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Passive Euthanasia: Its Legality

Euthanasia is ending a patient's life to limit the patient's suffering. Its main objective is to prevent patients from more cure and pain. The word "euthanasia" itself comes from the Greek words "eu" (good) and "thanatos" (death). The idea is that instead of condemning someone to a slow, painful, or undignified death, euthanasia would allow the patient to experience a relatively "good death. Euthanasia can be Active or Passive.

Passive Euthanasia. Passive euthanasia differs from active euthanasia on the ground that the former hastens death by failing to offer something that would have delayed death if provided, i.e., passive euthanasia includes removing or delaying life-prolonging medical therapy to the patient by the doctor. Instances of passive euthanasia can include not giving medication and not performing a surgery that would save the patient's life.

History Of Its Evolution

In 1984, in a case challenging the constitutional validity of Section 309 of the IPC-which mandates up to one year in prison for an attempt to suicide- the Supreme Court deemed the section to be a cruel and irrational provision" that deserved to be removed from the statute book to "humanize our penal laws". An act of suicide "cannot be said to be against religion, morality, or public policy, and an act of attempted suicide has no baneful effect on society", the court said. (P Rathinam vs Union Of India)

However, two years later, a five-judge Bench of the court overturned the decision in P Rathinam, saying that the right to life under Article 21 did not include the right to die, and only legislation could permit euthanasia. The Supreme Court also pointed out a very important thing that " Hypersensitivity of a person does not mean that the person will commit suicide." (Smt.Gian Kaur The State Of Punjab 1996)

In 2011, the SC allowed the passive euthanasia of a nurse who had been sexually assaulted in Mumbai and had been in a vegetative state since then (Aruna Shanbaug vs Union of India). Earlier, in 2006, the Law Commission of India in its 196th Report titled 'Medical Treatment to Terminally III Patients (Protection of Patients and Medical Practitioners) had also recognized the patient's decision to not receive medical treatment and said it did not constitute an attempt to commit suicide under Section 309 IPC. Again, in 2008, the Law Commission's '241st Report On Passive Euthanasia: A Relook' proposed legislation on passive euthanasia', and also prepared a draft Bill.

Passive euthanasia was legalized in India by the Supreme Court in 2018 (right to refuse medical treatment including withdrawal from life-saving devices), right to die with dignity" as part of the fundamental "Right to Life" under Article 21 of the Constitution. Contingent upon the person having a 'living will' or written document that specifies what actions should be taken if the person is unable to make their own medical decisions in the future. In case a person does not have a living will, members of their family can make a plea before the High Court to seek permission for passive euthanasia.

Its Legality In Different Countries

United States Of America

In the US, active euthanasia for humans is illegal in most states, except in Oregon, Washington DC, Hawaii, Washington, Maine, Colorado, New Jersey, California, and Vermont. However, it is frequently used for sick or injured animals. In most states, it is prohibited under general homicide laws. However, passive euthanasia is considered legal in all states. It was in 1990 that the US Supreme Court ruled that the patient could refuse life-sustaining systems, including feeding tubes. There is a heated debate going on in the US concerning the legality of euthanasia and the need for a uniform and standardized law across all the states.

United Kingdom

Euthanasia is illegal and a person administering it can be prosecuted for manslaughter, in Northern Ireland. As per Section 13 of the Criminal Justice (Northern Ireland) Act 1966. Also, the individual case is decided by the Public Prosecution Service (PPS), guided by offence-specific guidelines published in 2010.

Euthanasia is illegal even in Scotland. However, there is no particular offense criminalising assisting or encouraging suicide in Scotland. Any such case is dealt with under homicide laws. The decision to prosecute is taken by the Crown Office and Procurator Fiscal Service (COPFS). However, prosecution under this law is uncommon.

The same law of illegality of euthanasia is followed in England and Wales as well. It is to be punished as murder or manslaughter. 'Assisting or encouraging' another person's suicide is punishable under Section 2 of the Suicide Act, 1961.

A private member bill was introduced in the British Parliament in 2021 to liberalise the law, called Assisted Dying Bill. However, it could not be materialised into law.


The Netherlands was the first European country to legalise euthanasia and assisted suicide in 2001. However, abetting suicide and assisted suicide are still criminal offences. There are basically five conditions laid down for granting euthanasia, which are as follows:
  • The request for euthanasia by the patient must be voluntary and well-considered. If the patient is not in the condition to give valid consent, then the previous declaration made by him to the effect, if written, can be considered. But the patient must be at least 16 years old.
  • The patient's condition must be hopeless with no scope for improvement and the suffering must be unbearable.
  • The patient must be well-informed of his condition, the scope for the future, and the options available.
  • The doctor and patient must reach a mutual conclusion that there is no better and more reasonable alternative.
  • At least one other independent doctor must be consulted and he must give a written confirmation of the above-mentioned conditions. If the need for euthanasia is for a mentally ill patient, then two independent physicians must be consulted, out of which at least one must be a psychiatrist.
  • In the case of a minor, if the minor is between 16 to 18 years, then the doctor may accept the minor's request for euthanasia with the consultation of his parents. And if the minor falls in the age group of 12 to 15 years, then parental consent is necessary.
In addition to this, there is also the 'Groningen Protocol' that enumerates the necessary conditions and steps that are to be followed in the cases of young children, especially newborns.

What Happens After The Supreme Court Order This Week?

As per 2018 guidelines, a living will be required to be signed by an executor (the individual seeking euthanasia) in the presence of two attesting witnesses, preferably independent, and to be further countersigned by a Judicial Magistrate of First Class (JMFC). Also, the treating physician was required to constitute a board comprising three expert medical practitioners from specific by varied fields of medicine, with at least 20 years of experience, we decide whether to carry out the living will or not.

If the medical granted permission, the will had to be forwarded to the District Collector for his approval. The Collector was to then form another medical board of three expert doctors, including the Chief District Medical Officer. Only if this second board agreed with the hospital board's findings would the decision be forwarded to the JMFC, who would then visit the patient and examine whether to accord approval?

This cumbersome process will now become easier.
Instead of the hospital and Collector forming the two medical boards, both boards will now be formed by the hospital. The requirement of 20 years of experience for doctors has been relaxed to five years. The requirement for the Magistrate's approval has been replaced by an intimation to the Magistrate.

The medical board must communicate its decision within 48 hours; the earlier guidelines specified no time limit. The 2018 guidelines required two witnesses and a signature by the Magistrate; now a notary or gazetted officer can sign the living will in the presence of two witnesses instead of the Magistrate's countersigned. In case the medical boards set up by the hospital refuses permission, it will now be open to the kin to approach the High Court which will form a fresh medical team.

As per my understanding if any legislation governing passive euthanasia is passed, the people of India will misuse it to a greater extent and it will be very difficult for the courts to grant relief to so many people. Thus, the law on legalizing euthanasia is a developing one and needs a thorough discussion in order to respect the rights of citizens and balance the interests of the state and society with them.

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