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Indian Legal Approach Towards Euthanasia

Euthanasia:

the painless extermination of a patient suffering from an incurable or terminal disease or in an irreversible coma or permanent loss of consciousness. It is the process whereby an individual terminate life by another individual to avoid the painful effects of an illness. Therefore, it cannot be equated to suicide because of the requirement of a third personís intervention in the termination of life.

The Netherlands is supposed to have a reserved principle towards advocating for personal autonomy by bequeathing legal acknowledgment to euthanasia.

Euthanasia has always been in the glare of publicity as a subject matter of debate in the field of medicine and law though being a value debate, seems to have no tangible solution, at least in near future. The ethical considerations surrounding euthanasia in various nations have prejudiced greatly in taking a legal policy. In the lack of legislation, the status of euthanasia in most other nations remains unstable.

On one end, we see the people speaking for the sanctity of life and on the other those who advocate for individual autonomy. Judiciary all over the world including Indian judiciary has already exhausted mammoth amount of time over the subject of euthanasia. However, this doesnít mean that there is a complete prohibition on euthanasia in a nation.

In Shreyans Kasliwal's case, supreme court Article 21 of the Indian Constitution has been the central point of discussion in the debate over euthanasia in India. The controversial question for consideration has been whether the right to life under Article 21 is inclusive of the right to die or not.

The constructive interpretation of Article 21 by the Supreme Court of India has brought many rights within the ambit of the right to life. Now it is well-established that the right to life does not mean mere animal existence, but it includes a dignified or qualitative life. So, it is debated and reasoned that every individual has a right to life inclusive of living the life with at least a minimum level of dignity and when the condition of living the life falls below the minimum level then that individual must be permitted to terminate such torturous and painful life. In such cases, relief from suffering rather than preserving life should form the content of the protection vested in Article 21.

In P. Rathinam / Nagbhusan Patnaik v. Union of India, the first case on the right to die before the Supreme Court of India, while responding to the question of the constitutional validity of Section 309 of IPC, the Supreme Court held that Section 309 is not violative of Article 14, but it is violative of Article 21. The Supreme Court overruled and rejected the observation stated by the Bombay High Court ruling on the violation of Article 14 in the case of Maruti Shripati Dubal by highlighting what constitutes a suicide that is a suicide is the intentional taking of a person`s life.

It is open for the accused to take the plea that his act did not constitute suicide as he had no intention to take his life. The court, in such cases, would sit to decide the truthfulness of his contention by objectively assessing the subjective element of the intention of the accused. Therefore, there may not be set criteria for saying what kind of action constitutes an attempt to suicide, but it is possible to determine, in a given set of circumstances, whether the act of accused falls within the ambit of attempted suicide.

Further, the Supreme Court rejected the contention that Section 309 treats different attempts to commit suicide by the same measure and hence it is violative of Article 14. This is because Section 309 speaks of only the maximum sentence and it does not prescribe a minimum sentence. Consequently, the Court is free to tailor the appropriate sentence depending on the nature, gravity, and extent of an attempt to commit suicide.

Furthermore, referred to the global view on suicide and found that attempt to suicide is not an offense in the United Kingdom and in the United States of America and of these reasons both the Bombay High Court and the Supreme Court found that there is a need to decriminalize attempted suicide by parting with Section 309.

In Gian Kaur v. State of Punjab, 1996, the Supreme Court got an opportunity to reconsider the above decisions in the appellants, Gian Kaur, and her husband were convicted by the Trial Court under Section 306 for a charge of abetment to suicide by Kulwant Kaur. The appellants challenged the constitutional validity of Section 306 on the ground that Section 309 has already been held unconstitutional by the Court in Rathinam since Article 21 which provides the right to life is inclusive of the right to die. Once we recognize the right to die as a fundamental right, any person abetting the commission of suicide cannot be said to have committed an offense, since he is only assisting in the application of a fundamental right. Due to this reason, Section 306, which penalizes assisted suicide, is equally violative of Article 21.

In Rathinam, the argument was only on the unconstitutionality of Section 309, and the Court was confronted with two questions. The first question being that whether the Court was right in deciding Rathinam and the second question leading from the first one that if so, does Section 306 is violative of Article 21?

Therefore, the Supreme Court answered both the questions and rejected both the contentions in the questions through its observation that certain positive explicit acts are the basics for the commission of suicide, and the origin of those acts cannot come within the domain of protection as provided under Article 21. Elimination and loss of life cannot be interpreted to be within the protection of life. Right to life is just similar to other rights which are natural rights but suicide is unnatural extermination of life.

Therefore, a natural positive right cannot go hand in hand with an unnatural negative. Further, the Court found the inherent distinction between the natural right that is right to life under Article 21 and other natural rights such as the right to freedom of speech, the right to carry on business, and many more. The negative outlook of the right to life would result in the end or extinction of the positive characteristic of the right to life. This only happens in the case of the only right to life, therefore making it unique in this sense and differentiate it from all other fundamental rights.

Article 21 speaks of a dignified life. Any aspect of life that makes it dignified may be read into it, but not those aspects which extinguish it. Such a right to dignified life exists up to the end of the natural span of life. Indeed, everyone has the right to die with dignity. However right to die with dignity at the end of natural life should not be confused with the right to die an unnatural death curtailing the natural span of life. Therefore, Section 309 was held to be constitutionally valid.

On the question of the constitutional validity of Section 306, Court observed that once Section 309 is found valid, no serious challenge to the constitutionality of Section 306 remains. The Court also pointed out that Section 309 and Section 306 speak of altogether different offenses. While Section 309 deals with where a suicide attempt has failed whereas an attempt to suicide under section 306 refer to when an attempt of suicide is done successfully. Section 306 punishes abatement to suicide, and abatement to attempt to commit suicide is not within its purview. So, section 306 can stand independent of Section 309.

Furthermore, the Court observed that in most other jurisdictions, even though the attempt to commit suicide is not a penal offense; abatement to suicide well as abatement to attempt to commit suicide is punishable offenses. This was found to be necessary for the prevention of possible misuse in the absence of any such provision. The court also crafted a reference to passive euthanasia. Interestingly, it observed that those who are terminally ill or in a persistent vegetative state come within the ambit of the right to die with dignity. The progression towards natural death has been by now commenced in those cases and for this reason, death cannot be denoted as unnatural termination of life.

Thus, termination of life can be permitted to diminish the phase of suffering during the process of certain natural death. While holding that abatement to suicide is an offense, the Court referred to Airedale N. H. S. Trust v. Bland, which enunciates the English position on active euthanasia. The Court found that under English law, it is unlawful for the doctor to administer a drug to the patient to bring about his death, but the Court did not make any observation on the Indian position.

In V. S. Deshpande case, the former Chief Justice of Delhi High Court, in regard to the constitutional validity of Section 309 and Section 306 does not seem to have much effect on the debate over euthanasia. seem to be very appropriate. Accordingly, it aligns with Article 21 of the Constitution only if Section 309 is restricted in its application to attempt to commit suicide which is cowardly and unworthy but if a person has had no duties to perform to himself or others when that person is suffering from a terminal illness or incurable fatal disease and therefore makes a decision to end his life and get relieved from the pain of living and the others from the burden of looking after that person. Hence, prosecution of such a person under Section 309 would be such as adding salt to wounds or adding insult to injury. Therefore, it is unjustifiable to encompass the gist of Section 309, to include even the latter cases within its ambit.

In Naresh Marotrao Sakhre vs Union of India And Others, The Bombay High Court held that Section 306 of the I.P.C. is entirely independent provision and relates to distinct offence and is not at all dependent on the provisions of Section 309 of the I.P.C. which has been declared ultra vires the Constitution of India. The offence under section 306 of the I.P.C. which makes abetment of suicide as offence is constitutional and does not suffer from any evil. Therefore, it is not violative of Articles 14 and 21 of the Constitution of India.

In C.A. Thomas Master and Etc. vs Union of India and Ors. on 23 June, 2000 the court held that the petitioners, have overlooked the possibility of loss to the society, when an individual bodily and mentally healthy, wants to implementation of his right to voluntarily put an end to his life. The likelihood of misuse, or abuse, and exploitation of such a right cannot be ruled out. Therefore, this would be suicide and thereby attracting the provisions of Sections 306 and 309 of the I.P.C. contingent upon the actualities.

In Aruna Ramchandra Shanbaug v. Union of India, the supreme court had in 2011 recognized passive euthanasia by which it had permitted withdrawal of life-sustaining treatment from patients not in a position to make an informed decision. Though the view was inconsistent opinions rendered in and also considering the important question of law involved which needs to be reflected in the light of constitutional, social, medical, and legal perceptions and it developed into really significant well-defined clarification of the law.

In Common Cause (A Regd. Society) v. Union of India, the Supreme Court of India on 9th March 2018, held that an individual in a persistent and continuing state of vegetativeness can choose for passive euthanasia and that an individual can perform and execute a living will to decline medical treatment in the circumstances of a terminal or incurable fatal illness. The law commission of India in its 241st Report stated the apprehensions of misuse of advance directives (or living wills) and in response to such apprehensions as articulated, the supreme court also declared comprehensive on the procedure for implementation of an advance directive as well as for the outcome of passive euthanasia. The guiding principles will continue to be a force while waiting for Parliament to enacts legislation on euthanasia.

In delivering the said judgment, the Supreme Court held that the right to die with dignity is the fundamental aspect of the right to life as per Article 21 of the Constitution of India. Article 21 comprehends dignity as a fundamental substance and indispensable feature. Hence, each and every individual shall have the right to choose whether or not to accept medical treatment in case of a terminal or incurable fatal illness.

The right to live with dignity embraces autonomy concerning the process of dying and choosing not to endure pain and suffering. This clarification aligns with Article 1 of UDHR that describes a dignified life and the Articles 6, 7, 17, and 18 of ICCPR that widen the concept of the right to a life with dignity. The judgment is significant as it straightens the position with regard to passive euthanasia in India.

The Supreme Court hitherto in 2011 in the Aruna Ramchandra Shanbaug case had held that passive euthanasia can be allowed under exceptional circumstances. Before the case of Aruna Shanbaug, the Supreme Court had articulated an opinion on the legality of suicide in the case of Gian Kaur v. the State of Punjab, in which it had held that the right to life under Article 21 does not include the right to die.

In that case, the apex court had also thrown light on the decision made in the case of Airedale N.H.S. Trust v. Bland, in which the House of Lords in the United Kingdom held that under certain circumstances the withdrawal of life support could be lawful. The apex court in the Aruna Shanbaug case clarified that in the Gian Kaur case, the court had not articulated any view on the Airedale case, but merely made a reference and have not relied upon it.

In Shri Chandrakant versus The State of Maharashtra and another The High Court Bombay on 9 December, 2020, held that case is not governed by passive euthanasia. Active euthanasia falls in the definition of crime. The discrepancy concerning "active" and "passive" euthanasia is that active euthanasia is rather done to termination the patient's life while passive euthanasia is rather is omission that would have preserved the patient's life.

People for Elimination of Stray Troubles vs State of Goa on 19 December, 2008, The High Court Bombay held that Euthanasia of Street Dogs having incurably illness or suffering from fatal wounds as diagnosed by a qualified veterinarian appointed by the committee shall be euthanized during specified hours in a humane manner for adult dogs and puppies by administering controlled amount of sodium pentathol and Thiopental Intraperitoneal respestively, by a qualified veterinarian or euthanized in any other humane manner approved by Animal Welfare Board of India. No dog shall be euthanized in the presence of another dog and Female dogs found to be pregnant shall not undergo abortion (irrespective of stage of pregnancy).

The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, prescribed certain code of conduct to be abided by the doctors or medical practitioners as now the passive euthanasia has been given legal recognition in India. Regulation 6.7 expresses the obeying procedure which is necessary and significant to be followed strictly in euthanasia otherwise committing euthanasia shall constitute unethical and wrong conduct.

However, on a specific instance, the withdrawal of life-supporting devices to endure cardio-pulmonary occupation even after the declaration of an individual to be brain death, shall not be decided merely by the treating physician but by a team of doctors and that team of doctors shall affirm whether or not to withdraw the life-support system. The said team of doctors shall consist of the doctor who is treating the patient and the Medical Officer-in-charge or the Chief Medical Officer of the hospital or a doctor designated by the Medical Officer-in-charge or the Chief Medical Officer of the hospital the or under the provisions of the Transplantation of Human Organ Act, 1994. Conclusion:
Thus, the Indian judiciary, the courts have taken an autonomy-oriented approach in the above decisions. Though always been in a confusing state of mind on the issue of euthanasia. In most of the cases, the Courts distinguished between suicide and euthanasia, without really understanding the conceptual and practical differences for instance while dealing with Gian Kaur v. State of Punjab, 1996, the Court considered the English perception on euthanasia while deciding the status of abatement to suicide and not of euthanasia.

In fact, in 2018 chief justice of the Supreme court of India, Hon'ble Justice Mr. Dipak Misra Bench reiterated the idea spawned in the Gian Kaur verdict gives, an indication that passive euthanasia would only accelerate the process of dying in the case of terminally ill persons or patients in a persistent vegetative state. The Gian Kaur judgment had dealt with the legality of penalizing an attempt to commit suicide. Also said, a dignified procedure of death may include the right of an individual who is dying, shall have right to die with dignity when the life is ebbing out.

In essence with the latest judgment of the Supreme Court, the decision is a progressive step that frees peopleís loved ones from the guilt of having to make difficult decisions and relieves doctors of the fear of being tried for culpable homicide but passive euthanasia is even more difficult, as the procedure prescribed is even more cumbersome than the one currently in force and requires the involvement of execution of the directive in presence of two witnesses, authentication by a Judicial Magistrate, permission from two Medical Boards and a jurisdictional collector. The decision of the Supreme Court provides an opportunity to draft comprehensive legislation which fully recognizes the right to a dignified death.

The wordings of the above regulation are clear enough to say that euthanasia is not a rule but only an exception in India. Thus, passive euthanasia has become acceptable under the Indian legal system, active euthanasia remains prohibited

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