The legality of Euthanasia In India

Introduction

Euthanasia is the practice of ending the life of a person with dignity and relieving the foreperson from pain and suffering. The legality of Euthanasia, therefore, is considered to be the most important part of the discussion in the Indian context. Therefore it is very important to know about the types and legality of euthanasia on its base.

Euthanasia is basically divided into two forms on the basis of the method

Passive Euthanasia –

It is defined as hastening death by removing the life support and letting the death be a natural phenomenon. The above method is practised where the chance of recovery of the patient is uncertain and is only done to allow the death naturally.

Active Euthanasia –

It is an act done in mercy, to end the suffering or a painful and meaningless existence. The above method is done by administering some external source to the patient, for example, lethal injection such as sodium pentothal to hasten the death.


3. Further, euthanasia is classified into three forms on the basis of consent:

Voluntary –

In this type, the person himself seeks the plea for the commission of euthanasia. The patient makes a request orally or written, preferring euthanasia rather than to continue living in suffering(Cruzan v. Director, Missouri Department of Health)(1). Therefore, under voluntary request, both passive euthanasia and active euthanasia can be practised.
Involuntary – In this type, a person is incompetent to consent to the decision of euthanasia. Therefore, this method includes cases of brain-dead, coma patients, etc.

Non-voluntary –

In this type, a person is competent yet non-consenting to the decision of euthanasia. No doubt, this form is direct homicide.

Passive euthanasia is legal under some circumstances in many countries. Active euthanasia, however, is legal or de facto legal in only a handful of countries which limit it to specific circumstances and require the approval of counsellors and doctors or other specialists.

There are other terms which are also important to know in terms of euthanasia-
Physically assisted suicide-Also known as aid-in-dying, PAS is a semi-passive form of euthanasia, whereby the medical practitioner prescribes or introduces the right amount of lethal dose for the termination of life at the request of the patient itself.

The dose may either be self–injected by the person or the same be made available to the patient who himself/herself injects or inhales the lethal dose.

When the patient brings about their own death with the assistance of a physician, the term assisted suicide is often used instead.

Permanent Vegetative State (PVS) :

It is a state whereby a patient is in a vegetative stage, where he/she no longer is capable of sustaining on their own means and is on the support of any or many life support systems or even other individuals (including family, relatives, doctors, medical staff, etc.) to perform basic human functions.

Judicial stand on euthanasia and legal aspects Euthanasia have been started since independence.

Great leaders had died by refusing to take nutrition. But the term is still confusing as shown in most of our judgement. The term not only includes the legality of euthanasia but also arises questions like whether an attempt to suicide is legal and whether the right to die with dignity can infringe Fundamental Rights etc.

The term has revolved around one of the most important articles of COI, Article 21 -Right to Life and liberty. But the scope of Article 21 is such wide that an infinite number of interpretations can be inferred.

On this basis, the question arises whether the Right to Life with dignity includes the Right to die or not in the case of the State of Maharashtra vs Maruti shripath Dubai(2).

In the following case, a police constable has developed a mental illness after a road accident.

After diagnosing with schizophrenia he suffered other mental illnesses and attempt to commit suicide under 309 of IPC.

Section 309 of IPC read as whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with a fine or both.


It was held in this case by the Bombay High Court that ‘right to life also includes ‘right to die’ and Section 309 was struck down.

The court clearly said in this case that the right to die is not unnatural; it is just uncommon and abnormal. In another case P. Rathinam vs UOI(3), where the petition was filed challenging the constitutionality of section 309 of IPC. The Supreme Court drew a parallel between the other fundamental rights – just as the right to freedom of speech under Article 19 gives the right to speak but also includes the right to not speak, the right to live under Article 21 includes the right to not live. Thus, Section 309 was held to be unconstitutional.

However, in Gian Kaur vs State of Punjab(4), the SC overruled the judgement of the P rational case upholding the constitutionality of sections 306 and 309 of IPC. In Gian Kaur vs State of Punjab Gian Kaur and her husband, Harbans Singh was convicted by a Trial Court under Section 306 of the Indian Penal Code. They were sentenced to six years imprisonment and a fine of Rs. 2,000/- for abetting the suicide by Ms Kulwant Kaur.

Section 306 punishes anyone who abets the commission of suicide, while Section 309 punishes anyone who attempts to commit suicide. It was argued that, as held in P. Rathinam v. Union of India, the Article 21 right to life includes the right to die. So, a person abetting suicide is merely assisting in the enforcement of Article 21.

A five-judge bench of the Supreme Court overruled P. Rathinam. It held that P. Rathinam was wrong on the analogy that other fundamental rights include the “right not to” since the right not to speak is a commission while taking a life is an act.

Although it included several extracts from Airedale N.H.S. Trust v. Bland ((1993) 2 WLR 316: (1993) 1 All ER 821, HL)(5) the Court clarified that it will not be looking into the issue of Euthanasia, and also distinguished between right to die (unnaturally) and right to die with dignity (naturally).

The Court upheld the constitutional validity of Sections 306 and 309 IPC. However, the case does not speak about euthanasia but it has been inferred that euthanasia and assisted suicide are unlawful.

Similarly, the Law Commission of India in its 42nd report published in 1971(6) recommend the repeal of section 309, while in 156th report published in 1997(7) recommends the retention of section 309 based on Gian Kaur’s Judgement.

Finally, in 2006, a 196th report was published regarding the legality of Euthanasia(8) based on the judgement of P. Rathinam and Gian Kaur. The Report made it clear that euthanasia and physician-assisted suicide shall remain illegal, and the Report only dealt with the protection of the patients in cases where the terminally ill patient is in a permanent vegetative state with no chance of recovery. In such a case, the patient voluntarily by oral or written request, can seek the removal of the support system, thereby hastening his death, albeit subject to certain safeguards.

Based on the discussion of this report later in 2011, Aruna Ramchandra Shanbaug vs UOI(9) case took the limelight. In the following case, Aruna was sexually molested at a hospital by the ward boy.

He choked her with a dog chain resulting in contusion. Thereby she was reached in a vegetative state for 37yrs recognizing passive euthanasia.

In this case, the SC held that passive euthanasia could be given a nod in case of exceptional circumstances and under strict monitoring of the apex court.

However active euthanasia is illegal till the law on euthanasia comes into force and can be regarded as it would amount to ‘constitutional cannibalism’, ‘judicial murder’ and apprehension of being misused by an unscrupulous person to inherit property etc.

In 2013 the Law Commission of India gave the 210th report on “Humanization and decriminalization of attempt to suicide” had recommended that section 309 of IPC need to be effaced from the statute book and said the attempt to suicide warranted medical and psychiatric care and not punishment.


However, section 309 has been decriminalized by parliament by enacting “The Mental Healthcare Act,2017”.Section 115(1) of the said act provides “notwithstanding anything contained in section 309 of IPC any person who attempts to commit shall be presumed unless proved otherwise, to have serious stress and shall not be tried and punished under the said code.”


And Finally in 2018, Gian Kaur’s judgement was overruled by Common Cause(Registered society) vs UOI(10). In this case, In 2005, Common Cause approached the Supreme Court under Article 32, praying for the declaration that the right to die with dignity is a fundamental right under Article 21.

It also prayed the court to issue directions to the Union Government to allow terminally ill patients to execute ‘living wills’ for appropriate action in the event that they are admitted to hospitals.

As an alternative, Common Cause sought guidelines from the Court on this issue, and the appointment of an expert committee comprising lawyers, doctors, and social scientists to determine the aspect of executing living wills. The Supreme Court passed the judgement legalizing passive euthanasia by “Living will”.

A living will is termed It refers to the principle where a patient’s consent has been expressed at an earlier date before he became unconscious or otherwise incapable of communicating it as by a `living will’ or by giving written authority to doctors in anticipation of his incompetent situation.

The bench said the advance directive by the person in the form of a living will be approved by a magistrate.

The legality of euthanasia in India is very important. There has been a discussion over section 309 and section 306 of IPC related to attempting to commit suicide and abatement to suicide.

As per euthanasia, it was really difficult to find the difference between the two sections.

However, in the judgement of P rational section 309 was held unconstitutional but in Gian Kaur’s judgement, it was held constitutional.

However, the basis of the judgement in both the judgement is that the Right to die with dignity is under the scope of the Right to life enshrined in Article 21 of COI and the death with dignity but such existence should not be confused with unnatural extinction of life curtailing natural span of life. Thus on the basis of it, a different judgement has been passed.

In terms of euthanasia as well, the court has passed certain guidelines declining the scope of confusion of abatement and attempt to suicide bypassing certain guidelines that the passive euthanasia should be based on the Living will and the doctors should not be held liable under section 306 of IPC. However active euthanasia is still unconstitutional but strong laws can be helpful.

Analysis

Euthanasia is always been an important part of the question in the context of the world because sometimes it has been a matter of great concern not only for the profession of doctors, and the judiciary but also for the families as Sometimes the families do not bear the cost of operation of their loved ones due to poverty and lack of money.


Therefore analysing the responses and different and important judgement we have found that the legalization of euthanasia is of immense importance in the present world.

Though We have found that in Gian Kaur vs State of Punjab judgement where the SC held that the right to life does not include the right to die but in another case, Common case vs UOI which has overruled the Gian Kaur judgement and also legalized the euthanasia is really one of the important.

The case has an important term i.e. Living will which clearly states that the principle where a patient’s consent has been expressed at an earlier date before he became unconscious or otherwise incapable of communicating it as by a `living will’ or by giving written authority to doctors in anticipation of his incompetent situation.

This is one of the most important terms.

The analysis of the findings states that Euthanasia has been the Right to die which has been under the purview of the Right to life but there should be no right to die with dignity and intervention of third persons should be the basis of the merits of the facts through which it has been easy to interpret that whether the death will have been living will or it has been an instance of abetting as abetting is illegal.

Another question is whether active euthanasia or passive euthanasia, which has been the most important form.

We have analysed that though passive euthanasia is more favourable active euthanasia can also be useful to some extent.

Actually, the problem of not legalizing it is because it is considered an act of killing somebody which has come under the purview of culpable homicide amounting to murder due to which our judge has not been ready to give authorization to active euthanasia.

Conclusion

Euthanasia is a topic of interest in the profession of doctors and our judges through different judgement have clearly observed the legalization of euthanasia from every aspect of suicide, culpable homicide amounting to murder and culpable homicide not amounting to murder. Therefore before reaching any judgement our honourable court has seen the matter in every aspect.

When we talk about the term euthanasia is really important for each and every country to have a law based on this issue. Though some countries have legalized euthanasia, they have taken this initiative very late. As we have seen Indian context, Aruna Ramchandra Shanbaug vs UOI case, the case of utmost importance where she has been in bed for nearly 37 years and still the court has declined to give judgement to support euthanasia.

Therefore we could have concluded that though euthanasia has been legalized but in some countries, it is still a matter of concern and also It is ironic to note that ninety per cent of the patients succumb to death without receiving any primary health care. Thus the logical derivation of this aspect would be that India does not have an appropriate health-care mechanism in place, let alone foolproof procedures for euthanasia.

In the presence of the above bottlenecks and policing rampant in our country, the appropriate course of action would be to develop proper “care ethics”, ensuring a “dignified existence and termination” of life. Let us augment the above and resultantly, the concept of euthanasia will be nothing but a distant reality.

Footnotes

Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990)
Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454
Common Cause(Registered society) vs UOI (AIR 2014 SCC 338)
State of Maharashtra vs Maruti Dubal (1986) 88 BOMLR 589)
P. Rathinam vs. Union of India (AIR 1994 SCC 394)
Gian Kaur vs. The State of Punjab (AIR1996 SCC 946)
Airedale N.H.S. Trust v. Bland ((1993) 2 WLR 316: (1993) 1 All ER 821, HL)
Law Commission of India Report No. 42- Indian Penal Code
lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf
lawcommissionofindia.nic.in/reports/report210.pdf

References

https://en.wikipedia.org/wiki/
http://www.legalservicesindia.com/article/787/Euthanasia-in-India.html
https://thewire.in/health/passive-euthanasia-now-a-legal-reality-in-india
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3440914/
Indian Kanoon
https://www.scconline.com/blog/post/2020/11/28/euthanasia-indian-view/

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