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Euthanasia in India

“To save a man’s life against his will is the same as killing him.” In the last couple of decades there have been plethora of debates upon the right of an individual to end his own life, across the world. Article 21 of the Constitution of India guarantees right to life and personal liberty to all. However, does that include right to die as well? There are certain such pertinent questions that need to be raised and answered. This article primarily, focuses on the interpretation of various provisions related to euthanasia and assisted suicide by the Supreme Court of India. It attempts to clearly examine the various judgements in this regard. In the course of discussion focus will be on the background of euthanasia compared to its present and two celebrated case- Gian Kaur v Union of India [1] and Aruna Shanbaug v. Union of India [2]. Also, the constitutional validity of Section 306 and Section 309 of Indian Penal Code is debatable with reference to article 21 of the Constitution and is discussed about further in this article.


BACKGROUND

The etymology of euthanasia helps to reveal the meaning of the term. Euthanasia has its roots in Ancient Greek language. It is a combination of terms “eu” meaning “well” and “Thanatos” meaning “death”. So in classical Greece, the term meant “good death”. Also, an easy or painless death often by drinking Hemlock.[3] Thus anciently, the euthanasia was considered to be suicide. For instance, some physicians in the Roman Empire “did assist suicide and even murder by the use of lethal drugs and that the Hippocratic Oath and The Oath of Asaph arose as protests against these practices”[4]


In India also euthanasia has its roots way back in centuries marked by the religion of Jainism by the practice of Sallekhana. This practice was religiously nominated and involved fast till death. In Hindu society, self-willed death was more or less a common practice rather a well known practice. The wife of a king was supposed to burn herself to death if her husband is killed in a battle. One who seeks enlightenment may leave his soul in order to achieve it. Therefore, in Hinduism, the will power of an individual to bring about his death was normative for the acceptance of euthanasia.


In 1954, a noted philosopher, Fletcher[5] raised a pertinent question that whether end can justify the means in his work on “voluntary medical euthanasia”. Fletcher has defined euthanasia since the early 1930s, contending that any sane society would want to exercise rational control over ending human life. Fowler, on the contrary, believed that the term “right to die” is not mentioned in the medical tradition whatsoever and should be eradicated and put an end to. Kass says that legalised euthanasia will damage any doctor-patient relationship. If doctors become technical dispensers of death, Kass believes, they abandon their patients and their duty to care. He added that physicians must offer encouragement and humanity to serve the good of their patients and the moral health of society[6]. It has been repeatedly argued that euthanasia as a concept shall be well differentiated from firstly, homicide (both culpable and inculpable) and secondly, abetment to suicide, suicide proper and withdrawal of treatment.


CONSTITUTIONAL AND CRIMINAL LAW DIMENSION

The Constitution of India guarantees right to life and personal liberty under Article 21. The dimension of this article is quite wide and its scope only seem to expand over the past few decades. However, section 306 and 309 of the Indian Penal Code (referred as IPC hereinafter) criminalises abetment to suicide and attempt to commit suicide. In a celebrated case of P Rathinam v. Union of India [7], Supreme Court of India held that “right to die” is a part of right to life and held section 306 and section 309 of IPC as unconstitutional. Later, the case of Gian Kaur v. Union of India [8] overruled the previous judgement completely by holding that sections 306 and 309 of IPC are constitutional and held that both suicide and assisted euthanasia are not lawful in India. It convicted Gian Kaur and her husband for abetment of suicide of their daughter in law. In this case a corollary was drawn (as a passing reference, or in legal terms and obiter dictum) between euthanasia and suicide. The apex court observed that legalisation of euthanasia can only be done by legislature through enactment of provisions.


In 1973, a horrific incident took place. Aruna Shanbaug, a nurse in Kem Hospital, Mumbai was brutally raped by a ward boy. To immobilize her during the act, she was strangled with a dog chain because of which there was no supply of blood to the brain leading to brain damage. Aruna was bedridden in Kem Hospital for 38 years in permanent vegetative state. In In 2011, her author friend filed a plea for euthanasia in the Supreme Court of India. In this case, the Supreme Court recognized the concept of passive euthanasia in India. There was an investigation team of doctors appointed to check the patient and report accurately about her state to the court.


Due to the report of the doctors, the court was not convinced that she was actually in a vegetative state as she was responding to some of the clues. Also, the court held that since the hospital authorities or the staff of KEM Hospital have been the sole caretaker of Aruna for so long, they are entitled to plead for euthanasia on her behalf. However, this case proved to be milestone achieved in the dynamic of euthanasia in Indian law as the Supreme Court came up with the following guidelines:


1. The decision to discontinue life support shall be taken by the parents, the spouse or a close relative to the person. In the absence of all of them, such a decision can be taken by the doctor or any next friend. However, the decision must be taken in bona fide best intention of the patient and not be based on any individual interest.


2. Even if the doctor is taking the concerned decision or a close or next friend, it shall be approved of the High Court concerned.


3. When such an application is filed in a High Court, a two judge bench shall be constituted to grant approval or not. The bench should then nominate a team of reputed doctors to give a report regarding the condition of the patient. Such report shall also be given to the state and the relatives. After hearing both the parties, the High court shall give its verdict.


The judgement of Supreme Court in Aruna Shanbaug v. Union of India [9], in a way sanctioned passive euthanasia for terminally ill patients in certain circumstances.


CONCLUSION

The concept of euthanasia is indeed fertile. However, making passive euthanasia legal in India was after decades of debates and discussions. Even today, the legalisation of active euthanasia seems illusionary for many countries including India. Those who are against the entire concept, argue primarily on the principle of ‘the sanctity of life’. The apex court also has conveniently ignored a number of important factors such as growing privatisation of healthcare institutions leading to costly medical treatments, lack of resources and will of people.


There are also some terminally ill patients or those suffering from innumerable diseases to die a honourable death if that is what they wish for. The theory of law inherits the concept of the body as a property of the person to which he has the complete rights upon. Then why can’t one get the right to use this right while ending one’s life? Many patients do not have family members to look after them leading to physical and emotional exhaustion. There are certain diseases that, if allowed to run their full course, damages certain organs or weaken them. But, active euthanasia and doctor assisted suicides allow physicians to preserve vital organs that can be donated to others. Considering all this, both active and passive euthanasia merits serious consideration.


ENDNOTES

[1] 1996 AIR 946, 1996 SCC (2) 648

[2] (2011) 4 SCC 454

[3] In Ancient Greece Society, euthanasia was associated with drinking Hemlock. The practice had become common and not confined to incurable diseases.

[4] Hugh Trowell, The Unfinished Debate of Euthanasia 13-22

[5] Joseph Fletcher, "The Courts and Euthanasia" 1 5(4) 'Law, Mediane & Health Care 223-230 (Winter 1987/1988

[6] Leon R. Kass, "Neither for Love Nor Money : Why Doctors Must Not Kill 94 Public Interest 25-46 (1989)

[7] (1995) 3 SCC (Jour) 1

[8] 1996 SCC (2) 648

[9] (2011) 4 SCC


ABOUT THE AUTHOR

This blog has been authored by Dakshita Arora who is a 2nd Year B.B.A., LL.B. (Hons.) student at School of Law, UPES Dehradun.


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