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Right To Die

In the words of Dr. Jack Kevorkian
For those who are facing a terminal illness, who are in irremediable pain and suffering, and wish to exercise their right to die with dignity, a system should be available to them.

Article 21 of the Indian Constitution, 1950[1] provides:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

In the case of Maneka Gandhi vs. Union of India[2], the Supreme Court held that the right to life embodied in Article 21 of the Indian Constitution, is not merely a physical right but it also includes within its ambit, the right to live with human dignity. There is also another broad formulation of life with dignity found in the case of Bandhua Mukti Morcha vs. Union of India[3] whereby it Characterises Article 21 as the heart of fundamental rights. In this case, Justice Bhagwati observed that it is the fundamental right of every citizen of India to live with human dignity free from exploitation.

Right to life includes the right to live with human dignity which means the existence of such right up to the end of natural life. It is a basic natural right of human beings, a fundamental right guaranteed under Article 21 i.e., Part III of the Indian Constitution. Does the right to life include within its domain the right to die or the right not to live is a question debated in several cases.

Death means termination of life and can be categorized into two kinds:

  1. Natural death
  2. Unnatural death

For a human being when existence become far more unbearable and painful than death itself, it is very natural of him to long for death. In Common Cause vs. Union of India[4], Hon'ble Justice DY Chandrachud while defining the relationship between life and death, stated that life and death are inseparable. Every day of our lives, our bodies experience a procedure of continuous change. Numerous cells perish as new ones regenerate that life is not detached from death. To be is to die, just as death is the only certainty of life. From a philosophical viewpoint, there is no contrast between life and death and that both constitute vital elements in the inexorable cycle of existence.

Analyzing the Right to Die

If we undertake Hohfeldian analysis of this right, the jural correlatives brought to the query would be right and duty and as per Hohfeldian every right has a corresponding duty. This refers to that if X has the right to die, then Y would have the duty to kill him, which we all know is not the case. Under sections 300 and 302 of the Indian Penal Code, 1860 killing or murder of another person is punishable. Then a question arises as to what does the right to die comprised of?

The Indian Judiciary looked into this subject matter and noticed various cases discussing section 309 of the Indian Penal Code that deals with the instigation of suicide. Undertaking the above analysis, if the right to die means that X has the right to commit suicide and that Y will have the duty to help him do so and which is not the correct conclusion to draw.

In India, the scope of the right to die encompasses only critically ill patients or their families to decide when to withdraw the life support and let the person die peacefully with dignity. Here if X has the right to die with dignity once he's incurable sick and Y or the state has the duty to let him exercise this right.

Recently section 309 of the Indian Penal Code, 1860 was held arbitrary and the state withdrew the prior punishment for individuals who attempted suicide. The state does not promote suicide but merely abstains from criminalizing it taking into consideration matters related to mental health. A philosopher named John Locke stated that every individual has the right to life, liberty, and property and by the same logic, arguments arise that if one has been given the absolute right to life then that individual must also get the right to decide to die or end their life in case of illnesses.

The legal status of the right to die

Under Part III, Article 21 of the Indian Constitution right to life is one of the basic and natural rights of the human being. Right to life prohibits being deprived of his/her life or liberty except according to the process established by law. The state is obligated to provide every individual a good quality life and dignified life. The judiciary has interpreted this right in an elaborate manner and has included new rights within its purview. Earlier right to die was not considered as a fundamental right but after the Common Cause Judgment, the court declared right to die with dignity as a fundamental right.

Common Cause vs. Union of India[5] (2018)
On March 9, 2018 the Supreme Court of India in the Writ Petition of Common Cause (A Regd. Society) vs. Union of India had recognised right to die with dignity as a fundamental right under article 21 of the Indian Constitution. And has given effect to the Advanced Medical Directives (Living will) and the Medical Attorney Authorisation to enable the exercise of this right. The most awaited demand of legalizing passive euthanasia was welcomed in the Indian Legal System.

Background to the judgment
P. Rathinam vs. Union of India[6]
In P. Rathinam vs. Union of India, the question of the constitutionality of Section 309 of the Indian Penal Code,1860 Act (XLV) of 1860 was dealt with at length before the SupremeCourt as to whether the right to die formed a part of the guarantee of the right to life under Article 21 of the Indian constitution. The challenge raised under this Writ Petition was dealing with the constitutional validity of Section 309 of the Indian Penal Code, 1860 contending that the section was violative of Article 14 and Article 21 of the Indian Constitution.

The salient question raised in this judgment was: Has a person residing in India a right to die?

While pronouncing the judgment on this sacrosanct right of an Indian citizen, having far-reaching consequences and ramifications, the Supreme Court dealt with at length the judgment of Maruti Shripati Dubal vs. State of Maharashtra[7] which itself relied upon the judgment of R.C. Cooper vs. Union of India[8].

In R.C. Cooper vs. Union of India, it was held that in any case an individual cannot be forced to enjoy the right to life to his disadvantage, detriment or disliking. Finally, a conclusion was drawn that the right to life of which Article 21 speaks of can be said to bring in its trail the right not to live a forced life. To resolve all the issues pertaining to Section 309 of the Indian Penal Code, 1860the Supreme Court declared Section 309 of the Indian Penal Codeultravires and held that this section deserved to be deleted from the statute book to humanize our penal laws.

In Gian Kaur vs. State of Punjab[9]case question of the constitutionality of Section 306 of the Indian Penal Code, 1860was raised.

The statement laid down in P. Rathinam's case did not remain as a precedent for a long period and was overruled in the case of Gian Kaur vs. the State of Punjab. In this case, the argument was based on the ground that Section 306 of the Indian Penal Code, 1860 was unconstitutional, and to support this argument the reliance was placed on the authority in P. Rathinam wherein Section 309 of the Indian Penal Code was held unconstitutional.

In Gian Kaur's case, it was urged that since Section 309 of the Indian Penal Code has been held unconstitutional any person who is abetting suicide is basically assisting in the enforcement of the fundamental right under Article 21. Further, in this case, the Constitution Bench held that the right to life includes the right to live with human dignity i.e., the existence of such right up to the end of natural life. It explained that the said conception also includes the right to a dignified life up to death including a dignified procedure of death or to put it in another way, it may include the right of a dying man to also die with dignity when his life is receding.

The court clarified that the right to die with dignity at the end of life was not to be confused with the right to die an unnatural death curtailing the natural span of life. Thus, after considering various aspects the Constitution Bench declared Section 309 of the Indian Penal Code as constitutional. It also held section 306 of the Indian Penal Code to be constitutional after examination of its validity.

Euthanasia term is derived from Greek, Eu means good and thanatos means death put together it means 'good death. Euthanasia or Mercy killing also termed as dayamaran is defined as the voluntary embracing and hastening of death of an ill person to avert further suffering.

Active euthanasia refers to the physician's deliberate act, to end an untreatably or critically ill patient's life with the help of lethal drugs, whereas passive euthanasia means to withdraw or withhold treatment which is necessary for continuing life.

In relation to giving consent for euthanasia, there are three types of active euthanasia namely:

  • Voluntary euthanasia � at patient request,
  • Nonvoluntary - without patient consent,
  • Involuntary euthanasia - the patient is not in a position to give consent.
The approach to passive euthanasia
In Aruna Ramachandra Shanbaug vs. Union of India and Others[10]for the very first time, the Supreme Court dealt with the issue of permitting or legalizing euthanasia. Aruna Shanbaug worked as a nurse in King Edward Memorial Hospital, Mumbai she suffered serious injuries which left her in a permanent vegetative state. For thirty-six years she was cared by the hospital staff with no improvement visible.

A writ petition was filed by the next friend of the petitioner seeking permission to stop feeding Aruna and allow her to die peacefully. Relying on Airedale N.H.S Trust vs. Bland[11]and other international jurisprudence the two-judge bench held that passive euthanasia may be applied for critically ill patients or for the patients in a permanent vegetative state provided that certain safeguards were followed.

In the instant case after recognizing the autonomy of the patient the court held that the patient must be conscious and capable of giving consent or at the least, the opinion of the next friend is required. After the consent and opinion are taken, the matter would then go to the respective High Court where a Division Bench would be required to constitute a board of three competent doctors. The doctors then will fully examine the patient. Further, the court held that these guidelines are to be followed till Parliament brings valid legislation related to this matter.

In this case, the two-judge bench also observed that the legal position across the world is that unless there is legislation that permits it, active euthanasia is illegal whereas passive euthanasia is legal even without any legislation provided that certain conditions and safeguards are upheld. Most countries either by way of legislation or judicial interpretations have legalized passive euthanasia but there lies an uncertainty as to whether active euthanasia should be granted legal status. In Aruna Shanbaug the court held that passive euthanasia would be allowed when the patient is dead in the clinical sense.

Observation of Law Commission of India

241st Law Commission Report
After the judgment of Aruna Shanbaug, the Law Commission of India submitted its 241st report which dealt with Passive Euthanasia: A Relook. The report dealt with the concept of euthanasia and pointed out that a humanitarian and rational outlook must have primacy in matters which are complex. It also highlighted that in most countries passive euthanasia is allowed in the case of both competent and incompetent patients, subject to the doctors acting in the best interest of the patient. This report has recognized passive euthanasia in India; however, no law has been enacted up until now.

The legal position of the right to die in other countries

As per the records accessible, there are various countries that legalized euthanasia and assisted dying.
  • Switzerland:
    This is the first country that comes to mind in relation to assisted dying. Physician-assisted suicide is allowed in Switzerland without any diagnosis, minimum age requirement or symptom state. Euthanasia is not legal in this country.
  • Netherlands:
    Euthanasia and assisted suicide are legal in the Netherlands in cases where an individual is experiencing unbearable suffering and with very little to no chance of improving.
  • Belgium:
    Belgium allows euthanasia and assisted suicide for those suffering from unbearable pain.
  • Australia:
    Australia was the first country to pass voluntary euthanasia laws.
  • USA:
    Several states like Oregon, Washington, Vermont, California, Colorado, Montana, and New Mexico all allow legal assisted dying.
  • New Zealand:
    In October 2020 New Zealand voted to legalize euthanasia, and allow the terminally ill patient with a life span of fewer than six months to choose assisted dying but that must also be approved by two doctors. And this is to come into effect in 2021, November.

The sacredness of human life does not infer the enforced continuation of existence in pain and suffering. A person cannot be forced to live to his detriment as he/she has the right to live a dignified existence. It would be inhumane to compel a person to lead a painful life if that individual suffers from an incurable disease. A person who is critically ill should be given permission to terminate his life and by doing this shall end his sufferings as well.

India being a developing country our medical science is also constantly progressing; we have techniques that can prolong life by artificial means. Life can be prolonged with the help of artificial means but this may indirectly prolong the suffering as well and also prove to be very expensive. Hence, in today's modern-day medical science end-of-life issues are becoming major ethical considerations.

The Hon'ble Supreme Court in the landmark judgment of Common Cause vs. Union of India[12] (2018) has provided a lift to pro-euthanasia activists, though it is a long way to go before it becomes a law in the Parliament.

  1. Indian Constitution Art. 21
  2. Maneka Gandhi vs. Union of India, 1978 AIR 597, 1978 SCR (2) 621.
  3. Bandhua Mukti Morcha vs. Union of India, 1984 AIR 802, 1984 SCR (2) 67.
  4. Common Cause vs. Union of India, (2018) 5 SCC 1, AIR 2018 SC 1665.
  5. Ibid.
  6. P. Rathinam vs. Union of India, 1994 AIR 1844, 1994 SCC (3) 394.
  7. Maruti Shripati Dubal vs. State of Maharashtra, 1987 (1) BomCR 499, (1986) 88 BOMLR 589.
  8. R.C. Cooper vs. Union of India, 1970 AIR 564, 1970 SCR (3) 530.
  9. Gian Kaur vs. State of Punjab, 1996 AIR 946, 1996 SCC (2) 648.
  10. Aruna Ramachandra Shanbaug vs. Union of India and Others, (2011) 4 SCC 454.
  11. Airedale N.H.S Trust vs. Bland, (1993) 2 WLR 316.
  12. Common Cause vs. Union of India, (2018) 5 SCC 1, AIR 2018 SC 1665
Written By:
  1. Navin Kumar Jaggi
  2. Nidhi Kumari, CNLU, Patna

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