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Euthanasia - S.306, IPC Constitutionally Valid

Written by: Surya Bhan Singh Billawria - Pursuing 4th year of 5-year integrated law course under University of Pune
Constitutional law
Legal Service
  • It is the practice of painlessly putting to death people who have incurable, painful or distressing diseases or disabilities. It comes from the Greek words 'eu' for good or well and 'thanatos' for death, and is commonly called Mercy killing. Euthanasia may occur when incurably ill people ask a doctor, friend or relative to put them to death.

    Dutch Government Commission on Euthanasia (1985) has defined it as:
    "A deliberate termination of life on an individual's request, by another, in medical terminology, the active and deliberate termination of life on patient's request, by a doctor."

    Active Euthanasia is illegal in almost all countries. Most religious groups consider it suicide or murder and, therefore, immoral. Some supporters of euthanasia claim that it allows a person to die with dignity instead of being kept barely alive by artificial means. An alternative to euthanasia is the withholding of most types of medical treatment. The practice allows the patient to die naturally, and it is usually legal.

    The treatment of patients in a persistent vegetative state - that is, patients whose higher brain functions have ceased but who can still breathe unaided - presents a major medical problem. The decision of whether or not such patients should be allowed to die is a worry for both relatives and doctors. They may fear that, since such a patient will never recover to live a normal life, there is little point in prolonging his or her existence. Often families desire an end to such an existence so that they can grieve for the loss of their loved one. In a few cases, the decision to withhold food from such patients has been backed by a court of law.

    Justified euthanasia (where legal) occurs if
    (1) The patient makes a voluntary, informed, and stable request
    (2) The patient is suffering unbearably with no prospect of improvement
    (3) The physician consults with another physician
    (4) The physician performing the euthanasia procedure carefully reviews the patient's condition.
    Officials estimate that about 2 percent of all deaths in the Netherlands each year occur as a result of euthanasia.

    There may be three situations when euthanasia may take place viz.,

    # 'Voluntary euthanasia' occurs when a person voluntarily requests the termination of his or her life.
    # 'Non-voluntary euthanasia' when a person is not mentally fit to make an 'informed request' for termination of life.
    # 'Involuntary euthanasia' when a person has not made a request for termination of his or her life.

    Active euthanasia involves painlessly putting individuals to death for merciful reasons, as when a doctor administers a lethal dose of medication to a patient. Passive euthanasia involves not doing something to prevent death, as when doctors refrain from using an artificial respirator to keep alive a terminally ill patient.
    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.

    Distinction between 'Assisted Suicide' and 'Withdrawal of Life Sustaining Treatment'

    A fine distinction has been drawn between 'assisting suicide' and 'withdrawing life sustaining treatment' on the principle of causation and intent. For instance,
    (i) when life-sustaining treatment is refused or withdrawn, the cause of the death is the underlying disease,
    (ii) whereas in the case of assisted suicide the patient is killed by medication, which is an offence.

    Euthanasia has been accepted in some forms by various groups or societies throughout history. In ancient Greece and Rome helping others die or putting them to death was considered permissible in some situations. For example, in the Greek city of Sparta newborns with severe birth defects were put to death. Voluntary euthanasia for the elderly was an approved custom in several ancient societies. However, as Christianity developed and grew powerful in the West, euthanasia became morally and ethically abhorrent and was viewed as a violation of God's gift of life. Today most branches of Christianity, Judaism, and Islam condemn active euthanasia, although some permit restricted forms of passive euthanasia.

    Following traditional religious principles, Western laws have generally treated the act of assisting someone in dying as a form of punishable homicide (unlawful killing). However, in modern times laws have become more secular. Those who wish to legalize euthanasia have argued that, under principles of individual liberty (such as those expressed in the Constitution of the United States), individuals have a legal right to die as they choose. Most countries (including the United States), however, have not fully adopted this position and retain restrictions on euthanasia.

    The first organizations to promote the legalization of voluntary euthanasia in the United States and Great Britain formed in the 1930s. For several decades these organizations remained small and had little impact. However, in the late 1970s the pro-euthanasia movement gained significant momentum after a highly publicized incident in the United States. In 1975 a 21-year-old woman named Karen Ann Quinlan suffered a respiratory arrest that resulted in severe and irreversible brain damage and left her in a coma. Several months later, after doctors informed them that their daughter's recovery was extremely unlikely, Quinlan's parents requested that artificial means of life support be removed. The hospital refused this request.

    After a lengthy legal battle, in 1976 the Quinlans obtained a court order allowing them to remove the artificial respirator that was thought to be keeping their daughter alive. The New Jersey Supreme Court ruled that the Quinlans could disconnect the device so that the patient could "die with dignity." This decision spawned increased discussion of the scope of patients' rights to control their death. (Although the respirator was removed in 1976, Quinlan began to breathe on her own. She lived until 1985 without ever regaining consciousness.)

    In the early 1990s the decision of Nancy B. v. Hotel-Dieu de Quebec in Canada played a similar role in promoting public awareness of the issues surrounding euthanasia. In this case, a young woman paralyzed as a result of the rare disease known as Guillain-Barré syndrome wished to have the artificial breathing mechanism that kept her alive disconnected. Concluding that such refusal of treatment was permissible; in January 1992 a Québec superior court judge authorized the woman's physician to remove the respirator.

    Ethical Issues

    The issue of euthanasia raises ethical questions for physicians and other health-care providers. The ethical code of physicians in the United States has long been based in part on the Hippocratic Oath, which requires physicians to do no harm. However, medical ethics are refined over time as definitions of harm change. Prior to the 1970s, the right of patients to refuse life-sustaining treatment (passive euthanasia) was controversial. As a result of various court cases, this right is nearly universally acknowledged today, even among conservative bioethicists. The controversy over active euthanasia remains intense, in part because of opposition from religious groups and many members of the legal and medical professions. Opponents of voluntary active euthanasia emphasize that health-care providers have professional obligations that prohibit killing. These opponents maintain that active euthanasia is inconsistent with the roles of nursing, care giving, and healing. Opponents also argue that permitting physicians to engage in active euthanasia creates intolerable risks of abuse and misuse of the power over life and death. They acknowledge that particular instances of active euthanasia may sometimes be morally justified. However, opponents argue that sanctioning the practice of killing would, on balance, cause more harm than benefit.

    Supporters of voluntary active euthanasia maintain that, in certain cases, relief from suffering (rather than preserving life) should be the primary objective of health-care providers. They argue that society is obligated to acknowledge the rights of patients and to respect the decisions of those who elect euthanasia. 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, proponents emphasize circumstances in which a condition has become overwhelmingly burdensome for a patient, pain management for the patient is inadequate, and only a physician seems capable of bringing relief. They also point out that almost any individual freedom involves some risk of abuse and argue that such risks can be kept to a minimum by using proper legal safeguards.

    Legal Aspects
    As laws have evolved from their traditional religious underpinnings, certain forms of euthanasia have been legally accepted. In general, laws attempt to draw a line between passive euthanasia (generally associated with allowing a person to die) and active euthanasia (generally associated with killing a person). While laws commonly permit passive euthanasia, active euthanasia is typically prohibited.

    Netherlands and Belgium:

    These are probably the only countries where euthanasia is legal. Netherlands was the first country to legalize euthanasia and assisted suicide in 2001. The Dutch Parliament finally legalised euthanasia and assisted suicide, if following guidelines are adhered to:
    1. The disease is incurable;
    2. The patient's suffering is unbearable;
    3. The patient's condition is terminal;
    4. The patient requests death.
    Belgium, in 2001, enacted legislation similar to the Netherlands' legislation.

    The State of Northern Territory of Australia in 1995 enacted 'The Right of Terminally Ill Act, 1995' to permit the terminally ill patients to opt for mercy killing, i.e., euthanasia under the strict supervision of medical practitioners in accordance with the guidelines provided in the Right of Terminally Ill Regulations, 1996. However, the life of the Act did not last long and it was finally turned down by the courts as unconstitutional and on March 24, 1997 the Australian National Senate repealed the Northern Territory's law which permitted euthanasia.

    United States of America:

    In most of the states in the USA, it is a crime to aid another to commit or attempt to commit suicide, but patients may refuse to take even life saving medical treatment. On Nov. 8, 1994 Oregon became the first state in the US to legalise physician assisted suicide for competent, terminally ill adults by enacting Oregon Death with Dignity Act, 1994. This Act seeks to provide competent terminally ill patients with an opportunity to decide to hasten his or her death with certain safeguards to ensure that no one commits physically assisted suicide (PAS) involuntarily. These safeguards include:
    1. restricted eligibility;
    2. voluntariness;
    3. patients' capacity or competence;
    4. informed decision-making;
    5. waiting periods;
    6. second medical opinions; and
    7. witnesses.

    Euthanasia is not lawful at common law in England.

    Euthanasia is illegal in Canada as held in Rodriguez v. British Columbia by the Supreme Court of Canada.

    In India, euthanasia is illegal and punishable under Section 300 Exception 5 of the Penal Code as culpable homicide not amounting to murder. However, there is a growing awareness amongst jurists and social scientists that euthanasia should be made legal in case of terminally ill. If enacted, such a law must provide sufficient safeguards, appropriate supervision and control to avoid misuse of the provision. Moreover, Section 306 of the Penal Code makes abetment of suicide punishable and Section 309 of The Penal Code makes attempt to commit suicide itself punishable.

    Important Cases
    R.Pretty (English case), (2002) 1 All ER 1 (25) (HL)
    In the recent case, the House of Lords was confronted with a very complex and pathetic case. The appellant was critically ill and had no scope of recovery. She expressed her desire to her husband to help her in the process of bringing her life to a peaceful end as her physical incapacity was such that she could no longer, without help take her own life. Her husband agreed provided he was assured of not being prosecuted u/s 2(1) of the Suicide Act, 1961 for aiding and abetting suicide by the Director of Public Prosecutions u/s 2(4) of the Act. The Director, however, refused to accord any such undertaking. Being aggrieved by the refusal, Mrs. Pretty moved the Queens Bench "Division Court" for judicial review of the decision, which turned down the petition.

    The appellant challenged the decision before the House of Lords and claimed that she has a right to her husband's assistance and that sec. 2(1) of the Act prohibits his helping and prevents the Director's undertaking not to prosecute if he does, is incompatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (as set out in Schedule 1 to the Human Right Act, 1998) is void.

    The petitioner inter alia pleaded relief basing on the following provisions of the Convention, viz.,
    1. Article 2 on the ground that it protected a person's right of self-determination in relation to issue of life and death;
    2. Article 3 prohibition against inhuman or degrading treatment – on the basis that the DPP's refusal subjected her to such treatment;
    3. Article 8 on the basis that it recognized the personal autonomy of every individual and therefore necessarily involved a guarantee as against the State of aright to choose when and how to die;
    4. Article 9 on the basis that it entitled the petitioner to manifest her belief in assisted suicide by committing it; and
    5. Article 14 on the basis of prohibition of discrimination in the enjoyment of Convention rights on the basis of that the petitioner was treated less favourably than those who were physically capable of ending their lives.

    Upholding the decision of the Director of 'not according permission to the plaintiff for assistance of her husband in ending her life', as justified, their Lordships observed that:
    'The subjects of euthanasia and assisted suicide have been deeply controversial long before the adoption of the Universal Declaration of Human Rights in 1948, the arguments and the counter-arguments have ranged widely. There is a conviction that human life is sacred and that the corollary is that euthanasia and assisted suicide are always wrong. The Roman Catholic Church, Islam and other religions support this view. There is also a secular view, shared sometimes by atheists and agnostics, that human life is sacred.

    On the other side, there are many millions who do not hold these beliefs. For many the personal autonomy of individuals is pre-dominant. They would argue that it is the moral right of individuals to have say over the time and manner of their death. On the other hand, there are utilitarian arguments to the contrary effect. The terminally ill and those suffering great pain from incurable illnesses are often vulnerable. And not all families, whose interests are at stake, are wholly unselfish and loving.

    There is a risk that assisted suicide may be abused in the sense that such people may be persuaded that they want to die or that they ought to want to die.
    Another stand is that, when one knows the genuine wish of a terminally ill patient to die, they should not be forced against their will to endure a life they no longer wish to endure. Such views are countered by those who say it is a slippery slope or the thin end of the wedge. It is also argued that euthanasia and assisted suicide, under medical supervision, will undermine the trust between doctors and patients. It is said that protective safeguards are unworkable. The countervailing contentions of moral philosophers, medical experts and ordinary people are endless.'

    Pretty's review petition to the European Court of Human Rights against UK court decisions on the ground the refusal of immunity from prosecution her husband deprived her of rights guaranteed to her pursuant to Articles 2, 3, 8, 9 and 14 of the Convention was rejected.

    2. Quill (United States), 521 US 793 (1997)
    Respondent physicians and three gravely ill patients who have since died, brought action challenging the constitutionality of New York statutes making it a crime to aid persons in committing suicide or attempting to commit suicide on the ground that it violates the equal protection clause of the 14 th Amendment to the U.S. Constitution. The United States District Court, Southern District of New York dismissed the claim, and physicians appealed. The Court of Appeal affirmed in part and reversed in part. Certiorari was granted and matter came before U.S. Supreme Court.

    The Doctors asserted that although it would be "consistent with standards of their medical practice" to prescribe the lethal medication for "mentally competent, terminally ill patients" who are suffering great pain and desire a doctor's help in taking their own lives, they are deterred from doing so by New York's ban on assisting suicide.

    Decision: Rejecting the petitioner-respondent's contention, the U.S. Supreme Court unanimously held that there is a difference between the patients' common law right "refuse treatment", and "assisting a person to commit suicide." It is based on the principle of "right to hasten death," but on well established "traditional rights to bodily integrity and freedom from unwanted touching."Rejecting the petitioner-respondent's contention, the U.S. Supreme Court unanimously held that there is a difference between the patients' common law right "refuse treatment", and "assisting a person to commit suicide." It is based on the principle of "right to hasten death," but on well established "traditional rights to bodily integrity and freedom from unwanted touching."

    3. K.Venkatesh (Indian case), Times of India, December 11, 2004, p. 1
    The Andhra Pradesh High Court was confronted with a very pathetic case of a terminally ill boy of 25 years seeking court's permission to a peaceful end, so that he could donate his organs to some one needy before he is finally pronounced dead. K. Venkatesh, a budding chess player whose career was cut short by a crippling attack of muscular dystrophy was on life support system at the city's Global Hospital in Hyderabad. He was conscious and understood what he was being told. But, he cannot speak. Muscular dystrophy leads to a slow decay of muscles and is incurable. The disease struck Venkatesh when he was only 10 years old and he has been bound to wheelchair since.

    Venkatesh's muscles from his legs to neck have stopped functioning and the life support system let him breathe. Doctors say that he won't survive once he is taken off the ventilator. The doctors at the hospital have refused to entertain Venkatesh's appeal for 'mercy killing' for it is illegal to take a patient who is alive off life support. Doctors say, "The hospital cannot do a thing as long as the law of the land does not approve of mercy killing."

    Doctors at the hospital reported that Venkatesh developed serious chest infection besides dystrophy. His days were numbered but he wants to die before his organs are infected. After his death organs will be in no shape for harvesting and cannot be used for any person.

    The petition was rejected by the Honourable High Court.
    The Honourable High Court turned down the humanitarian appeal of an ailing man on deathbed, who wanted to donate his organs to someone needy before he could die. With due respect, it is submitted that the Honourable Court could have taken a pragmatic view and applied the law keeping in view the objective and purpose for which the request was made which was obviously to save a human life instead of applying the dead letter of law literally. No doubt, 'right to life' is an absolute right and non-negotiable, but in the particular case the request was made to save the 'right of life' of someone who is on deathbed by giving a chance to get his defunct organs replaced from Venkatesh's organs, whose days were numbered as already medically pronounced by the doctors. In such a case Venkatesh was having the most pious objective of igniting the candle in the life of someone unknown by granting a lease of life.

    Perhaps it would have been better in the fitness of things that the Court before taking a final decision should have carefully examined the pros and cons of the entire issues after thoroughly studying the decided cases on the subject in different parts of the world and arrived at a reasonable decision considering humanitarian appeal of a poor boy to fulfil his 'last wish' without arbitrarily rejecting the request.

    Right to Die vis-à-vis Right not to Die – A Constitutional Dilemma

    Article 21 of the Constitution: No person shall be deprived of his life or personal liberty except according to procedure established by law.

    Section 309

    of I.P.C.: 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 fine, or with both].

    Section 309 of I.P.C. has been questioned not only on the grounds of morality but also on the ground of constitutionality of the said provision. There have been many cases dealing with the question of whether S.309 is constitutionally valid or not. There have been conflicting opinions expressed in these cases regarding the constitutional validity of the section – one holding section constitutionally valid, while the other striking it down being violative of Article 21 of the Constitution which guarantees 'right to life,' which would reveal that there is ample force in both the contentions. Now, lets make a careful perusal of these conflicting rulings of the apex court.

    Maruti Shripati Dubal v. State of Maharashtra, 1987 Cri LJ 743 (Bom.)
    In 1987, the Bombay High Court struck down S.309, IPC as ultra vires vide Article 21 of the Constitution which guarantees 'right to life and liberty'. The Court said that the 'right to life' includes the 'right to live' as well as 'right to end one's life' if one so desires. Justice P. B. Sawant said:
    "who make suicide attempt on account of acute physical ailments, incurable disease, torture, decrepit physical state induced by old age or disablement, need nursing homes and not prison to prevent them from making the attempts again."

    P. Rathinam / Naghbhusan Patnaik v. Union of India, AIR 1994 SC 1844
    In 1994, a Division Bench of the Supreme Court comprising of Justices R. M. Sahai and B. L. Hansaria, while allowing petitions upheld the Bombay and Delhi High Courts' decisions (in Maruti Shripati Dubal's case and Sanjaya Kumar's case) and overruled Andhra ruling (in Chenna Jagdeshwar's case). The two petitioners assailed the validity of S. 309 of the IPC by contending that the same is violative of Articles 14 and 21 of the Constitution.

    While striking down S.309, IPC, the apex court said 'it is a cruel and irrational provision violative of Article 21 of the Constitution'. Expanding the scope of Article 21, the Court upheld that, 'right to life' includes 'right not to live a forced life'; i.e., to end one's life if one so desires.

    Gian Kaur v. State of Punjab, (1996) 2 SCC 648: 1996 Cr LJ 1660
    However in 1996, a five member Constitution Bench of the apex court overruled its decisions of 1994 in P. Rathinam / Naghbhusan Patnaik.
    Dismissing the petition challenging the constitutionality of S.306 on the ground that it punished an act which was nothing but assistance to a person in the enforcement of his fundamental 'right to die' under Article 21 as S.309 was held unconstitutional, the apex Court held S.306, IPC as constitutional and said that the 'right to life' doesn't include 'right to die'. Extinction of life is not included in protection of life. The Court further held that S.306 constitutes a distinct offence and can exist independently of S. 309, IPC. There is no correlation between the two sections.

    As regards S.309, IPC is concerned, the Court said that the 'right to life' guaranteed under Article 21 of the Constitution did not include the 'right to die' or 'right to be killed', and therefore, an attempt to commit suicide under S.309, IPC or even abetment of suicide under S.306, IPC are well within the constitutional parameters, and are not void or ultra vires. The 'right to death', if any, is inherently inconsistent with the 'right to life', as is death with life.

    Is S.306, IPC Constitutionally Valid?

    Section 306
    of IPC: 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. The question of constitutionality of S.306, IPC has been aptly answered by the Supreme Court in Gian Kaur's case, as discussed above.

    First of all, we need to ask ourselves a question - "Does Article 21 of the Constitution guarantee a 'right to life' or a 'liability of life'?" Now if it is 'right to life', let's ask another question - "Is a right to be enjoyed or to be forced upon? i.e., can a person be forced to 'enjoy' a right to his detriment?"
    According to me, with all due respect to the honourable courts and their decisions, the answer to the second question is "A right is to be 'enjoyed' and not 'forced upon'. A person can't be forced to 'enjoy' a right to his detriment".

    But while making euthanasia illegal, we are doing nothing but forcing the 'right of life' upon a person for whom life is nothing but a burden, he no longer wishes to endure. We are forcing him to live a 'cursed life' which is full of mental and physical torture, pain and agony; a life which we already know is not going to subsist for long.

    In cases like K. Venkatesh's case, by denying euthanasia, not only is that person forced to suffer a pain which he need not have suffered if euthanasia was allowed but also extinguishes the hope of life in another person who could have lived and 'enjoyed' his 'right to life' by getting the organs which former would have been able to donate. When we talk of euthanasia, we talk of side-effects. But there are hardly any medicines which don't have any side-effects. Do we stop using medicines? There are hardly any scientific inventions without side-effects. Side-effects of using cell phones, computers etc. are well known. But have we stopped using them?

    I believe, instead of wasting time, effort and energy in finding ways to stop euthanasia being legalised, we should utilise this time, effort and energy to find out and put into place mechanisms to check and control the abuse and misuse of euthanasia.

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