This article has been written by Anam Khan from Hidayatullah National Law University. It tries to analyse the journey of the judicial system in the highly sensitive and often debated issue of euthanasia and whether active euthanasia should be an exception to abetment of suicide under Section 306 of IPC.
Should a terminally ill person have the right to ask for his death by the withdrawal of medical assistance? Do the relatives of a patient, who has been in a permanently vegetative state for so long that he has almost no hope of recovery, have the right to ask for his life-support system to be switched off? Should Section 306 of I.P.C.- abetment to suicide have an exception for active euthanasia? The non-bailable offence of abetment to suicide under S. 306 of IPC is tried in the Sessions Court and if proved the punishment for the same is 10 years.
Euthanasia is a complex ethical issue on which everyone has a differing opinion. But the issues of euthanasia get even trickier when it comes to formulating a law. Primarily because this is an area where the question of law grapples with moral as well as ethical values unlike any other. Until 2011, all forms of euthanasia- voluntary, involuntary, non-voluntary, active and passive were illegal in India.
Active euthanasia involved bringing voluntary death by doing an act, for example giving an overdose of a drug. Whereas passive euthanasia is when death is brought by the omission of an act. On 9th March 2018, the Supreme Court in Common Cause (A Regd. Society) v. Union of India & Anr, gave unanimous judgement, legalising passive euthanasia in India under strict guidelines. Patients must consent through a living will, and must be either terminally ill or in a vegetative state. But the ends of active euthanasia continue to be left unanswered.
Section 306- Abetment to suicide
“If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable for fine.”
Suicide has not been declared a crime under IPC, obviously because once a person successfully commits suicide, that person is no longer alive to be prosecuted and the crime abates with him. However, an attempt to commit suicide is also made punishable under Sections 305 and 306 of IPC. These sections are based on reasonable public policy to prevent other person involvement, instigation and aiding in terminating one’s life. It takes care of situations and threats imposed by death baiters.
To make a case of abetment there must be active instigation or encouragement by the accused to a person to do the act. The basic ingredient of the offence is the intentional involvement of the accused in aiding and instigating the commission of suicide. Any severance or absence of any of these militates against his indictment. Contiguity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Therefore, it is Section 306 which criminalizes the sustained incitement for suicide. Before a person can be convicted for abetment of suicide it must be established that the other person has successfully committed suicide.
In Wazir Chand v. State of Haryana, the deceased was a newly married woman, who died due to burn injuries, The husband and father-in-law of the deceased were accused of abetting the act. The prosecution’s case was that the family members had poured kerosene oil on the newly married woman which in turn caused the burns. The defendant’s case was that the burn was caused by accident. The Supreme Court rejected the defendant’s contention but in view of the fact that the prosecution had failed to establish beyond a reasonable doubt that the deceased committed suicide, set aside the conviction under Section 306. Instead, it convicted them under Section 498A of IPC.
In Gurbachan Singh v. Satpal Singh, the deceased was again a newly-married woman who had succumbed to burn injuries. However, there was sufficient evidence, in this case, to prove incidents of harassment and torture for bringing insufficient dowry. The woman was also accused of carrying an illegitimate child. In the view of the said incidents, the woman committed suicide by setting herself on fire. It was held that the provocations given to the deceased were grave and serious enough for an ordinary Indian woman to kill herself. The evidence also revealed that none of her in-laws made any attempt to save her from burn injuries. Hence, in accordance with the facts of the case, the accused were convicted for abetting the suicide.
Suicide law and the ‘Right to Die’
What is the key difference between euthanasia and suicide? Though the concepts are very closely related, they are still separated by a very thin set of medical morals. While euthanasia comes from the Greek words ‘eu’ which stands for good or well and ‘thanatos’ meaning death and is commonly called ‘mercy killing’. Where euthanasia involves causing the death of an incurably ill patient, the meaning of suicide is universally known. If while trying to commit suicide, if you fail you are punished under S. 309 of IPC. But under abetment to suicide should there be an inclusion of active euthanasia? Euthanasia and abetment to suicide are two different sides of a coin. Although both cause death but the ‘mens rea’ behind the two is completely different. Unlike suicide, euthanasia involves empathy towards a terminally ill patient.
Aruna Ramchandra Shanbaug vs Union Of India, the Supreme Court in March 2011 held that passive euthanasia could be given a nod in case of exceptional circumstances and under strict monitoring of the apex court. Aruna Shanbaug had been in a vegetative state since 1973, and on her behalf, Pinki Virani, a social activist, journalist and writer, had filed a writ petition claiming that her right to life guaranteed by the constitution had been violated. The SC opined that such a decision regarding the death of an individual could not be solely left to the discretion of the patient’s relatives or the ‘next friend’ – like the nursing staff in this case.
In the case of Maruti Dubal vs. State of Maharashtra, a police constable was so despondent with the inaction of government authorities that he tried to immolate himself outside the office of Bombay’s municipal commissioner. When criminal charges were pressed against him, he challenged Section 309 of IPC in the Bombay High Court, saying that it violates Article 14- Right to equality and Article 21- Right to life and personal liberty. The court accepted the challenge and agreed that there was ‘nothing unnatural about the desire to die’ It also said that every man is the master of his own body and has the right to deal with it as he pleases. A person who attempts suicide, whether due to mental disorder or physical ailment, needs treatment and care, more than he needs imprisonment. The court concluded that the constitutional rights to live to include the ‘right not to live’ or the right to end one’s life.
In the case of Gian Kaur vs. State of Punjab in 1994, a married couple appealed against their conviction for abetting suicide under 306. They argued that since the ‘right to die’ fell within the ambit of right to life under Article 21 a person who helped another person to commit suicide would merely be facilitating the enforcement of a fundamental right. It was held that both- assisted suicide and euthanasia were unlawful. But what about situations involving medical emergencies? Should medical practitioners, physicians, and doctors be allowed to carry forward active euthanasia under strict guidelines? Should active euthanasia be made an exception to Section 306 of I.P.C.?
Legality of Euthanasia
Legalization of euthanasia simply means granting an individual his natural right to die or terminate his life owing to non-normalcy of life or bad quality of life due to medical reasons. Attempt to suicide under mental coercion is punishable under law, but asking for granting of death due to the perpetual suffering of an individual is not punishable. In most of the cases when an individual suffers from Persistent Vegetative State (PVS), the court grants physician assisting suicide with a standing consent from the patient showing his willingness to die and there is no undue influence while deciding so. The willingness should be out of the ground fact that there is no hope in improvement in the quality of life in the future.
Reasons for amendment
Like two sides of a coin, let us first analyse the pros of such an amendment. As mentioned earlier, active euthanasia involves administering drugs or any other voluntary act to put an end to the patient’s life. When a patient is terminally ill, or in a vegetative state showing no signs of improvement at all aren’t active euthanasia the right thing to do and why should the doctors be punished for the same? Although by the face of it, the act of performing active euthanasia sounds immoral sometimes it also becomes the need of the hour.
- When the condition of terminally ill patients worsens, the relatives and ‘next friend’ might not want their loved one to continue to remain in distress.
- It is also important to note that such patients not only occupy the bed instead of a patient who could be cured but also use medical resources.
In other words, keeping such a patient alive who has no hope and medical chances for improvement violates their right to dignity. Although through the judicial pronouncements it is clear that right to life does not include the right to die but it sure includes right to a dignified death. Life is much more than an animal existence. And a person who is in a vegetative state and shows no signs of improvement is reduced to an animal-like existence. And this violates basic human rights as well.
In Canada in the early 1990s in the case of Nancy B v. Hotel-Dieu-de-Quebec, a young woman was paralysed as a result of a disease and an artificial breathing system kept her alive. It was concluded in this case that refusal to treatment was permissible and the court authorized the patient’s physicians to remove the respirator.
- Active euthanasia should be legalized as the life of an individual becomes meaningless if the person is not able to carry on functions as held in the above case. The basic Right to Life is violated if a patient is forced to live when suffering from a terminal illness. Hence, for strictly medical purposes, active euthanasia can be made an exception under abetment to suicide as in under Section 306 of IPC.
- Where patients suffering unbearably at the end of their lives request euthanasia leaving them with no alternatives, they must be permitted. People must not suffer against their will. It is plain cruelty on them and cessation of their human rights and dignity.
- There is an existence of the bodily integrity of a human which must not be violated. The principle of bodily integrity sums up the right of each human being, including children, to autonomy and self-determination over their own body. It considers an unconsented physical intrusion as a human rights violation. Hence forcing someone to merely breathe against their will, power and wish are grossly incorrect. A person must have certain basic rights over his body.
- The medical charges are unaffordable for the needed medical care. To unsure if the patient is going to improve in any possible way or remain as he is. And every irreparable disease attracts a big amount of risk and money which must not be ignored.
- There is increasing pressure on hospital and medical facilities. It is argued that the same facilities should be used for the benefit of other patients who have a better chance of recovery and to whom these facilities provided by the hospital would be of greater value.
A review of the Law on Euthanasia and Suicide
After Aruna Shanbaug, the position on euthanasia in India today is that while recognizes euthanasia in case of physical suffering, no amount of mental suffering would justify a claim to end a person’s life. In fact, the law will penalize a suicide attempt in the latter scenario. Therefore, while relatives of a patient in a PVS can consent to the use of a passive euthanasia process, a healthy adult who voluntarily attempts suicide risks being punished if his/her attempt fails. This is inconsistent. Lawmakers would do well to seriously debate the Supreme Court’s recommendation to delete Section 309 of IPC.
Doctors have documented that passive euthanasia is already practised n India today. The difference that the judgment could make is that when there is a disagreement among the patient’s family the high court may be moved to decide on the final route to be taken. The Supreme Court’s decision is added to the guidelines formulated by it that are meant to operate ‘until the legislature enacts a suitable law on this issue.’ There is an urgent need to comprehensively review the law on euthanasia and suicide in India- a Supreme Court judgment being used as a substitute for an enacted law should not be allowed to hold the field for too long. Many factors including the commercialization of healthcare, allocation/scarcity of medical resources, the development of sound mechanisms to prevent abuse of euthanasia and a thorough understanding of the ‘active-passive distinction’ should be taken into account to frame policy on his subject. One can only hope that this will not be another area of law in which the Supreme Court’s decision is conveniently left by the legislature to hold the field.
One last question however still remains- a tough question to answer. What does one do with cases like Jan Grzebski, who regained consciousness after a 19-year long coma caused by a brain tumour? And another case of Terry Wallis who met with a car accident and revived consciousness two decades on or Dan Cassil, who was revived from a deep coma on hearing his favourite TV show, Seinfeld? Taking a note at such instances it becomes too moral and technical for courts to decide and take a stance on euthanasia. But since countries like the Netherlands, Belgium, Colombia, etc have taken a clear stand on the issue, India must follow their footsteps too!
As logical aftermath of the Supreme Court declaring that Right to life under Article 21 includes Right to die, active euthanasia should be legalized as passive euthanasia. The deliberate intervention to put an end to acute human suffering is recognised as an acceptable practice in compliance with medical ethics in many countries. The physical and psychological agony of a person suffering from terminal illness remains undeniable and unconquerable with the present limitations of palliative medications. To clear the conjecture regarding procedural inefficiency, lucid and effective guidelines must be administered to avoid abuse of law. The guidelines must carefully carry out the defence of necessity in any euthanasia case, such as-
- Free and voluntary consent from the patient.
- The request to be durable, reliable, persistent, and well-considered in the court of law and medical reports.
- The suffering, physical or psychological, must be intolerable and unimprovable.
- Euthanasia must be the last resort, after all the other alternatives of alleviating pain considered, tried and found futile.
- It must be performed by a practising physician, in consultation with other physicians experienced in the field.
Additionally, the lethal drugs used for the same must not be painful. With effective guidelines, active euthanasia can be safely included as an exception under Section 306 of the Indian Penal Code so that there is empathy and patients can be granted dignity in their last moments.
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