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Euthanasia: Right To Die With Dignity

A good and meaningful life is the goal of every person and they constantly thrive to achieve it. Along with leading a good life, they also hope to die with dignity and not while waiting for some illness to torture and kill them slowly. People hope for their death to be easy and peaceful. No one desires for a life where staying alive is worse than death itself. When a person takes his own life, then it is called suicide, whereas when the life of a person is taken by some other person with the consent of that person, it is called Euthanasia or mercy killing.

The term Euthanasia is a combination of two Greek words, eu which means good and thanatos which means death, referred to as 'Euthanasia' in English. The term 'Euthanasia' implies intentional killing of a person, by another person, at the explicit request of that person who wishes to die and for solely for the benefit of that person which is to relieve that person from pain and suffering arising out of an illness or some injury.

Thus, Euthanasia is related with those persons who because of some terminal illness or who have become incapacitated and do not desire to live the rest of their life in suffering and pain. A terminally ill or a handicapped person should have a right to decide to live or to die. The concept of Euthanasia is very controversial and is related with the morals, values and ethics of a society.

The concept of euthanasia has been narrowed to the killing of patients by doctors at the request of the patient in order to free him from excruciating pain or from terminal illness globally. Thus the basic intention behind euthanasia is to ensure a less painful death to a person who is not showing any sign of improvement and his condition will eventually lead to his death after a long period of pain and suffering.

Euthanasia can be of following types:

  1. Active or Positive:

    Active euthanasia involves painlessly putting individuals to death for merciful reasons. When a doctor administer lethal dose of medication to a patient, it is called active euthanasia.
     
  2. Passive or negative:

    Euthanasia is passive when death is caused because a treatment that is sustaining the life of the patient is held off and the patient dies as a result thereof. For example, withdrawing life supporting devices from a serious patient, removing which, the patient dies. In "passive euthanasia" the doctors are not actively killing anyone; they are simply not saving him.
     
  3. Voluntary:

    it is voluntary when the euthanasia is practiced with the express desire and consent of the patient. Voluntary euthanasia is primarily concerned with the right of choice of the terminally ill patient who decides to end his or her life, choice which serves his/her best interest and also that of everyone else.
     
  4. Involuntary:

    when the patient is killed without an express wish to this effect, it is a form of involuntary euthanasia. It refers to cases wherein a competent patient's life is brought to an end against the wishes of that patient who oppose euthanasia; and would clearly amount to murder.
     
  5. Non-Voluntary:

    it refers to ending the life of a person who is not mentally competent to make an informed request to die, such as a comatose patient. In Non-Voluntary euthanasia the patient has left no such living will or given any advance directives, as he may not have had an opportunity to do so, or may not have anticipated any such accident or eventuality. In cases of non-voluntary euthanasia, it is often the family members, who make the decision.

According to the British House of Lords Select Committee on Medical Ethics, it is defined as:

a deliberate intervention undertaken with the express intention of ending a life, to relieve intractable suffering.

Euthanasia has been legalized in Switzerland (1942), Australia (1996), the Netherlands (2001), Belgium (2002), and Luxembourg (2009). The legislation allowing physician-assisted suicide (PAS) exists in Switzerland as well as outside of Europe, in three federal states in the United States:
Oregon, Vermont, and Washington.

In India, there is no special provision for Euthanasia, neither in legislation nor in law. But there have been some medical cases which necessitated the need of Euthanasia been applicable in India. Like for example, the Supreme Court in the Aruna Shanbaug case[1] allowed passive Euthanasia in India and also laid down the guidelines regarding processing of pleas of passive Euthanasia.

The Concept Of Euthanasia Vis-À-Vis Constitution Of India

Chapter III of the Constitution of India guarantees Fundamental rights. Article 21 provides one of these rights and it reads as follows:
Article 21 Protection of Life and Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.

While understanding the meaning of this Article it is observed that the phraseology of this article is such that it starts with a negative word which is No, however, this word No has been used in this article in relation with the word Deprived.

Article 21 is construed to prevent the encroachment upon the personal liberty of a person and depravation of life of a person except according the procedure established by law. Construing the meaning of Article 21, it is clear that the right guarantees protection against the state only and if any act is done by any private individual violating this article, such violation will not meet the parameters of Article 21.

However, in case of such a violation, the aggrieved person can sought remedy under Article 226 of the Constitution of India or under general law of the land. But in case the violation done by an act of a private individual is supported by the State, then that act will clearly attract the violation done under Article 21 of the Indian Constitution.
Article 21 is a basic as well as a fundamental right.

It recognizes the sanctity of human life. The question as to whether 'Right to life' conferred under Article 21 of the Constitution of India includes 'Right to die or Right not to live' as well has been a topic of debate in several cases. Death in simple words means termination of life or the end of life and it can occur either naturally on unnaturally. A man can die unnaturally either by commit an act on himself that will cause his death which is called suicide or either by some other individual with immoral and bad intention causing his death which is termed as homicide.

Euthanasia is concept which can be said is similar to suicide, yet it is completely different from it. It is a completely different act from suicide. Therefore, it is necessary to understand the difference between 'euthanasia' and suicide'. According to Oxford Dictionary[2], suicide means an acting of killing yourself deliberately.

For a better understanding, suicide can be termed as an act in which a person intentionally takes his own life by his own means. The reasons for suicide can be losing job, financial crisis, depression, stress, failing in examinations, troubles in love life, etc. The basic difference is that in suicide it is voluntary taking of one's own life and in euthanasia, some other person ends the life of the person with the consent of that person.

That other person may either actively or passively involved in the killing of the person who gave the consent to get killed by way of either providing means to end the life for example, a doctor on the consent of his patient deliberately provides a lethal dose of a medicine and the patient himself consumes that medicine and ends his life or by way of abetting the person to end his life. In this context, it has also become necessary to understand the difference between assisted suicide and euthanasia.

Assisted suicide means an act by which a person intentionally aids another person and helps him to commit suicide by providing him with the means to commit suicide like the example mentioned above when a doctor giving lethal dose of a patient on his consent so that he could commit suicide is physician assisted suicide.

Other cases of assisted suicide can be providing means to take own life like arranging and giving a gun to a person and simply helping him so that he could commit suicide by shooting himself. On the other euthanasia can be active or passive. If is by a doctor administering a lethal dose or injection to a patient on his consent to end his life it is called passive euthanasia and if it is by way of withdrawal of the services or medical support system which was keeping the patient alive, then it is called passive euthanasia.

In the case of Maruti Shripati Dubal v. State of Maharastra[3], the Bombay High Court distinguished between suicide and euthanasia by stating that suicide is an in act of self-killing without assistance from any other person but in euthanasia, intervention of some other person is required to end the life. Mercy killing or euthanasia cannot be said similar to suicide. The court in this case further held that:
Euthanasia or mercy-killing is nothing but homicide, whatever the circumstances in which it is effected. Unless it is specifically excepted it cannot but be an offence. Our Penal Code further punishes not only abetment of homicide but also abetment of suicide.[4]

The law related to assisted suicide is clearly stated in India and suicide is punishable under the India Penal Code, 1860 under sections 305, 306 and 309 which are of abetment of suicide of child or insane person, Abetment of suicide and Attempt to commit suicide respectively. The constitutional validity of section 309 of the Indian Penal Code, 1860 has been challenged in the Supreme Court of India.

In Gian Kaur v. State of Punjab[5], the Supreme Court held Section 309 of Indian Penal Code to be constitutionally valid but as per current scenario, even though this section is constitutional yet it is the time for the parliament of India to delete it as it has become out dated. For example if A person attempts to commit suicide because of depression, then it would not be correct him to punish him, rather he is in acute need of help to come of that depressing condition.

The Delhi High Court in the case of State v. Sanjay Kumar Bhatia[6], observed that section 309 of I.P.C. has no justification to continue remain on the statute book. The Bombay High Court in Maruti Shripati Dubal v. State of Maharashtra[7] held section 309 to be violative of Article 14 and Article 21 of the Indian Constitution. In this case, section 309 was held to be of discriminatory nature and also to be arbitrary and it violated the right to equality guaranteed under Article 14 of the Indian Constitution.

The court also in this case interpreted Article 21 of the Indian Constitution and help that the the right to live under this article also includes right to die and thus held section 309 of the Indian Penal Code to be violative of Article 21 as well.
The Supreme Court for the first time decided on whether right to life under Article 21 also includes right to die in the case of P. Rathinam v. Union of India[8].

The court in this case held that right to life would include in it the right to die as well and thus, held Section 309 of the Indian Penal code to be unconstitutional. However, in the case of Gian Kaur v. State of Punjab[9], the constitutional validity of Section 309 of the Indian Penal Code was challenged. The Supreme Court upheld the constitutional validity of Section 309 and set aside the judgment in P. Rathinam Case and held that right to life guaranteed under Article 21 of the Constitution does not include right to die.

Later, in the case of Aruna Ramchandra Shanbaug v. Union of India[10] the Supreme Court of India permitted passive euthanasia in India. In 2018, Common cause (a regd. society) vs. Union of India & anr[11], the Supreme Court held 'right to die with dignity' a fundamental right and recognised the 'living will' of terminally ill patients.

Analysis Of The Case - Aruna Ramchandra Shanbaug V. Union Of India

The landmark judgment of the Supreme Court in the case of Aruna Ramchandra Shanbaug v. Union of India[12] has made passive euthanasia legal in India after getting approval from the concerned High Court for withdrawal of life support and the High Courts can approve the withdrawal of life support and permit passive euthanasia under the power of the High Courts under Article 226 of the Constitution of India.

Aruna was a nurse in the King Edward Memorial Hospital (KEM), Parel, Mumbai. She was attacked by a sweeper of the hospital on the evening of 27th November, 1973. That sweeper pulled her by wrapping a dog chain around her neck. The sweeper in order to rape her twisted that dog chain around her neck to stop her from moving. When he found that Aruna was menstruating, he sodomized her. The chain cut off the oxygen supply to her brain rendering her completely unconscious and causing brain damage. The incident sent her into coma from which she never came out. Even the doctors had said that there was no sign for her condition to ever improve.

On 24th January 2011, Ms. Pinky Virani, who claimed to be a friend of Aruna Shaunbaug filed a petition to the Honourable Supreme Court of India. In the petition, Ms. Pinki Virani described the condition of Aruna Shaunbaug. She is featherweight, and her brittle bones could break if her hand or leg are awkwardly caught, even accidentally, under her lighter body. She has stopped menstruating and her skin is now like papier mache' stretched over a skeleton. She is prone to bed sores.

Her wrists are twisted inwards. Her teeth had decayed causing her immense pain. She can only be given mashed food, on which she survives. It is alleged that Aruna Ramachandra Shanbaug is in a persistent negetative state (P.V.S) and virtually a dead person and has no state of awareness, and her brain is virtually dead. She can neither see, nor hear anything nor can she express herself or communicate, in any manner whatsoever.[13] Ms. Pinki Virani prayed to the Supreme Court of India to direct the KEM hospital to stop feeding her and let her die peacefully.

The Supreme court of India directed to set up a committee to know the details about the condition of Aruna Shaunbaug as there were certain variations between the allegations made by Ms. Pinki Virani and the counter affidavit submitted by Dr. Pazare, who was the head of KEM hospital where Aruna Shaunbaug was admitted. A team of three doctors was appointed for examining her and the gave a report to the Supreme Count regarding the mental and physical condition of Aruna Shaunbaug.

The opinion of the committee in their report was:

· There is irreversible damage on the brain of Aruna which is the effect of strangulation
· Her condition meets most of the criteria required for a person to be in a permanent vegetative state (PVS)
· Despite having intact auditory, visual, somatic and motor primary neural pathways, there was no conclusive proof of stimuli.[14]

The Supreme Court on 7th March, 2011 gave the landmark judgment in this case legalizing passive euthanasia in India. The Court in this connection has laid down the guidelines which will continue to be the law until Parliament makes a law on this point.
  1. A bona fine decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient.
     
  2. A decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned as laid down in Airedale's case[15].
However, it rejected the plea of Ms. Pinki Virani and Aruna Shaunbaug died on 18th May 2015 because of pneumonia after being in persistent vegetative state for a period of 42 years.

Analysis Of The Case - Common Cause (A Regd. Society) Vs. Union Of India & Anr[16]

Though passive euthanasia was legalized by the Supreme Court in the case Aruna Ramchandra Shanbaug v. Union of India[17] yet the court didn't give guidelines regarding the procedure a terminally ill patient should follow in order to execute his right to die with dignity. However, the Supreme Court again got the opportunity to address the issue of right to die with dignity in another petition filed before it.

In March, 2011, the Supreme Court of India again gave a landmark judgment in the favour of passive euthanasia in the case Common Cause (A Regd. Society) vs. Union of India & Anr[18] and recognised the living will of terminally ill patients permitting withdrawal of medical support held right to die with dignity a fundamental right.

It was not the first the time that the Supreme Court of India came across with the issue of euthanasia before itself. Earlier also in the case of Aruna Ramchandra Shanbaug v. Union of India[19] and the honourable court decided in favour of passive euthanasia and legalized it in India giving certain broad guidelines.

However, the decision in this case by the division bench of Supreme court of India was not entirely satisfactory for the three judge bench to decide upon the current case and therefore the case was referred to the constitutional bench stating:
considering the important question of law involved which needs to be reflected in the light of social, legal, medical and constitutional perspectives, it becomes extremely important to have a clear enunciation of law" and which in the words of the reference order was for the benefit of humanity as a whole.

The landmark judgment in this case was delivered by the constitutional bench of Supreme Court which comprised of 5 Judges and the Chief Justice delivered the landmark decision along with A M Khanwilkar, J. The other 3 judges of the constitutional bench shared the opinion with the Chief Justice in his findings but they passed their separate judgments on the issue.

In the year 2005, common cause, a registered society filed a writ petition under in the Supreme Court of India under Article 32 of the Constitution of India and in their petition they prayed the Supreme Court to declare right to die with dignity a fundamental right and also prayed the court the issue directions for the central government to execution of the living will made by the terminally ill patients for the withdrawal of their medical support.

The common cause society also as an alternative relief prayed the court for the appointment of an expert committee consisting of doctors, lawyers and social scientists for the purpose of determining the various aspects related to the execution of the living will. The society argued that the terminally ill individuals who are suffering from chronic diseases and are admitted in hospitals should be subjected to cruel treatments that will only prolong their sufferings.

Causing them uncontrollable pain and sufferings with no sign of improvement will amount to denying them their right to a dignified death. Hence, such terminally ill patients should be allowed to make a decision about their lives through a living will which should be executed in such a time secure them their right to a dignified death.

On 9th March 2018, the Five Judge constitutional bench of the Supreme Court comprising of Chief Justice Dipak Misra and Justices A K Sikri, A. M. Khanvilkar, D Y Chandrachud and Ashok Bhushan held right to die with dignity is a fundamental right and held that an individual's right to execute advance medical directives is an assertion of the right to bodily integrity and self-determination and does not depend on any recognition or legislation by a State. As it was a matter of constitutional interpretation, the court also laid down several guidelines and safeguards for its proper implementation and to avoid the abuse of the process of euthanasia.

The court laid that only an adult with a sound mind and capable of communication and who is completely aware of executing a living will may voluntarily execute it. The will must clearly reflect the consent of the person wanting to end his life by withdrawal of medical support and also it should contain the instructions as to when the medical support be withdrawn and no further medical service be provided. The document should also contain the name of the guardian of the patient who would give his consent allowing or refusing withdrawal of medical support. There should also be a provision in the living will to allow the revocation of the will by the executor

Conclusion
Mercy killing i.e., Euthanasia though seems to be morally justified and is practiced in many countries on the ground that the sufferings and pain of a patient because of some illness is given priority over the life of the patient but no law can provide a guarantee over the abuse concerning the lives of critically ill patients who do not desire to end their lives. Euthanasia does not mean to kill a person but it means allowing the critically ill patient to end his life on his own wish to get free from the pain and sufferings.

Suicide has become illegal after the judgment in the Gian Kaur's case[20]. Passive Euthanasia was legalized after the judgment of the Supreme Court in the case of Aruna Ramchandra Shanbaug v. Union of India [21].It paved the way for patients in coma with no sign of recovery to exercise their right to die with dignity by permitting passive euthanasia. After the landmark decision in the Common Cause (A Regd. Society) vs. Union of India & Anr, the Supreme Court has held right to with dignity as a fundamental right and right to life under Article 21 of the Constitution of India is akin to right to die with dignity. In this case, the court created a balance between two aspects of the right to life under Article 21. One creates a duty on the state to preserve human life and other is ensuring individual autonomy related to decisions regarding their own life and body.

However, right to die with dignity being of similar character as that of right to live, the Supreme Court highlighted that the Euthanasia can be used by the unscrupulous relatives of the patients and can be abused and the right to die cannot be made absolute and is subject to regulatory mechanisms. It is the duty of the courts to protect the abuse of law relating to Euthanasia. To prevent the abuse of Euthanasia the legislature is required to make a special law dealing with all the aspects of euthanasia. Nevertheless, it is a step in the right direction and one must embrace it with the hope that the Courts and law makers would one day realise that the word "Euthanasia" when translated from Greek means "good death".

End-Notes:
  1. Aruna Shanbaug v. Union of India (2011) 4 SCC 454
  2. Oxford Advanced Learner's Dictionary of Current English. (2000). Sixth Edition. Oxford University Press.
  3. 1987 Cri.L.J 743 (Bomb.
  4. Ibid.
  5. 1996 (2) SCC 648 : AIR 1996 SC 946
  6. 1985 Cri.L.J 931 (Del.).
  7. 1987 Cri.L.J 743 (Bom.)
  8. AIR 1994 SC 1844
  9. See Supra note 5.
  10. (2011) 4 SCC 454.
  11. (2018) 5 SCC.
  12. See Supra note 10
  13. Common Cause (A Regd. Society) vs Union Of India (2018) 5 SCC 1
  14. Harish, Dasari & Singh, Amandeep & Kumar, Ajay & Sane, Mandar. (2018). The Current Status of Euthanasia in India. Journal of Indian Academy of Forensic Medicine. 40. 134-139. 10.5958/0974-0848.2018.00023.4.
  15. Airedale NHS Trust v Bland [1993] 1 All ER 821 (HL.)
  16. See Supra note 11
  17. See Supra note 10
  18. See Supra note 11
  19. See Supra note 10
  20. Gian Kaur v State of Punjab 1996 (2) SCC 648 : AIR 1996 SC 946
  21. See Supra note 10

    Award Winning Article is Written By: Arjun Kohli

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