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INTERNATIONAL
JOURNAL FOR LEGAL
RESEARCH & ANALYSIS
(ISSN 2582 – 6433)
VOLUME 2 ISSUE I
(May 2021)
Email –
editor@ijlra.com
Website – www.ijlra.com
56565656565651
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Volume 2 Issue I| May 2021 ISSN: 2582-6433
DISCLAIMER
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Issue X is accurate and appropriately cited/referenced, neither the Editorial Board
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Journal.
Copyright © International Journal for Legal Research & Analysis
1
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Volume 2 Issue I| May 2021 ISSN: 2582-6433
EDITORIAL TEAM
EDITORS
Ms. Ezhiloviya S.P.
Nalsar Passout
Ms. Priya Singh
West Bengal National University of Juridical Science
Mr. Ritesh Kumar
Nalsar Passout
Mrs. Pooja Kothari
Practicing Advocate
Dr. Shweta Dhand
Assistant Professor
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Volume 2 Issue I| May 2021 ISSN: 2582-6433
ABOUT US
INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANLAYSIS
ISSN
2582-6433 is an Online Journal is Quarterly, Peer Review, Academic Journal,
Published online, that seeks to provide an interactive platform for the
publication of Short Articles, Long Articles, Book Review, Case Comments,
Research Papers, Essay in the field of Law & Multidisciplinary issue. Our aim
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of law. We are eager to become a highly cited academic publication, through
quality contributions from students, academics, professionals from the
industry, the bar and the bench. INTERNATIONAL JOURNAL FOR
LEGAL RESEARCH & ANALYSIS ISSN
2582-6433 welcomes contributions from all legal branches, as long as the
work is original, unpublished and is in consonance with the submission
guidelines.
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Volume 2 Issue I| May 2021 ISSN: 2582-6433
Practice of Euthanasia: Recognition of Right to Die with Dignity – Related
Issues and Challenges
By: Mubarak Khan
Abstract
Euthanasia is a global phenomenon, gaining momentum due to its rapid legalisation and social
activists enforcing right to die with dignity, in various nations. Euthanasia as a concept refers to
an act of intentional ending of the life of a person suffering from an incurable or painful disease
at his or her request. The practice of euthanasia is very complex and controversial as it is
connected with the most important fundamental right of human being. The right to life is
assuredly the most significant of all rights as none of the other rights would have any value or
utility without it. All other rights add quality to the life in question and depend on the pre-
existence of life itself for their operation. The question that emerges is whether right to life
includes right to die as well? The Supreme Court in Gian Kaur case made it clear that right to
life does not include right to die. However in Shaun Baugand in very recently decided Common
Cause Society’s Cases, the Supreme Court recognizing the practice of passive euthanasiaalong
with execution of living will under stringent guidelines held that ‘right to die with dignity’ is a
fundamental right available within the facets of right to life.As there is no law which exclusively
govern the practice of euthanasia, the Supreme Court's guidelines are law until and unless
Parliament passes legislation. However, a legislation permitting passive euthanasia titled, ‘the
Medical Treatment of Terminally-ill Patients (Protection of Patients and Medical Practitioners)
Bill, 2016’ is currently pending in Parliament. This articleseeks to conceptually analyse
euthanasia and its related aspects, a brief historical development and the position of euthanasia in
major countries. An attempt is also made to compare and contrast among right to life, right to die
and right to die with dignity. Most importantly, the regulatory framework of euthanasia in India,
issues and challenges connected therewith have been stressed.
Keywords
Right to die – Right to die with dignity – Euthanasia – Terminally ill – Living will
Introduction
The practice of euthanasia gaining propulsion globally for strengthening individual's right to
autonomy which automatically entitles him to choose a painless death.It is noteworthy that many
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countries have legalized and regularised the practice of euthanasia under different
circumstances.Euthanasia is popularly taken to mean any form of termination of life by a doctor.
The definition, however, is narrower. It means the termination of life by a doctor at the express
request of the patient. It must be voluntary, explicit and carefully considered and it must have
been made repeatedly. 1It can be classified as voluntary or involuntary on the basis of consent and
as active or passive depending on the way of termination of life. Active euthanasia involves
administration of poisonous substances i.e., an act whereas passive euthanasia encompasses
removal of life support i.e., an omission. 2Many patients in a persistent vegetative state or else in
chronic illness, do not want to be a burden on their family members.Euthanasia can be
considered as a way to upheld the ‘Right to life’ by honouring ‘Right to diewith dignity’. 3
Right to die as an issue under the Right to life continues to be widely debated and scrutinised
even today. The judgements ranging from P. Rathinam to ArunaShanbaugtalk about it, albeit in
different arenas.4The Supreme Court in March 2018 delivered a landmark judgment in Common
Cause Society’s Case,allowing ‘advance medical directive’ or ‘living will’ where, an adult in his
conscious mind, is permitted to refuse medical treatment or voluntarily decide not to take
medical treatment to embrace death in a natural way. The judgment gave legal recognition to
passive euthanasia in India and reaffirmed interpretation of ‘right to life’ including ‘right to die
with dignity’ thereby bringing it within manifold of Article 21 of Constitution of India.The Court
in this historic judgement provided very strict and detail guidelines as to the implementation of
passive euthanasia. A legislation permitting passive euthanasia titled, ‘the Medical Treatment of
Terminally-ill Patients (Protection of Patients and Medical Practitioners) Bill, 2016’ is currently
pending in Parliament.The guidelines given by the Apex Court should be followed through out
the country unless and until the Parliament passes the pending or any other legislation on this
issue. As passive euthanasia is totally allowed even though under stringent guidelines it is very
much necessary to assess thepossibleissues and challenges which we may face as tothis practice
and required to resolve the same and find out proper solutions.
Concept and Dimensions of Euthanasia
Euthanasia is derived from the Greek wordseu, meaning ‘well’ or ‘good’ and thanatos, meaning
‘death’,i.e.,‘good death’. 5In common terminology ‘euthanasia’ means the act or practice of
1
K DG AUR, CRIMINAL L AW: C ASES ANDM ATERIALS251 (7thed. 2013).
2
Gerrit Van Der Wal and Robert J. M. Dillmann, Euthanasia in the Netherlands, 308 BMJ1346-1349 (1994).
3
Suresh Bada Math and Santosh K. Chaturvedi, Euthanasia: Right to Life vs Right to Die, 136 Indian J Med
Res.899-902 (2012).
4
Saisha Singh,From Gian Kaur to Aruna Shanbaug : The Judicial Evolution of Right to die,18 ND125 (2017).
5
Thomas L Beauchamp, The Justification of Physician Assisted Death, 29 ILR 1173 (1996).
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putting to death painlessly, especially in order to release a man from incurable suffering. 6
Euthanasia is also called ‘mercy killing’ or ‘compassionate killing’. It is an act or practice 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. Because there is no specific provision for it in most legal systems, it is usually
regarded as either suicide (if performed by the patient himself) or murder (if performed by
another).7A person kept alive with the help of respirator dueto total failure of respiratory system
and non-functioning of brain has no chances of survival sooner the respirator is disconnected and
the doctor concerned also knows about this, but he cannot withdraw the treatment even if insisted
upon by the near relatives of the ailing person as this would amount to murder or abetment of
murder.Again, where a person who is suffering from unbearable agony and pain due to incurable
cancer or AIDS which have reached the last stage or creeping paralysis for a number of years
may no longer wish to survive and express genuine desire to die, but the law would not permit
him mercy-death and he would be guilty of the offence of (attempt to commit) suicide, if his
attempt to die results in a failure.8
There are two procedural classifications of euthanasia: (i) Active euthanasia and (ii) Passive
euthanasia.Active euthanasia also known as ‘positive euthanasia’ or ‘aggressive euthanasia’
refers to a physician deliberately acting in a way to end a patient's life 9i.e., a terminally ill
patient’s life is ended by taking active steps like, giving lethal injection or high doze of injection,
tranquilizer etc.In contrast with active euthanasia, which many thinkers philosophically equate
with the act of killing, passive euthanasia is ethically comparable to letting die. Passive
euthanasiaalso called ‘negative euthanasia’ or ‘non-aggressive euthanasia’ is described as the
case in which a medical professional discontinues an action that was previously keeping his
patient alive, or simply fails to take an action that would have kept him alive. This might involve
the removal of a patient’s life-support, the discontinuation of nutrition and hydration, or the
failure to useextraordinary meansto keep a patient alive. 10
In most countries around the world, the practice of passive euthanasia is not considered as
‘euthanasia’ at all. It has become an established part of medical practice and is relatively
6
G AUR Supranote 1, at 250.
7
The Editors of Encyclopaedia Britannica, Euthanasia,B RITANNICA(Mar. 11, 2021, 11:10
PM),https://www.britannica.com/topic/euthanasia.
8
N V P ARANJAPE,CRIMINOLOGY & PENOLOGY WITH VICTIMOLOGY ,300 (15th ed. 2011).
9
Vinod K. Sinhaet al. Euthanasia: An Indian Perspective, 54Indian J Psychiatry 177-183 (2012).
10
Rebecca F. Stein,Philosophical Foundations of Physician-AssistedDeath and Euthanasia Legislation in Oregon
andthe Netherlands: A Comparative Analysis,REPOSITORY (Mar. 12, 2021, 10:40
AM),http://repository.upenn.edu/ppe_honors/2.
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uncontroversial. It is more or less the natural death of a person. In this processan individuals
suffering from incurable illness, the doctors only allow time and nature to gradually overcome
the life instead of human intervention in the process. Main distinction between the active and
passive approaches of euthanasia are in the morality of killing someone and letting someone to
die with time.The term that is relevant to the euthanasia debate is ‘active voluntary euthanasia’,
which however, is more controversial, and it is more likely to involve religious, moral, ethical,
andcompassionate arguments.
Euthanasia can also be classed as voluntary, non-voluntary orinvoluntary. It is voluntary, when
euthanasia is conducted with consent.11 In other words if the patient is consenting to end his life
through any means it is termed as ‘voluntaryeuthanasia’.Voluntary euthanasia is also referred to
as ‘statutory euthanasia’. Non-voluntary, when euthanasia is conducted on a person who is
unable to consent due to the current health condition (for e. g., the patient living in coma or brain
death). In this scenario the decision is made by another appropriate person, on behalf of the
patient (for e.g., parent, guardian or spouse), based on their quality of life and
suffering.Involuntary, when euthanasia is performed on a person who would be able to provide
informed consent, but does not, either because they do not want to die, or because they were not
asked. This is called murder (it is in effect, amounts to murder), as it’s often against the patients
will. 12
‘Assisted suicide’ refers to intentionally helping a person to commit suicide by providing
drugs for self-administration, at that person’s voluntary and competent request in order to
relieve intractable (persistent, unstoppable) suffering. 13Another concept that is linked to end-of-
life decisions is ‘Physician assisted suicide’ or ‘Physician assisted death’. It refers to active,
voluntary, assisted euthanasia where a physician assists the patient. A physician provides the
patient with a means, such as sufficient medication, for the patient to kill him or
herself.Physician-assisted death wouldthen fall somewhere in between active and passive
euthanasia. For, the physician is the one who prescribes the lethal dose, but it is the patient who
takes the medication on her own volition, at the time of her choosing. 14
It is important to note thatthe individual’s terminal illness or persistentvegetative condition is
most important ingredient to perform any kind of euthanasia.Often the term euthanasia and
assisted suicide areused interchangeably, but there lies a slight difference between the two. In
11
Yvette Brazier, What are euthanasia and assisted suicide?,M EDICAL NEWSTODAY (Mar. 12, 2021, 12:42 PM),
https://www.medicalnewstoday.com/articles/182951.
12
Id.
13
Id.
14
Stein Supra note 10.
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Volume 2 Issue I| May 2021 ISSN: 2582-6433
euthanasia a person is directly involved in pushing a lethal drug by injection or otherwise to
cause the death of an ill patient. While in assisted suicide the physicianmerely prescribes a way
to cause one’s death. The final act of the means used to die, should be performed by the patient
himself/herself.
Euthanasia is closely related to suicide. However both are different in several aspects. Suicideis
an unnatural act of killing oneself for whatever reason physical or mental whereas euthanasia is
an act of premature termination of life due to persistent vegetative conditions.
Ethical Perspectives of Euthanasia
The issue of euthanasia is not as simple as the literal translation of the term. The issue is not only
contentious, but is also very complex, being one which involves several moral, ethical, societal
and economic aspects. It has plagued humankind since ancient times and has occupied the
centre-stage on the intersection between bioethics and law. 15
Euthanasia is a dilemma due to presence of more than one course of conduct and has been
justified on various grounds. The orthodox- prolife proliferators strongly advocate survival as the
sole objective of human existence and oppose euthanasia as they believe that life is precious gift
of God and it is God only who has the right to take it away. Hippocratic Oath also puts medical
practitioners under ethical obligation for prolongation of life. 16 The common law doctrine
empowers individual with right to autonomy, bodily integrity and self-determination where an
adult person of sound mind has voluntary choice to decide what shall be done to his/her body and
this right must be respected, accepted irrespective of what others(in this case doctors) may think
in the best interest. The care of human life and not its destruction should be the sole legitimate
objective of good governance.17
The other side of the coin emphasizes on quality of life and believes that when the quality of life
falls below expected level of dignity due to illness, injury or disability the aggrieved person has
the right to die to alleviate from pain as a result of terminal incurable illness. They argue that life
should be worth living and when a person is suffering, all things take a back seat except
autonomy of patient as such no person can be compelled to enjoy right to life to his/ her disliking
or deterrence. A patient who is undergoing suffering due to terminal illness may have unbearable
suffering and in such situation patient’s autonomy supersedes everything. The state too has
15
John D. Papadimitriou, P Skiadas, et al.Euthanasia and Suicide in Antiquity: Viewpoint of the Dramatists and
Philosophers, 100 JRSM 25 (2007).
16
STEVEN H M ILES, THE H IPPOCRATIC O ATH AND THE E THICS OF M EDICINE (2005).
17
Sareen R, India Decides on Euthanasia: Is the Debate Over? LONGDOM (Mar. 16, 2021, 04:05 PM),
https://www.longdom.org/open-access/india-decides-on-euthanasia-is-the-debate-over-44121.html.
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Volume 2 Issue I| May 2021 ISSN: 2582-6433
limited right to interfere in the affairs of individuals only on ground of compelling state interest
can the state has right to limit individual right of privacy and self-determination provided there is
an imminent threat to state or deprivation of third person’s right and euthanasia has nothing to do
with state or infringement of third party right hence state intervention is unwarranted. In a world
of limited resources and means treating terminally ill patients for long is like a nation’s wastage
of medical facilities which can be righteously diverted for those who have hope of survival or
life. 18
Brief History and Position of Euthanasia in Major Countries
The word euthanasia, for the first time was used by Francis Bacon in the 17th Century to refer to
an easy, painless and happy death as it is the duty and responsibility of the physician to alleviate
the physical suffering of the body of the patient.The opinion that euthanasia is morally
permissible is traceable to Socrates, Plato, and the Stoics. The organized movement for
legalization of euthanasia commenced in England in 1935, when C. Killick Millard founded the
Voluntary Euthanasia Legalisation Society (later called the Euthanasia Society). The society’s
bill was defeated in the House of Lords in 1936, as was a motion on the same subject in the
House of Lords in 1950. In the United States the Euthanasia Society of America was founded in
1938. The first country to legalize euthanasia is the Netherlands in 2001 through a legislation i.e.,
the Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 2002 that
regulates euthanasia. Belgium became the second country in Europe after Netherlands to legalize
the practice ofeuthanasia in September 2002. The Belgian law sets out conditions under which
suicide can bepractised without giving doctors a licence to kill. Following the Netherlands and
Belgium, Luxembourg became the third country in Europe to legalize both euthanasia and
assisted suicide. The law, which took effect on April 1, 2009, grants doctors legal immunity from
penal sanctionsand civil lawsuits if they directly kill or assist the suicide of a patient with a grave
and incurable condition, who has repeatedly asked to die. The doctor must first consult another
physician to verify the patient’s condition.In 2009 the Supreme Court of South Korea recognized
a ‘right to die with dignity’ in its decision to approve a request by the family of a brain-
dead woman that she be removed from life-support systems.19
In 1997, Oregon a province in United States of America approved Oregon Death with
DignityAct 1994, after voting of the citizens which allows physician assisted suicide and passive
euthanasia.Switzerland, one of the attractive tourism destinations of the world has become
suicidetourism hub due to the application of Swiss law established in 1942. 20As the first U.S.
18
Id.
19
BRITANNICA Supra note 7.
20
AtishProsadMondal et al. Physician Assisted Suicide Tourism– A Future Global Business Phenomenon, 10
BMR39 (2018).
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state to implement physician-assisted death legislation with the adoption of the 1994 Oregon
Death with Dignity Act, the state of Oregon has lead the rest of the country’s Death with Dignity
initiatives, with Washingtonand Vermont, adopting similar versions of the Oregon policy.21
Other than this other American States California, Colorado, Maine, New Jersey, Hawaii and
District of Columbia have death with dignity statutes.22However, passive euthanasia is
considered legal in all USA jurisdictions as it does not involve an act of killing someone rather
one is letting someone die on its own naturally. 23The Australian state of Victoria has a law
allowing physician-assisted suicide which came intoeffectin June
2019, with WesternAustralia passing a similar law in December 2019. Physician-assisted suicide
and voluntary euthanasia is illegal in all other Australian states and territories. 24
U.K., Spain, Austria, Italy, Germany, etc. In none ofthese countries is euthanasia or physician assisted
death legal. In January 2011 the French Senatedefeated by a 170-142 vote a bill seeking to legalize
euthanasia. In England, in May 2006 a billallowing physician assisted suicide, was blocked, and never
became law.
Position of Euthanasia in India
Since past few decades, the debate over euthanasia has arisen as a highly controversial issue.
This debatein India,have generally revolved around the question of a right to die, and to what
extent individuals have the Constitutional right todetermine the times and manners of their
deaths. Those who argue in favour of such aConstitutionally protected right generally base their
views on the liberty interest that is available under right to life, claiming that individuals should
have the freedom to make important end-of-life decisions, such as the decision to request mercy
killing. Opponents of a legalized right toeuthanasia have used a variety of arguments,including
claims about the sanctity of life and the Constitutional protectionof life.
In India an unnatural termination of one’s life is not allowed. Section 309 of the Indian Penal
Code (IPC) punishes a person who attempts to end one’s own life. It provides thatwhoever
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 fine, or
with both. The archaic section is been challenged as violativeof right to life and personal liberty
guaranteed under Article 21 of the Constitution of India.There was a controversy amongst the
judgements of various High Courts regarding the Constitutional validity of this provision. InState
of Maharashtra v. MarutyShripatiDubal,25the Bombay High Court held that the right to life
21
Stein Supra note 10.
22
https://www.deathwithdignity.org/learn/death-with-dignity-acts/ (Mar. 14, 2021, 01:30 PM).
23
Shekhar S and Goel A, Euthanasia: India’s Position in the Global Scenario 30 AJHPM 628-631 (2012).
24
https://www.google.com/amp/s/amp.dw.com/en/australian-state-legalizes-voluntary-euthanasia/a-49258193 (Mar.
16, 2021, 09:40 AM).
25
1987 Cri LJ 743 (Bom).
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guaranteed by Article 21 of the Constitution includes the right to die and consequently the court
struck down Section 309 IPC. In this case, the Judges felt that the desire to die is not unnatural
but merely abnormal and uncommon. They listed several circumstances in which people may
wish to end their lives, including disease, cruel or unbearable condition of life, a sense of shame
or disenchantment with life. They held that everyone should have the freedom to dispose of his
life as and when he desires.On the other hand, contrary to this decision, the Andhra Pradesh High
Court in ChennaJagadeeswar v. State of A.P.,26 held that the right to die is not a fundamental
right within the meaning of Article 21 and therefore, Section 309 IPC was not unconstitutional.
The issue as to whether the right to die forms a part of the guarantee under Article 21 was first
raised before the Apex Court in P. Rathinam v. Union of India.27 A Division Bench of the
Supreme Court in this case held that a person has a right to die and declared Section 309 IPC
unconstitutional. The ‘right to live’ in Article 21 of the Constitution includes the ‘right not to
live’, i.e., right to die or to terminate one’s life. The Court held that Section 309 of the IPC was
violative of Article 21 and hence it is void. A person cannot be forced to enjoy right to life to his
detriment, disadvantage or disliking. The Court considered Section 309 of the IPC as ‘a cruel and
irrational provision’. Further the Court held that ‘right to life of which Article 21 of the
Constitution speaks of can be said to bring in its trial the right not to live a forced life’.
Explaining the reason for its decision the Court said that Section 309 IPC, 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 (Doubly) who has suffered agony and would be undergoing
ignominy because of his failure to commit Suicide.
Thereafter, a very peculiar situation came up before the Supreme Court in Smt. Gian Kaur v.
State of Punjab,28 where a challenge was raised to the constitutionality of Section 306 of the IPC,
i.e., abetment to suicide.29Gian Kaur and her husband were convicted by trial court under Section
306 IPC of abetting suicide of Kulwant Kaur. Herein, relying on P. Rathinam,30 it was argued
that abetment to suicide could not be penalised as the abettor was only assisting in enforcement
of a fundamental right. A five judge bench of the Supreme Court in this case held that ‘right to
life’ under Article 21 of the Constitution does not include ‘right to die’ or ‘right to be killed’. The
‘right to die’, is inherently inconsistent with the ‘right to life’ as is ‘death with life’. Any aspect
26
1988 Cri LJ 549 (AP).
27
AIR 1994 SC 1844.
28
AIR 1996 SC 946.
29
S. 306. Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall
be punished with imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine.
30
Supra note 27.
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Volume 2 Issue I| May 2021 ISSN: 2582-6433
of life which makes it dignified may be read into Article 21 of the Constitution but not that
which extinguishes it and, therefore, inconsistent with the continued existence of life resulting in
effacing the right itself. Right to life is a natural right embodied in Article 21 but suicide is an
unnatural termination or extinction of life and, incompatible and inconsistent with the concept of
right to life. Referring to Protagonists of euthanasia's view, that existence in persistent vegetative
state (PVS)31 is not a benefit to the patient of a terminal illness being unrelated to the principle of
sanctity of life or the right to live with dignity is of no assistance to determine the scope of
Article 21 for deciding whether the guarantee of right to life includes the right to die. The right to
life including right to live with human dignity would mean the existence of such a right up to the
end of natural life. But the right to die with dignity at the end of life is not to be confused or
equated with the right to die an unnatural death curtailing the natural span of life. A question
may arise in the context of a dying man who is terminally ill or in a persistent vegetative state
that he may be permitted to terminate it by a premature extinction of his life in those
circumstances. This category of cases may fall within the ambit of the right to die with dignity as
a part of right to live with dignity, when death due to termination of natural life is certain and
imminent and the process of natural death has commenced. The argument to support the view of
permitting termination of life in such cases to reduce the period of suffering during the process of
certain natural death is not available to interpret Article 21 to include the right to curtail the
natural span of life. The court accordingly held that Section 309 IPC is not violative of Article 21
of the Constitution. It set aside the judgment of Bombay High Court in MarutyShripatiDubal32
and overruled P. Rathinam.33
Eventually for the first time inArunaRamchandraShanbaug v. Union of India,34the Supreme
Court allowed passive euthanasia of a patient in a permanent vegetative state (PVS) by
withdrawing the life support system with the approval of a medical board and on the directions
of the High Court concerned. The Court, however, held illegal active mercy killing of a patient
suffering acute ailment with a poisonous injection or by other means.Further the Court opined
that although Section 309 IPC has been held to be constitutionally validthe time has comewhen it
should be deleted by Parliament as it has become anachronistic. A person attempts suicidein a
31
The term ‘persistent vegetative state’ was coined by Jennett and Plum in 1972 to describe the condition of patients
with severe brain damage in whom coma has progressed to a state of wakefulness without detectable awareness. The
vegetative state is a clinical condition of complete unawareness of the self and the environment, accompanied by
sleep-wake cycles with either complete or partial preservation of hypothalamic and brain-stem autonomic functions.
The condition may be transient, marking a stage in the recovery from severe acute or chronic brain damage, or
permanent, as a consequence of the failure to recover from such injuries. The vegetative state can also occur as a
result of the relentless progression of degenerative or metabolic neurologic diseases or from developmental
malformations of the nervous system. – The Multi Society Task Force on PVS, 330 NEJM 1 (1994).
32
Supra note 25.
33
Supra note 27.
34
(2011) 4 SCC 454.
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depression, and hence he needs help, rather than punishment. The Court therefore recommend
toParliament to consider the feasibility of deleting Section 309 from the IPC.
Admiringly with effect from 29 May 2018, the Government of India passed the Mental Health
Care Act (MHA), 2017, which conditionally decriminalize suicide attempt. Section 115(1) of this
Act says that notwithstanding anything contained in section 309 of the IPC any person who
attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and
shall not be tried and punished under the said Code. Section 115(2) of the Act says that the
appropriate Government shall have a duty to provide care, treatment and rehabilitation to a
person, having severe stress and who attempted to commit suicide, to reduce the risk of
recurrence of attempt to commit suicide.
Right to die vis-à-vis Right to die with Dignity
The right to life is assuredly the most significant of all rights as none of the other rights would
have any value or utility without it. All other rights add quality to the life in question and depend
on the pre-existence of life itself for their operation. Anyhow, some people have raised the
question that just like there are negative rights which are implicitly available against many
positive rights under the Constitution, the negative right of the right to life should also be
available. Like we have right to remain silent which is impliedly available under right to freedom
of speech and expression, we must also have right to die which should be guaranteed under right
to life.
Gian Kaur35 is a remarkable judgment of the Supreme Court in which the court differentiated
between ‘right to die’ and ‘right to die with dignity’. The court opined in this case that all
fundamental rights are not the same and hence the same standard must not be applied to them.
Therefore, while the guarantees under Article 19 have a negative component, Article 21 cannot
be read in a similar manner. Further, even if Article 21 is interpreted in such a fashion, suicide
could not be treated as a part of it, as it always involves an overt act by the person committing
suicide. Thus, an unnatural termination of life could not be treated as a part of the right to life.
However, the Court referred to the judgment of the House of Lords in Airedale N.H.S. Trust v.
Anthony Bland36and distinguished between ‘right to die’ and ‘right to die with dignity’. In the
said case, one Anthony Bland, a supporter of Liverpool Football Club, who had gone to
Hillsborough Ground, suffered severe injuries as a result of which supply to his brain was
interrupted. Eventually, he suffered an irreversible damage to the brain as a consequence of
35
Supra note 28.
36
[1993] A.C. 789.
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which he got into a condition of persistent vegetative state. He became incapable of voluntary
movement and could feel no pain. He was not in a position to feel or communicate. He remained
in this state for over two years with no sign of improvement, whilst being kept alive by life
support machines. Bland could breathe by himself but required feeding via a tube and received
full care. The doctors who were treating Bland were granted approval by the Family Division of
the High Court which was affirmed by the Court of Appeal to remove of the tube that was
feeding him. This decision was then appealed to the House of Lords by the Solicitor acting on
Bland’s behalf. It was held that doctors have a duty to act in the best interests of their patients but
this does not necessarily require them to prolong life. On the basis that there was no potential for
improvement, the treatment Bland was receiving was deemed not to be in his best interests. It is
not lawful to cause or accelerate death. However, in this instance, it was lawful to withhold life-
extending treatment which in this instance was the food that Bland was being fed through a tube.
Appeal dismissed. When a person is in permanent vegetative state or in a terminally ill state, the
natural progression of death has already begun and death, without life support technology, is
inevitable.
Although the controversy relating to attempt to suicide or abetment of suicide was put to rest, yet
the issue of euthanasia remained alive. It arose for consideration almost after a span of eleven
years in Shanbaug,37 the Supreme Court, for the very first time, dealt with the issue of permitting
euthanasia. A writ petition was filed in the Supreme Court by a social activist Pinki Virani as a
‘next friend’ of Nurse ArunaShanbaug. In this case, the petitioner pleaded that former Nurse
ArunaShanbaug, who had been brutally sexually assaulted in Mumbai KEM hospital in 1973 and
had slipped into a permanent vegetative state as a result, be allowed to die peacefully by putting
a stop to the mashed food that she was being fed, which helped her to stay alive, however, it was
held that she had no locus to file the petition as she could not be given the status of a next friend.
Although, the two-judge bench proceeded to rule on the issue, and relying again on Airedale38
and other international jurisprudential approaches, it held that passive euthanasia may be allowed
for terminally ill patients or patients in a permanent vegetative state provided that certain
safeguards are followed. Recognising the autonomy of the patient, the Court held that if the
patient is conscious and capable of giving consent, his or her opinion must be taken, otherwise at
least the opinion of a next friend is required, who should decide as the patient would have. In the
event that he is incompetent to make choices, his wishes expressed in advance in the form of a
‘Living Will’ 39 shall also be considered in this regard. The matter would then go to the High
37
Supra note 34.
38
Supra note 36.
39
A living will (also known as advance directive or advance decision) is an instruction given by an individual while
conscious specifying what action should be taken in the event he/she is unable to make a decision due to illness or
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Court, where a division bench would be required to constitute a board of three competent doctors
to examine the patient. Simultaneously the High Court has to issue the notice to the State and the
relatives of the patient. After hearing them, the High Court bench should give its verdict. It
further held that this above procedure should be followed all over India until Parliament makes
legislation on this subject.
The Apex Court received another opportunity to resolve the issue of right to die with dignity
through a PIL raised by an NGO, Common Cause, seeking legalisation of ‘advance directives
and attorney authorisations(living will)’40 in order to enable people who are terminally ill and/or
in permanent vegetative state, to exercise the right to die with dignity. The Central Government
responded on the issue and informed the court that it is assessing the drafting of a bill to allow
passive euthanasia. Termed, the Medical Treatment of Terminally Ill Patients (Protection of
Patients and Medical Practitioners) Bill, the draft was released by the Union Health Ministry in
2016 based on the Law Commission of India’s Report No. 241 (August 2012). The Government,
however, also said it does not support granting people the right to make ‘Living Wills’, arguing
that it would be against public policy and the right to life. The Government told the court that
consent for removal of artificial support may not be an informed one (should not be in a form of
living will or in a form of attorney’s authorization) as it could be enormously misused and result
in the neglect of the elderly. A three judge bench of the Supreme Court, while dealing with this
matter had refrained from pronouncing any order but referred the matter to a five judge bench to
ensure that areas of conflict between the ArunaShanbaugcase and Gian Kaur case could be
harmonized.41
Eventually a five judge bench of the Supreme Court in Common Cause (A Regd. Society) v.
Union of India42held ‘right to die with dignity’ to be a fundamental right within the meaning of
‘right to life’ under article 21 of the Constitution. Smoothening natural process of dying of
patients who are terminally ill or in permanent vegetative state without any hope for revival, by
withholding or withdrawing life prolonging medical support or treatment, held, permissible. It
upheld the right of an individual, who is capable of consent, to execute living will in the form of
‘advance directives and attorney authorisations’ to allow for withdrawal of futile treatment or life
support technology, if the patient is terminally ill or in a permanent vegetative state. The bench
incapacity, and appoints a person to take such decisions on his/her behalf. It may include a directive to withdraw life
support on certain eventualities.
40
The term ‘living will’ was used for the first time in 1967 by Dr. Louis Kutner to describe a document drafted by a
competent adult as an advance directive to his physicians or family. Usually the document provides that no
extraordinary artificial life-support systems may be used to prolong the drafter’s life or suffering in the vent of
terminal illness or injury which would render the person incapable of expressing one’s wishes. – Susan Martyn and
Lynn Jacobs, Legislating Advanced Directives for the Terminally Ill: The Living Will and Durable Power of
Attorney, 63 Nebraska Law Review 776 (1984).
41
See Common Cause (A Regd. Society) v. Union of India, (2014) 5 SCC 338. [Euthanasia reference to Constitution
Bench] On 25 February 2014.
42
(2018) 5 SCC 1.
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has derived the right to die with dignity from the privacy-autonomy-dignity matrix within the
guarantee under Article 21 as expounded by the nine-judge bench of the Apex Court in
Puttaswamy43 judgement. Additionally, the bench has issued detailed and stringent guidelines in
order to prevent any possible misuse of these directives and authorisations by family members or
physicians. Further, the Court provided the manner in which such directives may be executed
and implemented in order to ensure a balance between law and bioethics.
In the judgment, the Apex Court has laid down detailed procedure with elaboration with regard
to advance medical directives on the part of an individual indicating and expressing his consent
in writing relating to the circumstances in which withholding or withdrawal of medical treatment
can be resorted to. The apex court has elaborated the following:
Who can execute the Advance directive and how?
What should it contain?
How should it be recorded and prescribed?
When and by whom can it be given effect?
What if permission is refused by medical board?
Revocation or inapplicability of Advance Directive?
Further the Court has also dealt with the situation where no such directives may be available and
prescribed certain other procedural safeguards for the same. The directions and guidelines given
in this judgment are comprehensive and have also cover the situation dealt withShanbaug case.44
In 2006, the 196th report of the Law Commission of India brought out The Medical Treatment of
Terminally ill Patients (Protection of Patients and Medical Practitioners) Bill, 2006. The health
ministry had opted not to make any law on euthanasia.During August 2012, the Law
Commission again proposed making legislation on passive euthanasia and prepared a draft bill
called the Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical
Practitioners) Bill. It does not recommend active euthanasia. In May 2016, the health ministry
uploaded the draft bill and wanted people to give their viewsso that it can take a decision to enact
or not to enact a law on passive euthanasia.
Issues and Challenges Connected with the Practice of Euthanasia in India
The major issues connected with the adoption of the practice of passive euthanasia inter alia are
social morality, medical ethicality and the State interest. The aforesaid concepts have to be
addressed in the constitutional backdrop. The society at large may feel that a patient should be
treated till he breathes his last breath and the treating physicians may feel that they are bound by
43
Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
44
Supra note 34.
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their Hippocratic Oath which requires them to provide treatment and save life and not to put an
end to life by not treating the patient. The members of the family may remain in a constant state
of hesitation being apprehensive of many a social factor which include immediate claim of
inheritance, social stigma and, sometimes, the individual guilt. The Hippocratic Oath taken by a
doctor may make him feel that there has been a failure on his part and sometimes also make him
feel scared of various laws. There can be allegations against him for negligence or criminal
culpability.
In this regard, two aspects are to be borne in mind. First, withdrawal of treatment in an
irreversible situation is different from not treating or attending to a patient and second, once
passive euthanasia is recognized in law regard being had to the right to die with dignity when life
is ebbing out and when the prolongation is done sans purpose, neither the social morality nor the
doctors’ dilemma or fear will have any place. It is because the sustenance of dignity and self-
respect of an individual is inhered in the right of an individual pertaining to life and liberty and
there is necessity for this protection. And once the said right comes within the shelter of Article
21 of the Constitution, the social perception and the apprehension of the physician or treating
doctor regarding facing litigation should be treated as secondary because the primacy of the right
of an individual in this regard has to be kept on a high pedestal.
It is to be borne in mind that passive euthanasia fundamentally connotes absence of any overt act
either by the patient or by the doctors. It also does not involve any kind of overt act on the part of
the family members. It is avoidance of unnecessary intrusion in the physical frame of a person,
for the inaction is meant for smooth exit from life. It is paramount for an individual to protect his
dignity as an inseparable part of the right to life which engulfs the dignified process of dying
sans pain, sans suffering and, most importantly, sans indignity. 45
The practice of passive euthanasia is very modernistic approach which takes time to grow and
develop in India. Due to divergence of opinions amongst the various groups it is going to be very
difficult to understand, tolerate and digest the practice for them. There is a strong feeling that this
practicewould prove to be useful for many people, who wants to misuse the law for their unfair
desires.The practice may also create confusion amongst the various other categories of
euthanasia like, one may also opt for active euthanasia, which is however illegal in our country.
Even though passive euthanasia is allowed in India, it does not however governed by any
Parliamentary Act. Ifthe practice have to be implementedone has to depend on the Supreme
45
Supra note 42.
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Court guidelines given in Common Cause Society’s Case.46Usually the judgments of the courts
will be out of the reach of a common man.Moreover the procedure prescribed by the Supreme
Court is very complex and not easy to get adopted. Even though it is expedient to have such strict
guidelines for the practice it would be more convenient and desirable to have a codified law to
govern the same.
The pending bill on euthanasiatitledMedical Treatment of Terminally Ill Patients (Protection of
Patients and Medical Practitioners) Bill 2016 is based on the guidelines of the Supreme Court in
Shaun BaugCase.These guidelines have been merged with guidelines passed by the Supreme
Court in the subsequent judgment of Common Cause Society’s case. The law prescribed under
the bill does not address all aspects of euthanasia. There is a need to enact a separate
comprehensive legislation to conceptualize and to regularize the practice of passive euthanasia.
The legislation must also contain the detail procedure little simplified than the procedure
prescribed by the Supreme Court. Further we should also have to have the penal provisions for
the misuse of the law within the same statute.
It can be argued that in a country where the basic human rights of individuals are often left
unaddressed, illiteracy is rampant, more than half the population is not having access to potable
water, people die every day due to infections, and where medical assistance and care is less, for
the few people, issues related to euthanasia are irrelevant.47There is a need to under take
research, create awareness, collect public opinion, organize discussions, consult philosophers,
religious groups and leaders, experts of the field as to the regulation and adoption of the practice
of passive euthanasia through a comprehensive Parliamentary Act. Whichever the government is,
if it gets a time after dealing unnecessary issues, it should consider these important issues and
find a reasonable solution to these problems.
Conclusion
Life and death are two unparalleled perfections of nature. There is no part of one’s will to enter
into this world because one always comes into the world by the will of nature. Nature is the
cause of man's existence in the world. In the same way, man does not have the will to leave the
world. A man does not have the right to end his life as he pleases or to end it with the aid of
someone else. It is obvious that the time of death of every human being is fixed. One will
embrace the death only when the exact time of the death comes. But in a criticalcondition where
a person loses all hopes of life, becomes vulnerable of pain, misery, mental agony, torture,
46
Id.
47
SinhaSupra note 9.
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humiliation and almost dies, becomes a living corpse, is it not better to separate from him all
artificial life supporting devices and hand him over to nature instead of hurting him even more?
Absolutely yes. The practice of passive euthanasia founds its basis on this ground.
Right to life assuredly the most important right which within its facet includes ‘right to die with
dignity’ but not ‘right to die.’Death is inevitable, a person with life at one point of time has to
embrace the death. As the life with dignity is been recognized, death with dignity should also be
assured. The practice of passive euthanasia serves the same purpose.
Passive euthanasia is generally accepted worldwide. Active involuntary euthanasia is a crime in
almost all countries except where permitted bylegislation. In India active euthanasia is illegal
and a crime under section 302 IPC (culpable homicide amounting to murder) or at least under
section 304 IPC(culpable homicide not amounting to murder). Physician assisted suicide is a
crime under section 306 IPC (abetment to suicide).
Passive euthanasia is recognized and permitted in India under the strict and lengthy procedure
laid down by the Supreme Court. However, India is a country of diversities across religious
groups, educational status, and cultures. In this background, the debate on euthanasia going to
be more confusing and difficult to access, as there is nospecific legislation to regulate the
same.There is however, a pending bill which is been drafted on the basis of outdated Supreme
Court guidelines and still not upgraded. The pending bill does not address many of the major
issues connected with the practice. There is a need to enact a proper comprehensive legislation
to regulate all the aspects of euthanasia including a bit simplified procedure and the penal
provisions for its misuse.
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