POSITION OF EUTHANASIA IN INDIA: JUDICIAL AND LEGAL PERSPECTIVE

This article was written by Santosh Sharma, a student of Banasthali Vidyapith, Rajasthan.

INTRODUCTION

Each civilized nation encompasses a bunch of ethical or moral, social, religious and legal principles which govern the people of that country. These principles considered as pious and hallmark for the inner conscience of human being. One principle among that is principle of faith in human life for which deep recognition and respect is emblem of every advanced nation. Due to this principle putting to end of life is considered as wrong. But this principle is not a absolute principle .It is a desire of every human being to live cherished and quality life but due to some incurable illness and diseases sometimes they have a wish to end their life. When an individual end his/her life by his own act it considered as ‘suicide’ and punishable under IPC whereas when life of a person is ended by some other person on the request of that person known as ‘euthanasia’. As everyone have Right of autonomy and self determination which encompasses in itself the right of dignity. So the issue of euthanasia is a clash between the principle of faith in human life and principle of autonomy and self determination. Euthanasia is debatable issue and is required more concern by legislature and by judiciary by considering all aspect of lives.

CONCEPT OF ETHUANASIA AND ITS TYPES

The word euthanasia has been derived from Greek words ‘eu’ and ‘thanatos’ which means ‘easy death’ or ‘good death’. Simply, Euthanasia means ‘painless killing of a person who is suffering from incurable diseases or in irreversible coma. It is also called as ‘mercy killing’. “Euthanasia means the act or practice of killing or bringing about the death of a person who suffers from an incurable disease or condition especially a painful one, for reasons of mercy”[1]The main purpose of euthanasia to ensure a painless death to a person who is suffering from incurable disease since long time. There are five types of euthanasia which are following:

1) Active Euthanasia

2) Passive Euthanasia

3) Voluntary Euthanasia

4) Involuntary euthanasia

5) Non Voluntary euthanasia

1) Active Euthanasia: when a doctor gives a lethal dose or injection to a patient who are suffering from irreversible stage of life with an object to give him/her painless death ,it is known as Active Euthanasia.

2) Passive Euthanasia: when a patient who is on vegetative stage surviving with the help of life support system and if a doctors stop or off that support system then, it is known as ’Passive Euthanasia’. In this doctors are not actively killing that person but they withdrawing that support system with whose help the patient is surviving.

3) Voluntary Euthanasia: End of life of a person who is terminally ill with the consent of that person .He /she express their desire by exercising his/her choice to die for their best interest and others also, known as voluntary euthanasia.

4) Involuntary euthanasia: Death of a competent patient without his expressed desire or consent, known as involuntary euthanasia. It is also against the purpose of euthanasia and considered as ‘murder’.

5) Non Voluntary euthanasia: death of person who is not competent to make consent. Here, the patient did not left any living will as he/she may not have time for doing so and not guessed the misfortune. In this death is caused with the consent of family members of patient.

HISTORICAL PERSPECTIVE OF EUTHANASIA IN INDIA:

The concept of euthanasia is not evolved in present time is but exist in ancient time also. In Ancient time the Rome and Greece was helping a person to end their life which is allowable in certain circumstances. In many pious books such as ‘bible’, Rig Veda’ and ‘Quran’  concept of suicide or self destruction  is given. Some examples of religious suicides also depicts in ’Mahabharata ‘and ‘Ramayana’. There are two views of Hindus regarding euthanasia. Some Hindus considered is as wrong as it is against the Karma of patient as well as doctors. Some says that it is a good deed to end a painful life. While writing commentaries on Manu, Kulluka and Govardana ,observed that a man may undertake the ‘mahaprastha’ on a journey which ends in death when he is incurably diseased or meets with a great misfortune ,and that, it is not opposed to Vedic  rules which forbids suicide.[2]Majority of Muslims completely opposed to Euthanasia because they considered life is a gift from Allah and destruction of life is disrespect towards god. Christians also against the euthanasia .According to them life is created by their god. Therefore no human beings have authority to interfere in this.

LEGISLATIVE STEPS TOWARDS LEGALISING EUTHANASIA:

The first legislative steps towards the Legalizing euthanasia was taken by Maharashtra legislature by moving a private bill in upper house in the year 1985.The bill consists the provisions regarding to providing legal protection to all doctors by way of immunity from criminal and civil liability if they removes and stop the artificial life by withdrawing the life support system with the consent of patient. This bill also contains the provision to providing legal protection to patient who makes such decisions. The said bill also mentioned about ‘advanced directives; if the patient become incompetent to express his desire to die later on. [3]In 2007, A bill was brought up by C.K. Chandra pan(MP) IN Lok Sabha named as “The Euthanasia(Permission and Regulation) Bill,2007”  to provide painless end of life of patient who is completely bed ridden and suffering from a diseases which cannot be cured till his whole life.[4]

LEGAL PERSPECTIVE OF EUTHANASIA IN INDIA

In Indian context Euthanasia is hot debatable issue Since active euthanasia is not allowed in India .As ‘mercy killing’ is considered as intentionally killing by a doctors which comes under the purview of clause first of section 300 of Indian Penal Code, 1860.But if the patients gives a valid consent then it will attracts the exception 5 of abovementioned section and the doctors will punishable under section 304 of I.P.C. ‘culpable homicide not amounting to murder’. In India ‘Right to life’ under Article 21 [5] does not includes right to die within  its purview and it is punishable under section 309 of Indian Penal Code, 1860.In Gian Kaur Vs. State Of Punjab [6]The Constitutional validity of Section 309 of I.PC. Was challenged by stating that Art. 21 ‘Right to Life’ also includes right to die. But The Constitutional Bench of Five Judges Held that “Right to life which includes life with dignity which means existence of life till the natural end of life and upheld the constitutional validity of section 309 of I.P.C.”.

JUDICIAL TRENDS REGARDING EUTHANASIA:

Deep analysis of euthanasia was made by judiciary in the Aruna Ramchandra  Shanbaug vs. Union Of India [7]popularly known as Aruna Shanbaug   case .In this all conflicting aspects of euthanasia has been discussed by Apex Court  and their possible solutions provided through judgment. The Brief Facts of the case is following:

Aruna Shanbaug was working as a nurse in Edward Memorial Hospital, Mumbai. This incident happened on the evening of 27^th November, 1973 when she was attacked by a sweeper of hospital by wrapping a dog chain around her neck .He attempted to rape of her but found her menstruating, sodomized her. On Next day her body was found lying on floor and blood is all around on the floor. Due to that dog chain the supply of oxygen was stopped and her brain got damaged. Since 1973 she continue is in Persistent Vegetative state .The writ petition Under Article 32 filed by Ms. Pinki Virani, claiming herself to be the next friend of Aruna Shanbaug by stating that Aruna Shanbaug is in persistent vegetative state for about 32-33 years y and there is no possibility of improvement so the mercy petition should be allowed.[8]

The Supreme opened a gateway for legalizing the passive euthanasia by allowing passive euthanasia in certain exceptional situations and provides guidelines regarding it which are following:

• The decision regarding discontinue of life support system should be taken by parents ,spouse or close relatives and in their absence of them it can be taken by the next friend .In the absence of next friend it can be taken by a doctor who is treating that patient.
• The Decision of discontinue of life support system should be made bona fide and in best interest of that patient.
• If decision is taken by the close relatives, next friend and doctors the approval should be taken from high court under Article 226 which empowers high court to issue directions and order.

In this case The Apex Court Passed a order of appointment of medical committee of three doctors to examine her and submit a report before the court.[9]They examine her and found that she become longest survival in this situation.

In 2018 again the Supreme Court In the Landmark case Common Cause (A regd.  Society) vs. Union of India[10] allowed the passive euthanasia and also held that ‘living will’ is legally valid. The Apex Court held that:

“The right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity. With the passage of time, this Court has expanded the spectrum of Article 21 to include within it the right to live with dignity as component of right to life and liberty”.[11]

The Court also allowed the concept of ‘living will’ by stating that:

“A failure to legally recognize advance medical directives may amount to non facilitation of right to smoothen the dying process and right to live with dignity .Further, a study of the position in other jurisdictions shows that advanced directives have gained a lawful recognition in several jurisdiction by way of legislation and in certain countries through judicial pronouncements “.[12]

Concept of living will:

Living will is the written document in which person gives  express instructions in the form of advance directives for the administration of treatment when he/she will terminally ill and will not able to give express consent. It also allows family members to stop the support system if medical board declares that they are beyond medical help.

CONCLUSION

This two landmark judgments give right direction to euthanasia as it recognizes ‘right to die with dignity ‘under the purview of Art. 21 of Constitution of India .Now there is time to take further steps by allowing the active euthanasia in exceptional circumstances whenever requires with adequate measures. The Supreme Court should also examine the controversial view regarding the active euthanasia and provide guidelines regarding the same.

[1] Black’s Law Dictionary (8^th Ed.).

[2] F. Maxmuller, Laws of Manu, Translated by George Buhler, (1967 reprint). Vol. 25, Page 206.

[3] Supryo Routh, “Right to Euthanasia: A case against criminalization”, Criminal Law Journal, Vol.112, 2006, p-196.

[4] Dr. Sarabjit Taneja, “Should Euthanasia be legalized?” Journal of Constitutional and Parliamentary Studies, p.-57.

[5] Art.21: Right to life and Personal Liberty, Constitution of India.

[6] AIR 1996 SC 946.

[7] (2011) 4 SCC 454.

[8] Tanya Sarkar,”Aruna Shanbaug Vs. UOI: Case Comment”, International Journal Of Legal Insight, Vol.1, P.-167.

[9] http://supremecourtofindia.nic.in/outtoday/wr1152009.pdf.

The team of doctors consisted of:

a)Dr. J.V. Divatia, Professor and Head of Department of Anesthesia, Critical Care Pain at Tata Memorial Hospital, Mumbai.

1. b) ; Dr. Roop Gursahani, Consultant Neurologist at P.D.Hinduja, Mumbai.
2. c) Dr. Nilesh Shah, Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hosp

[10] Decided on 9^th March, 2018.

[11] Retrieved from https://www.livelaw.in/breaking-right-die-dignity-fundamental-right-sc-allows-passive-euthanasia-living-will-issues-guidelines/ visited on 16.10.2018.

[12] Ibid.