EUTHANSIA: LEGALIZATION, ISSUES AND CHALLENGES (INDIAN PERSPECTIVE)
“I’m not afraid of being dead. I’m just afraid of what you might have to go through to get there.” ― Pamela Bone (A reputed Journalist)
EUTHANASIA or “mercy-motivated killing”, is derived from the ancient Greek words: ‘Eu’ means ‘Good’, and ‘thantos’ means ‘death’, thus, meaning ‘good death. It is the practice of putting an end to the life of a human or animal who is incurably ill, done in a way which is painless, for the purpose of limiting suffering. It has remained a heavily contested topic given its proximity to “homicide” and the distinct possibility of “misuse”.
The act of euthanasia has been divided into these different types:
- Active or passive: is the positive merciful act of ‘commission’ for putting an end to useless suffering. This is done by giving large doses of a drug to hasten death.
- Passive or negative: Passive euthanasia implies discontinuing or ‘omitting’ the use of extraordinary life sustaining measures to prolong life. Eg. failure to resuscitate a terminally ill or incapacitated patient, disconnecting a feeding tube, not carrying out a life-extending operation or not giving life-extending drugs etc.
- Voluntary: When the euthanasia is practiced with the expressed desire and consent of the person concerned.
- Non-voluntary: When it is practiced without the scope to make the desire of the subject available. This includes cases where:
- the person is in a coma
- the person is too young (e.g. a very young baby)
- the person is senile
- the person is mentally retarded to a very severe extent
- the person is severely brain damaged
- the person is mentally disturbed in such a way that they should be protected from themselves”
- Involuntary: When the euthanasia is practiced against the will of the person. Doctor-Assisted Suicide: Someone provides an individual with the information, guidance, and means to take his or her own life with the intention that they will be used for this purpose. When it is a doctor who helps another person to kill themselves it is called “physician assisted suicide or doctor assisted suicide”. In doctor assisted-suicide, the doctor provides the patient with medical know-how (i.e. discussing painless and effective medical means of committing suicide) enabling the patient to end his / her own life.
DIFFERENCE BETWEEN SUICIDE AND EUTHANASIA:
There is a very minimal conceptual distinction between suicide and euthanasia. In suicide, a man voluntarily/ intentionally kills himself. There is no scope for doubt. In euthanasia, a third person is either actively or passively involved i.e. he aids or abets the killing of another person.
EUTHANASIA IN INDIA:
In Indian Penal Code, 1860, ‘Attempt to Suicide’ is illegal under section 309. However, the constitutionality of this section has been challenged several times before the Supreme Court and High Courts.
Article 21 of the Constitution provides for protection of life and personal liberty and reads as under: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
State of Maharashtra v. Maruti Sripati Dubal
The constitutionality of section 309 of The Indian Penal Code was challenged. It was held that “..the provisions of section 309 being arbitrary are ultra vires the Constitution… being violative of Articles 14 and 21 [of the Constitution] thereof and must be struck down”. The Bombay High Court observed that “right to life” as enshrined in Article 21 includes a “right to die”. Every individual should have the freedom to dispose of his life as and when he desires.
Chenna Jagadeeswar v. State of Andhra Pradesh
The Andhra Pradesh High Court held that right to die is not a fundamental right within the meaning of Article 21 and hence section 309 of the I.P.C. is not unconstitutional.
Rathinam v. Union of India
The opposing views of the different high courts were placed to rest by a division bench of the Supreme Court. The apex court, agreeing with the view expressed in ‘Maruti case’, upheld the contention that section 309 of I.P.C. violates Article 21, and is hence void. Justice B.L. Hansaria further observed that “The right to life which Article 21 speaks of, can be said to bring in its trail right not to live a forced life”.
Gian Kaur v. State of Punjab
A constitutional bench overruled ‘P. Rathinam cae’, and, univocally held, that “right to life” does not include within its ambit the “right to die”. Though this case was concerned with the validity of sections 306 and 309 of I.P.C., the Supreme Court had an occasion to discuss the issues related to euthanasia and stopping of life sustaining treatment.
Aruna Shanbaug v Union of India
The apex court while framing the guidelines for passive euthanasia asserted that it would now become the law of the land until Parliament enacts a suitable legislation to deal with the issue.
Guidelines laid down by SC:
- A decision has to be taken to discontinue life support either by parent or the spouse or other close relative, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the interest of the patient.
- It further requires the approval from the High Court concerned.
- When such application is filled, the Chief Justice of High Court should constitute a bench of at least two Judges who should decide to grant approval or not.
- A committee of three reputed doctors to be nominated by the Bench, who will give report regarding the condition of the patient. Before giving the verdict a notice regarding the report should be given to the close relatives and the state. After hearing the parties, the High Court can give its verdict.
As of now, India has no law for euthanasia. These guidelines are law, until the parliament passes legislation.
Views, ideas and laws of euthanasia vary greatly from country to country and from individual to individual. Euthanasia has been at the centre for a moral debate for long. The individual’s right over his/her life and the values placed on human life by the society seem polar opposites in this debate.
The researcher advocates with the views of the court to allow passive euthanasia and the guidelines that follow. However, the researcher feels that the guidelines should also be allowed for active euthanasia as well on consent.
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 (1988) Cri.L.J. 549
 AIR 1994 SC 1844
 AIR 1996 SC 946
 (2011) 4 SCC 454