Euthanasia: an act of mercy killing

admin | October 31, 2016 | Constitutional | No Comments

THIS ARTICLE WAS WRITTEN BY SAKSHI JAIN A STUDENT OF AMITY LAW SCHOOL, NOIDA (LUCKNOW CAMPUS).

Life is important to each and every citizen. But mere living a life is not of great importance. Therefore, every citizen should live their life with dignity. Mere animal existence doesn’t amount to living life with dignity (Maneka Gandhi v. Union of India[1]). Every person must enjoy the fruit of their life until he dies. A peaceful and painless death is the ultimate goal of every person. Nobody wants to die painful or unbearable death. That is they don’t want to end their life by unnatural means. But at reaching a point, sometimes due to certain problems or abnormalities, people wants to end their life. It is basically when the pain is unbearable and they are no longer able to bear that pain. When a person ends his life by his own act, it is called ‘suicide’, but to end life of a person by other though on request of the deceased person is called ‘Euthanasia’. Euthanasia is also termed as Mercy Killing. Handicapped or long time ill people have right to seek permission for euthanasia. It is a very controversial and burning issue in the society because it directly affects the morale and values of the society. It became the most debatable issue after the judgment of Aruna Ramachandra Shanbaug v. Union of India[2] where the Hon’ble Supreme Court allowed the passive euthanasia for the first time in India. Active euthanasia is illegal but passive euthanasia can be claimed under certain circumstances.

Passive Euthanasia and Voluntary Euthanasia should be legalized in India. Right to life should include Right to die with dignity.

Introduction

According to Black’s Law Dictionary (8^th Edition), Euthanasia means, “the practice of killing or bringing about the death of a person who suffers from an incurable disease or condition, especially a painful one, for reason of mercy. In general sense, euthanasia is a practice of intentionally ending a life of a person with or without their consent. Euthanasia is a good or painless or easy death. It is also known a Assisted Suicide or Mercy Killing. Euthanasia is intentionally giving up someone’s life because of the reason of painful or unbearable cause. There is a slight difference between suicide and euthanasia. In euthanasia, there is an intention to put the end to the life of one person by the other person. The other agency plays a very big role. But in suicide, the person itself puts an end to his or her own life. There is no intervention of other agency in terms of suicide. Thus, the basic intention behind euthanasia is to ensure a painless death to a person who is in any case or circumstances going to die after a long period of suffering. Long period of suffering is an essential part of euthanasia. Generally, the practice of euthanasia is done by the doctor in the name of mercy killing. The doctors play the role of ‘the other agency’ in this practice. The Bombay High Court in Maruti Shripati Dubal v. State of Maharashtra, 1987, has attempted to make a distinction between suicide and euthanasia. According to court, Suicide by its very nature is an act of self killing or termination of one’s own life by one’s act without assistance from others but euthanasia means the intervention of other human agency to end the life.[3]

Classification

Euthanasia is classified under different categories. They are:

Active or Positive
Passive or Negative
Voluntary
Involuntary
Non-voluntary

Active or Positive Euthanasia

This kind of practice involves painlessly putting individuals to death for merciful reasons, as when a doctor administer lethal dose of medication to patient.[4] The consent is not given by the patient and doctors put the life of an individual to an end mercifully. Passive euthanasia is illegal.

Passive or Negative Euthanasia

Under this practice, the sustaining machine under which the patient is laid off is held off. Doctors do not save the life of the patient because of their painful disease. Therefore, the life saving machine or device is turned off to let the person die mercifully. Passive euthanasia is partially legal under certain circumstances. Not everyone get the right to die under passive euthanasia but the court can give the permission after considering the factual circumstances of the case or the incident. The very incurable or never ending disease which causes an unbearable pain to the patient can be held valid for passive euthanasia.

Voluntary Euthanasia

It is voluntary when the practice of euthanasia is done with the consent of the patient. The consent of the patient matters for terminally put an end to his or her life. The person knows the best for themselves and when a person is giving the consent for ending its own life then it is termed as Voluntary Euthanasia. The consent given by the patient can be expressed or implied i.e. the consent can be given either by words or by the gestures or making some action towards it.

Involuntary Euthanasia

It is done without the consent of the patient. When the patient does not give the valid consent for putting an end his life, it amounts to involuntary euthanasia. It is also when a capable or competent patient is brought to his death without his free wish. Involuntary euthanasia amounts to murder under Section 300 of Indian Penal Code, 1860 and also a punishable offence under Section 304 of Indian Penal Code, 1860.

Non-Voluntary Euthanasia

Under the voluntary and involuntary conditions, the patient can and is able to make his consent either expressly or impliedly. But under non- voluntary euthanasia, patient is not able to differentiate between his good or bad. He may be incompetent to make his own choice e.g. Handicapped, insane, lunatic, idiotic, etc. Under this situation, the parents or the relatives of the patient makes the consent for putting his miserable life to an end.

Euthanasia is a very debatable issue across many countries. Some countries showed up a green light to it and made it legal but many a countries it is still illegal. Passive euthanasia should be made legal because it is better to die peacefully rather to die every day due to the unbearable pain of the disease.

Euthanasia in Indian Context

Euthanasia exists from the ancient times and every religion has its own perspective and idea for differentiation to it. According to Jain, it is the practice of doing ahimsa, i.e. non-violence. Jain are strictly against the practice of euthanasia because it causes doing harm to the person by the other person. The teaching of ahimsa is strictly prohibited under Jain culture. The same belongs with the Muslims. They have the thought that every person is the child of Allah and no one can take someone’s life who is the child of Allah. Allah has brought them to this universe and only he has the right to take his breath away. Therefore, it is not practiced in Muslim Religion.

Euthanasia is seen in different perspective. The one is in the favor of it and says, it is a good deed by releasing a person from the painful disease. Terminal of the life cycle is done in good dead of a person so that he or she can peacefully die after suffering for long bearing of incurable pain or disease. But the other is against this practice and states that, it is against the teaching of ahimsa. Doing harm to a living individual is a bad deed. Therefore, it should not be practiced.

Hence, it is clearly notified that euthanasia has different perspective.

In India, euthanasia is illegal and a punishable offence under Section 300 and Section 304 of Indian Penal Code, 1860 respectively. The exception 5 under Section 300 says that culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.[5]

Hence, exception 5 of Section 300 of I.P.C., 1860 is an exception for euthanasia. Every person has a right to life and personal liberty. Right to life enshrined under Article 21 of the Constitution of India guarantees living a life with dignity. A mere existence or animal existence is not an essential part of Article 21. Right to Life does not include Right to Die. It was held in Gian Kaur v. State of Punjab (1996)[6]. Right to die is not a fundamental right and it cannot be enforced by the law and no citizen can approach to the court for the enforcement of the right. Prior to this case, in P. Ratinam v. Union of India[7], it was held by the Supreme Court that Right to Life includes Right to die and Section 309 of I.P.C, 1860 was held unconstitutional. But it was overruled in the case of Gain Kaur. State of Punjab and the Hon’ble Supreme Court held that Right to Life does not include Right to Die and Section 309 of I.P.C, 1860 was held constitutionally valid.

Applicability of Passive Euthanasia

Aruna Ramachandra Shanbaug v. Union of India , 2011[8]

A former nurse of KEM Hospital, Mumbai passed away after spending more than 40 years in a permanent vegetative position. In 1973, the sweeper of the hospital brutally raped her. He also strangled her neck with the dog’s chain which resulted to the damage of her brain. She suffered this unbearable pain for more than 40 years. In 2009, journalist Pinky Virani , a far friend of her approached the Supreme Court , seeking permission for lawfully putting an end to Shanbaug’s life. The Hon’ble Supreme Court with the 8 judges’ bench, for the first time made passive euthanasia legal but within certain limits and circumstances.

Argument for legalizing voluntary euthanasia

Every person has its freedom of choice. Right to choose includes making comparison between good or bad or right or wrong for the person’s own life. When a person is in unbearable pain which cannot be cured off, he should have the right to terminate his life by his choice because carrying forward the life which is equal to non existence or mere an animal existence shall not prevail. Therefore, they should have their freedom of choice. Freedom of choice is directly proportional to live with dignity. Every individual have right to live with dignity. No one will choose such a life which will cause harm or pain to them. Therefore, legalizing the practice of euthanasia among the major ones will lead to painless life and also to die with dignity.

Arguments against legalizing voluntary euthanasia

Many religions are against the concept of euthanasia. India is a secular country and has to make laws which can be carried forward by each religion. Therefore, it creates barrier for not legalizing it. The voluntary euthanasia can be done only by the person who is of a competent age i.e. 18 years and more. Sometimes, doctors themselves do not prescribe the drugs which causes euthanasia because it is against their medical ethics. Hence, all these things make the voluntary euthanasia illegal in the country.

Conclusion

Right to life must include Right to die under certain circumstances because if there is dignity to live peacefully, then there should also be the dignity to die peacefully. Passive and voluntary euthanasia should be legalized in India because life as a lifeless person, it would be better to end the life by the act of the other agency. In Maneka Gandhi v. Union of India[9], the Hon’ble Supreme Court held that living life should not be a mere an animal existence but it should be to live with dignity and respect. Therefore, terminating the life to a patient with his consent or through passive euthanasia i.e. by withdrawing the support system should be legalized. According to Medi Lexicon’s Medical Dictionary, Euthanasia means “A quite, painless death”. After the judgment of Aruna Shanbaug v. Union of India[10], the Hon’ble Supreme Court had permitted passive euthanasia for the first time. Many barriers and hurdles will be met on the pathway but if once it is applicable in its true nature, then it would follow till the end. Therefore, the concept of euthanasia is emerging in India and must be adopted in the Indian context. The partial effect must be vanished and he real effect should be made into existence.

[1] 1978 AIR 597, 1978 SCR (2) 621

[2] (2011) 4 SCC 45

[3] 1987 (1) BomCR 499, (1986) 88 BOMLR 589

[4] POSITION OF EUTHANASIA IN INDIA – AN ANALYTICAL STUDY by Caesar Roy

[5] Section 300 of Indian Penal Code, 1860

[6] 1996 AIR 946, 1996 SCC (2) 648

[7] 1994 AIR 1844, 1994 SCC (3) 394

[8] (2011) 4 SCC 45

[9] 1978 AIR 597, 1978 SCR (2) 621

[10](2011) 4 SCC 45