This article is written by Zainab Arif Khan, from Faculty of Law, Aligarh Muslim University and Archisman Chatterjee, from St. Xavier’s University, Kolkata.
Table of Contents
Introduction
Every person desires to live his life to the full extent, and for a long time. But there are certain circumstances, where the same person desires to end his life. The ending of the life of a person by himself may arise out of two ways; either suicide, or by euthanasia. While the former is entirely illegal in India, the latter is a debatable topic.
Euthanasia, according to Merriam-Webster dictionary, means the act or practice of killing or permitting the death of hopelessly sick or injured individuals in a relatively painless way for reasons of mercy. It can also be seen as ‘mercy killing’. According to this practice, the victim, or any other person on his behalf, chooses death for himself, mainly because of medical conditions of the victim and then he is put to death by someone else.[i] This is done simply to mercifully end the life of the victim to release him from the incurable disease, intolerable suffering and from the misery and pain of life.
Emergence of Euthanasia and its evolution
Euthanasia is the combination of two words of Greek origin “eu” and “Thanatos“, referred to as “euthanasia” in English. It was practiced and was prevalent in ancient Greek society and was conceived under the framework of good death. It was used by historian Suetonius to describe the death of Emperor Augustus while it acquired support from Plato, Socrates, and Seneca the Elder in those times.
The medical perspective towards euthanasia also shifted throughout the centuries. During the early stages and the period of the renaissance, a paradigm shift took place which allowed the human body to become a natural object for scientific experiments thereby leading to the conclusion that euthanasia was not such a grave sin. The increased advocacy of euthanasia throughout North America and Europe along due to increased philosophy relating to human rights along with technological advancements led to movements for euthanasia. This led to many countries leaving abandoning mandates created for penalizing those who attempted suicide.
Over the years the meaning of euthanasia has evolved to many meanings like “a good death”, “assisted dying”, “death with dignity”. The use of such language which is of a very broad nature has also led to deceptive use of the term which has led to the subsequent evolution of its meaning. The ethical and moral dilemma which surrounds euthanasia can be considered the first hindrance towards any change as it puts individual autonomy and preservation of human life in the same boat. The “do no harm” as stated in the Hippocratic oath that binds doctors and medical practitioners under an obligation to prolong a patient’s life is perhaps the biggest safeguard against euthanasia. It has been considered by the World Medical Organization as well as the Medical Council of India. The counterargument which has been laid out against the Hippocratic Oath is that the principle of “do no harm” should be interpreted to give a reasonable meaning to what constitutes harm to a patient. In this instance, the intense suffering of a patient can cause more harm to the patient by forcing him to stay alive rather than letting him die in peace and with dignity
Classification of Euthanasia
Euthanasia can be classified into:
Active euthanasia
In active euthanasia, the death of the victim is caused when the medical professionals, or any other person, deliberately do some positive act; such as injecting a dose of a lethal drug, or overdosing the victim with some drug, which would otherwise not result in death, if not for the overdose; resulting in the death of the person.
Passive euthanasia
In passive euthanasia, the death of the victim is caused because the treatment necessary for sustaining his life is either held off, or is not given. In this case, the medical professionals either do not something that is necessary to keep the patient alive, or they stop giving the treatment required to keep him alive; such as switching off the life support system, disconnecting the feeding tube, not carrying out life-extending operations[ii], and other similar acts. In “passive euthanasia” the doctors are not actively killing anyone; they are simply not saving him.[iii]
Voluntary
In case of voluntary euthanasia, the expressed consent and desire of the patient is present. It is primarily concerned with the right to choice of the patient, suffering from incurable disease who decides to end his life.
Non-Voluntary
Non-voluntary euthanasia occurs when a person’s life is ended, who is mentally incompetent to make any such decisions of his life, or a request to die; such as a patient suffering from comatose. In such cases, the patient does not leave any living will, or give any advance directives, mainly because he either might not have had the opportunity, or he might not have anticipated any such accident or eventuality.
In cases of non-voluntary euthanasia, the decision is often made by the family members.
Acceptance of euthanasia in society and religion
To understand how Indian medical professionals, look at euthanasia one must first understand the factors which affect the way an individual would perceive it. In a study conducted recently it was found that religiosity itself that played a bigger part in shaping a doctor’s views over that person’s religion as doctors who followed religion on a deeper level stated that euthanasia is wrong and it would be outside of their belief system.
- CHRISTIANITY– different sects of this religion have respective viewpoints about the topic of euthanasia. The Catholics condemn the whole act by stating that it is a crime against God as well as life and this is primarily advocated by the Roman Catholic church. The protestants on the other hand have started to adopt a more liberal approach towards euthanasia due to the works of various individual advocates as well as a more liberalized framework being put in place.
- HINDUISM– There are two viewpoints on euthanasia in Hinduism. It is stated that by ending painful life one is performing a good deed yet this goes against the cycle of life and death as stated in the Vedas and doing so will transfer the remaining karma of the patient onto the participants.
- ISLAM– The Islamic community is opposed to the idea of euthanasia which is owed to the belief that all of human life has its origin with god and they have no authority to terminate their own life. The religious doctrine has declared euthanasia to be forbidden.
- BUDDHISM– Buddhism has a wide variety of views concerning euthanasia. An important aspect of Buddhism is compassion and based on this death has been granted on certain occasions to relieve the sufferer of pain. Despite that in certain sects, the act of supporting death even out of compassion has been considered to be a defeat for a monk.
- JAINISM– Jainism endorses the concept of Sallekhana(fast unto death) or voluntary death. This is recommended for both householders and ascetics and can only be practised when one has devoid himself of all passions has the will to neither live nor die. It is to be done in a mental state of consciousness which prevents it from being called suicide.
Western legal system
Throughout history, the movement for euthanasia gained momentum multiple times and it almost attained a legal status that was defeated by the legislature. The movement had a tremendous negative setback after the Nazi holocaust and subsequently, after the war was over individuals started looking to solve problems associated with euthanasia with scientific and technological solutions rather than them being moral or political.
There was an eclectic pattern of euthanasia followed in various countries around the world and we discuss a few of them:
- Switzerland
The most recent development in the field of euthanasia took place in 2021 when a coffin-shaped euthanasia machine also termed as ‘Suicide machine’ which can be operated by the user in the blink of an eye was legalized.
The practice of assisted suicide has also been legalized in the country along with the presence of safeguards to prevent people from unlawfully gaining as a result of the practice. 1.5% of deaths in Switzerland can be attributed to assisted suicide
- Canada
Canada allowed assisted suicide as well as euthanasia only in cases where it could be reasonably foreseen that the grievous physical condition of an adult would ultimately lead to his death.
In 2021 the ambit of the law was increased by bringing adults under its ambit who was suffering from an incurable and serious disability or illness which or may not lead to their death.
- Australia
The state of Victoria in Australia legalized voluntary euthanasia in 2017 after twenty years since the law was repealed in 1997 owing to widespread public backlash. The practice would only be available for people who are reeling under the effects of progressive and incurable diseases and is expected to lead them to their death within one year. Following Victoria, four more Australian states have also legalized the practice.
- United States of America
Several States in the US such as California, Montana have legalized euthanasia or legally assisted dying through court rulings, legislation.
The process involves a doctor writing a prescription for the fatal drugs along with the presence of a healthcare professional when such drugs are administered by the patient.
- France
The practice of palliative sedation which involves sedating a person to the point of termination of their life with their consent is legal in France.
However, in 2021 a bill related to legalizing euthanasia was brought which was rejected by the French Parliament.
- Netherlands
The practice of assisted dying as well as euthanasia is legal in the Netherlands for people who are suffering from a disease that causes tremendous suffering without any chance of improvement.
In 2020 it brought in legislation to allow it for children between the age of one to twelve who are terminally ill. However, it is necessary for the practitioner to consult with at least one independent doctor before giving a go-ahead,
Legal aspects of euthanasia in India
Indian courts recognise only passive euthanasia. In a recent case of Common Cause (a regd. Society), it was held that the ‘right to die with dignity’ is a fundamental right of a person. It can be availed by the patients who suffer from incurable, and prolonged diseases, and have reached the state of permanent vegetative state (p. v. s.), where there is very little or no hope of recovery, and the patients are kept alive through external instruments and machines, such as the cardiopulmonary machines. In such cases, passive euthanasia can be allowed.
Earlier, this was not the situation, when, even passive euthanasia was not legal in India. The doctors, who caused euthanasia, came under the purview of Exception 5 of Section 300 of the Indian Penal Code, since they had the requisite ‘intention’ of causing death of the concerned patient; in cases of voluntary euthanasia, since there was a valid consent, the said doctor, or such person causing euthanasia, would be liable to punishment for culpable homicide not amounting to murder, under Section 304 of the Penal Code.
However, this stand is only in the cases of voluntary euthanasia, where the patient gives his consent to the causing of his death, and the person is above the age of 18 years, while giving the consent. The cases of non-voluntary and involuntary euthanasia were not covered under this, since they would be hit by the first proviso of Section 92 of the Penal Code. Active euthanasia is a crime in India.[iv]
One of the important points, raised in the favour of legalising euthanasia in India, laid before the Supreme Court, in the case of Gian Kaur v. State of Punjab[v], was that the ‘right to life’ provided under the Indian Constitution includes the ‘right to die’ as well. However, this contention was rejected, and the SC held that the ‘right to life’ under Article 21 does not include the ‘right to die’. And by no means can it be stretched to mean the same. Hence, the Apex Court of the land does not hold the illegality of euthanasia to be constitutionally invalid.
It was held in Aruna Ramchandra Shanbaug v. Union of India[vi], that for an incompetent person, who is not able to take decisions as to whether to withdraw life support or not, as parens patrie, it is the Court alone, which can ultimately take this decision in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight. Consequently, in this case, the Apex Court held that, though active euthanasia is completely illegal, passive euthanasia, to an extent, following the guidelines laid down in the case, legalised.
The Law Commission has also recommended the legalization of euthanasia, in its 241st Report.
In Common Cause (A Regd. Society) vs. Union of India (UOI) and Ors.[vii], a leading case on euthanasia, passive euthanasia was legalized, and it was held, by the Supreme Court, that the ‘right to die with dignity’ is a fundamental right. Medical treatment can be refused, or decided against taking the same, by a sane adult human of conscious mind. He may decide to die a natural death, instead of availing the treatments.
The court has recognised ‘passive euthanasia’, in which the doctor does not cause the death of the person, he simply does not save him, by stopping the ongoing treatment, or by disabling the life-support machines, through the support of which, the patient is alive. ‘Active euthanasia’, which occurs as a result of administering and injecting a dose of lethal drug; of overdose of such a drug or medicine, which otherwise would not be lethal, but for the increase dosage, in the body of the victim, has been recognised in the Indian Courts, as of now.
The courts are of the view that a person, or here, a doctor cannot be punished for not saving a patient. However, since an ‘act’ not only includes a positive act on the part of the offender, but it also includes all the ‘omissions’ of the legal duty which one is bound to fulfill. Therefore, a person should be punished not only for some overt act, but also for the omission of a legal duty bound by law on him to fulfill.
The link between Sections 306 and 309 IPC, 1860 With Article 21 of Constitution of India
Article 21 of The Constitution of India, 1950empowers citizens with the right to enjoy life along with the right of autonomy, right to privacy, and self-determination coming under the ambit of personal liberty. However, the inclusion of the right to die within the right to life has been a point of controversy in India as there are two legal impediments in its way in form of sections 306 and 309 of the Indian Penal Code,1860 which contain provisions related to abetment and attempt to suicide respectively. The concept of euthanasia, as well as provisions related to section 309 of the IPC, has been reviewed by the Supreme Court over a series of judgments.
In the case of P. Rathinam V. UOI, the substantial question of law which was being dealt with by the Supreme Court involved whether the right to life under article 21 of the Indian Constitution includes under it a choice to not live forcefully thereby implying the right to die. It was also held in previous Supreme Court judgements that any law which violates a fundamental right would become void. The court declared that section 309 of IPC as void and unconstitutional as it violated the provisions of article 21 of the Indian Constitution. The court based its judgement on the premise that right to life meant that an individual should be free to choose the course of action in his life within lawful means guaranteed by the Constitution and not mere animal existence. It further stated that the section was cruel along with its provisions being irrational and its removal was crucial to make room for humanization of penal provisions. The act of suicide was not against public policy, religion which leaves no cause for state intervention as it would only lead to infringement of personal liberty.
Similarly, in the case of Gian Kaur V. State of Punjab, the appellant and her husband were charged under Section 306 of IPC,1860 with abetting the suicide of their daughter-in-law Kulwant Kaur. They were convicted both by the trial court as well as the High court under Section 306 of IPC and challenged the constitutionality of 306 as well as whether Section 309 violates Article 21 in the Supreme Court through a Special Leave Petition. The Supreme Court drew a line between the unnatural and natural end of life. The court stated that the right to die of an individual at the end of their natural life must not be confused with the right to die in an unnatural manner thereby cutting short the natural span of life. Right to die a natural right being positive in nature does not go with unnatural negative act. Thus, the court upheld the constitutional validity of Section 306 and 309 of the IPC. The individuals who are in a vegetative state or has terminal illness are already in a process of dying in a natural manner which brings it under the ambit of Article 21 to allow them to experience a painless death with dignity while in the case of suicide the span of life gets unnaturally terminated thereby initiating the process of death at early stage.
Probable consequences of legalization of euthanasia in India
Though, there are many opinions in the favour of legalising euthanasia, such as that it may relieve an ailing patient from prolonged misery and suffering; there are also some arguments against the legalization of euthanasia in India. And, in my opinion, too, euthanasia, be it active or passive, voluntary or non-voluntary, should not be made a legal provision in India.
If euthanasia is legalised in India, it can be heavily misused, by the section of Indian society, which enjoys mischief. Some of the probable consequences are as follows.
Corruption is very rampant in India. Even after numerous laws and regulations, it still hovers over India. It is quite easy to bribe the hospital staff of an iniquitous hospital, where some unscrupulous doctors may shake hands with the cold blooded relatives, in the facilitation of the barbarous action of causing death of such a patient who, in actuality, may not qualify the criterion of being mercifully ‘killed’, by preparing false materialistic reports in pursuance of the same. This usually occurs in such hospitals, where there is no value of human life, but the only concern is of the monetary valuation that they shall receive for such immoral acts.
Organ selling is too, is not an unknown concept in India. This too can be a successive act, after wrongfully causing death by non-voluntary euthanasia, since the insatiate doctors may be impatiently waiting for the long-term patient to die, and they get their hands at making some money by such illegal acts.
Many times, some children are born with certain disabilities and deformations. The parents of such children, who do not wish to look after them, sometimes by reason of some superstitious belief, may take up this plea of euthanasia to end the life of the innocent child, which result in a mockery of the provision introduced for humane reasons.
Similarly, where people are blinded by some false beliefs of some tantrik babas, they may, after causing some accident of the victim, take the permission of ending the life of the victim without his consent, as non-voluntary euthanasia; to offer him as a superstitious sacrifice.
Again, there are till date, many narrow-minded people, who dislike the birth of a female child, believing her to be a burden, or even at times, a curse. By causing some planned, major accident or misfortune, which may lead her to the state of permanent vegetative state, either at the early stage of her life, or at a later stage, cause her death, by non-voluntary euthanasia, again by shaking hands with those hospital staffs who disprove their medical pledge.
There are many heinous crimes in India, one of them being ‘dowry death’, where again, the provision of euthanasia can be misuse. Some curable and not terminally ill person can be put to death, by the decision of non-voluntary euthanasia, taken by the cruel family members of the victim, as them being the ones competent to take decision, as family members on behalf of the victim.
In the event of some mischief being done by the relatives of the victim, in order to inherit some property, and they would also get rid of an ill family member, ending the expenses incurred on his treatments, misuse of the provision of euthanasia may again be caused.
India is a country, which gives much importance to its culture and tradition, and Indians follow their traditions, be it cultural or religious, very piously. Since euthanasia is not recognized in most of the religions followed here, considering that life and death is in the hands of God, and humans cannot interfere in it; introducing a provision which would hurt the religious sentiments of the majority of religions, clearly may not be a very appealing idea.
Aruna Shanbaug and the subsequent legalization of Euthanasia
The legalization of passive euthanasia in India got a massive fillip in 2011 after a landmark judgement by the Supreme Court of India in the case Aruna Ramchandra Shanbaug v. Union of India. The petitioner in this case Aruna Shanbaug was in a vegetative state for thirty-six years after a brutal attack carried out on her by a sweeper at the hospital where she was a nurse. The petition was filed by Ms. Pinki Virani who claimed to be a friend of hers and had prayed to the court to decide upon the right to die under article 21 of the Indian Constitution as the petitioner had no chance of recovery so as to allow her to die in peace with her dignity. The court opined that based on the report submitted by the doctors and brain death as it was defined in the Transplantation of Human Organs Act, 1994, Aruna was not brain dead. Furthermore, she had feelings, could breathe without a support machine as well produce the necessary stimulus. Thus, terminating her life was unjustified. The right to decide on behalf of Aruna was vested with the staff of KEM hospital and not Pinki Virani and to allow her euthanasia would mean the discontinuation of food since she was surviving on mashed food which is not equivalent to the removal of ventilators as per Indian law. Thus, the petition was rejected by the court.
The court carried out an in-depth study of passive euthanasia and also laid down guidelines relating to euthanasia to be followed till the parliament passes a legislation. The final say in the matter was also vested to the high courts to curtail the possibility of any ill motives towards terminating a certain individual’s life. The procedure laid down started with the filing of an application by the petitioner on which the Chief Justice of the corresponding High court must act and set up a bench that would have a minimum strength of two judges and they would be responsible for granting the order of euthanasia. The bench should also seek the opinion of a committee of three doctors to be nominated after consulting the necessary doctors and medical professionals as chosen by it. After the appointment of the committee, the bench must issue notice to the State as well as parents, spouse, siblings and in their absence a friend of the patient along with the report of the committee. After the completion of this process, the final verdict would lie in the high court. The report submitted by the committee of doctors in the case of Aruna was that she was not brain dead and would react to stimulations in her own way and along with the willingness of the staff of the KEM hospital to take care of her it was opined by the doctors that her euthanasia is not necessary. This procedure was put in place by the Supreme court to make the process of euthanasia free from any wills or evil ulterior motives of the kin of the petitioner. After this ruling, the Medical Council of India pointed out MCI guidelines with regards to this issue that regulation 6.7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002prohibits doctors from allowing euthanasia and certain exceptions can be made only after consideration of the functioning of the brain of the patient by a team of three doctors from that hospital. This judgement allowed euthanasia to have a proper legal framework thereby creating the groundwork for any future legislation for its regulation.
The concept of living will
On March 2018 the Supreme court legalized passive euthanasia as part of the case involving Aruna Shanbaug who died in 2015 after decades of being in a Persistent Vegetative State. The five-judge constitutional bench of the top court pronounced in its judgement that it is permitting passive euthanasia and granting legal recognition to Advanced Medical Directives or ‘Living Will’ for the first time in India. It is a legal document that underlines the wish of a person if they are terminally ill or unable to make an informed choice due to incapacitation. It is essential that its execution is free from any external interference in the form of inducement, coercion, or compulsion.
The execution of “Living Will” involved the following criteria:
- A medical board consisting of the head of the treatment department and three experts from various fields of medical science with a minimum of twenty years’ experience have to be set up by the hospital where the patient is admitted. The medical team after visiting the patient in the presence of family or close relative would certify to grant the living will or reject it.
- If the board accepts the grant of the “living will” it would then inform the Collector of that jurisdiction about such a proposal.
- A subsequent medical board would be constituted by the Collector with the Chief District Medical Officer as its chairman along with three members from different medical science fields.
- The chairman would then be required to convey that decision to the Judicial Magistrate of First Class before any process of withdrawal of treatment.
- The magistrate would then visit the patient and on subsequent examination allow the withdrawal of life support.
- The family would be able to approach the high court if the medical board refuses to grant permission to execute the living will which would require the Chief Justice of that high court to set up a medical board.
It explicitly requires that the decision of the patient should be communicated in advance regarding the withdrawal of lifesaving equipment which has to be upheld by doctors and the hospitals. It had a noteworthy impact on the current debate on euthanasia in India as passive euthanasia received legal recognition as well the inclusion of the right to die within the right to life under the ambit of article 21 of the Indian Constitution. The court had also laid down various elaborate points concerning the advance medical directive on part of the individual giving his consent in writing to enforce such a will. The tenets laid down dealt with the who would be the executioner of the living will and in what manner, the process of its recording, refusal of permission by medical board and inapplicability of the directive.
Conclusion
While some countries in the world have already recognised and legalised the provision of euthanasia, the legalisation of the same may not be a very appealing idea. The courts in India, have, accordingly, taken a long time, from the cases of Gian Kaur, Aruna Shanbaug, to the case of Common cause (a regd. Society), in recognising and legalising the euthanasia, and have legalised passive, voluntary euthanasia. The Apex Court is the highest court of judicature, and the decisions given it has to be respected and acknowledged by all the citizens of the country, since the bench deciding the cases is highly experienced and wise. Therefore, this decision of legalising passive voluntary euthanasia is appreciated, owing to the recent developments on the law of euthanasia in some countries. Active euthanasia has not been legalised yet, and hopefully will not be done in the future as well. Euthanasia is going to be more of a mischief than a boon for the people for whom the legalisation has been done.
References
[i] Prof. S. N. Misra, Indian Penal Code 535 (Central Law Publications, Allahabad, 21st edn., 2018)
[ii] http://www.bbc.co.uk/ethics/euthanasia/overview/activepassive_1.shtml, assessed on 29tth April, 2020 at 3:10 PM (IST)
[iii] Aruna Ramchandra Shanbaug v. Union of India, 2011(3) SCALE 298; MANU/SC/0176/2011
[iv] Supra note 3.
[v] MANU/SC/0335/1966
[vi] MANU/SC/0176/2011
[vii] MANU/SC/0232/2018
- Active and passive euthanasia, available at http://www.bbc.co.uk/ethics/euthanasia/overview/activepassive_1.shtml, (last visited on April 29, 2020).
- Caesar Roy, “Position of Euthanasia in India – An Analytical Study”, The Indian Journal of Criminology and Criminalistics, XXXII, 37.
- Dr. J.N. Pandey, Constitutional Law of India (Central Law Agency, Allahabad, 56th edn., 2019).
- John Keown (ed.), Euthanasia Examined – ethical, clinical and legal perspectives,(The Press Syndicate of the University of Cambridge, Cambridge, United Kingdom, reprint, 1999).
- Law Commission, 241st Report on Passive Euthanasia – A Relook.
- Prof. S. N. Misra, Indian Penal Code (Central Law Publications, Allahabad, 21st edn., 2018).
- The cases of Gian Kaur, Aruna Shanbaug, and Common Cause(a regd. Soceity), available on https://indiankanoon.org/, (last visited on May 1, 2020).
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
