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Confronting Euthanasia

We, the people, act as a substratum of the Preamble to the Constitution of India. Harold J. Laski aptly puts it: Without rights, there cannot be liberty, because, without rights, men are the subjects of law unrelated to the needs of personality. Thus, the fundamental rights asseverated by the Preamble and guaranteed by the Constitution of India play a vital role in observing adherence to liberty, wherefore, Article 21 serves as the magna carta of such a perfectly articulated Constitution, which reads "No person shall be deprived of his life or personal liberty except according to the procedure established by law". The scope of the aforementioned article's applicability has been thoroughly examined in numerous landmark judgments, yet the conflict between such liberty and arbitrary legislative restrictions never settles.

The connotation of Article 21 recognizes the right to life as undoubtedly the most fundamental of all rights, the hypothesis being that other rights add quality to the life in question. Pertinently, a question emanates: can the scope of Article 21 be extended to comprehend and confer upon a person the right to die? And if so, then what is the fate of Section 309 of the IPC?

The Indian Penal Code introduced in 1860, under Section 309 postulates that, whoever attempts to commit suicide and does any act towards the commission of such offense, shall be punished with simple imprisonment for a term which may extend to one year or with a fine, or both. Above and beyond all other considerations, it is the only section in the Indian Penal Code that penalized a person for an unsuccessful attempt to commit an offense.

Justice V. Ramsubramaniyan, while responding to an appeal for decriminalizing Section 309 averred that "Courts, to some extent, are vacillating between one end and the other end because we have not understood the problem from a scientific perspective but we have analyzed it only from a legal perspective." Hence, right to die has been under the radar for ages. Like so, while right to die with dignity has long been a hotly debated topic, there comes to fore the concept of Euthanasia.

The term euthanasia is derived from two Greek words "eu" and "thanatos" which means good death. Thus, euthanasia refers to deliberately ending the life of a patient suffering from an incurable and painful disease. Euthanasia or mercy killing is further classified into active euthanasia and passive euthanasia. The former involves injecting a person with a lethal drug which leads to the termination of life whereas the latter involves, removing medical treatment purposefully and thereby causing death so as to relieve him from unending pain. When all life-care procedures fail to guarantee a better quality of life for a terminally ill patient or one who is in a vegetative state, euthanasia is viewed as the sole realistic choice.

The first country to legalize euthanasia was the Netherlands. It imposed a stringent set of conditions, including that the patient must be in excruciating pain, their sickness must be terminal, and the demand must be made by the patient in full consciousness. In India, however, statutory law related to mercy killing is still under scrutiny. A bench led by Justice J. S. Verma, in Gian Kaur vs. the State of Punjab, ruled in 1994 that both assisted suicide and euthanasia were illegal. The panel declared that the right to life did not include the right to die, effectively reversing the decision in P. Rathinam vs. the Union of India, which had rendered section 309 of the Indian Penal Code (attempt to commit suicide) unconstitutional.

It was only Aruna Shanbaug's case that became the face of euthanasia in India. Shanbaug, who worked as a junior nurse at King Edward Memorial (KEM) Hospital in Mumbai was choked and raped by a sweeper. The strangulation resulted in a cut off of oxygen to the brain and thus, the 25-year-old was left blind, deaf, paralyzed, and in a vegetative state for the next 42 years. In 2009, journalist Pinki Virani filed a writ petition before the Supreme Court claiming that Aruna's right to life guaranteed by the constitution had been violated. The nurses and medical staff at King Edward Memorial Hospital (KEM), where Aruna had been in a coma since 1973, vehemently opposed the petition, arguing that she accepted food, despite being force-fed through a Ryles tube in the recent past, and responded through facial expressions.

Eventually, in 2011 the apex court rejected the petition. However, in its landmark opinion, it allowed passive euthanasia in India through the withdrawal of life support from those in a persistent vegetative state (PVS), outlining the broad rules to be followed in carrying out such termination. The nurses were granted the authority to care for and make decisions on Shanbaug's behalf. In the fullness of time, Shanbaug died of pneumonia on 18th May 2015.

Aruna Shanbaug's case was about the denial of her right to bodily integrity in life and her right to self-determination when it came to death. Aruna vanished the day she was attacked, when her existence was built around themes of compassion, euthanasia, and the medical and legal professions, and she became nothing more than a spectre in her own story.

In another pioneering judgment, Common Cause vs the Union of India, the apex court declared the right to die with dignity to be a fundamental right and laid down standards for terminally ill individuals to comply with, as a way to enforce the right. The top court amended the standards in 2023 to make the right to die with dignity more accessible and also noted that its guidelines will stay in effect until legislation to address the matter is introduced. P.S. Narasimha, Additional Solicitor General, informed a five-judge constitutional bench that the Management of Patients With Terminal Illness - Withdrawal of Medical Life Support Bill is being drafted as per the Law Commission's recommendations. The respective Bill is pending before the Indian Parliament.

The argument over euthanasia remains controversial to date. The government's recent initiative to introduce a bill on passive euthanasia and hand out a document asking for the general public's opinion can be viewed as a big step forward. This bill advocates for passive euthanasia and is consistent with the 2011 Shanbaug case decision. If passed, the bill will not only be a major piece of legislation, but it will also be a lifeline for the terminally ill and those who champion patients' rights.

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