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Right to Die in Indian Context

I think those who have a terminal illness and are in great pain should have the right to choose to end their own life, and those that help them should be free from prosecution. ~ Stephen William Hawking

Our Constitution has the freedom of speech simultaneously, we have the right not to speak. Similarly, our Constitution has the right to life while we have the right to die, which is the most debated topic on how to provide the death to one person's life. In bright light this right is helpful to the last stage cancer patients, persons who are in coma for a long time, and in this it can be misused in the society. To stop the misuse of the right the court had issued guidelines for the implementation of the right in reality.

The right to die is famously known by the case of Aruna Shanbaug, in which passive euthanasia was allowed it means removing the person from the life support. John Locke, stated that persons have the right to their life, liberty and property and by that logic, arguments arise that if one has the absolute right to life, then they must also be given the right to decide if they want to die or if they want to end their life in case of terminal illnesses

Historical Background
The word Euthanasia is a controversial topic since ita beginning and it always held the limelight whenever it is discussed in the court. It is derived from the Greek word, 'Eu' which means 'good' and 'thanatos' means 'death'. In short it means "good death".

In its earlier form, it was used for giving a painless death. In modern terms, it is used for mercy killing or Physician Assisted Suicide (PAS), which is about giving a license for the right to kill. The history of India Vedas also states, some of the religion permits the euthanasia in their own way e.g. in Jain, once people has completed the purpose of the life, they take the fast till death which is allowed.

In modern context the euthanasia is used for the medical ill persons, who by doctors are declared that they can't move against the Persistent Vegetative State (PVS) or the persons who are in coma, the court thinks they should not suffer more than they are already are. It is true that normally a man is to live and continue to enjoy the fruits of life till his life is ended by nature. Suicide or an attempt to commit suicide is not feature of natural life.

There are two types of euthanasia - passive and active. Active euthanasia is defined as taking an immediate action such as using lethal injection to painlessly put a terminally-ill patients to death. Passive euthanasia is withdrawing treatment while the life of the patient is still dependent on it and when it is believed that treatment is more burdensome then beneficial. Passive euthanasia allows the patient to die naturally and is often considered more acceptable.

Indian Context
The right to die in Indian context is used vaguely in terms of medical treated persons. The most discussed case is Aruna Shanbaug, where she was in PVS for over 37 years and died in 2015 by pneumonia. It was held in the Common Cause case, the living will term was used in which the person can make the will when he/she is in a normal state of mind. They rule with the guidelines mentioned in the Aruna Shanbaug case. Only passive euthanasia is allowed till today date and in severe medically ill patients. India has the highest suicide rate in the world after China, with 371 suicides taking place every day.  India has the highest suicide rate in the world after China, with 371 suicides taking place every day. 

Judicial Creativity
The 'Right to Die' was raised for the first time in the case of Maruti Sripati Dubal v. State of Maharashtra (1987). This case held the right to die as a fundamental right and it was held as constitutional valid, and it struck down the Section-309 of IPC (Punishment for attempt to commit suicide) and held it unconstitutional. The right to die was for the first time included in Article-21 (Right to Life).

Similar judgement was passed by the Supreme Court in the case of P.Rathinam v. Union of India (1994). During the Rathinam case, the court observed that insofar as our country is concerned, mythology says Lord Rama and his brothers took jalasamadhi in river Saryu near Ayodhya; ancient history says Buddha and Mahavira achieved death by seeking it. The aforementioned people are our religious and spiritual leaders; they are eulogised and worshipped.

The right to die was again raised in the case of Gian Kaur v. State of Punjab (1996), this case overruled the judgement of earlier cases which included the right to die as fundamental right. It also held that both active and passive euthanasia is not lawful in India under Article-21 of Constitution of India, it was the very first time the terms active and passive euthanasia were used in the Indian context.

Later in landmark judgement of Aruna Shanbaug v. Union of India (2011), the Supreme Court issued a set of broad guidelines legalising passive euthanasia in India. In the most recent judgement of Common Cause (A Registered Society) v. Union of India (2018), it was held that 'right to die with dignity' is a fundamental right, in circumstances of the medically ill person with the consent of doctors and permission of the court. 

Thus, dimension of euthanasia changed with changing scenario. The right to have one's life terminated at will is subject to social, ethical and legal structures.

International Position:
Passive euthanasia is generally accepted all over the countries, but practicing active involuntary euthanasia is illegal in mostly all countries and are treated as criminal homicide. It is still legal in some countries like, Netherlands, Belgium and Luxembourg and some parts in the United States of Oregon, Washington and Montana. House of Lords decision in Airedale NHS Trust v. Bland (1993), which had held that euthanasia could be made lawful only by legislation.

Conclusion:
In the Indian context, the reviews of the right to die are both positive and negative. The religious group was of the review that death is sacred and it cannot be controlled by outer means. The positive review was of the patients who were suffering from a long time and their living will was not made. In short, the right to die is half way accepted through India with modernisation and the globalisation coming to the market, the concept of right to die will be accepted by the people.

Written By: Shashwata Sahu, Advocate, LLM, KIIT School of Law

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