Right to Die a Fundamental Right
Image Source - https://www.toprankers.com/exams/right-to-death-for-indian-citizen/

In this article, Aishwarya Deep Singh critically analyses the debate on Right to Life vs Right to Die and answers whether the right to die is a fundamental right guaranteed under the Indian Constitution or not.

Introduction

The privilege to bite the dust is an idea in light of the conviction that an individual is qualified to end his/her own life or to experience willful killing. Ownership of this privilege is usually comprehended to imply that a person with a terminal sickness ought to be permitted to end his/her own life or to utilize assisted suicide or to decay life-drawing out treatment. The topic of who, in the event that anybody, ought to be enabled to settle on this choice is regularly integral to face off regarding.In India, Right to Die is basically seen as voluntary euthanasia or attempted suicide. This right, being an issue of controversy since 1994, starting from the case of P. Rathinam v Union of India.[1] Out of so many fluctuations in the judgments, this dispute is still not well established.

Lawyers usually connect the privilege to kick the bucket with the possibility that one’s body and one’s life are one’s own, to discard as one sees fit. Be that as it may, an honest to goodness state enthusiasm for averting nonsensical suicides is in some cases contended.

The word willful extermination started in Greece implies a decent death.[2] Killing incorporates different measurements, from dynamic (acquainting something with cause demise) to uninvolved (withholding treatment or steady measures); intentional (assent) to automatic (assent from watchman) and the doctor helped (where doctors recommend the drug and tolerant or the outsider oversees the prescription to cause death).[3] Demand for untimely completion of life has added to the open deliberation about the part of such practices in contemporary human services. This level-headed discussion cuts crosswise over intricate and dynamic perspectives, for example, lawful, moral, human rights, wellbeing, religious, financial, profound, social and social parts of the acculturated society. Here we contend this unpredictable issue from both the supporters and adversaries’ viewpoints, and furthermore endeavors to introduce the predicament of the sufferers and their parental figures. The goal is to examine the subject of willful extermination from the restorative and human rights point of view given the foundation of the current Supreme Court judgment in this specific circumstance.[4]

Controversy between Article 21 and Section 309 of the Indian Penal Code

In India, abetment of suicide and endeavor to suicide are both criminal offenses. In 1994, the sacred legitimacy of Section 309 of the Indian Penal Code was tested in the Supreme Court. The Supreme Court proclaimed that IPC Sec 309 is unlawful, under Article 21 (Right to Life) of the constitution in a milestone judgment.[5] In 1996, an intriguing instance of abetment of the commission of suicide (IPC Sec 306) came to Supreme Court. The denounced were sentenced in the trial court and later the conviction was maintained by the High Court. They engaged the Supreme Court and fought that ‘right beyond words’ incorporated into Article 21 of the Constitution and any individual abetting the commission of suicide by anybody is just aiding the authorization of the center directly under Article 21; henceforth their discipline is an infringement of Article 21. This influenced the Supreme Court to reevaluate to and to reexamine the choice of appropriate to kick the bucket. Quickly the issue alluded to a Constitution Bench of the Indian Supreme Court. The Court held that the privilege of life under Article 21 of the Constitution does exclude the privilege to die.[6]

With respect to, the Supreme Court rethought its choice on suicide. Abetment of suicide (IPC Sec 306) and endeavor to suicide (IPC Sec 309) are two offenses; henceforth Section 306 can survive free of Section 309. It has likewise plainly expressed that a man endeavors suicide in sadness, and consequently he needs assistance, instead of discipline. Accordingly, the Supreme Court has prescribed to Parliament to consider the practicality of erasing Section 309 from the Indian Penal Code.

Medical Status

The better choice is not to rebuff anybody for endeavouring suicide however the law might be permitted to stay on the statute book as the odds of manhandling of its erasure are high.”

Envision a public in which patients are routinely euthanized—regardless of whether they need their lives to end or not—if their misery can’t be eased without dulling their cognizance, wiping out their freedom, or debilitating their pride. In such a public, protectors of existing conditions may contend that the obligation to avoid enduring and outrage makes the arrangement basic. A convincing reaction would be that, while enduring, insult, and loss of freedom are unfortunate, just the individual persisting them ought to choose whether they are excruciating. On the off chance that a patient is able to choose, no one other than that patient ought to have the expert to choose whether life merits proceeding.

The exceptionally same contention, in any case, can be progressed against the present practice, pervasive in many nations, of denying individuals from looking for help to end their lives. Albeit a few people may choose that the anguish and outrage that describe their lives are not adequately terrible to make life not worth proceeding, other individuals in a similar circumstance will consider their condition horrendous. Similarly, as it is inappropriate to compel individuals to pass on, so is it wrong to constrain individuals to persist conditions that they observe to be unendurable.

The choice about whether to keep living in such conditions is among the most critical that can be made. Similarly, as individuals esteem having control over where to live, which occupation to seek after, whom to wed, and whether to have kids, so individuals esteem having control about whether to keep living when personal satisfaction decays. That is the reasons the privilege of life and the privilege to kick the bucket are not two rights, but rather two viewpoints or depictions of a similar right. The privilege of life is the privilege to choose whether one will or won’t keep living. The privilege to die is the privilege to choose whether one will die (when one could keep living). On the off chance that the privilege to life was just a privilege to choose to keep living and did not likewise incorporate a privilege to choose not to keep living, at that point, it would be an obligation to live instead of a privilege to life. The possibility that there is an obligation to keep living, paying little respect to how awful life has progressed toward becoming, is an impossible one for sure.

The privilege to die requires elucidation. It requires not be a privilege to help with consummation one’s life. Rather, it requires just add up to a privilege not to be kept from picking up help with closure one’s life. This refinement is significant. On the off chance that the privileges to kick the bucket were a privilege to positive help, at that point others would foul up on the off chance that they neglected to help. What is agonizing over such a rights guarantee is, to the point that it could force on the individuals who have moral misgivings concerning willful extermination or helped suicide an obligation regardless to help other people kick the bucket. That claim is more dubious. Along these lines, the privilege to kick the bucket requires being translated just as a privilege not to be kept from being helped by the individuals who will help. At the end of the day, the individuals who think helped suicide and willful extermination are unethical ought to not be compelled to (help) kill others. Nonetheless, they ought to also not be permitted to keep others from offering help to the individuals who have sensibly verified that their lives are not worth proceeding. No one ought to be compelled to help, nor constrained not to help.

Some may inquire as to why help is vital. On the off chance that individuals need to die, for what reason would they be able to not simply execute themselves? There are, indeed, great reasons that help might be either vital or attractive. In a few circumstances, individuals have turned out to be so feeble or incapacitated that they are truly unfit to slaughter themselves. In the event that individuals have no alternative of help, they may be compelled to murder themselves before they feel that life has turned out to be unendurable, simply because they realize that they will be unable acquire help at a later stage, once their condition crumbles. Indeed, even individuals who can murder themselves may incline toward the help of others, and particularly medicinally prepared individuals. This is because slaughtering oneself can be a chaotic, undignified, or unduly excruciating act, and a demonstration that may superfluously force on others. Tossing oneself before preparing or off an extension, for instance, can make impressive injury others, and those are grisly approaches to kick the bucket. An overdose could prompt a more noble demise, yet lay people regularly know too minimal about how dependably to end their lives that way.

Neglecting to overdose appropriately or being found before death has happened could leave a man in a vegetative condition, which is precisely what that individual may have been looking to keep away from. With the help of a minding, skilled specialist, individuals can orchestrate to die at a picked time, in protection and with pride. It is along these lines completely reasonable that individuals may favor this choice to taking their own particular lives unassisted.

Important Judicial Verdict on 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.[7]

Starting from the case of State v. Sanjay Kumar[8] the Delhi High Court criticizing section 309 of IPC as an ‘anachronism and a paradox’ and then followed by a different view of different High Courts on section 309.

In the case of Naresh Marotrao Sakhre v. Union of India[9] observed the difference between Euthanasia and suicide. Suicide being 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.

In P. Rathinam v. Union of India[10] the court giving a 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[11] and it was held that right to life does not include right to die or 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. Even just an attempt of suicide is punishable shows the credibility accorded to the sanctity of life and right to life. While decriminalizing of euthanasia if seen in Indian perspective won’t work even also on grounds of humanity as it involves a third person.

Thus, this controversy needs to be resolved.

Debates on Right to Die

It is said that it is our life and we should have the control over it. It should be to us that if the circumstances require we should have the right to terminate it. In this era of globalization and of potential technologies it is important to grant us extreme longevity.

Some recent instances of few individuals seeking assisted suicide from incurable diseases have severely raised the issue of dying as a matter of individual or state. While looking on the religious side of death many religions consider it to be a sin. Whether it be suicide or euthanasia.

We can see that in the west euthanasia is legalized in most of the countries. Doctors perform voluntary euthanasia but do doctors have the right to decide which patient’s life is valuable and who’s not?

Talking of the religious side today, it is believed that the religious arguments are valid only for religious believers. We cannot put restriction on all people. But on the other hand, it is believed that only God can take life.

It is said to make a practice of considering it a crime to make people live with who with justification does not wish to continue. When we are particularly considered to taking life some people believe it to have been a slippery slope to legalized murder but yet there is a lack of evidence to clearly prove this fact.

Right to die – Legal position in other countries

As of the records available, we know 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.

The United States Of America– We see that active euthanasia is illegal throughout the USA but in Oregon, Washington, Vermont, California and a country of Mexico assisted euthanasia is legal.

Australia In 1995, it became 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.

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 a 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 and Suggestions

Starting from the case of Maynard.[12] She had to move to Oregon in order to take the advantage of Death with Dignity law when discovered with brain cancer. This case brought us to the light of ‘nobody has the right to take away the option of dying from someone who is terminally ill.’ Does the state and not the individual has the full right of deciding the death of a person?

In P. Rathinam v. The of India and other[13] it was said that section 309 should be eradicated from the penal code as it doubly punishes the sufferer who attempts suicide. It was held to be cruel in its nature and was violative of article 21 of the Indian Constitution.

But a clear distinction was made in Naresh M Sakhre v. Union of India[14] between euthanasia and suicide.

Later in Gian Kaur v. State of Punjab[15], it was held that article 21 guarantees only Right to Life.

All the above inferences lead to the fact that any termination of life is illegal whether it be euthanasia, assisted suicide or assisted dying. Hence, while deciding this debate there should be the resolution of the conflicts between the sanctity of life and the rights of self-determination and dignity of human beings.

Law Commission of India in its 20th report[16] recommended removing section 309 IPC from the statute book. The states and union territories were requested on this recommendation and accordingly, 18 states and 4 union territories supported the deletion.

In the landmark case of Aruna R Shanbaug v. Union of India[17] the Supreme court gave a distinction between active and passive euthanasia. It held that active euthanasia being completely illegal passive euthanasia upon the circumstances of the case can be availed. Passive euthanasia is when the doctor switches to the support system or when the person is deprived of all the nutrition, foods and results in starvation. Active euthanasia is being prescribed medicines by the doctors. This is illegal because this involves the killing of a human. But when this is a painless and dignified death why is it prescribed for the passive euthanasia? Just because of active euthanasia involving killing?

If we spend money on the patient, being very well aware that this will not in any circumstances keep him alive then it is purely a waste of expenditure of the family. And knowing the high expenses incurred in medical will it not deteriorate the financial condition of the family?

Hinduism accepts the right to die for those who are tormented by terminal diseases or those who have no desire, ambition or no responsibilities remaining; and allows death through the non-violent practice of fasting to the point of starvation (Prayopavesa).Jainism has a similar practice named Santhara. Other religious views on suicide vary in their tolerance and include denial of the right as well as condemnation of the act. In the Catholic faith, suicide is considered a grave sin.

Instead of legalizing the right to die and allowing it generally it can be allowed in rarest of rare cases. It can also be allowed in appropriate cases of passive euthanasia by taking the consent of the patient or by the information and consent provided by the doctors.

REFERENCES and FOOTNOTES:

[1] P Rathinam v. Union of India (1994) SCC 394

[2] Lewy G. Assisted suicide in the US and Europe. New York: Oxford University Press, Inc; 2011.

[3] Dowbiggin I. A merciful end: The euthanasia movement in modern America. New York: Oxford University Press, Inc; 2003.

[4] Aruna Ramchandra Shanbaug vs. Union of India & Ors. Writ Petition (Criminal) no. 115 of 2009, Decided on 7 March 2011.

[5] P. Rathinam vs. Union of India, 1994(3) SCC 394

[6] Gian Kaur vs. the State of Punjab, 1996(2) SCC 648

[7] Gandhi A, Chaturvedi SK, Chandra P. Desire for death in cancer patients – an Indian Study. Presented at the International Congress of the International Psycho-Oncology Society, Copenhagen 2004

[8] State v. Sanjay Kumar, (1985) Crl. Law Journal, 93

[9] Naresh Marotrao Sakhre v. Union of India 1995 Cri L J 96 (Bom)

[10] P. Rathinam Vs Union of India and another AIR 1994 SC 1844: 1994 Cri. L. J. 1605: (1994) 3 SCC 394,

[11] Gian Kaur vs. the State of Punjab, 1996(2) SCC 648

[12] http://edition.cnn.com/2014/10/07/opinion/maynard-assisted-suicide-cancer-dignity/index.html

[13] P. Rathinam vs. Union of India, 1994(3) SCC 394

[14] Naresh Marotrao Sakhre v. Union of India 1995 Cri L J 96 (Bom)

[15] Gian Kaur vs. the State of Punjab, 1996(2) SCC 648

[16] http://lawcommissionofindia.nie.in/reports/rep196.pdf

[17] Aruna Ramchandra Shanbaug vs. Union of India & Ors. Writ Petition (Criminal) no. 115 of 2009, Decided on 7 March 2011.

Did you find this blog post helpful? Subscribe so that you never miss another post! Just complete this form…

LEAVE A REPLY