This article is written by Nimish Mundra and Shivani Agrawal, from Institute of Law, Nirma University.

Introduction

The sentiments of various communities have always played a crucial role in deciding an essential policy for a country. Especially in a country like India, the beliefs of different religious communities as well as the morals of the people have always been influential like in cases when we talk about the triple talaq case, decriminalization of homosexuality and such important other socio-legal matters. Passive euthanasia and Santhara have been a topic which has been debated for an extended period. The acts of legalization of passive euthanasia and criminalizing Santhara, the religious practice of the Jain community, have always been in controversy. This article discusses the critical cases that led to the legalization of passive euthanasia in the country. Moreover, this article discusses the status of different nations when India was in dilemma of legalizing passive euthanasia. 

The primary objective of the article would be to explain the similarity between the two concepts and to analyze the general and legal principles attached to these concepts. Also, this article will talk about different circumstances that led to the legalization of passive euthanasia in the country and its consequences after that. This article will put forward the significance of legalizing passive euthanasia in the state and elaborate on the results of such legalization in the country. 

In today’s world, i.e., the 21st-century, one has easily seen many revolutions be it in the sector of technology, industrialization, or economic revolutions in India. Despite all these modifications in the nation, one thing which remains deeply attached to the territory of India is the cultural, social as well as religious values of the country. 

India is one such country that has witnessed and nurtured the growth of many religions and, at the same time, has seen many conflicts amongst religious groups, be it Ayodhya case or Sabrimala Temple case. But when the Rajasthan High Court ruled on the Santhara practice and criminalized it, the Jain community was primarily affected by the judgment, and as a consequence, massive protests were raised by the population all over the nation. As a result, the Apex Court reversed the ruling by ordering a stay on the Rajasthan High Court’s judgment. The Jain community has faith in the practice of Sallekhana and Santhara as their essential religious belief and believes that the practices are deeply attached to the spiritual value of Jainism. The Jain community believes that Santhara is an unearthly way of ending a person’s life. To add further, the practice of Santhara is welcoming the death of a person by attaining a sense of religious liberation and self-realization. 

Euthanasia can be referred to as the act of killing someone without giving pain to that person. The word euthanasia is originally a Greek word, which means ‘Good Death.’ The concept of euthanasia in some countries is seen as a suicide (if done by the person himself) and murder (if done by any other person). In some nations such as Singapore, the topic of Physician-Assisted Suicide (PAS) remained in the discussions for quite an extended period, while in countries such as India, active euthanasia is illegal while passive euthanasia has been declared as a lawful act. 

The concepts of Santhara and Euthanasia are different, yet they are similar in nature. These concepts have taken the face of a social issue rather than being a general issue. The two ideas mainly revolve around their fundamental ideologies. Talking about the practice of Santhara, the method has its base prescribed in the holy scriptures of the Jain community, whereas there is an interference of law in the concept of euthanasia, which makes it more general.

The path for legalizing euthanasia in India was never easy, and it had to face many ups and downs to establish itself as a lawful act. The people of the nation have always discussed these concepts. Some think that these activities are somehow similar, while some people believe that both these ideas are altogether different, and many more similar discussions still go on in the country.   

Are they different altogether

Santhara, being a practice of welcoming death, is nothing but another name for the practice of passive euthanasia. Even before the realization of the need for legalizing the passive euthanasia in India, the people of a specific community practiced it in the name of religious practice called Santhara without bearing any legal consequences. Passive euthanasia has been practiced by some people long before legalizing it in the country in the name of Santhara. Santhara has been followed for the past three hundred years in the country and is still supported by the people of the Jain community. This old spiritual practice of Santhara has been prescribed in the holy scriptures in the Jain community and is mentioned as a spiritual way to end life peacefully. Like passive euthanasia, Santhara also contains some conditions that shall be fulfilled before taking the vow. The individual can only take the pledge of Santhara if the individual is old or; the person is suffering from a terminating disease, or one wants to compensate for his bad karma by giving up on life, etc. as mentioned in holy scriptures of Jain community. Whereas, in passive euthanasia, if a medical expert believes that the person suffering from the terminal disease had reached a point of no return, then the patient should be withdrawn from the medical treatment. 

The process of following the practice of Santhara is similar to that of passive euthanasia. In passive euthanasia, the medical professors deliberately act or omit something that causes the death of the patient, whereas, in Santhara, the individual reduces and eventually gives up the intake of food and water to attain the ultimate goal of life, i.e., moksha. The only difference here is that in passive euthanasia, a second person indirectly causes the death of the patient while in Santhara, the person or the individual practicing it causes his death. 

Both the processes of ending life are slow and time-consuming in nature. In Santhara, the person gradually reduces and gives up the intake of food and water, which makes it a long and slow process. Similarly, in passive euthanasia, the medical expert by way of reducing the proper medication of the patient makes the death of the patient a slow and gradual process. 

Santhara is a step beyond the passive euthanasia. It not only refuses or denies the treatment but also stimulates the advent of death by denying sustenance. There is no real difference between the practice of Santhara and passive euthanasia since both have the same result: the end of the patient or the follower on the grounds of humanity. The act of refusing food and water is as lethal as removing the life-support system.   

Was there a need for legalising euthanasia in India

When we talk about the aspect of euthanasia, one has seen that this topic has been debated before legalizing it as well as after Passive Euthanasia was declared legal in 2018. The literal interpretation of the term ‘Euthanasia’ is the act of killing someone without giving him any pain. The 8th edition of Black’s law dictionary interpreted the word as the practice of killing a person as an act of mercy since the person has been suffering from an incurable disease for a very long time. Euthanasia generally happens with the consent of the person suffering from administering him/her drugs, which would eventually result in the death of that person’s life without inflicting any pain. The main objective of euthanasia is to confirm that the person dies a less painful death. There are various ways of euthanasia:

1. Voluntary Euthanasia: When the patient wilfully expresses his/her consent to have a peaceful death, which would somehow benefit the patient and the family members of the patient also. 
2. Involuntary Euthanasia: In this case, the patient is killed without any consent, which is merely opposed to the act of euthanasia. Involuntary Euthanasia will amount to murder and would be dealt with as per the prevailing laws and provisions.
3. Non-voluntary Euthanasia: It is the case where the life of a patient, who is unable to make decisions because of his/her mental illness, is put to an end.
4. Passive Euthanasia: This is also known as negative euthanasia; it is the situation where the treatment which was being given to a patient is stopped, which would lead to the death of the person. E.g., removal of various devices which were helping the patient to survive. It doesn’t mean that the patient is being killed by somebody. However, it means that we are preventing the person from saving his/her life.
5. Active Euthanasia: It is also known as positive euthanasia. It mainly involves putting the life of individuals to death for mercy reasons. It includes administering a lethal injection in the body of the patient. 

Before talking about the legalization of euthanasia in India, let us see what the history of India tells us about the concept of euthanasia. India is a land with a diversified culture and hence when we discuss the history of euthanasia in India, one has also to take into account the various opinions of different religions.

When we consider the Greek mythology, in the city of Sparta, those new-borns who had some bodily defect were put to death, and this was not deemed as illegal then. 

Indian mythology has also somehow stated the concept of euthanasia. In the Vedic age, there are many examples where people used to commit suicide on various religious grounds. Many Hindus believe that a doctor shall never take a patient’s life even if the patient has permitted it. Here sometimes, the concept of karma also arises, stating that by doing so, the karma of both the doctor and the patient will be damaged while some other Hindus are of a view that if someone is aiding a person to have a peaceful death, then it is not wrong. 

The concept of euthanasia has always conflicted with various religious beliefs and of different religious communities. The Hindus are of two views- (a)The first view was that a person who aids in providing a peaceful death performs a good deed and thus he also fulfills his moral obligations, (b)The other view is that if a person ends the life of the other person even if the other person is suffering, then he is interrupting with the life cycle of that person which is morally incorrect as per Hindus. Both views are contrasting in nature.

In Christianity, the followers are against euthanasia. Their belief states that God has gifted all of us our life, and so birth and death are an integral part of the life process created by God.  

The Muslims oppose the concept of euthanasia; they believe that Allah (almighty) is the one who has given life, and only he has the right to take the breath. They strongly oppose the concept of euthanasia by stating that life is sacred, and we are no one to interfere with someone’s life. 

The Sikh community does not allow the concept of suicide, and they further extend it to the prevention of euthanasia also. 

Thus, the history of India explicitly does not state that there were various instances of euthanasia, but there are many incidents in the Mahabharat and the Ramayana that have somewhere talked about the same. It is evident that none of the religious communities were in favor of legalizing euthanasia, but the Jain community who practiced Santhara as their spiritual practice shared its many aspects with euthanasia.

While India was striving to decide the legal status of euthanasia, meanwhile many nations had already agreed or had relevant provisions regarding the same. Some of the countries are discussed here:

1. The Netherlands became the first country to legalize euthanasia in 2002 by passing the ‘Termination of Life on Request and Assisted Suicide Act.’ Some reasonable restrictions were to be kept in mind as the acts for ending the life of a patient has to conform with certain conditions and has to be handled with due care. 
2. The U.S. laws differentiated active and passive euthanasia. Active euthanasia is entirely illegal in the U.S., while physician-assisted suicide was allowed in different states under different procedures like in Washington, the Washington Death with Dignity Act was the code to be followed. In contrast, in countries like Montana, the State judiciary was the authority to decide whether euthanasia can be granted or not.
3. Switzerland had an unusual perception of the concept of assisted suicide, Article 115 of the Swiss Penal Code did not criminalize suicide but assisting in suicide if done with a selfish motive was a crime. 
4. England allowed non-voluntary euthanasia in the situations where the person was in a permanent vegetative state. However, after the Airedale case, the U.K. gave the opinion that if by withdrawing the medical support from a patient’s life is in his/her best interest, then the doctors after having a full medical report shall be allowed to do the same.  

Hence, all over the world, many countries have legalized euthanasia. While in some countries, it was still illegal, and the rest of the nations were in a dilemma as to whether to legalize euthanasia or not. 

One ground, on which whether euthanasia should be practiced, was the views and opinions of the religious communities. The other aspect which should be considered is the opinions of various doctors and medical institutes. A study was conducted in the year 2008 in which questionnaire was answered by doctors of different religious communities, in which some doctors agreed that euthanasia could be a good option for the patients having motor neuron disease, while 25% of the doctors were of the view that euthanasia can be an option for the people having cancer

One more factor which stated that there was a need to legalize Euthanasia in India was the economic status of the people. In a nation like India, the majority of the people are unable to afford medical treatment, and thus it becomes nearly impossible for them to continue the treatment of their concerned person. Such a disease that leads a person to stay in a vegetative state involves enormous cost, and there is no fixed time, and thus all the financial burden has to be borne by the family members, which is not possible for all the families in India.  

Not only these grounds, but the judicial system of India also observed the following cases where the concept of euthanasia came into the scenario:

• Gian Kaur v. State of Punjab (1996)- The facts of the case are quite simple; Gian Kaur and her husband Harbans Singh demanded dowry from the deceased and wanted their son to remarry. They were accused of the offense, as mentioned under Section 306 IPC, which is the abetment of suicide of their daughter-in-law Kulwant Kaur. The Trial Court convicted both the accused for rigorous imprisonment of six years along with a fine of ₹2,000. They also approached the High Court, but the High Court also upheld the decision of the Trial Court and convicted both the accused. They filed an appeal in the Supreme Court of India against the order of the conviction. 

The appellants contended that Section 306 IPC should be held unconstitutional while referring to the case of P. Rathinam v. UOI and Anr. (1994), in which a two-judge bench decided that Section 309 IPC violated Article 21 of the Indian Constitution. The appellants also stated that ‘right to die’ is a part of the Article 21 of the Indian Constitution, if someone assists a person in enforcing his/her’ right to die’, then that person is providing aid to the person for implementing the Article 21 of the Indian Constitution. It was held in P. Rathinam’s case that Article 21 includes the element of ‘right to die.’ The five-judge bench overruled this decision in the present case. This overruling establishes the fact that ‘Right to Life’ forbids the ‘right to die’ and also the ‘right to kill’. 

In the P. Rathinam case, the bench referred to the case of M.S Dubal v. State of Maharashtra, in which it was held that since euthanasia has the involvement of a third person, it would lead to instigating the killing of another person and hence will involve Section 306 IPC. 

Thus, in this case, the Court did not have a specific opinion regarding euthanasia, even though they referred to many cases. Neither they stated that euthanasia could be adopted by legislation. In this case, the Court ordered that the ‘Right to life’ as prescribed under Article 21 of the Indian Constitution will not include ‘right to die’ or ‘right to be killed’. The Court gave the explanation that ‘Right to life’ cannot be related to ‘right to die,’ which is also inconsistent in nature.

• Aruna Ramchandra Shanbaug v. UOI-. The deceased here was a staff nurse who worked in a hospital in Mumbai. One evening, she was attacked by a sweeper from the same hospital and was tied with a dog chain around her neck, the sweeper tried to rape her, but since the deceased was menstruating, the sweeper sodomized her and also twisted the chain around her neck. The next morning, she was found lying on the floor by the cleaner and was in an unconscious condition. She was admitted, and the doctor told the fact that because of the chain tied to her neck, the oxygen was not adequately supplied to her brain, and as a result, her brain got damaged. For a time of 36 years, she was lying in the hospital bed in a persistent vegetative state. Her body was in a deplorable condition like she was unable to chew or taste any food; her brain was virtually dead and many other things.

The issue before the Court was whether euthanasia should be granted to the deceased or not? As already decided in the Gian Kaur case, ‘right to die’ is not a part of ‘Right to Life,’ the Court here laid down some essential guidelines if passive euthanasia has to be allowed in some instances, the Court stated that these guidelines or principles have to be followed strictly until the Govt passes any legislation regarding the same. These guidelines were:

1. Any petition has to be filed by considering the relevant jurisdiction of the High Court. The Chief Justice of that High Court should constitute a bench with a minimum of two judges to decide upon the matter.
2. Before giving a decision, the Court should set up a team of three reputed doctors to examine the case in which one should be a neurologist, one should be a psychiatrist, and the last should be a physician. The team or committee, formed, should carefully examine the condition of the patient and present a report to the Court.
3. A notice should be served to the close relatives of the patient regarding the same, and if there is no one, then a close friend should be informed.
4. The Court shall provide the relatives or the related people, a copy of the medical report of the patient.
5. After hearing from both parties, the Court shall decide upon the matter.
6. The decision shall be made at the earliest.
7. The Court also stated that the decision made should be in the best interests of the patient and shall not be made with an ill mind. 

The Court, in this case, provided us with a whole different perception, though the deceased was not granted euthanasia because the hospital staff demanded that the deceased shall be allowed to live as long as possible, but in many ways, opened the doors for the concept of euthanasia.

• Nikhil Soni v. Union of India and Ors- The petitioner is a practicing lawyer at the Jaipur Bench of the Rajasthan High Court and has filed a writ petition under Article 226 of the Indian Constitution. The petitioner has pleaded for directions to the UOI through Secretary, Department of Home, Secretariat, Rajasthan, Jaipur-respondent no.2, to declare the practice of Santhara or Sallekhana as unlawful and liable to punishment under the eyes of the law and that the various examples provided by the petitioner in the pleadings be enquired into and to be made accountable for necessary and suitable prosecution and abetment for the same be treated as a criminal act. According to the petitioner, Article 25 of the Indian Constitution, which talks about the right to freedom of religion, is subjected to some other provisions, which also includes Article 21 of the Constitution. As per the Fundamental rights, a person is free to choose any religion and follow it, but any practice doesn’t matter as to how much ancient and is very important for a particular religion, can’t be allowed to go against the right to life of an individual. The petitioner pleaded to the Court that such practice is not just a practice while it sometimes becomes a force upon the person who has taken the vow to Santhara, the house of that person is completely transformed into a pilgrimage place where people come to see and believe that even after the death of that person the soul lives. People from distant places come to know that person and to watch the occasion with veneration. The family members of the person who has taken the vow to Santhara show the greatness of the person as spiritual work. The petitioner gave many instances that taught the people going for the practice of Santhara. Some of the cases were where a woman’s fast lasted for twenty days; a man’s fast lasted for 212 days and many more. 

The petitioner encouraged modern-day thinking and has heavily been dependent upon the Indian Constitution and considers it to be the supreme rule of law. The petitioner wants the practice of Santhara to be declared as illegal and to criminalize the ancient religious traditions of such beliefs of the Jain community. The main stand of the writ petition is that the petitioner seeks to claim that such practice by the Jain community is an offense under Section 309 of IPC.

The Court at first founded no grounds so as the petition is maintainable or not and gave many instances and cited many other sources which contradicted the points and cases provided by the petitioner and further added that the petitioner had no end of standing to claim the petition as PIL, the Court also added that the petitioner was neither an expert nor a scholar in the Jainism and has not even conducted the primary research required about the practice of Santhara or Sallekhana. The Court, adding to the previous points, said that the petition was filed without having any particular materialistic information by the petitioner and was simply a hypothetical question. The Court dismissed the petition as there was no reason provided by the petitioner to why he has filed the petition against the Union of India or Rajasthan State, and on the face of it, the petition has violated the basic principles of natural justice. The Court, after considering the various further reasoning and instances, reversed the decision. The writ petition was allowed by the Court and ordered to stop the practice of Santhara and to declare it as suicide punishable under Section 309 of IPC, and whosoever instigates or abets the person to take and follow the vow of Santhara has to be punished under Section 306 of IPC. The case makes us remember the abolition of the Sati practice which prevailed in ancient India and how some reformers found it the need of the hour and abolished it from the culture, the same thing has happened with the Santhara practice. Since how long the Jain community was practicing it as their custom and was following it, and according to modern thinking, it was utterly wrong. The judgment of the High Court additionally holds Santhara as not a fundamental practice under the Jain religion, and along these lines, it can’t be allowed the assurance of the constitution under strict opportunity. 

After all these landmark cases, especially the Aruna Shanbaug case, the judiciary was of the view that there has to be some specific provisions or regulations so that the ambiguous status of euthanasia can be decided and the problems related to the same can be avoided in future. This confusion was cleared by the Supreme Court of India in 2018 when the Common Cause case came before them.

• Common Cause v. UOI (2018)- Common Cause, which is a registered society, had written to the ministries of law & justice, health & family welfare, and other related associations in 2002 on the issue of the right to die with dignity. The case was first presented before a 3-judge bench who referred the matter to a larger bench. In 2018, a 5-judge bench held that the right to die with dignity is a fundamental right. The Court also said that an individual’s right to perform advanced medical activities is a part of one’s integrity, and it should not depend on any legislation made by a State. 

It was not the first time that euthanasia became the part of the decision, in 2011 in the Aruna Shanbaug case, the Court had allowed euthanasia but in compliance with specific guidelines. The Court decriminalized passive euthanasia, but that too under some rigid guidelines. The Court directed that in such cases, the High Courts have to form a specialized team of doctors who will ensure that the patient demanding passive euthanasia is actually in need of it or not. 

The journey of Euthanasia in India can be seen with many crucial changes associated with the concept, various kinds of guidelines, and principles that were issued by the judicial system of the nation and many other activities which finally led to the legalization of passive Euthanasia in India. Hence, after all, considering all these factors, opinions of different communities, perceptions of the society, and landmark cases, passive euthanasia was declared legal in India.

Effects 

Even after the legalization of euthanasia in India, the topic always remained in the debates between various scholars. There were many views of different institutions. Some were in favor of the legalization, while some had contrasting opinions regarding the same.

Following are some of the effects after euthanasia was allowed in India:

1. Moral objectives: Many people were of the view that by ending some other person’s life even if he has a weak medical condition is morally incorrect. India is a country where one can easily associate the cultural and moral values, and hence this became quite the opposite opinion for legalizing euthanasia. People believe that if their friend or a family member is in a very critical condition, then also he/she should not be allowed to die as happened in the Aruna Shanbaug case. The hospital staff demanded the life of the deceased even if she was in a vegetative state for a period of 36 years. While some people supported the legalization of euthanasia by stating that if a person is in a condition that has no chances of recovery should be allowed to die, and this should be considered as providing help to that person to have a peaceful death and not as a murder.
2. Contrast view of various medical institutions: Medical facilities are a medium for providing aid to one’s life and not help in the death of a person. After the legalization of euthanasia, many medical staffs were of the view that the patient in any condition should not be left to die, any possible aid which helps the person to survive must be provided. As the Hippocratic oath of the doctors states that they would help their patients with the best of their ability and would never harm them, the legalization of euthanasia was quite the opposite of it.  
3. One view which supported the process of euthanasia was that the resources such as machines, medicines, staff, etc., which were used for the treatment of a person who had very slight chances of getting recovered, could be used by the hospital for the patients who have better chances of recovery.
4. Religious communities: As already discussed above, various religious communities were against the concept of euthanasia. The standard principle to sustain a healthy life can be established by keeping in mind all the religious communities, and that principle is that humans have no right to take another’s life. God is the creator of all of us, and thus only he decides about a person’s life or death. If a person interferes in this process of life, then it would be a moral wrong on his part. 
5. A perspective of mental health says that the suicide of a person should be prevented at any cost. By providing aid to a person to die is not an indication of a healthy mindset of people.  

Thus, we can identify the reason why the topic of euthanasia has always been in a debate in the country. However, euthanasia as a medical procedure was always associated with the moral, cultural, and legal aspects of a nation. 

Conclusion

‘Nothing lives forever.’

So is right in the case of human beings. But there arise many questions as to whether the man is the master of his death or not.

The ideologies behind the principles of euthanasia and Santhara are also equally important to discuss and make people aware of the necessary foundations of the said notions. The authors are of the view that the practice of Santhara is similar to that of passive euthanasia. There exists no real difference between the two concepts.

After taking into account all the cases, various incidents, the requirement of euthanasia by society, and all other different circumstances, the Indian legislation also declared passive euthanasia legal in India. Though the topic is still debated in the country by various scholars and medical staff, the result is that India has also become another country to legalize passive euthanasia. The journey of this principle was full of several types of views by specific communities, contrasting opinions, many landmarks cases, especially the Aruna Shanbaug case, which first discussed the concept of euthanasia in India and also provided us with specific useful guidelines regarding the same.

The legalization proved to be an evolution in the field of medical science upon which one can look at many further studies and some more useful points. A lot can be discussed whether the legalization of euthanasia is beneficial or not. However, the reality is that India accepted this huge change above all the facts that many religious communities were opposed to, whereas many people were of the opposite opinion.

Thus, by considering the existence of Santhara in India, the concept of euthanasia needed recognition and acceptance, which fulfilled by the legalization of passive euthanasia in India.

To conclude, the authors have tried to provide more clarity as well as opinions by mentioning the view-points and a small effort to make people aware of the status and relationship amongst the two aspects.

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