Euthanasia in India

By Anurag Sharma(1)

 “Why should I fear death?

If I am, then death is not.

If death is, then I am not.

Why should I fear that which

can only exist when I do not?”

– Epicurus, An ancient Greek philosopher.

The Supreme Court of India by outlining the philosophical aspects of life and death, went on to legalize Passive Euthanasia in a recent case, Common Cause v. UOI(2) and another. This is a significant development as Right to live with dignity under Article 21 of the Constitution of India, was read to include Right to die with dignity (read distinguished from Right to die) implicit in it. The Hon’ble Court lays the Advance Medical Directive i.e. “The Living will” guidelines and enumerates the procedure and safeguards thereto, for granting permission for Euthanasia on a case to case basis. This judgement has further expanded the scope of Article 21 which has attained the proportions of an Umbrella right, encompassing wide reach and Human rights proportions progressively. In this article I shall examine the relation of the Euthanasia with the Article 21, its history, current judgement and if it has a case for further expansion.

Article 21 and its changing contours

Article 21 reads as follows: “Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law.” Article 21 came to life from dormancy and exclusivity (of Gopalan Era(3)) in Maneka Gandhi case(4) where “due process” was de facto introduced in the Indian Constitutional Jurisprudence. This paved way for extensive and broad interpretation of the Article, making it of the “widest amplitude” by virtue of inclusion of various implicit Fundamental rights via numerous Court pronouncements. The mutual exclusivity of Article 14, 19 and 21 was also done away with and later in Ashok Kumar Thakur(5) the three together were observed to be The Golden Triangle.

Since then, scope of Article 21 has expanded manifold and various rights have been read into it. The latest being inclusion of Right to Privacy in Rtd Puttuswamy, J. v UOI case(6). Therefore it would be necessary to observe Right to Live and Die with dignity in the backdrop of the ever expanding scope of Article 21 which has paved way for recognition of Passive Euthanasia albeit gradually. The Court in various cases has liberally interpreted both “Life” and “Personal Liberty”. On the question of liberal and inclusive definition of the Article, Bhagwati, J. in Khatri V. State of Bihar(7) argued:

“Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious Fundamental Right of life and personal liberty”.

This change in approach of the courts after the period of Emergency has manifested and paved way for such judgements progressively.

Legal history of the ‘right to die’

The Right to die has been distinguished from Right to live with dignity and Right to die with dignity in the present case. Right to die with dignity has been held to be an “intrinsic” facet of Article 21, as the latter two are a continuation of one another. It would be pertinent to dwell into the history of Right of die before venturing into the current case and its contents, in order to appreciate the development better.

The development of the Case laws start with P. Rathinam v. UOI and another(8). Therein, answering 2nd of the 16 questions posed before the court (the question being “Has a person residing in India a right to die?”), the court in furtherance of the “positive content” in Article 21 referred to other articles for its interpretation. One example being Article 19, which has Right to freedom of speech and expression including the Right to silence; Right to freedom of association including the Freedom not to associate. The court by a simplistic analogy held,

Right to life must include right to die and thus holding Section 309 IPC ultra vires of the Constitution with the object of “humanizing our Penal laws”. The law laid down in Rathinam couldn’t stand the test of time and was rightly overturned in Gian Kaur v. State of Punjab9. The case was of abetment of suicide and the accused were convicted under section 306 IPC. Their defense plea in the higher courts was based on the unconstitutionality of section 309. It was pleaded that ‘any person abetting a suicide is merely assisting in the enforcement of fundamental rights under Article 21 and therefore section 306 IPC penalizing abetment of suicide is equally violative of Article 21.’ The court however upholding the constitutionality of section 306 observed a distinction between suicide and Euthanasia:

“The ‘right to live with human dignity’ cannot be construed to include within its ambit the right to terminate natural life, at least before the commencement of the process of certain natural death.”

Here the underlined words are of immense importance as they paved way for distinction between passive and active Euthanasia and the persisting debate on legalizing them. The word “at least before” qualified the right to terminate one’s life in case of certain unspecified event which ‘commences the process of death’.

In Aruna Shanbaug(10), the court in principle allowed passive euthanasia however on seeing the reports of the appointed doctors and the video of the patient, concluded that Aruna Shanbaug though in Permanent Vegetative State (hereinafter called PVS) cannot be said to be “dead”. They reached the conclusion following observations of her- licking the food with her tongue, unaided breathing, digesting food unaided and body’s performance of involuntary functions on its own. The plea however was to “stop feeding” her to end her misery by a near kin to which the court observed, “However, there appears little possibility of her coming out of PVS in which she is in. In all probability, she will continue to be in the state in which she is in till her death.”

The court in the same case allowed the kin or near relatives to approach the High court in such similar cases to which the court would as pares partiae take such actions as it may deem fit in the interest of the patient. There was an illustrative procedure prescribed but the onus was laid on the legislature to pass a detailed law on the matter. The present case precisely analyses this matter and goes ahead, which I have dealt with in the later sections.

241st  Law Commission Report(11)

The commission observed that the issue of passive Euthanasia is “not objectionable from the legal and constitutional point of view” and it shall have recognition in India subject to “certain safeguards” as suggested by 17th Law Commission and held by Supreme court in Aruna Ramchandra Shanbaug’s case. There were three major observations:

1. A competent adult (including competent non-adults above 16 years) has the right to refuse any “invasive medical treatment” by way of life sustaining measures/ treatment. Such decision informed to the doctors by “free will and consent” of the patient shall be binding on them.
2. For incompetent patients in conditions such as PVS or unrecoverable Comma, the doctor’s or relative’s decision to withhold the treatment shall not be final. They must get clearance from the concerned High court for withholding such treatment.
3. Disallowed the concept of Advanced Medical Directive or Living will made by the patient before his illness.

The current case and its guidelines differ with the commission in the 2nd and 3rd aspect mentioned above. It lays down a detailed procedure and clear duties and powers of all concerned parties- the doctors/hospital, the kin/relatives and the patient.

Common Cause v. UOI – Passive Euthansia Allowed with prescribed principles and guidelines

The Supreme Court has cleared the air around the Euthanasia debate with this case and clarified on the legality and procedure of the Passive Euthanasia. 

Clarification on Gian kaur v. State of Punjab and Aruna Shanbaug case 

The court clarified the ambiguity introduced by reading of the Gian kaur in Aruna Shanbaug. The perception of a necessary requirement of a legislation for allowing Euthanasia in Aruna Shanbaug was held to be the incorrect view of Gian Kaur. This was expressed in the following words (12):

“Therefore, the perception in Aruna Shanbaug that the Constitution Bench has approved the decision in Airedale is not correct. It is also quite clear that Gian Kaur does not lay down that passive euthanasia can only be thought of or given effect to by legislation. Appositely understood, it opens an expansive sphere of Article 21 of the Constitution. Therefore, it can be held without any hesitation that Gian Kaur has neither given any definite opinion with regard to euthanasia nor has it stated that the same can be conceived of only by a legislation.”

The court also explicitly held that ‘Gian kaur is not a binding precedent for the purpose of laying down the principle that Euthanasia can only be made lawful via legislation’13. This enables the court to formulate extensive guidelines in absence of a legislation in the current case. This enlarges the scope of Article 21 further.

Active and Passive Euthanasia

The court has quite clearly defined and differentiated between the two as follows.

Active Euthanasia involves a “positive act” or “affirmative action” which brings death of a person by direct intervention. An example may be, death by way of a lethal injection.

Passive Euthanasia on the other hand entails withdrawal of life support or drugs or any such similar aid by virtue of which the patient is continuing with his life. The necessary element herein is that the process of death has already begun, and it is being delayed or life is being prolonged, by artificial means or aid.

Referring to international practices it was observed that while the former is illegal qua legislation permitting it, the latter is legal even without a legislation permitting it albeit subject to certain safeguards.

Individual dignity

There is a clear nexus established between Right to live with dignity which is implicit in Article 21 and Right to die with dignity arising out of the former, in the present case. The Right to live with dignity is present as a natural right and persists for life till it continues. In the case where the dignity of an individual is compromised owing to starting of the process of death, Right to live with dignity and accompanying Right to die with dignity naturally arise. Therefore, a person living with Right to dignity has a right to preserve his dignity by exercise of his Right to die with dignity in case he reaches a PVS. This has been rightly recognized in the judgement. In the context it may be said, life sans dignity is an unacceptable defeat and life that meets death with dignity is a value to be aspired for and a moment for celebration (14).

Basis of Laying down the principles cum guidelines

Recognizing and clarifying on the above mentioned matters, the court using its powers under Article 142 of the Constitution has laid down some principles and guidelines to be followed in the process of granting permission for “Passive Euthanasia”. The above mentioned article gives extensive powers to the Supreme Court of India “to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed”(15).

Advanced Medical Directive or Living Will

The directive is meant for those persons who at the time of their ailment are not in a position to express their will for the Euthanasia. They may make a Living will when they are competent to do so, albeit in the prescribed manner. There are certain essentials of the said Will which may be enlisted as under:

1. Can only be executed by an adult of sound mind, abled to comprehend and communicate the matters in the document.
2. It must be voluntary, devoid of coercion, inducement, compulsion and the like.
3. It shall be in writing, clearly stating when and under which circumstances treatment must be withdrawn. Further it may also contain that some specific treatment(s) shall not be given which only have effect of delaying the process of death.
4. The directions must be specific, clear and unambiguous.
5. Provisions for specifying the name of the guardian or close relative, who in the event the executor is not in a state to a take decision, shall take the decision of withdrawing of the treatment in a manner consistent with the Advance Medical Directive.
6. Document shall be signed by the executor (with informed consent) in presence of two attesting witnesses (preferably independent) and countersigned by the jurisdictional Judicial Magistrate of the First Class (JMFC) so designated by the District Judge.

These directives have been mentioned in brief for full directives refer(16).

Procedure for Euthanasia

When the executor becomes terminally ill or reaches a PVS, with no scope of recovery, the treating doctor shall determine the genuineness of the issue and consult the JMFC after having been informed about the presence of an Advance directive.

After the satisfaction of the treating Physician/ Doctor that no cure is possible following steps are ought to be taken.

1. Formation of a Medical Board-1 of the treating hospital, consisting of Head of the treating department and at least three expert members from field of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience and standing in the respective fields.
2. If the above Medical Board-1 approves and certifies. The jurisdictional Collector shall immediately constitute a Medical Board-2 with Chief District Medical officer as Chairman and three experts from the above mentioned fields.
3. The wishes of the executor/ nominee shall be ascertained beforehand. If the Medical Board-2 too certifies then the Chief District Medical Officer shall convey the same to the JMFC. JMFC before giving effect to the decision shall visit the patient and satisfy himself of the authenticity of the case and thereafter authorize the implementation of the decision of the board.

In case the Medical Board disapproves the request or the Advanced Medical Directive, the executor or his family member would be free under Article 226 to approach the concerned High Court, to seek implementation of the same. The High court shall then proceed by constituting a division bench to decide on the matter and if it finds merit in the case, may further appoint an independent committee to look into the matter.

Arguments for extension of Euthanasia

The case is a progressive development in the field of Euthanasia, however the judgement concerns itself only with Passive Euthanasia which though is commendable, but falls short of recognizing certain sections of people who suffer from severe depression, disenchantment with life or with disorders which make life miserable for them. Such people even though are not supported by any aid to enable them to live, but in the daily lives are denied their Right to live with dignity which is, as is variously held, an implied and intrinsic part of Right to life and personal liberty. 

Further the concept of Advance Medical Directive is the amalgamation of two concepts i.e. Firstly, Passive Euthanasia and Secondly, Voluntary Euthanasia. This necessarily implies a recognition by the courts of Voluntary Euthanasia and supports the argument that such sections should be given a way out by their own voluntary will. It is my submission that such cases however should be subject to stricter scrutiny and stringent safeguards, must be allowed. 

A counter argument to such a submission can be, that such recourse if provided could be prone to misuse or be extensively used. To counter, I would like to humbly submit, every law laid is prone to be misused and merely because a law may be misused, cannot be a strong ground for not laying down the law at all. The focus should rather be on a robust system of laws and their effective and efficient implementation. The case study of Switzerland can be an inspiration in this aspect.

I firmly believe that even though right to die cannot be included in Article 21 of the constitution, the Right to live with dignity can be further expanded to include a few more sections of the society who are being denied dignity of life and can by no means- Medical, Family or State aid, be corrected. Subject to certification by competent personnel and stringent guidelines, these sections deserve their Rights which are now available to terminally ill and PVS patients.

Way Forward

The development of Euthanasia in our country is still in progress. We have come far but a lot remains to be done on the matter. The system and procedure prescribed by the Courts though appears robust but may face procedural and practical challenges such as delays in constituting the Medical Board, paucity of required experts at district levels, the law remaining urban centric, mal-practices by family member/ doctors in invocation of Advance Medical Directive or many such issues. Further the guidelines are merely outlines and a detailed legislation is required to be passed by the Parliament which at times may take decades in such cases (as was the case in Vishaka guidelines and the subsequent legislation). However the movement is in the right direction and has received the much needed push from the Euthanasia judgement

References:

1. Author.
2. (2018) Writ petition (Civil) No. 215 of 2005.
3. A.K. Gopalan v. State of Madras, AIR 1950 SC 27: 1950 SCR 88.
4. Maneka Gandhi v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248.
5. Ashok Kumar Thakur v. Union of India (2008) 6 SCC 1
6. Justice K. S. Puttuswamy (Retd.) and Another v. Union of India and Ors. (2017) ( Writ petition (Civil) No 494 of 2012
7. AIR 1981 SC 928: (1981) 1 SCC 627.
8. AIR 1994 SC 1844: (1994) 3 SCC 394
9. AIR 1996 SC 946: (1996) 2 SCC 648
10. Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454
11. Law Commission of India 241st Report on Passive Euthanasia- A Relook (August, 2012)
12. Last few lines of Para 42, Common Cause v Union of India, (2018).
13. Para 43 of Common Cause v. Union of India and another (2018).
14. Para 2, while referring to Ernest Hemingway’s “The old man and the sea”, Common Cause v. Union of India and another(2018)
15. Article 142(1), Constitution of India.
16. Para 191, Common Cause v. Union of India (2018