Written By: Apoorv Agarwal
Over the years, the Indian judicial system has expressed various views with regard to the stance on Active and Passive Euthanasia. The core question that has arisen is whether the Right to Life under Article 21 of the Constitution of India also includes the Right to Die. This question arises as a right to life is present but the judicial system has not provided a right to end one’s own life. This has often be equated with an analogy that our right to liberty does not include the right or freedom to sell ourselves into slavery. And keeping this in mind, the Indian courts have witnessed several views.
The first time this issue came into consideration was in the case of Maharashtra v. Maruti Shripathi Dubal.[1]
Court: Bombay High Court
Date: 25 September, 1986
Judgement: The Bombay High Court in this case expressed that all rights have their positive and negative aspects. Keeping this in mind, the court ruled that the right to life under Article 21 of the Constitution of India also includes the right not to live a forced life. The High Court found that Section 309 was ultra vires Articles 14 and 21 of the Constitution. The court further expressed that a person wanting the right to die is not viewing life under normal circumstances and it’s not something which is unprecedented. This line of thought was backed by various religious beliefs and customs. Hence, it was ruled that there lies a right to not live a forced life.
This stance was further supported in the case of P. Rathinam & Another v. Union of India.[2]
Court: Supreme Court of India
Date: 26 April, 1994
Judgement: The petitioners had filed a suit challenging the constitutional validity of Section 309 of the Indian Penal Code. This section punishes the person who attempts to commit suicide with simple imprisonment for up to one year. The apex court drew an analogy or a similarity between Article 19 and 21 of the Constitution of India. Just like Article 19 gives a right to speak alongside a right not to speak, similarly the Supreme Court was of the view that Article 21 has a right to not live alongside a right to live. Thus the validity of Section 309 of the IPC was declared unconstitutional. The court was of an extreme view stating that Section 309 was cruel, irrational provision that needs to be effaced from statute books to humanize penal laws and as the act is not against any religion, morality and public policy with no beneficence to society the state intervention on personal liberty is uncalled for. In summary, the court expressed that the question of whether a person has a right to die is included within Article 21.
To the contrary, in Gian Kaur v. State of Punjab it was held that the “right to life” guaranteed by Article 21 of the Constitution does not include the “right to die”.[3]
Court: Supreme Court of India
Date: 21 March, 1996
Judgement:
The apex court specifically expressed that Article 21 does not guarantee the right to die and only the right to life and personal liberty. The judgement further expressed that the Right to die with dignity at the end of a person’s life must not be misunderstood with the Right to die in an unnatural manner of death. This case overrules the previous cases that declared Section 309 of the IPC unconstitutional. The court was of the view that upholding this section would further protect the interest of the wider public and prevent attempts to kill oneself and abetment for the same.
Keeping in mind all the circumstances and beliefs that the society holds, the Indian judicial system has shown several stances towards dealing with the Right to die. For a long time, the approach of calling it a right was constitutionally upheld. However, overruling all the judgements, the Gian Kaur Judgement is the most recent approach that the Indian courts follow and uphold.
Development of Indian Stance through Statutes
In India, there are several statutes and reports that have commented or decided the stance on Euthanasia. With the development of these statutes, the stance has witnessed changes at a consistent rate for the whole or a specific part dealing with Euthanasia.
Article 21 and its relevant pathways.
Article 21 of the Constitution guarantees the life and personal liberty to all persons.[4] It guarantees the right of persons to life with human dignity. Naturally, the right to life and its sanctity form an essential aspect of the right to life under Article 21. It is thereby not surprising that debate on euthanasia stems around Article 21. The apex court in the landmark judgement of Pt. Paramanad Katara vs. Union of India held that every doctor ,in a private or government hospital, has a professional and moral obligation to extend their expertise in the best interest of protecting life. [5]
It is integral to mention that the aspect of right to life has a complimentary aspect of living life with dignity. In the case of Kharak Singh vs State of Uttar Pradesh it was held that “life is a something more than mere animal existence”. [6] Thus, every citizen has the constitutional guarantee to live and not just merely exist. The opportunity to actualize one’s personal potential across the various facets thus also falls under the pathway of right to life. The operative word in the aforementioned being “opportunity”. The aspect of decency and dignity also become a relevant aspect of the right. The dilemma in the construct of active dilemma stands but to what extent and with merits can only be commented on after a comprehensive stand is taken on the same by our judiciary. As per the Chameli Singh judgement a reasonable standard of comfort and decency falls under the purview of Article 21.[7]
Indian Penal Code, 1860
This statute is the first statute talking about the Right to Die and the punishment for the same. Section 306 and 309 of this statute talks about abatement to suicide and attempt to suicide respectively. The presence of both these statutes has made an attempt to suicide and abetment for the same punishable in India and therefore restricts the Right to Die. Several would claim that under the provisions of the IPC, removal of life support systems wherein the person would eventually die would result to an act of murder as under Section 300 or an act of culpable homicide under Section 299. [8] Though it would not amount to murder due to a lack of motive which is of paramount importance and due to Exception 5 under Section 300 which gives consent for the same. And the defence of good faith can be used for escaping culpable homicide. Although this contention can be questioned as well, as the motive to gain a commission can be said to be a motive for the doctor or a medical practitioner and validity of the consent can also be put into question.[9]
Medical Treatment to Terminally Ill Patients Bill, 2006
The Law commission through this report has indicated that euthanasia and assisted suicide will continue to be an offence in the country.[10] However, the report continues to address the issue of passive euthanasia and a distinction is made from active euthanasia. If a medical practitioner retains medical treatment in the form of removing life support systems for terminally ill patients, then the act or omission can be considered as lawful. The report expresses that even in cases of passive euthanasia there are certain conditions that needs to be met to avoid misuse.[11] Conditions such as consent from the patient or competent decision from the doctors and declaration of the patient in a vegetative state or unrecoverable state are the core conditions that need to be met. In such a situation, the doctor would be exempted from being charged under Section 299, 300 or 306 of the IPC. This report however goes to state that suicide and active euthanasia should not be permitted and be declared as illegal.[12]
Indian Medical Council Act, 1956
This statute also contains a clause relating to euthanasia. Under Section 32 & 33(m) of the Act of 1956,[13] the Medical Council of India has been authorized to command and make rules about
the standards of professional conduct and etiquette and a code of ethics for medical practitioners. There has been a recent amendment in The Code of Medical Ethics for providing a new standard of professional behaviour for medical practitioners. Article 36(3) of the new code talks about euthanasia and states that it acts against the medical ethics.[14] It further expresses that no medical practitioner would intentionally cause the death of any patient, even if expressly requested by the latter. This limits the scope for doctors to commit such an act while keeping in mind the professional ethics, they are bound by. Though this code has a certain exception wherein the withdrawal of machines are made in cases where the patient is in a vegetative state. So this statue also further makes a distinction between active euthanasia and passive euthanasia and permits the latter whereas making the former not valid.
Mental Health Act, 2017
This amendment to the Mental Health Act in 2017 brought about two fundamental changes in the stance for Euthanasia and suicide. Firstly, attempting suicide is not to be punished and secondly the government should have a duty to provide care, treatment, and rehabilitation to reduce the risk of recurrence. Section 115 of the Act has clearly expressed that suicide attempters are presumed to have severe stress due to which they committed such an act.[15] This Act expresses that the ones attempting suicide are in a volatile condition and should receive care rather than deterrence. This act further expresses that these victims of suicide should be cared about and decriminalization might lead to them publicly resorting for help. The amendment to this act dilutes the entire presence of Section 309 of the IPC. Section 115 of this Act specifically mentions that any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under Section 309 of the IPC making this section completely redundant.[16]
Conclusion
In its entirety the contention laid down here gives us a strong brief idea about the depths of euthanasia and the legal framework around the same. The introduction of amended acts and latest judgements have caused a massive paradigm shift regarding the debate around Euthanasia. It is pertinent to point while the reasonable legalisation on passive euthanasia has been put in order, the same has not been extended to active euthanasia and an attempted leap towards the same seems plausible in the near future. There is a need to introduce sections in the relevant code of conducts with regards to euthanasia in order to better understand the legal framework behind the same and secondly this will also bifurcate euthanasia and the same will no be longer be read with Section 300, 304 and 306 of the IPC among other sections respectively. Right to life and death with dignity must not be seen as solitary concepts but must seen cumulatively.
Though the Indian judiciary has witnessed some development with regard to laws for Euthanasia, still the stance in India is not a very explicit law which is self explanatory. There are statutes which are contradictory such as provisions of Section 309 of the Indian Penal Code and Section 115 of the Mental Health Act. Several jurists claim that the amendment of the Mental Health Act dilutes the presence of Section 309 of the IPC. The current stance of the Indian judiciary has been through the Gian Kaur judgement however, the same cannot be said at this moment with several advancements towards the development of statutes.
[1] Maharashtra v. Maruti Shripathi Dubal, 88 BOMLR 589 (1986)
[2] P.Rathinam vs Union Of India on 26 April, SCC (3) 394 (1994)
[3] Gian Kaur v. State of Punjab, SCC (2) 648 (1996)
[4] The Constitution of India, 1950, Art. 21
[5] Pt. Paramanad Katara vs. Union of India & Ors., SCR (3) 997 (1989)
[6] Kharak Singh vs. The State of U.P. & Others, SCR (1) 332 (1964)
[7] Chameli Singh vs. The State of U.P., Supp(6) SCR 827 (1995)
[8] The Indian Penal Code, 1860, § 299 & 300
[9] Euthanasia: Murder or Not: A Comparative Approach, Veljko Turanjanin (2014)
[10] The Law Commission of India’s 196th Report on Medical Treatment to Terminally Ill Patients Bill, 2006
[11] https://www.scobserver.in/the-desk/right-to-die?slug=law-commission-report-on-euthanasia
[12] http://www.legalservicesindia.com/article/787/Euthanasia-in-India.html
[13] The Indian Medical Council Act, 1956 § 32 & 33(m)
[14] Code of Medical Ethics, 2016 § 36(3)
[15] Mental Healthcare Act, 2017 § 115
[16] https://www.thehindu.com/sci-tech/health/ipc-law-on-suicide-is-redundant-say-experts/article30397121.ece
