• Legis Scriptor

Right to die

Authored By: Neha Juneja

Too weird to live, too rare to die!

We all take birth on this planet in order to die someday. But that death would be peaceful or not doesn’t depend on our will. If we fall ill someday, it is often that we will be admitted to a hospital. But the journey beyond this is really painful. The beginning of an end is never too easy for anyone.

What is right to life?

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”[1]

Any citizen or non citizen can not be deprived of his life i.e. can’t be compelled to be in restraint and it’s only possible in a situation where the due process for such restraint is established under any law for the time being in force.

It includes the following parameters as well:

1. Right to travel

2. Right to food

3. Right to decent living standards

4. Right to work

5. Right to choose a life partner

6. Right to privacy

7. Right to have a clean living environment

But the question at hand is whether Article 21 also includes right to die with dignity?

Right to die i.e. euthanasia

Euthanasia is originated from a Greek word ‘euthanatos' which signifies easy death. A person who undergoes euthanasia is generally suffering from an incurable disease but the major question is who will decide whether that person should be no more a living person, whether his friends and family will decide, or whether the doctors treating him/her will decide, or the state will decide. The decision has to be such that the person is freed from suffering without causing any discomfort to him/her. After all, the matter is of taking away the life of a living person or not doing anything which might have saved his/her life.

With the above discussion we can classify euthanasia in the following types:

a.) Voluntary Euthanasia – It is so that the person is able to understand and comprehend what is being said to him/her and he gives his own consent for taking away his/her life

b.) Non- voluntary Euthanasia- Here the decision is taken by the family members as in case of a minor

c.) Involuntary Euthanasia- This is performed against the will of the patient i.e. when the patient is unable to give his/her consent

d.) Physician Assisted Euthanasia- Physician Assisted Euthanasia is the one where doctors aid the patient in taking away his/her life by either giving a heavy dose of medication or withdrawal of life support

Historically speaking:

Jains used to perform Santhara i.e. taking away of their own life by infinite fasting. It has to be done by the will of the person himself and should not be forced. Rajasthan High Court in 2006 made the practice of Santhara punishable under section 306 and section 309 of IPC and the practice invited 10 years jail term. This was in response to a writ petition filed by a rights activists in 2006 against Santhara in Rajasthan High Court. But it received much criticism from Jain community on the grounds that it is in violation of their freedom to manage religious practices under Article 26 of Indian Constitution. According to them their religion was incomplete without this practice. That year five persons died due to Santhara and as there were mass protests from Jain Community, the decision was stayed by the Apex court.

Followers of Hinduism performs prayopaveshan which is also an act of killing oneself by starving. It is believed that a person undergoes prayopaveshan when a person has achieved everything in his/her life and he/she is completely satisfied and now willing wants to end his/her life.

Right to Life and Suicide (Sec 309 of IPC)

Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year [or with fine, or with both.][2]

Attempt to commit suicide was decriminalised by Apex Court in 1994 as it was observed that right to die was embodiment of right to life. This was based on the view that there could be both positive as well as negative implications of fundamental rights as right to freedom of speech also includes right not to speak, right to travel also includes right of not travelling and similarly right to life also includes right not to live i.e. right to die with dignity.

Year 1994

In 1994, a petition was filed in Supreme Court which challenged the validity of section 309 of IPC and it was contented that it is in violation with Article 19 and Article 21 of Indian Constitution. Justice B.L Hansaria in P. Rathinam vs. Union of India[3], declared that section 309 of IPC was indeed in violation with Article 19 and 21 of Indian Constitution and declared it void and therefore attempt to suicide was decriminalised.

Year 1996

A five judge bench headed by Justice J.S Verma in Gian Kaur vs. State of Punjab[4]again criminalised section 309 of IPC in the year 1996 and held that passive euthanasia and Physician Assisted Suicide are not valid in India. It was observed by the court that the decision in P. RATHINAM CASE was based on fundamental rights which include 'right not to' which is an omission but whereas taking away of life is an 'act'. The constitutional validity of section 309 of IPC was upheld in this case.

Year 2006

There are few patients who themselves refuse to be treated when they fall sick or when they suffer from any incurable disease. Law Commission in it’s 196th report decided to make an arrangement for such persons in order to protect them from section 309 of IPC. Also the physicians assisting such patients need to be protected from the wrath of section 306 of IPC i.e. abetment of suicide. Law Commission suggested that a law named ‘Medical Treatment of Terminally Ill Patients (Protection of patients, Medical Practitioners) Act' should be formed by the legislature. Also the report explained the difference between competent patients and non-competent patients. The difference being that the competent patient is the one who is able to understand the nature of the act which will be performed on him whereas a non-competent patient is not able to comprehend such decisions. Also the decision need to be taken by a bench of three medical practitioners. And the doctors need to ask the family members first before taking such action of euthanasia. The appropriate guidelines need to be framed by the Medical Council of India in case of non-competent patients. Also if such a decision is taken by doctors then it need to be in writing and signed by the doctors and the consent has to be taken from the family members of such patients. If there is difference of opinion then the High Court of appropriate jurisdiction could be approached. High Court will keep the details of all the persons involved as confidential.

But such guidelines never received the daylight in the arms of legislature.

Judicial advancements

Aruna Ramchandra Shanbaug vs Union Of India & Ors [5]

"Marte hain aarzoo mein marne ki Maut aati hai par nahin aati"[6]

-- Mirza Ghalib

Doctrine of Parens Patrie was invoked in this case by the Apex Court which states that at times it may happen that some people of low ethical value may disregard the interests of someone like Aruna and have an evil eye on such person’s property or valuables, so in such a situation state has to intervene and act as a parent to such a person in order to take care of well being of that person. A social rights activists Ms. Pinki Virani claimed herself to be a well wisher and friend of Aruna and filed a petition in Supreme Court with the contentions that KEM hospital should stop feeding her since she was in a Persistent Vegetative State (PVS) since she was sexually assaulted in 1973 by a staff of KEM hospital. In order to critically examine the physical and mental condition of Aruna, the court directed a team of three doctors to submit a report on her medical condition. After a much debated discussion in the Apex Court, it was held that the decision to withdraw the life support should be given to the family members of the patient but since in this case there was no one in her family; the staff nurses at KEM hospital were given this liberty to decide whether life support should be withdrawn or not since they were the ones who were taking care of her since past 34 years. The staff refused to stop the life support as they said that they were very happy to serve Aruna and wanted to take care of her just like they were doing so beforehand.

The definition of 'Passive Euthanasia' was decided by the Supreme Court and it was stated that it is the withdrawal of the life support keeping in mind the best interests of the patient. The power to decide such matters was given to High Courts under Article 226 of Constitution of India.

Aruna Shanbaug died on 18th May 2015 due to pneumonia. Her funeral was performed by nurses of KEM hospital, Mumbai.

Common Cause (A Regd. Society) vs. Union of India & Anr.[7]

In the year 2005, a society with the name 'Common Cause' invoked the jurisdiction of Supreme Court under Article 32 of Constitution of India. There contention was that the right to life should also include right to die and 'living wills' should be permitted for patients who will be admitted to hospital in a later stage in their life. If a person falls ill and is in a non recoverable state then that person before being admitted to hospital can make a 'living will' according to which he will be treated at the hospital and if he falls in such a condition from where recovery is impossible then what would be the course of action taken. He might suggest that 'Passive Euthanasia' should be drawn upon him and so that he could die peacefully without any pain and suffering.

In 2018 Chief Justice Dipak Misra along with Justice A.M Khanvilkar, Justice D Y Chandrachud, Justice A K Sikri and Justice Ashok Bhushan decided that 'Right to life' also includes 'Right to die with dignity' and also a person could create a 'living will’ and state or centre has no right to determine the right to bodily integrity and determination.

And hence, the right to die with dignity became a fundamental right.

“Whatever crazy sorrow saith,

No life that breathes with human breath,

Has ever truly long'd for death”

-The Two Voices

By Alfred Tennyson

[1] Article 21 of Constitution of India [2] Section 309 of Indian Penal Code, 1860 [3] 1994 AIR 1844 [4] 1996 AIR 946 [5] (2011)4 SCC 454 [6] Markandey Katju, J. on 7th March 2011 in the judgement of Aruna Ramchandra Shanbaug vs Union Of India & Ors [7] (2018) 5 SCC