EUTHANASIA IN INDIA
The word ‘Euthanasia’ is derived from the Greek words ‘Eu’ & ‘Thantos’ means ‘Good’ & ‘Death’ respectively. It's also referred as “Mercy Killing”. Its an intentional conduct to end the life of a person enduring the pain from an incurable illness. The main reason behind euthanasia is to guarantee an effortless death so that a person can die with dignity. Dealing with cases regarding euthanasia, the Right to Life becomes a central question to the controversy. Mostly, the patients who endure the pain are gradually get deteriorated & finally, decides to end their life rather than enduring the pain. Then the controversial question arises whether they should endure it or be given sanction to end their life?
Euthanasia is classified into 2 types-
Active Euthanasia: When a third person purposely does an action to end the life of a patient. The procedure is conducted by the third party like administration of lethal drug. Under Section 302 & 304 IPC, it’s a crime in India & mostly, many nations hasn’t still legalized it. The Netherlands was the first nation to sanction active euthanasia in 2002 followed by Belgium becomes the second nation & not a punishable offence if it is conducted with proper care.
Passive Euthanasia: It means letting a person die by withdrawal of artificial machines/ support system. It is only legalized to those patients who are in PVS & at final stage without any expectation of improvement. It occurs when doctors shut off the life support techniques.
Contrast between Euthanasia and Suicide
There is always a confusion between euthanasia & suicide. In euthanasia, a third person is involved to end the life either active or passive. But in suicide, a person intentionally desires to take his life caused by depression, failure in examination, love etc. and that’s not the case with euthanasia, it’s not caused by these reasons. Euthanasia is different from Homicide & suicide. Under Section 309 of IPC - Attempt to Commit Suicide is a criminal offence and Section 306 of IPC - Abetment to Suicide is an offence as well unlawful. Euthanasia simply means subject to permanent vegetative state in which a person is honored to painless death.
Hence, suicide is an intentional act done for different reasons even holy books has not defined euthanasia so we can assume that its not permitted by religions. Intention becomes a basic element in law of crimes in India. In Dubal Case [i] made an attempt to distinct Mercy Killing & Suicide. In euthanasia, there’s an interference by another human to terminate the life. Hence, they both are legally different. Another term “Doctor Assisted suicide” means Doctor (physician) aid the patient to end the life. It involves voluntary, active, assisted euthanasia where a doctor help by providing the means, lethal drug or medication.
In opposition - the oppositionist quarrel that if ‘Right to Die with dignity’ is promoted then people suffering from terminal illness are excluded from the society. Article 21 is a Natural Right i.e., ‘Right to Life’ but suicide is an intentional termination of life & contrary with Article 21. They argue that state is obliged to safeguard the life rather than mistreat the patients. Malafide Intent - family may illtreat euthanasia as a tool for possession of property. Killing a person is morally injustice, the euthanasia contravenes their fundamental right to life.
In support - they believe people enduring from an incurable illness should have the Right to die with dignity as their Fundamental right. The petitions are filed by their guardian or next friend & in the absence of them, the doctors are entitled to file a plea. It becomes a burden on people such as psychological, economical, time & physical. Even patients in Permanent Vegetative State feel they are becoming a huge burden on their family. Passive euthanasia is now legalized in India & it also promotes organ transplant. Apart from euthanasia, there are many sufferers expecting to be treated for organ transplantation. On one hand, euthanasia allow ‘Right to Die with Dignity’ & on other hand, those in need for organs get ‘Right to Life’. The patients shall have the right to decide their own life, others can’t relate their pain. The sufferer in a vegetative state with no hope of rehabilitation, allowing them to die as per their will amount to good death.
If a person has a Fundamental Right to Life then whether he has a Right to Die or not?
While dealing with this question, Indian Judiciary has a wide range of opinions in different cases. In M.S. Dubal v. State of Maharashtra[iii], the Bombay High Court scrutinized the fundamental reasonableness behind Section 309 of IPC & interpreted that the section is contradictory and breaches equality by Article 14 & violative of Article 21 of the Indian Constitution. The HC of Bombay held that Article 21 also includes ‘Right to Die’.
In Chenna Jagadeshwar v. State of AP[iv], the HC held that Under Art.21, Right to Die as a fundamental right is not included and Sec.309 of IPC doesn’t violate Art. 14 & 21 of the constitution.
In State v. Sanjay Kumar Bhatia[v], the High Court of Delhi held that while concerning a case under Section 309 of IPC, the said section has no reason to remain on statute.
In P.Rathinam v. Union of India[vi], the SC held that ‘Right to Live’ also includes ‘Right to Die’.
In Gian Kaur v. State of Punjab [vii], the P. Ratinam’s case was overruled by five judges bench passed a verdict that under Article 21 of the constitution of India, Right to Die doesn’t include. IPC Sec.309 was held to be reasonable but as time passes, the Parliament must amend it & become outmoded.
In Airedale NHS Trust v. Bland[viii] - the Right to Die was sanctioned by the removal of life supported machines include nutrition. This case questioned whether deciding the cases of Euthanasia is fit in the administration of court or not?
In ARUNA RAMCHANDRA SHANBAUG V. UNION OF INDIA[ix] - For the very first time, the Supreme Court decided to overlook the case with euthanasia, held who could file the suit on behalf of the patient, it also established some medical guidelines for conducting passive euthanasia. Ms. Pinki Virani (friend) filed a petition to the Hon’ble Supreme court of India under Article 32 of the constitution to authorize the end of life of Aruna Shanbaug in a persistent vegetative state for last 37 years. In prior cases, the court has rejected the right to die plea as it violates fundamental rights. But still SC decided to hear the petition about the constitutionality of euthanasia.
Aruna Shanbaug was a Nurse employed in KEM Hospital, Mumbai. On the night of 27th November 1973, she was assaulted by a sweeper who used a chain to wrap around her neck. Next morning, she was found in an unconscious state by a cleaner. Due to suffocation by the chain resulted to inadequate oxygen to brain. Three renowned doctors were appointed by the court to examine & distinctly state the psychological & physical conditions of the patient. The report stated that she is not brain dead. She interprets to some circumstances, further doctors suggested euthanasia is not required.
JUDGEMENT - This Landmark Judgement was given on 7th March 2011 by 2 judge bench consisting of Justice Markandey Katju & Justice Gyan Sudha Mishra. The court suggested - according to reports, she was not brain dead & had certain stimulus. So, termination of her life was unreasonable even over the years, the effort took by the staffs of KEM Hospital was taken into consideration. Therefore, the SC allowed passive euthanasia under certain situations. If a petition is filed for passive euthanasia, the CJ of HC must constitute a 2-judge bench to decide the case after consultation of three eminent doctors. HC should issue notice to the state, near relatives & in absence of them, a next friend. Until Parliament enact laws regarding the subject, the afore criteria shall be followed in India. Hence, the SC stated that Aruna’s case is not fit for termination of life.
SUPREME COURT OF INDIA LEGALIZES PASSIVE EUTHANASIA on 9 March 2018
Common cause filed a petition to SC under Art.32, with a prayer holding Denial of their right extends their pain & 'Right to Die with Dignity' should be declared Fundamental Right under Art.21. Along with court to issue Notice to Government of India to permit living wills. A 5-judge bench consisting the then Chief Justice of India Dipak Misra, Justices DY Chandrachud, AK Sikri, Ashok Bhushan & A.M. Khanvilkar passed a verdict that Right to Die with Dignity is a fundamental right.
#active #passive #EUTHANASIA #righttolife #righttodie
Author: KS Ananya
[i]1987 Cri. L. J 743 (Bom.) [ii]www.everplans.com [iii]1987 (1) Bom CR [iv]1988 Crl.L.J.549 [v]1985 Cri. L. J 931 (Del.) [vi]AIR 1994 SC 1844 [vii]1996 (2) SC 648; AIR 1996 SC 946 [viii]MHD (1993) 2 WLR 316 [ix]AIR 2011 SC 1290; (2011) 4 SCC 454 [x] https://images.app.goo.gl/hxhmt4k4zoYnv1iW8 [xi] https://images.app.goo.gl/jPf9cH4kBAcmKohbA