under the Indian Medical Council Act, 1956 also incidentally deals with the
issue at hand. Under section 20A read
with section 33(m) of the said Act, the Medical Council of India may prescribe the standards of professional
conduct and etiquette and a code of ethics for medical practitioners.
Exercising
these powers, the Medical Council of India has
amended the code of medical ethics
for medical practitioners. There under the act of euthanasia has been classified as unethical except in cases
where the life support system is used
only to continue the cardio-pulmonary actions of the body. In such cases, subject to the certification by the term of
doctors, life support system may be
removed. A person attempts suicide in a depression and hence he needs help, rather than punishment.
India has been known for its precise
characteristics of variety. This variety in India prevails due to its secular nature.
The nation respects all the extraordinary religions, groups, their subculture,
and dialects. This performs a critical impact within the notion manner of a
character in India. However, it not simply the religion that impacts one method
towards the problem however even the educational qualification, his exposure to
the outdoor world matter a lot. On this background, euthanasia in India may be discussed
from various angles. Though there may be developing aid for the novel view
there aren?t any statutory provisions in ours of a to assist folks who want to withdraw
life guide as they suffer from incurable contamination or are in a PVS.
Terminally sick can?t be exactly defined but any disease that curtails
lifestyles or disease due to which death happens in a noticeably quick time can
be termed as terminally unwell.
The authority conferred to stay is no
doubt an inalienable and inherent strength of all the citizens. But at the same
time, there arguments in India that say that this power conferred does now not
include inside the authority to terminate lifestyles. According to the Indian
Criminal Law, the effort to commit suicide is an offences punishable underneath
segment 309 of the Indian Penal Code, and abetment of the identical is likewise
an offence punishable below segment 306 Indian Penal Code. Euthanasia way deliberately
taking one?s lifestyles whether voluntary or now not this killing of the man or
woman for any cause in any respect may be is an offence in this us of a and considered
unlawful in India. In India, the idea of Euthanasia is surprisingly contested[3].
Whether it must be legalized or now
not, whether aid must be furnished to end their existence or no longer is an
issue of controversy. The argument has won impetus whilst the Supreme Court
legalized passive euthanasia in “Aruna Shanbaug” case. Euthanasia in India
relies upon at the ideals of every character. The instructional stage,
intercourse, age, and martial repute shall also have an impact on the choice of
the person. Higher the instructional degree extra will be the probabilities of
support. Males who?ve no longer married are alleged to be much less sentimental
and are probably to indulge in sensible choices of supporting euthanasia.
Similarly, the younger knowledge also
seems to be in favour of euthanasia. The scientific fraternity also wishes a
law as they may be conscious that when a point of time there is no rescue for
the affected person via drugs. In such instances euthanasia becomes inevitable
however the medical doctors are not capable of implement it because of the
criminal law every day that punishes such motion. Legalizing euthanasia will allow
medical doctors to evaluate the blessings
against the load effortlessly without
fear and hesitation.
The Law Commission of India agrees
with the opinion of the Supreme Court in having legislation on passive euthanasia with precise security
features. This method of the commission is based totally on humanitarian grounds and also to protect the physicians
who?re helping in performing the act
for the welfare of the patient. However, they disagree with the Supreme Court in setting
up a panel of doctor who might assist the selections. According to the Protection of sufferers and clinical
practitioner ?s invoice 2006 this
necessary guard needs to be taken with the aid of the physicians who could act on the affected person?s
request. This is nicely supported via the
Supreme Court which has opined that if a man or woman voluntarily refuses to take remedy or wants to
withdraw from life-helping structures it have
to no longer be held against the law. In Naresh
Marotrao Sakhre vs. Union of India[4]
Lodha J. affirmed that „Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is
affected. ?The meaning of the term „euthanasia? is itself shrouded in
ambiguity. It has been derived
from the Greek word „EU Thanatos
?meaning„ good death. ?To reiterate the judicial pronouncements in
the Indian context, good or happy death would imply the ending of life the natural
way.
3.
PRESENT
SEENARIO
The apex court
will not review its past Judgement of
passive euthanasia and only make
the guidelines on “Living will “an advance medical directive on end of life treatment, more workable. The apex court?s
2018 order on passive
euthanasia wherein it recognised the right to die with dignity as a fundamental right and an aspect of Article
21(right to life) notwithstanding people
wanted to get a “Living will Registered have been facing problem due to burdensome guidelines[5].
A five-judge Constitution bench headed by justice K M Joseph said during hearing
a explanation by the court
should not lead to more confusion.
“We will simply make it a little bit more workable, we can?t be reviewing
it. We kept the matter in open
court. There is nothing to be reserved we cannot be reopening the whole
thing”, the bench also comprising justice Ajay Rastogi Aniruddha Bose,Hrishiesh Roy and Justice
C T Ravikumar said.
Additionally solicitor General
KM Nataraj Contended
the present proceedings fall within a very narrow
compass. “All has already been laid down. Whatever are the practical problems
that vacuum has to be filed in.
Senior advocate
Arvind P Datar appearing for The Indian Society for Critical
Care told the court that he has submitted a chart enlarging the area which are unworkable. He said suggestions
put forth have been discussed with
doctors and there is a complete report of the India Council Medical Research.
More than four years after its landmark order on passive euthanasia the
top court said it is for legislature to enact a law for terminally ill patients wanting
to stop treatment but agreed to modify its
2018 guidelines on “living will “observing that the legislature is much more endowed with “skill and sources of know
knowledge” to enact a relevant law
the apex court said it will limit
itself to improving the guidelines it had laid down on “living will”.
The bench had said there can only be a little tweaking of the guidelines
or else it will become a review of its own 2018 judgement.
The five-judge constitution bench was considering a plea seeking
modification of guidelines for, living will/Advance Medical Directive
issued by it in 2018.
The top court had in its March 9, 2018 judgement
recognised that a terminally
ill patient or a person in a persistent vegetative state may execute an advance medical directive or a “living
will” to refuse medical treatment, holding
the right to live with dignity also include “smoothening” the process of dying.
It had observed that the failure to legally recognise
advance medical directives might amount to
“non-facilitation “of the right to smoothen the dying process and that dignity
in that process was also part of the right to life under Article 21 of the Constitution.
The apex court had laid down principle related
to the procedure for execution of advance directives and spelt
out guidelines and safeguards to give
effect to passive euthanasia in both
circumstances where there are advance
directives and where there are
none.
The directive and guidelines shall remain in force till parliament brings legislation in the field.
The verdict had come on a pill, filed by NGO common Cause seeking recognition of the “living will” made
terminally –ill patients for passive euthanasia.
4.
PRO AND CONS FOR EUTHANASIA
From Ram?s
jalasamadhi to Mahatma Gandhi and Vinoba Bhave?s fast till death (in which Behave died) euthanasia existed in Indian society. The judiciary has also viewed euthanasia from
a sympathetic angle which is evident from the observation of the various judges
in cases dealing with right to
suicide[6].
Euthanasia means killing a person rather ending the life a person who is suffering from some terminal
illness which is making his life painful
as well as miserable or in other words ending a life which is not worth living. But the problem lies that
how should one decide whether the life
is anymore worth living or not. Thus, the term euthanasia is rather too ambiguous. This has been a topic for
debate since a long time i.e. whether euthanasia
should be allowed or not. In the present time, the debate is mainly regarding
active euthanasia rather than passive
euthanasia. The dispute is regarding the conflicts of
interests: the interest of the society and that of the individual.
One school of
thought argues that it should be allowed keeping in view the fact that the life of a person is taken
away by his own consent. According to the
supporters of euthanasia the decision of the patients should be accepted. If on the other hand we weigh the social
values with the individual interest then we will clearly
see that here the interest
of the individual will outweigh the interest of the society. The
society aims at interest of the individuals
rather it is made with the purpose of assuring a dignified and a peaceful life to all. Now if the
individual who is under unbearable pain is not
able to decide for himself then it surely will hamper his interest. In that case it will surely be a negation of his
dignity and human rights. Regarding this
debate from legal point of view, Article 21 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. Supporters of active euthanasia contend that
since society has acknowledged a patient?s right to passive
euthanasia (for example, by legally recognizing refusal of
life-sustaining treatment), active euthanasia
should similarly be permitted.
When arguing
on behalf of legalizing active euthanasia[7], proponents emphasize circumstances in which a condition has become
overwhelmingly burdensome for the
patient, pain management for the patient is inadequate and only death seems capable of bringing relief.
Moreover, in light of increasing pressure on hospital and
medical facilities, it is argued that the same
facilities should be used for the benefit of other patients who have a better chance of recovery and to whom the
said facilities would be of greater value.
Thus, the argument runs, when one has to choose between a patient beyond recovery and one who may be saved
the latter should be preferred as the
former will die in any case.
Also, one
major argument against euthanasia being legalized is that if such a person were to kill and claim that he
acted out of compassion, who could prove
otherwise? Even if euthanasia is legalized, who or what
determines the criteria of the
suffering, the individual is facing so as to allow him to embrace death. Should it be the
recommendation of a recognized doctor that
the patient so named cannot be cured. Or it should be testified by the
parents or near relatives that
their ward cannot survive but with acute pain and suffering, which they cannot withstand.
Decisions left in the hands of doctors or relatives are
very risky also. It might not always
be clear that relatives and doctors are always acting in the patient?s
best interests. A doctor may be waiting
for an organ for a transplant, for instance, or for a bed to
become free and relatives may simply
wish to be relieved of the burden of an ill member of the family. It has been contended that if such legislation is to take effect, euthanasia should be administered at or upon the consent of the patient but
this point of consent being taken by the supporters of
euthanasia also fails to consider
that if one is in great pain or is suffering from mental problems then
the person is nor in a
position to make a free and
balanced decision. The elements
of free consent also need to be imported in our case and for any patient who gives such consent. It could
be argued that his consent was Another
favourite argument is that of the
“slippery slope”. The slippery slope
argument, in short, is that voluntary euthanasia would over the years lead to a slide down the slippery slope
and eventually we would end up permitting even non-voluntary and voluntary euthanasia. Legalized euthanasia
would produce huge social pressures on very vulnerable people to „volunteer? causing much stress and suffering.
5.
CONCLUSION
It could be
exaggerating to say that the issue of legalizing euthanasia is over and there is hope of putting it into an
enactment in the near future. Making a law
is not a solution on every problem we face in day to day life. Mercy killing
is not a common situation
but quite a rare condition. One in thousands situation medical practitioners
come across cases of patients with chronic
conditions, where euthanasia is considered. It is not a common case. Taking
into account euthanasia in case of a patient
with PVS state is practical but that does not happen with
every such case. Evaluating every case
in here is not practical and won?t serve the purpose of the research. It is important to assess the practical task
behind legalizing euthanasia in India. Countries
where euthanasia is legal in all aspects, the practice of the same has turned into a convention. The
mechanism has seen a long span of time tackling
obstacles and setting new norms. It is not the situation that the practice is full proof and without
loopholes in those nations. During that period
the nations and their citizens have gone through a radical change in the medical field as well as human
perspective. It has developed the mind- set
of the whole community towards forming the opinion about choosing death over life. This understanding has
flowed through generations now, which
is pretty much revolutionary. What India needs is the maturity to handle the issue and understanding its
pros and cons thoroughly. It is a mammoth task.
The requirement of having legislation on euthanasia depends
on the intensity of number of patients with terminal illness and the
gravity of such situations. It is not
commonly accepted in India. What a situation would demand in future and what would be its repercussions are matter of unknown
reality. Indian population has not developed the healthy potential required for legalizing active euthanasia.
It considers both the sides of a subject in a dispute
and helps to apply to a proposal. Euthanasia has develop into an important question in the
defend of human dignity. Medical science has
become more capable at prolonging life. But, it has been observed that it not essentially made life important. Euthanasia is an option to be well
thought-out by those who suffer, those who love the terminally ill, and
those who are designated with their
care. Euthanasia on empathetic basis, for those in support of it says that
euthanasia is a footstep of consideration. Importance
of living has to be considered of the incurably ill patient. This can be guaranteed if they are given the
liberty to decide their fate. The amount
of pain they need to tolerate. They need to be discharged from the obligation of living if there is no
recourse to their situation. The primary ethical
morals of society, sympathy and mercy, state that no patient should be allowed to suffer insufferably and euthanasia should be allowable. Relieving a patient from agony, suffering by performing
euthanasia does more good. Further,
these patients can assistance others and keep many lives. They can
attain “moksha” for the good conduct done by them before ending life willingly. The terminally ill patients can
donate their organs. This shall
eventually help in saving many individuals life that is precious. The sufferings which they are going
through are believed by the religious proponents
to be due to their bad karma. This donation can thus alleviate them in attaining spiritual gain. The long
term palliative care is a waste of available
medical resources. A country like ours where there is already a scarcity of medical assistance, medical
decision makers are already facing difficulties in choosing between
competing demands.
99/euthanasia/report/report.pdf (last visited
on June 1st 2023).
[2] Raman Devgan,IPC section
300,devgan,https://devgan.in/ipc/section/300/,(June 4th 2023,10:34 Am).
[3] Tanisha Maheshwari, Case Analysis of Aruna Ramachandra Shanbaug vs. Union of India,Manupatra,https://articles.manupatra.com/article-details/case-analysis-of-Aruna- Ramchandra-Shanbaug-vs-union –of-India.(last visited on June 5th 2023 ,6:30 AM).
[4] 1996(1) Bom CR 92.(India)
[5] Krishnadas rajagopal.Supreme court eases procedures for terminally ill patients to withdraw
medical treatment,https://www.thehindu.com/news/national/,supreme-court- eases-procedures-for-terminally-ill-patients-to-withdraw-medical- treatment/article66466280.ece(last visited 23.june.2022 5:30 pm)
[6] https://www.clearias.com/euthanasia/ (last visited June 2nd 2023 at 7:50 PM)
[7] Marya Mannes, Euthanasia V Right to Life, Baylor Law Review, https://thelawbrigade.com/wp-content/uploads/2019/12/MERCY-Killing-IN-INDIA-A- JUDICIAL-OVERVIEW_MONALISHA.Pdf (last visited 5th June 2023 12:37 PM).
Article Information
EUTHANASIA AND ITS ATTRACTIVENESS IN INDIA
Authors: MEGHA DEY
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/08/24
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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