Euthanasia has always been a matter of debate, not only in our country, but in all the countries around the world. We see that while some of the countries have legalized Euthanasia, both active and passive, some have different stands on both, partially legalized and some have totally banned and condemned the mere practice of suicide or here, Euthanasia.
A Writ Petition was filed in 2005 in the Supreme Court under Article 32 of the Indian Constitution with regards to the unconstitutionality of Section 309 and Section 306 of the Indian Penal Code, 1860 with reference to the case of Aruna Ramachandra Shaunbaug V. Union of India AIR 2011 SC 1290 and the Smt. Gian Kaur V. State Of Punjab.
The question of passive and active euthanasia was brought to notice in the same with special emphasis on the Article 21 of the Indian Constitution, which gives the citizens of our country Right To Live and under the Right To Life ambit also comes the aspect of Right To Die. The European Court of Human Rights decisions and the 241st Indian Law Commission report on Passive Euthanasia in the context of Article 21 of the Indian Constitution was also referred with several other acts, sections and submissions.
· The Constitution Bench of the Supreme Court in case of Gian Kaur v. State of Punjab held that both euthanasia and assisted suicide are unlawful in India. The Court held that the right to life under Article 21 of the Constitution does not include the right to die·
As far as judgement related to the Aruna Shanbaug case are concerned, Aruna Shanbaug correctly interpreted the decision of the Constitution Bench in Gian Kaur and came to the conclusion that euthanasia can be allowed in India only through a valid legislation.
· In the case, the Bench in Aruna Shanbaug was of the view that in Gian Kaur, the Constitution Bench held that euthanasia could be made lawful only by a legislation.
· This matter was then referred to the Constitution Bench of this Court for an authoritative opinion.
Let us start by discussing the whole background of how we actually got where we are right now.
In P. Rathinam V. Union of India, 1994 3 SCC 394, the central question that was addressed and answered was whether the offence of attempt to commit suicide under Section 309 IPC should be retained or abolished. The Court opted for its abolition and Section 309 was no more part of the IPC. But however, this did not last long. The decisions made in this particular case were overturned in the Smt. Gian Kaur V. State Of Punjab 1996 AIR 946. The five judge bench of the Gian Kaur case, headed by Justice J.S. Verma, stated that the article 21 of the Indian Constitution only spoke of Right To Life and the aspects of life and that the part of Right To Die does not come under the ambit of same. The bench held that both assisted suicide and Euthanasia were unlawful and went against the crux of article 21 of the Indian Constitution. Even after all this, came another benchmark turning point. In the Aruna Ramachandra Shaunbaug V. Union of India AIR 2011 SC 1290, the court observed that “the general legal position all over the world seems to be that while active euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal even without legislation provided certain conditions and safeguards are maintained”. The court also formulated guidelines for the passive euthanasia in India.
At first, Euthanasia was declared to be lawful, then unlawful and then a part of Euthanasia, Passive Euthanasia was made legal, given certain conditions are fulfilled.
Let us discuss the aspects of Euthanasia
· Active Euthanasia can be defined as when a person directly and deliberately does something which results in the death of patient. In active euthanasia ,specific steps/procedures are undertaken by the third party like the administration of a lethal drug. This is a offence (also in most parts of the world) under Section 302 and 309 0f the Indian Penal Code, 1860. There are countries which have passed legislation allowing assisted suicide and active euthanasia.
· Passive Euthanasia involves withholding of required medical treatment or withdrawal from life support system (like removing the heart– lung machine from a patient in coma). Hence in passive euthanasia death is brought about by an act of omission and after the Aruna Shaunbaug case, passive euthanasia was made legal given certain conditions are fulfilled.
Euthanasia can be further distinguished as ‘voluntary’ where euthanasia is carried out at the allowance of the patient and ‘non-voluntary’ where the person is unable to ask for euthanasia (perhaps as a result of his unconsciousness or otherwise unable to communicate), or to make a meaningful selection between living and dying and a surrogate person takes the decision on his behalf. Legally speaking voluntary euthanasia is illegal as it can be interpreted as attempt to commit suicide which is punishable under Section 309 of the Indian Penal Code, 1860. Whatever we have discussed till now answers our imperative and the most important issue, that should “Right to Die with Dignity” be included as a fundamental right under the folds of Article 21 of the Indian Constitution, “Right to Live with Dignity”. In the Smt. Gian Kaur case, it central and crux Ratio Decidendi was that the article 21 of the Indian Constitution only includes Right to Life and the aspects of Life, not death, hence the part, “Right to Die with Dignity” is not included under the folds of Right to Life or article 21 of the Indian Constitution.
The central question that arises with respect to this particular answer of the issue is what of the Aruna Shaunbaug judgement as it allowed Passive Euthanasia under certain conditions. The bench in the Aruna Shaunbaug case did not explicitly discuss the right to life and right to die part, but as they declared Passive Euthanasia legal, it sort of comes under its ambit. Now why I say sort of but not totally is because that in Passive Euthanasia, the patient’s will is not considered rather his/her condition is, hence it does not give the patient the liberty to decide whether to die or whether to live, but gives the one executing the life will of the patient. Hence, my final answer on this particular issue, after taking into consideration both of the cases, is that, no, the part of right to die with dignity does not come under the ambit of right to live with dignity.
Let us discuss the other issues as well:
The second issue with respect to living will authorisation can be clearly answered by looking at the Aruna Shaunbaug case. The plea for Euthanasia of Aruna Shaunbaug was filed on her behalf by Pinki Virani, a social activist. Now a living will is a written document allowing a patient to give instructions in advance about the medical treatment to be administered when he/she is terminally ill or unable to express informed consent, including withdrawing life support machinery if a medical board declares that all life-saving medical options have been exhausted.
The Centre had opposed this concept , stating that there was high risk of misusing such a provision and that it may not be viable as a part of public policy. As it could not be actually determined that does a patient require a living will at a particular point of time, the very idea was scraped off.
The third and fourth issues are complementing and sort of dictate the same language, that should a patient in a vegetative state be subjected to any treatment, as their living will cannot be determined at that point of time, however cruel and aggressive that treatment might be, so as not to go against the Hippocratic Oath of the Doctor. Now the Hippocratic Oath or Corpus has not been entirely defined everywhere in a same sense, rather is subject to interpretation. The most common thing that one would find in the Corpus will be in relation to swearing to give the best treatment. Now for patients who are in constant pain and suffering, the best treatment for them would be to end their suffering by subjecting them to Euthanasia.
The main judgement that was passed in the particular writ petition was with respect to the living will authorisation and the part that does right to live with dignity include the right to die aspect, kind of complementing the Aruna Shaunbaug judgement, as these two points were also the essentials of the above case.
The concept of Euthanasia has evolved over time, not only in our country but in all of the countries around the world. One of the first landmark cases with this respect was the Airedale N.H.S Trust V. Bland 1993 A.C. 789 in the house of lords, United Kingdom. In this case, Mr. Tony Bland was being subjected to artificial treatment and the Bland family with the help of Dr. Jim Howe, who was the consulting neurologist in the particular, submitted a plea to the House of lords to end the treatment and let Mr. Tony Bland die peacefully. The plea was accepted and this was one of the benchmark cases with respect to passive Euthanasia.
The current Indian law permits passive Euthanasia, subjecting it to certain particular terms and conditions, has also deleted the concept of living will authorisation. I consider this something which is prudent and is going with respect to time and conditions in our country. Though there are still elements of Euthanasia, such as active Euthanasia and the crux definition of it that still remains ambiguous. I believe that with the passage of time the same will evolve and we will get something stringent and particular with this respect. A submission was made by the Indian Law Commission to the Government of India with respect to passive euthanasia. The bill is pending before both the houses as of now, but passive euthanasia can be practiced under the specific guidelines that were provided by the apex court.
The Supreme Court of India held that right to die with dignity is a fundamental right. The bench held the execution of living will and passive euthanasia also valid. The right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity. With the passage of time, the Court has expanded the spectrum of Article 21 to include within its sphere individual dignity. All in all, I would like to conclude this research document by saying that we have put forth the facts and the case history, relevant case laws have been referred for better understanding. The current law in my opinion, with reference to the time and the current legal situation in our country, is prudent and just.