This article is written by Soumya Deshawar, from UPES, Dehradun, and Namita Oberoi.
“Marte hain arzoomeinmarneki,Mautaatihai par nahinaati” – Mirza Ghalib
“I’m not afraid of being dead. I’m just afraid of what you might have to go through to get there.” – Pamela Bone
“To save a man’s life against his will is the same as killing him.” – Horace
Table of Contents
Introduction
When a person terminates his life by his own act, it is referred to as “suicide”. To end the life of a person by a request of others or on the request of the deceased is known as “euthanasia” or in a simpler form, “mercy killing.”
Euthanasia has five different classifications, and also there are numerous ways of its application. The Supreme Court, in the case of Aruna Shanbaug, has already given its verdict on this point but still some doubts arise, which need to be analyzed with due care.
When the patient explicitly requests for euthanasia, it is referred to as voluntary euthanasia. Governments of many countries have rendered this form as legal, and if not legal, they have decriminalized it. It is considered as homicide by few countries, but if the doctor fulfills some legal requirements, it is not regarded as a criminal homicide, and such a person won’t be prosecuted.
When a person is incapable of giving consent as to the procedure of euthanasia, in such cases where he/she is unconscious, legally incompetent, or comatose, then in such a case, it is referred to as non-voluntary euthanasia. Non-voluntary euthanasia can even be in the cases where previously a patient has declared his will t die but, presently he/she is unable to do so. Euthanasia is internationally illegal in the case of children, as they are not competent to contracts. It might be accepted in certain exceptional circumstances.
The confusion of non-voluntary euthanasia being similar to involuntary euthanasia persists at times. In the case of non-voluntary euthanasia, the patient’s consent cannot be drawn, whereas, in the case of involuntary euthanasia, the act is carried out against the will of the patient.
Talking regarding procedural distinctions, euthanasia can be divided into two broad categories: Active Euthanasia and Passive Euthanasia. The act of forcefully killing a person who is in a vegetative state, and his/her condition can’t be made any better is known as active euthanasia. In this type, lethal substances, etc., are used for the killing of such a patient. Whereas, in Passive Euthanasia, the source on which the person is dependent for life is removed so that he/she may die eventually.
Euthanasia is primarily associated with the people who have some terminal illness, or who are disabled and don’t wish to continue suffering through rest of their life. A person who is severely handicapped or is terminally ill should be given the right to choose whether he wants to live or not.
Types of euthanasia
1. Voluntary euthanasia
It occurs at the request of the person who dies. The person must give his full consent and demonstrate that he fully understands the consequences.
2. Non-voluntary euthanasia
It occurs where the person is unable to give his informed consent. It involves someone else (usually a close family member) to take decisions in their own hands. It is done in the circumstance where the patient goes into Persistent Vegetative State (PVS) or is a baby who is unable to communicate and take decisions on its behalf.
3. Involuntary euthanasia
It is performed on a person against their will. It equates to murder as it occurs without the consent of the person.
4. Active euthanasia
It is also known as ‘positive euthanasia’ or ‘aggressive euthanasia’. It is causing death of a person by direct intervention. It can be done by giving lethal dose of a drug or lethal injection. This kind of euthanasia is illegal in India.
5. Passive euthanasia
It is also known as ‘negative euthanasia’ or ‘non-aggressive euthanasia’. It is intentionally causing death by not providing essential, necessary and ordinary care, or food and water. It is done by withdrawing treatment (i.e. by removing artificial life support systems) or by withholding treatment (i.e. not giving necessary drugs, medicines or performing surgery). This kind of euthanasia is legal in India.
Difference between passive euthanasia and physician assisted suicide
Generally, both these concepts look the same. But, when seen precisely, there is a difference in the proportion of involvement and behavior.
Physician Assisted Suicide (PAS) is a form of active voluntary euthanasia. PAS refers to prescription of lethal medication to be voluntarily self-administered by the patient. While, passive euthanasia refers to omission of ordinary care and treatment given to a patient.
PAS is illegal and declared crime in India. Passive euthanasia is allowed only in restricted conditions followed under the procedures provided by the Apex Court.
Legal aspects of euthansia in India
India has amalgamated its constitution by referring to the recommend of various other countries, and the courts have been from time to time referring to numerous foreign decisions.
In India, euthanasia is undeniably illegal. In most of the instances of euthanasia or mercy killing, there is always an intention on the part of the doctor to kill the patient. Thus, such cases would plainly fall under Section 300, clause one of the Indian Penal Code, 1860. Conversely, as in such cases, if there is the lawful consent of the departed, then, Exception 5 to the stated Section would be engrossed. The doctor or any mercy killer would be liable to punishment under Section 304 of the Indian Penal Code, 1860, for the culpable homicide, not amounting to murder. But this exception is applicable only in cases of voluntary euthanasia (where the patient consents to death). The cases of involuntary and non-voluntary euthanasia would be canceled out by the first proviso to Section 92 of the IPC, which talks about “Medical Negligence” and thus is considered illegal.
The advisability of permitting euthanasia is one of the passionately debated issues in many countries including India. Euthanasia can be active or passive. The former involves doing something to hasten the death of a person. Unless expressly permitted by law, it is clearly a crime and is treated as a crime in most of the countries. Passive euthanasia, on another hand, involves refusing to do something to (or “intending to”) keep the person alive. This is understood that in Gian Kaur v. State of Punjab, the Supreme Court, while holding that right to life did not include the right to die, did not categorically rule out the permissibility of passive euthanasia. Either variety of euthanasia is sought to be justified in the case of a person who is terminally ill since a long period of time, and all hopes of his recovery are ruled out. In most cases, the patients are found to have lost their consciousness and their life is prolonged quite often by artificial means. It is argued, that it is better to let such a person die so that he gets relieved of misery and pain in a dignified way.
In the immediate case, Aruna Ramchandra was found to be living in a permanent vegetative state though her brain was found to be functioning a little. She had no relations and was being taken care of by the KEM hospital staff in Mumbai where she had been working as anurse earlier. The hospital staff was emotionally attached to her and did not want her to be left to die. The care taken by the staff was found to be marvelous. A social activist had moved the Court, but it was held that she did not have a locus standing in the matter. However, the case led a two-judge bench of the Supreme Court consisting of Markandey Katju and Gyan Sudha Mishra, JJ. to give deep consideration to the whole issue of permitting euthanasia.
The bench ruled out active euthanasia but held that passive euthanasia may be allowed in suitable cases subject to certain precautions. If the patient is conscious his/her own wishes have to be taken into account. On the other hand, if the patient is in coma, the wishes of near relatives (spouse, parents, children andothers) have to be taken into account. In case no near relation is available or is forthcoming the next friend, as in the present case the KEM hospital staff can take the initiative. Then the matter has to go to the High Court, and a bench of at least two judges have to make the decision. The bench is to constitute a team of three competent doctors to examine the patient. In addition, the bench should also ascertain the views of the State and the near relations of the patient. The Supreme Court ruled that this procedure should be followed until Parliament had legislated on the matter.
Justice P.B. Sawant: “If the purpose of the prescribed punishment is to prevent prospective suicides by deterrence, it ‘s hard to understand how the same can be achieved by punishing those who have made the attempts. Those who make the suicide attempt on account of mental disorder requires psychiatric treatment and not confinement in the prison cells where their condition is bound to worsen leading to further mental derangement. Those on the other hand, who make a suicide attempt on account of actual physical ailments, incurable disease, torture (broken down by illness), and deceit physical state induced by old age or disablement, need nursing home and not prison to prevent them from making the attempts again. No deterrence is going to hold back those who want to die for a special or political cause or to leave the world either because of the loss of interest in life or for self- deliverance. Thus in no case does the punishment serve the purpose and in some cases it is bound to prove self-defeating and counter-productive.[1]
The Union Government of India has given a decision to decriminalize suicide. It is to be noted that all the cases under Section 309, which denotes suicide as a crime, are disorganized, often screening the crime of abetment to murder.
Aruna’s case– a new dimension in the Indian legal context
In a recent judgment, the Supreme Court in the case of Aruna Ramchandra Shanbaug v. Union of India, unlocked the gateway for validation of passive euthanasia.
The Court dismissed the petition filed on behalf of Aruna Shanbaug and observed that passive euthanasia was permissible under the supervision of law in an extraordinary circumstance but active euthanasia was still not permitted under the law. The Court also suggested decriminalizing the attempt to suicide by repealing the punishment provided in Section 309 of the Indian Penal Code.
[The Court in this connection has laid down the guidelines which will continue to be the law until Parliament makes a law on this point.- A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, 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 made by the doctors attending the patient. However, the decision should be made bona fide in the best interest of the patient.
- Even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned.
- When such an application is filled, the Chief Justice of the High Court should forthwith 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 a 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.[2]
Right to die with dignity: a fundamental right
The issue of euthanasia has always been debatable topic since past in India. The question whether the scope of right to life under Article 21 of Indian Constitution includes the right to die has been discussed in several cases.
It has a long history since 1987 in Maruti Shripati Dubal case, in which the Bombay High Court has attempted to make a distinction between suicide and euthanasia. As, suicide is the act of self-killing or ending own life without any assistance of other person. Whereas, in euthanasia, intervention of other person is needed to end own life. The court also stated that the right to life under Article 21 of Indian Constitution could also be interpreted as the right not to live a forced life.
In case of P. Rathiram vs. Union of India, the Supreme Court held that criminal penalties for attempt to suicide under Section 309 of IPC should be decriminalized, as it was a cruel and irrational provision.
But in the case of Gian Kaur vs. State of Punjab, where the case was of abetment of commission of suicide under Section 306 of IPC, the Supreme Court overruled the P. Rathiram’s case decision and held that ‘right to life’ is inherently inconsistent with ‘right to die’ as is ‘death’ with ‘life’. The right to life under Article 21 of the Constitution doesn’t include the right to die. The Court held that both euthanasia and suicide is unlawful in India.
In 2009, a plea was filed by journalist Pinki Virani on behalf of Aruna Shanbaug, a nurse who was sexually assaulted and fell into a Persistent Vegetative State (PVS) and remained there for 37 years. It was required before the court that the hospital doctors be directed to stop feeding her and let her die peacefully.
For the first time in this case of Aruna Ramchandra Shanbaug vs. Union of India, the Supreme Court laid down the guidelines for euthanasia and suggested that the High Courts could be a competent authority to take decision in this regard. The court also stated that euthanasia could be made lawful by the legislation.
Finally a long battle came to an end in March 2018, when the Supreme Court in its landmark judgment delivered by the five judges’ constitutional bench comprising the Chief Justice of India, Justice Dipak Misra, Justice A.K. Sikri, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, and Justice Ashok Bhushan, in the case of Common Cause (A Regd. Society) vs. Union of India, held that an individual has a right to die with dignity as a part of his right to life and liberty under Article 21 of the Constitution. The verdict opened doors for passive euthanasia and laid down strict provisions for the execution of ‘living wills’.
Living will
Living will, also known as an ‘advance directive’, is a legal document that specifies the person’s wish if they are terminally ill, and incapable of making informed decisions of how medical treatment should proceed.
It mainly specifies that in the state of their incapacitation, they would or wouldn’t like their life to be sustained on life support systems or to be subjected to different types of treatments for a terminal illness.
Who can make a living will
- Any person of age above 21 years, who is of sound mind and is capable of communicating his decision clearly.
- Execution of living will must be done voluntarily, i.e., without any coercion or inducement or compulsion.
What a living will contains
- A living will must be in a written format and the content must clearly declare that the treatment may be withdrawn.
- The name of the guardian or relative authorized must also be clearly mentioned to decide on behalf of the patient in adverse situations.
- In case of revocation of living will, it must also be mentioned clearly.
- If there is more than one living will, then the most recently signed living will shall be implemented.
- The living will must be signed by the person making it in the presence of two witnesses, countersigned by a Judicial Magistrate of First Class (JMFC).
- JMFC will preserve a copy of the living will and forward one copy of the living will to the registry of district court.
- JMFC will immediately inform family members of the patient about the living will.
- JMFC will hand over a copy of living will to the family physician.
Execution of living will
- The hospital where the patient has been admitted for medical treatment has to constitute a medical board consisting of the head of the treating department and at least three experts from different fields of medical science and having at least twenty years of experience. This medical board after visiting a patient in the presence of his/her guardian or close relative will form any opinion to certify or not to, the instructions of living will.
- If the medical board is satisfied to carry out the instructions further, then the board will inform the Jurisdictional Collector about the proposal.
- The Collector shall constitute another medical board in which the Chairman will be the Chief District Medical Officer and three expert doctors from different fields of medical science.
- The Chairman of the medical board nominated by the Collector shall convey the decision of the board to JMFC before withdrawing the medical treatment from the patient.
- JMFC will visit and examine the patient and then authorize the implementation of the decision of the board.
- If the medical board refuses to grant permission to execute the living will, the family can approach the High Court. The Chief Justice of the High Court will then constitute a division bench to decide upon the case.
Living wills made so far
Even after the Supreme Court’s verdict allowing passive euthanasia and living will, only 27% of people are aware about ‘living will’ in India. This is shown by a Living Will Survey conducted by a healthcare service provider Health Care At Home (HCAH) in 2019 across seven urban cities (Delhi, Mumbai, Kolkata, Hyderabad, Bangalore, Chandigarh and Jaipur). There was a survey of more than 2400 people who were hospitalized for more than a day.
Here, about 79% of women were aware about living will while only 67% of men were aware about it. Respondents of age group 25-35 years have maximum knowledge about living will (36%) while age group of 51-60 years have least knowledge about it (21%). The survey found that out of those who know about living will, only 6% have one.
It is noteworthy that senior citizens who know less about living will have more made living wills, i.e., 17%, while people of the age group of 25-35 years have even less than 1% made living wills.
Also, post-understanding the concept of living will, when they were asked about the relevancy of living will for the terminally ill patients, 87% found it highly relevant, while 76% found the concept highly relevant for themselves. Senior citizens found it relevant to reduce the financial stress on family.
Countries where euthanasia is legal
There are many other countries which allow euthanasia. Netherlands is the first country to legalize euthanasia. Belgium has no age restriction for children to euthanasia. Holland and Belgium are the only countries to allow active euthanasia. Canada allows assisted dying. In USA, some states are allowed to perform euthanasia. Other countries like Switzerland, Luxembourg, Australia, France and New Zealand also allow euthanasia.
Religion and euthanasia
All faiths and religions give some meaning and explanation for death and dying. These two concepts can’t be separated from each other. As a result, all faiths and religions have strong views on euthanasia. The Supreme Court found that where Hinduism and Christianity have mixed views on euthanasia, Islamic views are against it. While the concept is accepted by Jainism and Buddhism.
Hinduism view
There are different views of Hinduism regarding euthanasia. Justice Ashok Bhushan discovered euthanasia’s link with religion. He said, “In ancient Indian religion, sanctity was attached to a yogi who could discard his body through the process of higher spiritual practices called yoga. Such a state was known as ‘Samadhi’.”
On the contrary, the Hindu scriptures like Manusmriti and Yajnavalkya smriti mention fasting in order which might lead to one’s death would be injustice to a situation, human or cosmic. Those who commit suicide don’t attain moksha or salvation from the cycle of life and death.
Islamic view
Islam is against euthanasia. Muslims say that life is a sacred gift of Allah and he chooses how long a person will live. None has the right to take away the said gift. Euthanasia according to them, is ‘haram’ for a doctor or a medical caretaker, he/she can’t stop trying to prolong life even when there is no hope of cure.
Christianity view
Christianity is also against euthanasia. The Bible says Human beings are a temple of God and the spirit of God exists in the body. No man can impair that temple. They believe that Jesus healed the sick but he didn’t kill the people, so Christians must help others who are suffering from disease, not to kill them.
However, some Christians argue for euthanasia on the basis of love. Christianity is all about love. According to them, euthanasia can treat the best way to people rather than suffering.
Jainism view
The concept and practice of euthanasia is not a new concept in Jainism. Principles of Jainism talk about the religiously nominated self-build death called ‘Sallekhana’ or ‘Samadhi-marna’, meaning ‘fast unto death’. This practice can be done by both ascetics and householders. It is still practiced in a large number in India.
Buddhism view
There are many views among Buddhist regarding euthanasia. But, on the basis of compassion, some regard euthanasia in a justified way. Some scriptures state that Lord Buddha had allowed self-build death for extremely ill people as an act of compassion.
Law commission of India and its recommendations
The Commission has given the following recommendations.
- Obviously, the first thing which is to be declared is that each ‘competent patient’, who has been suffering from deadly illness has a the right to refuse any medical treatment or the beginning or continuance of such a treatment that has already been initiated. If such an informed decision is endorsed by the competent patient, it is compulsory for the doctor. Consequently, the doctor must be content that a competent patient makes the decision and it is an informed decision. Such informed decision must be the one taken by a competent patient autonomously.
It must also be cleared that the doctor, notwithstanding the concealment or withdrawal of treatment, is eligible to manage palliative care for the incompetent patient if only he is conscious and also to the competent patient who has declined medical treatment.
- It proposed to provide that the doctor shall not be entitled to withhold or withdraw treatment except in a case where he has gained opinion of a body of three skilled medical practitioners from a panel prepared by an Authority of High Status. It also proposed another significant caution, namely, that the decision to hold back or withdraw must be grounded on guidelines issued by the Medical Council of India as to the conditions under which medical treatment in respect of the specific illness or disease, could be withdrawn or withheld.
In addition, it is proposed that, a Register shall be maintained by the doctorswho recommendthe withholding or withdrawing of the treatment, in the case of competent as well as incompetent patients. The conclusion as well as the decision-making procedure must be noted in the Register.
Draft bill and its contents
The Draft Bill, which was proposed in the 241st report of Law Commission, deals with the subject of passive euthanasia and will of living, a deed in which a person states his or her wish to have or not to have extraordinary life extending measures used when recovery from the disease is not possible. If accepted, the Medical Council of India (MCI) will have an active part in the law. The MCI would formulate and issue strategies for medical experts in the matter of withholding or withdrawing the medical treatment to a competent or an incompetent patient suffering from an illness that is terminal and cannot be treated.
Conclusion
“I think those who have terminal illness and are in great pain should have the right to choose to end their own life, and those that help them should be free from prosecution.” -Stephen Hawking
The excellence of a life of a human being lies when he lives it happily, fruitfully and most importantly lives it on his own terms. If a person is suffering from irremediable disease and it becomes so hard for him to bear that pain, it would be inhumane to compel him to live. Medical treatments may draw out his life but indirectly gives him undesirable life as a gift.
The landmark judgment of the Supreme Court gives a new direction to the healthcare sector and the activists of euthanasia that came out as result of unburdening of sufferings of patients through pain and family through high-costing treatments.
In our general public, the palliative consideration and personal satisfaction issues in patients with terminal ailments like propelled growth and AIDS have turned into an imperative sympathy toward clinicians. Parallel to this worry has emerged another questionable issue-willful extermination or “leniency –killing” of at death’s door patients.
Defenders of doctor helped suicide (PAS) feel that an individual’s entitlement to self-sufficiency naturally qualifies him for pick an easy demise. The rivals feel that a doctor’s part in the demise of an individual disregards the focal principle of the medicinal calling. In addition, undiscovered melancholy and the probability of social “intimidation” in individuals requesting deliberate extermination, put a further question mark on the moral standards hidden such a demonstration. These worries have prompted strict rules for executing PAS. Evaluation of the mental condition of the individual consenting to PAS gets to be required and here, the part of the specialist gets to be essential. Albeit considered illicit in our nation; PAS has a few backers as willful associations like “demise with nobility” establishment. This has a fillip in the late Honorable Supreme Court Judgment in the Aruna Shaunbag case. What stays to be seen is to what extent it takes before this touchy issue rattles the Indian governing body.
After the court managing, The Telegraph counseled with Muslim, Hindu, Jain and Christian religious pioneers. Despite the fact that by and large against authorizing killing, Christians, and the Jains thought aloof willful extermination was satisfactory under a few circumstances. Jains and Hindus have the customary ceremonies Santhara and Prayopavesa individually, wherein one can end one’s life by starvation when one feels their life is finished. A few individuals from India’s therapeutic foundation were doubtful about killing because of the nation’s feeble principle of law and the expansive crevice between the rich and poor people, which may prompt the misuse of the elderly by their families.
References
[i] https://www.britannica.com/topic/euthanasia
[ii] https://indiankanoon.org/doc/490515/
[iii] https://indiankanoon.org/doc/542988/
[iv] https://indiankanoon.org/doc/217501/
[v] https://indiankanoon.org/doc/235821/
[vi] https://indiankanoon.org/doc/184449972/?type=print
Footnotes
[1] Ibid, para 20
[2]ArunaShanbaugvs. Union of India
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