The Right to choose Death: Is India ready for Euthanasia?

This article was written by Sougato Ghosh, a student of KIIT University, Bhubaneswar.

Life is a gift of God and the first and foremost duty of a well-being state is to make all attempts to provide a better life to their people. Right to life is a right which is assured as a universal right by the Indian Constitution under Article 21 which states that “no person shall be deprived of his life or personal liberty except according to the procedure established by the law”.[1] In India, there is no legislation regarding euthanasia in India. The Supreme Court of India has widened the scope of ‘Right to life’ which includes it is the obligation on the part of the State to preserve and protect the life of the people.

Mercy-killing or euthanasia is the most controversial and sensitive issue in today’s century.The term ‘Euthanasia’ has been derived from two ancient Greek terms- ‘eu’ and ‘thanos’ which means “Good Death”.[2] Literally, it is the practice of deliberately ending a life from pain and suffering. The main object of euthanasia is to ensure a less suffer and painful death, one has undergone a long period of suffering. A controversy which is continuing raises the question that whether right to end one’s life suffering from great pain, ought to be considered as a murder or on the other hand, people say that life belongs to oneself and thus, one must have a right to choose what he wants to do with it.It has been categorized in different ways-

• Voluntary Euthanasia
• Non- voluntary Euthanasia
• Involuntary Euthanasia

There are 2 (two) methods of euthanasia which has been categorized-

• Passive– It involves withholding all medication and treatment.
• Active– It involves use of lethal substances.

Classification of Euthanasia

There is a controversy whether or not the non-voluntary (and by extension, involuntary) killing of patients can be regarded as euthanasia, irrespective of intent or the patient’s circumstances.

• Voluntary Euthanasia-

This type of euthanasia is conducted with the consent of the plaintiff. Voluntary euthanasia is legal in some countries.Active voluntary euthanasia is legal in Belgium, Luxembourg and the Netherlands whereas that of passive voluntary euthanasia is legal throughout the U.S.When the patient brings about his or her own death with the assistance of a physician, the term ‘assisted suicide’ is often used instead. Assisted suicide is legal in Switzerland and the U.S. states of California, Oregon, Washington, Montana and Vermont.

• Non-Voluntary Euthanasia-

This type of euthanasia is conducted when the consent of the patient is not available. Generally, this euthanasia is illegal in all countries. For example, child euthanasia, which is illegal worldwide but decriminalised under certain specific circumstances in the Netherlands.[3]

• Involuntary Euthanasia-

This type of euthanasia is conducted without asking the consent of the patient or against the will of the patient. It is also illegal in all countries and it is generally considered as a murder.

Voluntary, Non- Voluntary and Involuntary Euthanasia are further categorized into passive and active euthanasia.

Euthanasia and Homicide

The concept of euthanasia totally differs from homicide and suicide. Under the Indian Penal Code(1872), Section 309 of the Indian Penal Code (1872)states that “Whoever attempts to commit suicide and does any act towards commission of such offence shall be punished with simple imprisonment of a term which may extend to one year”and one, who is guilty of abetment to suicide is also punishable under section 306 of the Indian Penal Code, 1872.[4] A person can commit suicide for any of the reasons like depression, mental disorder, failure in life, mentally and emotionally distressed, etc. but in euthanasia, these are not the reasons. Euthanasia literally means putting an end to a person’s painful life suffering from diseases. It also differs from homicide. In India, if there is a consent of the patient to kill him, it leads to culpable homicide not amounting to murder under section 300 exception 5 of the Indian Penal Code (1872). If there is no consent, it leads to culpable homicide under section 299 of the Indian Penal Code (1872). With regard to murder, the murderer has an intention to cause harm or death in his mind. But in reference to euthanasia, there is an intention to cause death but it is bona fide.

Euthanasia and its positions in India

There is no law allowing to someone to kill. However, the Supreme Court of India has allowed passive euthanasia. Generally, active euthanasia is illegal in India and mostly in all other countries. Previously, euthanasia was illegal in India but in the case of Aruna Shaunbaug versus Union of India &Ors.,[5] which raised the controversy in India between right to life and right to die. There is a debate which raises the question whether the “right to live” includes a “right to die”. This had its holding initially in the year 1987. In the case of State of Maharashtra versus Maruti Shripati Dubal,[6] here the High Court of Bombay stated that, “Everyone should have the freedom to dispose of his life as and when he desires”. And this decision was over-ruled in the case of P. Rathinam versus Union of India,[7] here in this case, the Supreme Court of India directed that, “A person cannot be forced to enjoy life to his detriment, disadvantage or disliking”. Supreme Court of India, on the other hand, did not consider the plea that euthanasia must be legalized, this is because, a 3rd person is involved here; about whom it can be believed that he helps or abets for the death of another.Article 21 has become one of the most controversial topics in the Indian Constitutional history. The Indian Supreme Court replicated section 309 of the Indian Penal Code (1872) in the case of P. Rathinam versus Union of India but the decision was overruled by a constitutional bench in the case of Gian Kaur versus State of Punjab,[8] where the accused were held responsible for abetting suicide of their daughter-in-law. Here, the Supreme Court of India held that “The ‘right to life’ under Article 21 of the Constitution of India does not include the ‘right to die’ or ‘right to be killed’… the right to life would mean the existence of such a right up to the end of natural life. This also includes the right to a dignified life up to the point of death including a dignified procedure of death”. The case differentiated between right to life and right to die with dignity.

Conclusion

Does Article 21 of the Constitution of India assure a right to life or a burden of life? If it is Right to life, there is another question which is to be asked, Can a right be enjoyed or forced upon? The best interest of the patient is to be seen or that of the state? Quality of life is important as undoubtedly, Right to life is one of the most fundamental of all the rights. Whereas, on the other hand, if voluntary euthanasia is made legal in India, then it would lead to involuntary euthanasia. Society, which is full of greed and corruption, each and everything is possible. It is impossible to legalize euthanasia in India without an effective monitoring system to curb unwanted tendencies. Right to die is not a right and is a penal offence under the Indian Penal Code (1872).

[1] M.P. Jain, Indian Constitutional Law 1079, (5^thedn., 2008).

[2] Beauchamp & L. Tom.

[3] The Voluntary Euthanasia Society News, Holland Legalizes Voluntary Euthanasia, http://www.ves.org.uk/cgi-bin/

[4] Ibid.

[5] 2011 (4) SCC 454

[6] 1996 Cr LJ 4457(SC)

[7] 1994 SCC (3) 394

[8] AIR 1996 SC 1257