This article is written by Shrishti Debuka, a student of Jindal Global Law School.

INTRODUCTION

The recent 210^th Law Commission report recommended that Section 309 of IPC which defines attempt to suicide be deleted from the code, this is mainly because parliamentarians were of the opinion that a person who wants to commit suicide is rather in need of care than punishment.

The debate regarding striking down of this section is not new, it has been in existence since the year 1994 where in the case of P. Rathinam v. Union of India 1994 AIR 1844, the Supreme Court held that section 309 was violative of Art. 21 (Right to Life) hence is unconstitutional therefore needs to be struck down. However, the same was overruled in the case of Smt. Gian Kaur v. State of Punjab 1996 AIR 946. Since, then there have been many bills, recommendations and cases which have indicated towards striking down of this section but it was never brought into application. But in recent days, since the time the Modi Government has come in to power this debate has again been brought to life.

While the parliament is still pondering over the question whether to repeal Section 309 or not, one also needs to consider as to what will happen to cases of Active Euthanasia and whether Parliament and judiciary will amend the law criminalizing active euthanasia?

ACTIVE VERSUS PASSIVE EUTHANASIA

In the historic case of Aruna Ramchandra Shanbaug v. The Union of India (2011) 4 SCC 454,  the Supreme Court of India had for the first time, laid down a clear distinction between ‘active’ and ‘passive’ euthanasia. Wherein the apex court had permitted passive euthanasia on a case – by – case basis but had completely criminalized active euthanasia. Having said that, one aspect which the judicial bench has completely overlooked is the distinction which can be drawn between the two based upon morality and economic benefit.

Passive euthanasia is when a physician reduces or eliminates the chances of survival for a patient by either turning off the life supporting system or depriving the patient of water and food. By doing so, the patient will lack necessary nutrients to keep him/her alive, which will eventually lead to death by starvation and dehydration. On the other hand active euthanasia occurs when physicians tend to prescribe morphine, or antibiotics which will kill the patient painlessly. Anyhow, either of the two methods will in the end lead to death of patient. But an important aspect which has completely been ignored is that active euthanasia in fact provides for a dignified death because it is quicker and painless. Whereas, though passive euthanasia is ethical it is rather slow and dreadful. Hence, depriving patients from food is inhumane and totally unacceptable. Therefore, in reality, though it is morally wrong to kill someone, it is equally wrong to allow someone to die by going through a period of long anguishing pain. Thus the point of euthanasia is for a patient to die with pride and harmony, therefore, active euthanasia is more appropriate in comparison to passive euthanasia.

Having laid this distinction the author is not trying to suggest that passive euthanasia should be criminalized and active euthanasia should be allowed, but instead is suggesting if former can be decriminalized, the same fate must befall upon the latter but with the only difference being that it must be allowed in cases where the patient is conscious and competent to give the consent required.

SUICIDE VERSUS ACTIVE EUTHNASIA

Therefore now it is important to draw lines between suicide and active euthanasia, which is based upon the rational that, though suicide is an act where one can take away his/her own life and active euthanasia is an instance where death is being administered by a physician, i.e. an assisted form of suicide. Secondly, if parliamentarians can decriminalize an act where a person is not terminally ill and is rather depressed then the same rule must definitely apply to a person who is in fact terminally ill.

However, In India though there is no law which governs euthanasia, by keeping an ill person alive for a prolonged period of time is a clear violation of Art. 21 which provides a right to dignified life. Having said that, a person has a right to live life with at least minimum dignity and if that standard is falling short of the minimum level specified then a person should be given a right to end his life under article 21.

CONCLUSION

Thus if certain guidelines are followed, it would help patients and their families to differentiate between fraudulent and consensual active euthanasia. The guidelines are as follows: One, if the patient was going through unbearable suffering. Two, a confirmation with regard to the fact that there was no alternative solution which could have been used. Three, at least two other independent physician was consulted regarding the patient’s situation and Four, the patient’s life was terminated in a medically appropriate manner. In short, doctors should not abuse the rights which come by virtue of euthanasia, by changing the right-to-die to a right-to-kill.

Lastly, from an economic point of view the amount of money which is being spent on these incurable and untreatable patients will only lead to shortage of medical and monetary resources. In fact many treatable patients because of this reason have to struggle to find medical facilities. The WHO report had mentioned that in India about 87% of total health expenditure is from private spending, out of which 84.6% is out-of-pocket expenditure. Further the World Bank in its annual report in the year 2002 with regard to India came up with some other startling observations that more than 40% of individuals who are hospitalized in an year borrow money or sell assets to cover the cost of health care as well as spend more than half of their total annual expenditure on health care. Thus stated, one cannot disagree with the fact that there is genuine need for active euthanasia with safeguards, definitive and unbiased protocols. Therefore Article 21, should also include ‘Right to die with dignity’