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Introduction:-
In my project I do not intend to give only the legal side of the
right to die.
I want to probe into the emotional side too. Because that is what
it actually is. All the fundamental rights guaranteed to the
citizens of India reflects our needs, our aspirations, our right
to be able to do something and by defining its boundaries this
right is curtailed which in turn curtails our desires.
What I do intend to tell you through this project is something
which is
my personal opinion. I consider myself as just any other person
expressing my opinion on a burning issue and what I want to
analyse is
how will legalizing �right to die� affect me and the society I
live in?For, at the end of the project I will have to admit that I am not
in a
state where I would want to die or ask for assistance for
terminating my
life so I can only empathies with those unfortunate people who are
in
that state and since I represent the masses I would be in a better
position to paint the larger perspective-the common good which
needs to
be considerd before legalizing the right to die. But then again to
understand the picture one has to know about the history, the
whole reason why
right to die
and
euthanasia
suddenly
emerged in India and why is it that till date the court refuses to
legitimize it and the legislature refuses to legalize it. But my project's main focus is on: what will happen if right to
die is
legalized in India?
� We the people of India
Ours is a democracy which means that it is by the people, of the
people
and for the people. Constitution locates power that resides in the
people. It is the people's power for people's benefit.
Constitution
creates rights and duties. All most all our demands get converted
into
rights-even our feelings, emotions is governed by the rights and
duties
we have.
Constitution
is a social document. It is the
society in its
political aspect. We can't understand its nature without understanding the
chief
characteristics of the society. If the constitution is such that
it has
taken into its consideration, the social set up, then only will it
stand
the test of time. constitution and society grows, develops together
and
gets intertwined in each other. The constitution takes into
account
change and developments in the society. Instances of them are:-
a) Right to education: below the age of 14yrs has been guaranteed
by
Article 21-A. recent developments are about guaranteeing education
in
the technical, higher educational institutions.
b) Right to clean environment
c) Right to life : is widely interpreted to include the right to
dignified living-this includes rights guaranteed to prisoners,
inmates
of protective homes, right to release and rehabilitation of bonded
labourers , right to legal aid, and the right to know.
d) Right to go abroad.
e) Right to privacy.
f) Right against solitary confinement.
The aforesaid is enough to state that Article 21 has enough of
positive
content in it. the originating idea in this regard is the view
expressed by Field J. in
Munn v. Illnois,
(1876) 94 US 113, in which it was held that the term 'life'
(as appearing in the 5th and 14th amendments to the United States
Constitution) means something more than 'mere animal existence'.
This view was accepted by a Constitution Bench of this Court in
Kharak Singh v. State of U.P., MANU/SC/0085/1962
to
which further leaves were added in Board of Trustees Port of
Bombay v.
Dilip Kumar, MANU/SC/0184/1982
Vikram Dev Singh v. State of Bihar,
MANU/SC/0572/1988; and
Ram Sharan v. Union of India,
MANU/SC/0406/1988. In these decisions it was held that the word
'life' in Article 21 means right to live with human dignity and
the same does not merely connote continued drudgery. It takes
within its fold "some
of the finer graces of human civilization, which makes life worth
living",
and that the expanded concept of life would mean the "tradition,
culture and heritage"
of the concerned person.
It would be relevant to note the decision in
State of Himachal
Pradesh
v. Umed Ram, MANU/SC/0125/1986. It was observed (here in paragraph
11
that the right to life embraces not only physical existence but
the
quality of life as understood in its richness and fullness by the
ambit
of the Constitution; and for residents of hilly areas access to
road was
held to be access to life itself, and so necessity of road
communication
in a reasonable condition was held to be a part of constitutional
imperatives, because of which the direction given by the Himachal
Pradesh High Court to build road in the hilly areas to enable its
residents to earn livelihood was upheld. What can be more positive
and
kicking?
We may also refer to the article of Dr. M. Indira and Dr. Alka
Dhal under the caption:
"Meaning of
life, suffering and death"
as read in the International Conference on Health Policy, Ethics
and Human Values held at New Delhi in 1986. This is what the
learned authors stated about life in their article;--
"Life
is not mere living but living in health. Health is not the absence
of illness but a glowing vitality the feeling of wholeness with a
capacity for continuous intellectual and spiritual growth.
Physical, social, spiritual and psychological well being are
intrinsically inter woven into the fabric of life. According to
Indian philosophy that which is born must die. Death is the only
certain thing in life."
Going by the above it is clear that this human dignity will be
lost if
on is left to suffer in old age, crippled and abandoned or in any
point
in our lives when we are suffering from a incurable disease. If
Article
21 can be interpreted as has been done in many cases above, then
why can
right to die not be included? After all every one has the right to
live
with dignity. But in India things are not that simple. One has to
take
into consideration not the interest of a few but that of the 1
billion
people whose lives will positively or negatively be affected by
such a
decision.
To draw out a definite conclusion, one has to analyse the pros and
cons
of legalizing �right to die�.
�I have the
right to die
As we have already seen, no country's Constitution can be an
enduring Constitution if it does not take into cognizance the
interest of the people for whom this Constitution has been framed.
And so there are various arguments given by people who believe
that one should have the
right to die. Their arguments go as follows:
1.
If I have been guaranteed right to life, I should be
guaranteed the
right to die as well
C A Thomas, 86-year-old retired school teacher of Thrissur, who
was the
first one in India to demand the right for voluntary death had
argued
that Article 21 indeed bestowed on every citizen a right to life
and
method of death. Our Constitution guarantees the right to life.
The
right to life is incomplete without the right to death. The karma
of
life is a wheel that is completed only when birth is complemented
by
death. The right to die is built into the right to live.
Supreme Court in
Gian Kaur v.
State of Punjab3,
said that 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. To give meaning and content to the word 'life' in
Article 21, it has been construed as life with human dignity. Any
aspect of life which makes it dignified may be read into it but
not that which extinguishes it and is, therefore, inconsistent
with the continued existence of life resulting in effacing the
right itself.
The 'right
to life'
including the right to live with human dignity would mean the
existence of such a right up to the end of natural life. This also
includes the right to a dignified life up to the point of death
including a dignified procedure of death. In other words, this may
include the right of a dying man to also die with dignity when his
life is ebbing out. But the 'right to die' with dignity at the end
of life is not to be confused or equaled with the 'right to die'
an un-natural death curtailing the natural span of life.
It is argued that right to die respects the individual's right to
self-determination or his right of privacy. Interference with that
right
can only be justified if it is to protect essential social values,
which
is not the case where patients suffering unbearably at the end of
their
lives request to die when no alternatives exist. Not allowing the
right
to die would come down to forcing people to suffer against their
will,
which would be cruel and a negation of their human rights and dignity. Every person has a right to live with at least a minimum dignity
and
when the state of his existence falls below even that minimum
level then
he must be allowed to end such tortuous existence. In such cases
relief
from suffering (rather than preserving life) should be the primary
objective.
At this juncture it would not be out of place to mention that the
liberty to die, if not right strictu sensu,
may be read as part of the right to life guaranteed by Article 21
of the Constitution of India. True that the Supreme Court has held
that such an interpretation of Article 21 is incorrect18, but it
is submitted that one may try to read the
freedom to die as flowing from the rights of privacy,
autonomy and
self-determination, which is what has been done by the Courts of
United
State and England. The Constitution states certain unalienable
rights to
life, liberty, and the pursuit of happiness. Since we have this
right to
life, it is our right to decide what we want to do with our lives.
And
people should be free to live their lives as they themselves think
best.
2.
If I have been
reduced to a corpse, suffering from an incurable, interminable
disease, I don't deserve to live with so much pain
3.
Our religion supports a person who wants to die
C. Thomas a Christian, quoted the Gita and Ramayana to prove that
"
vanavas ", the ancient Indian tradition of merging with the
Supreme was
the most honourable system. "It is the western jurisprudence we
now
follow without thinking that considers taking one's own life a
crime".
In his argument he said that Jain preists after reaching a certain
age
starved themselves to death and the rishis and munis of those
times also
willfully ended their lives after attaining enlightenment.
4.
I fear death and the pain that will come with it, I want to
have a
sound sleep
C. Thomas believed that death would be a pleasant experience if
one were
to die at an advanced age on his won volition with some medical
help
once he or she thought had fulfilled all possible duties of life.
Most
of the old people today spend their lives fretting about their
death and
that causes a lot of mental agony and suffering. Guaranteeing a
person
the right to die would dismiss the fear of death and mourning now
prevalent in people.
5.
I want to donate my organs before the disease affects it
Venkatesh, a 25-year-old muscular dystrophia patient, wanted to be
granted the right to die. He sought to enforce the right so that
he
could donate organs before they were affected by his illness. The
plea
was rejected a day before his death by the Andhra Pradesh high
court.
The court ruled that the petition sought to violate the
Transplantation of Human Organs Act, 1995, which had no provisions
that allowed individuals to donate organs before they were brain dead. The
court's
caution in this case is understandable considering the
implications of
easing restrictions in organ transplant. However, the order
indirectly reiterated the stated legal position that an individual
had no right to end his life voluntarily. This is not the only case where someone
of
their free will wanted to donate their organs, to serve a noble
cause
and wasn�t allowed to do so. Otherwise in our country illegal
trade of
human body parts and organs is taking place at a massive rate and
when a
person approaches law and seeks its help, he is denied the same.
You do not have the right to die; you only have the right to
live
1.
I do not want to die, I want to live but they won't
let me
What stands as the biggest fear in the minds of the people is the
exploitation that will occur once right to die is legalized in our
country. One example is that many of our age old social customs
like
sati pratha may get legitimacy once right to die is legalized. In
a
recent case of Roop Kanwar who performed sati in Rajasthan, there
were
many local people who supported her and asked everyone to do what
she
had done so bravely and uphold the Hindu traditions and long
followed
customs of the village. It can be falsely propagated by Hindu
fanatics
to serve their purpose saying that a woman has a right to die by
throwing herself in the funeral pyre of her husband while the
whole
while she herself did not consent to it. It is the vast majority
of
illiterate people who will be targeted. They will be told to give
up
their lives for their religion and they will do so very gladly
saying
that they have a right to die, whatever be the reason.
The Sati (Prevention) Bill, which mandates:
1. one to five years imprisonment for any woman who attempts sati;
2. the death penalty or life imprisonment for
abetment of Sati;
3. one to seven years imprisonment for
glorification of Sati;
and
4. Suspension of civic rights of anyone convicted of
abetting or
glorifying Sati, i.e. disqualification from holding any public
office.
However this very piece of legislation will stand negated once
right o
die is legalized in our country.
2.
India is a
poor country where there are many feeding mouths and resources are
less
In light of the 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.
But one should not forget that in a country like India where there
is
tremendous pressure on the available medical facilities, it is all
the
more necessary for the maximum utilisation of the limited
facilities.
3.
There is a
risk of abuse of this right
It is again, a conflict between the humane, the ethical and the
legal. it is not always that the patient wants to die. The
relatives of the patient are also allowed to decide whether to let
the patient live. In addition, even where the consent is that of
the patient it may be one obtained by force. Use of physical force
here is highly unlikely. But emotional and psychological pressures
could become overpowering for depressed or dependent people.
Moreover, financial considerations, added to the concern about
being a burden,
could serve as a powerful force that would lead a person to
�choose� to die.
Moreover, it
is argued that when a healthy person is not allowed to commit
suicide then why a diseased person should be allowed to do so. It
is pointed out that suicide in a person who has been diagnosed
with a terminal illness is no different than suicide for someone
who is not considered terminally ill. Depression, family conflict,
feelings of abandonment, hopelessness, etc. lead to suicide
regardless of
one's
physical condition. Studies have shown that if pain and depression
are
adequately treated in a dying person as they would be in a
suicidal
non-dying person the desire to commit suicide evaporates.
Suicide
among the terminally ill, like suicide among the population in
general,
is a tragic event that cuts short the life of the victim and
leaves
survivors devastated.
It is feared that placing the discretion in the hands of any
individual
would be placing too much power in his hands and he may misuse
such
power. This fear stems largely from the fact that the
discretionary
power is placed in the hands of non-judicial personnel (any
individual
in this case). This is so because we do not shirk from placing the
same
kind of power in the hands of a judge (for example, when we give
the
judge the power to decide whether to award a death sentence or a
sentence of imprisonment for life). Generally people who attempt
suicide
or want to commit are under a lot of emotional stress. For example
a
patient receiving chemotherapy might want to end his life because
of the
physical and mental trauma but once he feels better, he might
change his
mind. Decisions in case of such patients are fluctuate. Also
relatives
can use the law to achieve their own interests. In India, the
crime rate
is increasing faster than the population growth. The one main
reason
behind the crime rate is greed. The old people are very
vulnerable.
The
near kith and kin want to usurp their property and other
possessions. We
come across this in almost everyday in news papers. Once
euthanasia is
legalised, old people will become the main targets. A doctor will
declare a patient terminally ill for a paltry some. It will have
dangerous repercussions on the society. We should respect life.
Life is
the most precious thing the God has bestowed upon us.
A youth of our age, depressed to see his parents fight every
night,
depressed as he does not have a job and has the burden of his
family on
his shoulders, depressed as he failed in board exams, will not
think
twice before killing himself! And this will result in gross
degradation
of a human beings life. His family and society at large will lose
an
otherwise bodily and mentally healthy person whose rich experience
in
life and his own skills can be a great asset.
4.
slippery slope argument
The slippery slope argument, in short, is that permitting suicide
would
over the years lead to a slide down the slippery slope and
eventually we
would end up permitting even non-voluntary and involuntary
euthanasia.
5.
mind, body and
soul
. We are discussing here the rights of a very few people vs. the
whole
possibility of murders and suicides that can follow from such a
law.
Besides, if one understands the life and soul and how it works,
one will
understand that Euthenasia is actually irrelavant and unnecessary.
The
Spirit or Soul in us decides when to leave. When the MEST life
(this
physical universe) gets too challenging, the should carves in and
gives
up to find another body and to start afresh. That's the way the
spirit/life works. So if that be the case, the death will come as
soon
as the Soul decides it. And the fact is that the Soul does not
continue
in a body a minute longer than it can bear to be there. One could
argue
about the pain of those around the suffering and dying person. But
it's
not of our selection that someone we love is suffering. It's a
part of
life. But legalizing this would mean a gaping hole that many can
take
advantage of.
In the end, we also would do well to remember the following words
of
Mahatma Gandhi:
Death is our friend, the truest of friends. He delivers us from
agony. I do not want to die of a creeping paralysis of my
faculties
a
defeated man.
So the
outcome as it seems
It seems to me that suicide probably ought to remain illegal,
because
many people who attempt it (especially young people) are either a)
not
fully in charge of their faculties, b) treatable patients with one
or
another form of mental illness, and c) would probably thank us
later for
resisting their attempt. These aren't strong arguments (it can
still be
argued that suicide "doesn't hurt anyone but the doer"), but they
are
good enough for me. The state should do everything it can to
discourage
people from committing suicide. On the other hand, it shouldn't
penalize
people who attempt it and fail. If the 'crime' of suicide is
punished,
you run the risk of the old totalitarian joke: he tried to commit
suicide, and failed, so they executed him.
So perhaps suicide should remain generally illegal (but not
punishable),
and there should just be an exception granted to people who are
terminally ill and in excruciating pain (like L. Venkatesh). But
doctors
often disagree on what defines terminal illness. And while there
will
certainly be some cases where death is inevitable, there will be
many
cases where death is fairly far off in the future, and there is
some
hope, however small. Moreover, critics can object that there is
always
the possibility of a medical miracle -- that 1 in 10,000 chance
that a
patient will recover -- so isn't it worth keeping the patient
alive in
case that happens? Opening up the Right to Die as an exception in
the
law against suicide would only work if the likelihood of death
were
overwhelmingly high, and if the "miracle cure" argument were
thrown out
on a cost/benefit basis.
Thus, it seems like a viable argument to say that the right to die
should remain generally illegal because of the confusion that
could
ensue if it were legalized. This is the status quo, and the
suffering of
people like Venkatesh is unfortunate, but perhaps justified
because it
does serve the greater common good.
On the other hand, if I could be convinced that doctors could
specify
the cases where euthanasia is the best option with upwards of 99%
certainty (this would require a classification of terminal
illnesses and
probably the statistical ascertainment of survivability), then may
be
legalizing righ to die would also serve the common good.
The basic moral question that arises is whether by legalizing a
person's
right to die, we will degrade a human beings life and stop
respecting
human life. No one can deny that there is nothing more precious
than the
gift of life which every human being enjoys. Why then should man
decide
when his life should end? Most religious people believe that life
is
sacred and one should not waste time in planning about their death
but
planning about how to enjoy life. Terminating life is not an
answer to
pain. All along life's journey man will suffer pain whether it is
physical or mental or emotional or psychological. Will
legalization of
right to die be done to relieve oneself from the physical pain only?A person weakened by illness may not be in a position to review
his
decision to kill himself. Decision to die by coming under some
financial
or social obligation is also very dangerous. Somewhere down the
line we
may end up violating the right to life while legalizing the right
to
death.
When life is woe and hope is dumb, the world says go! The grave
says ,
come! Whose voice will you hear? Will you be a faint heart and say
that
I want the right to die or will you in your sorrow and misery and
pain
be a brave heart and say, dear god give me two more precious
moments
because I want to cherish the precious gift of life.
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The
author can be reached at: jk.nliu@legalserviceindia.comm /
