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From Right To Die To Right To Die With Dignity

The Indian Penal Code 1860 (hereinafter referred as The Code) has been in effect for over a century now, because of which there is need to re-consider some its provisions which might be considered draconian due to change in times, one of such provision is Section 309 which provides for punishment for Attempt to commit suicide. This section was introduced so that it can have a deterrent effect over people with respect to committing of suicide.

According to National Crime Record Bureau Report[1] the Family Problems and 'Illness' were the major causes of suicides which accounted for 32.4% and 17.1% of total suicides respectively during 2019. Drug Abuse/ Addiction (5.6%), Marriage Related Issues (5.5%), 'Love Affairs' (4.5%), Bankruptcy or Indebtedness (4.2%), 'Failure in Examination' and 'Unemployment' (2.0% each), Professional/Career Problem (1.2%) and Property Dispute (1.1%) were other causes of suicides.

This is adequate to show that most of the suicides are due mental stress caused due to some or the other circumstances, and punishing person who attempted to commit suicide due to mental stress will cause him to be punished thrice, once due to the result of the circumstances, second time due to ignominy resulting out of failed attempt at suicide and third time due to law.

Naturally Sec. 309 of the code has been challenged before the Courts on numerous occasions and paved way for debate of euthanasia, i.e. whether it should be allowed or not. In the following cases, there is an attempt to trace the trail the development from right to die to right to die with dignity.
  1. Maruti Shripati Dubal v. State of Maharashtra[2]

    In the present case vires of sec 309 of The Code was in question on basis of being violating Art. 14 and 21 of the Indian Constitution (hereinafter referred as The Constitution), when a police constable attempted to commit suicide because there was delay in processing of a license application of his life after suffering from schizophrenia for almost 5 years. The Bombay High Court held that the section is violative of Art. 14 of the constitution as it does not defines suicide hence failing to differentiate between felonous and non-felonous ones and treating all the attempts to suicide same without regard to the circumstances in which they were made.

    Also it is violative of Art. 21 as Art. 19 of the constitution which encompasses itself right to form association as well right not to join any association or right not move similarly right to life and liberty includes right not to live or terminate the life. The court said there termination of life naturally is not to be confused with unnatural end of life. The court also differentiated between suicide and mercy killing, where former amounts to termination of one's own life and latter is euthanasia or killing with physician intervention which is also not allowed as it is homicide.

  2. P. Rathinam v. UOI[3]

    In this case the constitutional validity of Sec 309 of the code was challenged before the Apex Court. And the court pronounced that this section should be effaced to humanize the penal laws as it punishes the person twice, first as a result of agony leading him to commit suicide and shame related to failure to commit it and second due to punishment under The Code. The court said that the act of attempted suicide can't be said to be against the religion, morality or public policy as it has no baneful effect to society or causes harm to the others. The state's interference with personal liberty is not called for as Art. 19(1)(a) of the constitution encompasses in itself not to speak similarly Art. 21 of the constitution includes right not to live as well.

  3. Gian Kaur v. State of Punjab[4]

    In the present case the appellant and her husband were found guilty of the offence of abetment to suicide but they contented on basis of P. Rathinam case[5] that abetment to suicide is merely helping the other person enforce the right enshrined under Art. 21 of the constitution, i.e. right to die. The court in this case overruled all the previous judgments upholding right to die, and said that right to life is a fundamental right and cannot be waived off. The court differentiated between right to die with dignity at the end of life (i.e. naturally) from right to die an unnatural death thus curtailing the natural span of life. At the same time the court opined that in situation of terminal illness or Persistent Vegetative State (PVS), the process of death has already commenced and executing physician-assisted termination of life may fall within the ambit of right to die with dignity at the end of natural life as it amounts to accelerating the conclusion of life rather than the extinguishing it. Though the court did not gave a final view on the aspect of euthanasia (active or passive) in this case, iterating that the debate on this inconclusive.

  4. Aruna Ramachandra Shanbaug v. UOI & ors[6]

    In this case a petition was filed by an activist that Ms. Aruna, who has been in PVS for last 37 years, be subjected to passive euthanasia by denying her food and water, her only form of life support. In this case the court defined certain necessary terms which are as follows, Euthanasia is of two types: active and passive. Active euthanasia entails the use of lethal substances or forces to kill a person e.g. a lethal injection given to a person with terminal cancer who is in terrible agony. Passive euthanasia entails withholding of medical treatment for continuance of life e.g. withholding of antibiotics where without giving it a patient is likely to die, or removing the heart-lung machine, from a patient in coma. A further categorisation of euthanasia is between voluntary euthanasia and non-voluntary euthanasia. Voluntary euthanasia is where the consent is taken from the patient, whereas non-voluntary euthanasia is where the consent is unavailable e.g. when the patient is in coma, or is otherwise unable to give consent.

    The present case required passive non-voluntary euthanasia but the court decided on basis of report of medical team that executing euthanasia would be unjustified as Ms. Aruna as she can breathe without support machine and has feelings and responds to necessary stimulus though she is in PVS. Moreover removing life-saving technique such as not feeding is not same as removing of ventilator and if in future there will be need the staff of King Edward Memorial Hospital (Mumbai) can approach the High Court.

    Though the court said that passive euthanasia can be executed in certain cases following the procedure as laid down by the court in this case, to be followed country-wide until the parliament comes up with the legislation to this effect. The procedure laid down is as follows: in cases of a person being brain dead or so terminally ill that he/she can't be ever be come back from that stage then then close relatives/friends/medical staff of the hospital can apply to High Court under Art. 226 of the constitution for withdrawal of life support. On filing of application, the Chief Justice of High court should constitute a bench of at least 2 judges to accept or reject.

    Before taking the decision, the bench should consult committee of 3 reputed doctors (to be nominated by bench after consulting such medical authorities or practitioners as it may deem fit) one of whom shall be psychiatrist, which shall examine the patient and attending record and thereafter submit its report to the bench. The bench, simultaneously with appointing committee, should issue notice to the state and close relative/next friend and supply the copy of report of committee, thereafter the bench should give the verdict.

    The court also recommended repealing of sec 309 of the code.

  5. Common Cause v. UOI[7]

    In this case the court held that Right to die with dignity is a part of right to life with dignity when death due to termination of natural life is inevitable and imminent and the process of natural death has commenced as there is little doubt that terminally ill or in PVS will be able to take decision of early extinction of life on basis of privacy-autonomy-dignity dichotomy as interpreted in Justice K.S. Puttaswamy (Retd.) & Anr. v. UOI[8].

    The court also upheld the right of a person, who is able to consent, to issue Advance Directives and attorney authorizations (or 'living will' is a legal document in which it is specified an individual's health care decisions and identify persons who will take those decisions for the said individual in the event he is unable to communicate his wishes to the doctor).

    According to the court a person is competent to issue advance directives if the person is an adult, is of sound mind and has complete understanding of directives. The directives are valid if they are voluntary, free from any coercion or undue influence and specifies the name as to who is authorized agent and responsible for medical decision in case executioner becomes incapable or incompetent.

Advance directives can be executed in 3 cases: when a person is suffering from a terminal condition; when a person is in a persistently unconscious condition; and when the person is suffering from an end-stage condition.

The following procedure is laid down for execution of the advance directives:

  1. The executor is required to sign the advance directive in presence of two, preferably independent, attesting witnesses.
  2. The advance directive shall then be countersigned by the jurisdictional Judicial Magistrate of First Class (hereinafter referred to as the JMFC).
  3. The jurisdictional JMFC and both the witnesses shall then record their satisfaction regarding the fact of voluntary execution and absence of any form of coercion or inducement or compulsion and that the document was executed with complete understanding of all the relevant information and consequences.
  4. There shall be multiple copies of the advance directive including a digital copy and each of the hardcopy of the document will be kept in custody of JMFC, the registry of the jurisdictional District Court and with the competent officer of the local Government or the Municipal Corporation or Municipality or Panchayat for being preserved. v. Additionally, the JMFC shall also have the immediate family members of the executor informed regarding the advance directive and a copy will also be entrusted to the family physician.

After the above requirements have been complied with, the advance directive will be said to have been duly executed. It is pertinent to note that the same procedure is required to be followed in case of revocation of the advance directive.

After the advance directive is properly executed, a situation may arise wherein the enforcement of the advance directive in needed.

In such a situation the Supreme Court laid down the following guidelines for execution:

  1. The treating physician shall ascertain the genuineness and authenticity of the advance directive with the jurisdictional JMFC.
  2. The physician shall thereafter apprise the guardian/ close relative or the executor, depending on the circumstances, about the nature and gravity of illness, forms of treatment available and the consequences of not seeking medical treatment, among other things. The doctor has an additional responsibility of ensuring that on reasonable grounds he believes that the executor or the guardian as the case may be fully understands the information provided and has deliberated over the various options that were provided and has come to a well-founded opinion that all of the options, withdrawal or refusal of medical treatment remains the best option.
  3. After a decision regarding withdrawal or refusal of treatment has been made by the patient or his guardian, a Medical Board will be assembled by the hospital comprising of the Head of the treating Department and three other experts from particular specialities. All these experts should mandatorily have experience in critical care and experience of at least twenty years. The board shall visit the patient while his guardian/close relative are also present and thereupon deliberate on whether to certify or not to certify enforcement of withdrawal or refusal of further medical treatment. This decision of the Board shall be referred to as a preliminary opinion.
  4. After the preliminary opinion, the jurisdictional Collector shall be informed regarding the proposal of withdrawing of treatment. The collector thereafter will constitute another Medical Board comprising the Chief District Medical Officer of the district as the Chairman and three other expert doctors from the specialities specified in the judgement with practice of over 20 years. The doctors of this board should not have been members of the Medical Board assembled by the hospital. This medical board constituted under the supervision of the jurisdictional collector shall then, depending on their opinion endorse the certificate to carry out the directions given in the living will.

  5. Before effectuating the advance directive, the Chairman of the Medical Board formulated by the Collector shall have to mandatorily communicate the decision to the jurisdictional JMFC. Thereafter, the JMFC then shall also visit the patient and examine all relevant aspects, and after being satisfied he may authorise the implementation of the decision.

In cases where there is no advance directive, the hospital medical board shall discuss with the family physician and the family members and record the minutes of the discussion in writing. During the discussion, the family members shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the patient and if they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken.

In case where the hospital medical board takes a decision not to follow an advance directive while treating a person, then it shall make an application to the medical board constituted by the jurisdictional collector for consideration and appropriate action on the advance directive.

Further, if permission to withdraw medical treatment is refused by the Medical Board constituted by the jurisdictional collector, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution.

The Common Cause judgement in my opinion marks a significant steps to enhance the quality of life so that the person not only live with dignity but also die with dignity instead of being on life support devices when suffering from terminally ill and incurable disease which are only going to prolong his/her agony along with that of person's family.

Though according to me, the procedure laid down for execution and implementation of Advance Directives or Living Will is too tedious and time consuming especially of implementation considering the position in which the executor will be, the same should be streamlined so that directives could be implemented more smoothly, not adding to the pain of family/friends of the person as well ensuring no foul play on part of family for property or wealth of the dying person (the main concern because of which the whole bureaucratic procedure has been introduced by the court so that the close relatives, after bribing doctors, don't leave the patient to die even when he/she can be saved) .

  1. NCRB, Accidental Deaths and Suicides in India 2019 200 (Ministry of Home Affairs, 2019)
  2. (1986) 88 Bom LR 589
  3. JT 1994 (3) SC 392
  4. (1996) 2 SCC 648
  5. Supra note 3
  6. (2011) 4 SCC 454
  7. 1 (2018) 5 SCC 1
  8. AIR 2017 SC 4161

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