This article is written by Diganth Raj Sehgal, Student, School of Law, Christ University, Bangalore. The author has discussed whether the Right to Die can be included in the ambit of Right to life (Article 21) or not.

Introduction

The Right to die is a concept which is based on the opinion that a human being is entitled to make any decisions about ending his or her life (this also includes undergoing voluntary euthanasia). Possession of this right is often understood to mean that a person with a terminal illness, or without the will to continue living, should be allowed to end their own life or to decline life-prolonging treatment. The primary question that arises is whether people should have the right to die and what may be the principle justifying such right.

Right to life is a basic natural right of human beings. In India, it is a fundamental right guaranteed under Article 21 that is Part-III of the Constitution of India. Article 21 states that:

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

This fundamental right confers an obligation on the state to ensure good quality of life, livelihood, liberty and a dignified life to the people, both citizens and otherwise.

This right to life has been interpreted by the Indian judiciary in various ways so as to include within its purview several new rights such as the right to live with human dignity, right to livelihood, right to shelter, right to privacy, right to food, right to education, right to get pollution free air and water and some other rights which are quite essential to improve the condition of the life of the people, i.e. – for the true enjoyment of the right to life.

The question that right to life can include within its ambit the right not to live or the right to die is one that has been debated in several cases. Death can be defined as the termination of life. Death can be categorized basically into two kinds – (i) natural and (ii) unnatural death. It can be caused by the action as well as the inaction of a person. Causing the extinction of a life unnaturally by the action of oneself over himself or over someone else is morally bad as well as legally punishable. Every living being in this world wants to live a long life and by every possible means wants to increase the longevity of their lives and promoting end of such life is not the intended result of this right.

For a common man, when life becomes far more painful and unbearable than death, then it is very normal for him to desire death. This voluntary embracing of death is known as euthanasia or mercy killing. Euthanasia is also termed as ‘dayamaran’. Some people as the great saints or heroic persons embrace ‘echchamaran’ or willful death, when they feel that they have achieved the purpose of their lives. There are different types of voluntary deaths in our country like the ‘sati’, ‘johars’, ‘samadhi’, ‘prayopaveshan’ (starving to death) etc.

Analysis of the Right to Die

If one were to undertake a Hohfeldian analysis of this right, the jural correlatives brought to question would be right and duty. According to him, every right has a corresponding duty. This means that if X has the right to die, then Y would have the duty to kill him. This, as we all know, is not the case. The IPC under section 300 and 302 punished killing or murder of another person. Then what does right to die comprise of?

When the Indian judiciary looked at this subject matter, it saw a lot of cases discussing Section 309 of the IPC that is abetment of suicide. Undergoing the above analysis, if right to die means that X has the right to commit suicide, then Y will have a duty to help him do so and that is not the correct conclusion to draw.

The scope of the right to die in India extends to only allowing terminally ill patients or their family to decide when to withdraw life support and to let the person die with dignity. Here, if X has the right to die with dignity when he is terminally ill, Y or the state has the duty to let him exercise this right.

As in the case of committing suicide, though section 309 of IPC was recently held to be arbitrary, as well as the state withdrew the prior punishment for persons who attempted suicide, the state still does not promote suicide. The state merely abstains from criminalising it understanding that such is a matter of mental health.

John Locke, among other philosopher stated that persons have the right to their life, liberty and property and by that logic, arguments arise that if one has the absolute right to life, then they must also be given the right to decide if they want to die or if they want to end their life in case of terminal illnesses.

Several arguments for legalizing euthanasia have been put forth including:

(i) it is a way to end an extremely miserable and painful life. and insistence to postpone the death against patient’s wishes are against law, unwise, inhumane and not medically sound.

(ii) The family members of the dying patient are relieved of the physical, emotional, economical and mental stress upon them. It also provides comfort to the patient and causes relief of his pain.

(iii) The patients also have a right to refuse medical treatment. If a doctor treats a patient against his express wishes, he can be charged with assault.

(iv)Performance of euthanasia will free up the medical funds of the state to help other poor and needy people.

(v) An individual has the freedom to exercise his right to die. The constitution guarantees the fundamental rights and freedoms where a positive right includes a negative right. For instance, freedom of speech includes within it freedom not to speak, etc.

Further, arguments against legalizing euthanasia include:

(i) Indian society, driven by religion, will not accept the concept of euthanasia as the religious scriptures defy it.

(ii) Commercialization of euthanasia can take place.

(iii) The poor people could resort to this in order to avoid the pecuniary difficulties of medication.

(iv) Old and destitute are sometimes considered a burden and people can make use of this to shove off their responsibilities.

(v) Allowing euthanasia will devalue human dignity and will offend the principle of sanctity of life. It will leave sick, disabled people more vulnerable than the rest of the population and can also provide a ‘cloak for murder’.

Legal Status of  Right to die

In the words of Pipel and Amsel “Contemporary proponents of ‘rational suicide’ or the ‘right to die’ usually demand by ‘rationality’ that the decision to kill oneself be both the autonomous choice of the agent desired by liberals, and ‘a best option under the circumstances’ choice desired by the stoics or utilitarian, as well as other natural conditions such as the choice being stable, not an impulsive decision, not due to mental illness, achieved after due deliberation, etc.

The history of the legality of right to die in India starts from the case of State v. Sanjay Kumar Bhatia where the Delhi High Court criticized section 309 of IPC as an ‘anachronism and a paradox’ and then is followed by varied views of different High Courts on section 309 of IPC.

In the case of Naresh Marotrao Sakhre v. Union of India the court observed the difference between Euthanasia and suicide. It was discussed that Suicide was an act of self-destruction, to terminate one’s own life without the aid or assistance of any other human agency whereas euthanasia being different as it involves the intervention of a human agency to end one’s life. This mercy killing is from nowhere covered in section 309 of Indian Penal code which states that;

“Attempt to commit suicide.—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]”

In P. Rathinam v. Union of India the court, giving relief to the misers attempting suicide, section 309 was held to be irrational and deserves to be effaced from the statute book to humanize our penal laws. It attempts in doubly punishing the man who is tremendous pain and would be undergoing ignominy because of failure to commit suicide.

Soon, this was also overruled in the case of Gian Kaur v. State of Punjab and it was held that right to life does not include right to die or the right to be killed. It was further held that right to life was a natural right embodied in Article 21, but suicide was unnatural termination or extinction of life and therefore, ‘incompatible and inconsistent’ with the concept of the right to life. The right to life includes right to live with human dignity would mean the existence of such a right up to the end of natural life. However, the court appears to approve passive euthanasia by holding that one may have the right to die with dignity as a part of the right to live with dignity.

Thus, any form involving unnatural termination of life has been held to be illegal until the case of Aruna Shanbaug and the recent case filed by the NGO common cause where the legality of the issue was re-discussed and on 9th March 2018 in the case of Common Cause (A Registered Society) v. Union of India a five-judge bench of the Supreme Court recognized and gave sanction to passive euthanasia and living will/ advance directive. The implication of this is that from now Right to Die with Dignity is a Fundamental Right. The judgment was delivered by a Bench comprising of Chief Justice of India Dipak Misra, Justice A.K. Sikri, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Ashok Bhushan. The matter was referred to it by a three-Judge bench, which held that the Constitution Bench in the case of Gian Kaur v. State of Punjab, had not ruled upon the validity of active or passive Euthanasia, even though the bench had ruled that Right to Live with Dignity under Article 21 of the Constitution of India was inclusive of the right to die with dignity.

The Three-Judge Bench then noted that the judgment pronounced in Aruna Shanbaug v Union of India is based upon a wrong preposition that the Constitution Bench in the case of Gian Kaur v State of Punjab had upheld passive euthanasia. However, the Five-Judge Bench in the case of Common Cause (A Regd. Society) v. Union of India and Another has now unanimously held that the Two-Judge Bench in the case of Aruna Shanbaug had wrongly ruled that passive euthanasia can be made lawful only by legislation through an erroneous interpretation of the judgment in Gian Kaur case. The Judges in their judgment have also laid down the procedure for a “Living Will” or an “Advance Directive” through which terminally ill people or those with deteriorating health can choose not to remain in a vegetative state with life support system if they go into a state when it will not be possible for them to express their wishes.

Legal position of right to die in other countries

As of the records available, it is known that human euthanasia is legal in Netherlands, Belgium, Ireland, Colombia, and Luxembourg and assisted suicide is legal in Switzerland, Germany Japan, Canada, and Albania and some parts of USA.

1.   The United States Of America– It is seen that active euthanasia is illegal throughout the USA but in Oregon, Washington, Vermont, California and a country of Mexico assisted euthanasia is legal.
2.   Australia– In 1995, it became the world’s first legislation by legalizing euthanasia, but assisted suicide was made legal only for a period and now it is not. Due to the death of four patients under Rights of the Terminally Ill Act 1995, the act was overturned by Australia’s federal parliament in 1997.
3.   France- The country’s controversy is not much big because of the ‘well -developed hospice care program’. But in 2000 after the case of Vincent Humbert, it did jumpstart new legislation which states that when medicine serves ‘no other purpose than the official support of life’ they can be ‘suspended or not undertaken.’

As of now, the Australian state of Victoria has become the first state to legalize assisted dying in the world. The bill has been passed in the parliament and it will make assisted dying legal in the state from 2019 onwards. After the mark of Victorian legislation as the world’s first parliament to undergo an extensive process to introduce voluntary assisted dying, other countries have also introduced laws through a referendum or a court process.

Conclusion

In the words of Dr Jack Kevorkian

“For those who are facing a terminal illness, who are in irremediable pain and suffering, and wish to exercise their right to die with dignity, a system should be available to them”.

The sanctity of human life does not imply the forced continuation of existence in pain and suffering. Given that a person has the right to lead a dignified existence, he cannot be forced to live to his detriment. If a person suffers from an incurable disease, it would be inhumane to compel him to live a painful life. A terminally ill person should be permitted to terminate his pain and suffering by choosing to do so.

In fact, these are not cases of extinguishing life but only of accelerating the process of natural death, which has already commenced. The proposition merely is that the legislation must provide for an alternative, if the terminally ill patient so desires, having complied with the requisite conditions, to substitute his slow and painful death with a quick and painless one.

Medical science is progressing in India as in the rest of the world, and hence currently we have techniques that can prolong life by artificial means. This may indirectly prolong terminal suffering and may also prove to be very costly for the families of the subject in question. Hence, end-of-life issues are becoming major ethical considerations in the modern-day medical science in India. Allowing euthanasia exclusively in the case of terminally ill patients is desirable.

The landmark Supreme Court judgment in 2018 has provided a major boost to pro-euthanasia activists though it is a long way to go before it becomes a law in the parliament. Moreover, concerns for its misuse remain a major issue which ought to be addressed before it becomes a law in our country. The ultimate outcome of this debate remains uncertain. It must, however, be remembered that an acrobatic argument that acknowledges technological advances but dismisses the evolving ethical issues which pose uncomfortable and disturbing questions is unfair to the community of patients.