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Wednesday 1 August 2012

Right To Die


“Death is our friend, the truest of friends. He delivers us from agony. I do not want to die of a creeping paralysis of my faculties — a defeated man.”
                                                                                                                                              
                                    -           Mahatma Gandhi 




                  


                 The debate and chaos over euthanasia is antique and has engulfed many intellectuals and luminaries in its pervasive shade. The issue however still manages to retain its controversial characteristic owing mainly to the fact that none of the debates concerning euthanasia in the past have given us any solid answer to the question “Whether euthanasia should or should not be permitted in a civilized society”? The line that divides the two groups, one which answers the above question in affirmative and the other that answers it in negative, still draws strong. Certainly one of society's traditional attitudes, expressed morally, legally, philosophically, and religiously is that human life merits special protection. In fact, some claim that human life is of absolute value. For them the taking of human life then becomes a wrong even in the case of voluntary euthanasia. And for some this perceived moral wrong should be prohibited by the full force of the law. The clash here is between protection of human life and the right to decisional autonomy, which also raises the question of the extent to which the criminal law should be used to enforce particular moral positions.

                   In the modern context euthanasia is limited to the killing of patients by doctors at the request of the patient or under a bona fide belief that further living of that patient is either painful, meaningless or both in order to free him of excruciating pain or from terminal illness. When medical advances made prolonging of the lives of dying or comatose patients possible, the term euthanasia was also applied to omission to prevent death. In its earlier form, it was used as an omnibus term to signify a painless death. In its modern context, the term is used as a deliberate euphemism to reduce the guilt of an act which is a division of murder by injecting the term mercy. Euthanasia is defined as an intentional killing by an act/omission of person whose life is felt is not to be worth living. The definition of euthanasia is simple but the concept of euthanasia proposed by adherents of the euthanasia movement is complex and has profound consequences for all.

                 The definition involves three things: intention, motive and causation.  The intention is to kill.  The motive is to eliminate suffering.  And the cause of death is human intervention, not some underlying illness.  Where one or more of these defining elements is absent, it is not really a case of euthanasia.
                     
               It is important that euthanasia is not confused with assisted suicide. The latter involves a patient’s voluntarily bringing about his or her own death with the assistance of another person, typically a physician. In this case, the act is a suicide (intentional self-inflicted death), because the patient actually causes his or her own death. Thus, while in assisted suicide the doctor makes available to the patient the means by which he can kill himself, in euthanasia the doctor himself (by act or omission) kills the patient. The issue of assisted suicide is closely related to that of euthanasia because it also involves questions of similar nature. Furthermore, some countries have preferred to legalize assisted suicide though they remain averse to permitting euthanasia.
                      

THE LAW ON EUTHANASIA

                        In India there is no specific law concerning euthanasia, though it is much desirable. The need of the same arises when a person is terminally ill and not capable of  being cured. The sufferings of an ill person need not be prolonged by forcefully keeping him alive with all the pains and sufferings. That is definitely a violation of Article 21 of the Constitution of India which provides a right to dignified life

                        In our country, euthanasia is undoubtedly illegal. Since in cases of euthanasia or mercy killing there is an intention on the part of the doctor to kill the patient, such cases would clearly fall under first clause of Section 300 of the Indian Penal Code, 1860. However, as in such cases there is the valid consent of the deceased Exception 5 to the said Section would be attracted and the doctor or mercy killer would be punishable under Section 304 for culpable homicide not amounting to murder. But it is only cases of voluntary euthanasia (where the patient consents to death) that would attract Exception 5 to Section 300. Cases of non-voluntary and involuntary euthanasia would be struck by proviso one to Section 92 of the IPC and thus be rendered illegal. Euthanasia and suicide are different, distinguishing euthanasia from suicide, Justice Lodha of the Bombay High Court in Naresh Marotrao Sakhre v. Union of India observed inter alia

“Mercy killing thus is not suicide and an attempt at mercy killing is not covered by the provisions of Section 309. The two concepts are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is effected.”

                        The law in India is also very clear on the aspect of assisted suicide. Abetment of suicide is an offence expressly punishable under Sections 305 and 306 of the IPC. Moreover, after the decision of a five judge bench of the Supreme Court in Gian Kaur v. State of Punjab it is well settled that the “right to life” guaranteed by Article 21 of the Constitution does not include the “right to die”. The Court held that Article 21 is a provision guaranteeing “protection of life and personal liberty” and by no stretch of the imagination can extinction of life be read into it.

               Another problem that arises here is that the term ‘terminally ill’ has no precise definition. While some proponents define terminal illness as any disease that curtails life even for a day. Some other laws define terminal as one from which death will occur in a relatively short time or within a span of six months. The focal point is that all these definitions show ambiguity and medical experts have acknowledged that it is virtually impossible to predict the life expectancy of a particular individual.

                In India, the sanctity of life has been placed on the highest pedestal. The right to life under Article 21 of the Indian Constitution has received the widest possible interpretation under the able hands of judiciary. This right is inalienable and is inherent in us. It cannot be and need not conferred upon us. The Indian Constitution says that the right to die is not a fundamental right under Article 21. Whether the right to die is included in Article 21 of Constitution came for consideration for the first time before the Bombay High Court in The State of Maharashtra v. M.S.Dubal . The Court held that the right to life includes the right to die. Consequently, the Court struck down Section 309 of IPC, which provides punishment for the attempt to commit suicide as unconstitutional. The Judges felt that the desire to die is not unnatural, but merely abnormal and uncommon. The Supreme Court in P.Rathinam v. Union of India upheld the Bombay High Court's decision. However, in Gian Kaur v. State of Punjab, the constitution bench of the Court overruled P. Rathinam's case  and held that right to life under Article 21 of the Indian Constitution does not include the right to die or the right to be killed. The Court held that the Right to Life is a natural right, embodied in Article 21. However, suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of Right to Life. It was held that this concept was unrelated to the Principle of Sanctity of Life or the Right to Live with Dignity.

The Court made it clear that the right to life including the right to live with human dignity would include the existence of such a right till 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. This may include the right of a dying man to die with dignity when his life is ebbing out. However, the right to die with dignity at the end of life is not to be confused with the right to die an unnatural death, curtailing the natural span of life. The Court reiterated that the arguments to support the views of permitting the termination of life in such cases (e.g. a dying man, who is terminally ill and is totally dependant on life support systems), by accelerating the process of natural death, when it was certain and imminent, was not available to interpret Article 21 to include the right to curtail the natural span of life.

RESOLVING THE DEBATE:-
                     

         It is believed that the potential of misuse of provisions allowing non-voluntary and involuntary euthanasia is far greater than that of the misuse of provisions seeking to permit voluntary euthanasia. In the present scheme of criminal law it is not possible to construe the provisions so as to include voluntary euthanasia without including non-voluntary and involuntary euthanasia. Parliament should therefore, by a special legislation legalise voluntary euthanasia while expressly prohibiting non-voluntary and involuntary euthanasia. Legalising euthanasia would not have any effect on the provisions relating to suicide and abetment thereof as euthanasia and suicide are two completely different acts. A fairly practical scheme under which the investigation procedure would begin before the death is suggested and it is only after the investigation is complete that the doctor would be allowed to let the patient die. Finally, a supervisor would issue a certificate allowing the doctor to let the patient die. Such certificate would also have to bear the signatures of the two doctors to whom the case was referred and of the legal guardian of the patient who would, after a talk with the patient, certify that the consent of the patient was not obtained by force. It is only once that such a certificate is obtained that the doctor would be allowed to let the patient die.


           It may seem to be ambitious to try legislating and enforcing such a scheme but such safeguards are necessary. These are complicated issues and would require further extensive discussion. But one should not forget that in a country like India where there is tremendous pressure on the available medical facilities, euthanasia is all the more necessary for the maximum utilisation of the limited facilities.




** This article is a compilation of various information available on the subject. Readers are requested to read more on the topic for a more detailed understanding of the issue.

32 comments:

  1. Hi Anupam

    The post reminded me of the movie Ghuzarish. Have you seen it? In my personal opinion legalizing euthanasia is not a correct option in India. Like everything else, it would be twisted and tweaked to serve individual interests rather than the actual purpose.What we need now is mercy wherever killings are taking place more than mercy killing!

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    1. Yeah I've seen Guzaarish. It was splendid.

      About your view, while I agree that there is a strong possibility of the beneficial measure being manipulated. If you carefully re read the last paragraph, the article mentions certain precautionary measures which can prevent misuse to a reasonable extent. Even otherwise, fear of misuse / abuse should not be a ground to hinder the passing of a law. It reflects very poorly on our society. Whatever the realities are, we must fight to live with dignity and independence.

      I appreciate your fear Jayashree but believe me each and every beneficial law which exists today in the law books, its drafters were aware of it's probable misuse and abuse. But they were enacted anyway. It's also true that those laws are also being abused. But at the same time we cannot ignore the good that they are doing in case of genuine persons.

      It's worth the risk.

      Thanks for reading and sharing your opinion, Jayashree.

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  2. A very controversial topic of debate. I really don't know what to think, perhaps it may be considered in cases where patients are terminally ill and are suffering badly. Then again, one must also remember that death is a huge setback for near and dear ones too. I am unable to reach a definite stand on this. Needs a lot of deliberation. Interesting and well researched post.

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    1. Obvious dilemma attached to such a sensitive issue.

      Thanks for reading Ash

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  3. Topic is just too intense to even comment about. Somebody who has not seen that side of life ,does not know the pain. But I personally does not feel it a right thing to do, I am not saying it on the ground of morality but I think that for the people, knowing that their loved one can breath could be the door to undying hopes.

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  4. Sometimes when we come through adversities we sympathize with people suffering the pain, but legalizing the euthanasia would be a no solution as it would help murderers (like Khap Panchayats) to make it happen with surreal reasons & moreover, people would take it handy to end their life. Life is all about challenges & upheavals for what we are here. We may not just escape from the situation. Hope you agree.

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    1. Yes even I hold somewhat similar view about life and death. But no matter what we say, we can never understand the pain and the agony of a terminally ill person and that of his dear ones. So yes, while I agree with your view, I'd still leave the final word for people who have or are undergoing the ordeal to say.

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  5. WHY are there limited resources in India? If there weren't limited resources, would your views change? Also, your views seem to be based on pragmatic, rather than a priori ethical or principled considerations. Do you have views on euthanasia in and of itself?

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    1. Mr. Fernandez, I'm assuming that you are an Indian citizen and therefore I'm logically thinking that being an elder with many more years of experience than me you could enlighten me as to why there are limited medical resources in India.

      Secondly, since I'm now going to express my personal opinion on euthanasia from an ethical point of view, I'm sure you'll understand whether such view is dependent on the availability of proper medical resources or not.

      Yes I have a view on euthanasia in and itself. It is as thus.

      Death is our friend, the truest of friends. He delivers us from agony. I do not want to die of a creeping paralyis of my faculties-- a defeated man. I second, these words of Gandhiji. If I'm ill beyond the point of recovery and I'm lying no more special than a pillow or a flower vase for days and days, if my relatives undergo the abject agony of sleeping every night with the baseless hope that I'll be alright and see it shattered the next day, and this continues to a point of making me a burden on anyone, if I'm unable to feel anything at all, if I undergo everyday the sheer embarrassment and humiliation of having to attend to my most private necessities under the view and aid of someone else who will probably be doing it with a sense of unconcealed disgust, if I see no point in the changing of seasons, the nature around and the taste of food, if my heart doesn't stir at the sight of beauty and my dreams die in my mind before they assume a coherent shape there, Mr. Fernandez, I'd expect people to offer me the dignity of death. I'd then embrace euthanasia as my liberator.

      I don't exactly know what a priori ethics and principles you subscribe to, but to me the highest consideration that exists is the respect for dignity of human life. And that life is by no means a mere 'vegetable existence' deprived of the fundamental joys of being alive.

      But this is my personal opinion. The article is a legal discussion, devoid of my personal opinion. Since the law of our land prohibits euthanasia, I didn't see the point in expressing my opinion in the first place.Rather I searched for a viable middle path which I have compiled and stated in the last paragraph.

      Thanks for reading Mr. Fernandez

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  7. Sensitive. Not really sure which way I would go :(

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  8. A great post Anupam! Very well written indeed! Thank you for providing a nice read!!

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  9. great post anupam ,quite a sensitive topic

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  10. I support Euthanasia. There are people who are brain dead and are kept alive. There are some others who are afflicted with debilitating diseases and have neither the ability nor resources to fight to get well. One should have the right to die rather than see onself decay into an undignified mess.

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    1. I think the same, Sabyasachi. Thanks for reading.

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  11. If I understand you correctly 1. Assisted suicide is where the concerned person commits suicide with the means of suicide being provided by a third party. 2. Voluntary euthanasia is when the concerned person is killed, either by acts of omission or commission, by a third party but where he has clearly expressed his consent to be so killed 3. Involuntary euthanasia is when the concerned person is unable to indicate his intent and both the decision to kill as well as the carrying out of that intent is done by third parties.

    The very fact that the issue is debatable means that there are valid arguments for both sides of the issue. In both assisted suicide and voluntary euthanasia, the main issues for me are (a)whether that intent was a minor brainstorm and, given time, the person may have changed his mind and (b) whether the intent was expressed by the person under undue influence, maybe by parties who are pecuniarily or otherwise benefited by his death. With adequate safeguards in place to ensure that neither is a reason, I see no reason why these should not be allowed. It is all fine that we think that people ought to live whatever their circumstances and courts adhere to the law promulgated by legislators. This idea of suicide being a crime stems from the Christian ideology of suicide being a sin. I see this as intrusive behavior on the part of Society. Any restriction of individual choices, where the individual choice affects no one but him directly, is a violation of individual liberty and if the law intrudes into personal space it is the law that needs to be changed - with the necessary safeguards as mentioned earlier.

    Involuntary Euthanasia is a different cup of tea altogether. If it is not possible to ascertain the wishes of the concerned person, it is a difficult ask to accept that taking his life would be what she wanted had she been able to express a desire. The pros and cons of that can be debated endlessly.

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    1. Yes you're right in your understanding of the three modes of euthanasia. Without the two major concerns that you've expressed regarding execution of voluntary euthanasia, it could be a liberating choice. In case of involuntary euthanasis, it's all the more complex, since no one will want to take a risk by ending the patient's life without his consent. But unfortunately, more than voluntary euthanasia, it's involuntary one which needs a very detailed and careful analysis. Since that's when the real challenge arises, when nothing functions in him except a beating heart, yet no steps can be taken without his consent.

      I agree that the topic is moot than anything ever.

      Thanks for reading Suresh ji.

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  13. A very well researched article ...keep writing :)

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  14. Interesting - this topic has always fascinated me. As a person who has seen (and heard of) older people suffer terrible pain and indignities, my immediate reaction is the obvious - euthanasia MUST be a legal option. But the other side is equally true - a legalized 'euthanasia' option can be a powerful tool in the hands of the unscrupulous. The possibilities mentioned in the last section are interesting, but would the checks and balances mentioned be enough to stop those who really go systematically about misusing the system to project involuntary euthanasia as voluntary? I doubt it...

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    1. Yeah that apprehension and probability will always be there. But the point is that since the fear of being unscrupulously manipulated has never stopped a law from being made, this law should also not be prevented because of such fears.

      Thanks for reading Suchi and sharing your valuable opinions.

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  15. I would politely disagree with you. Is there a Doctor who can say with 100% confidence that a particular person is a fit enough case for mercy killing ? I doubt. Can't place it, logically you are right, but deep inside, the heart is just unable to accept it.

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    1. I understand your point of view and respect it. Thanks for reading.

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  16. good information Anupam. However, on a different note i have a question. What is the legal right for a human being to demand for suicide? Couple of months back i saw a case of a girl who pleaded to supreme court to allow her to commit suicide..

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    1. Thank You for reading Varsha.

      As per Indian law, attempt to commit suicide is punishable. Hence one cannot demand as a matter of right permission to commit suicide. What I believe, is that she must be asking for mercy killing. A permission to be removed from life support system, so that she dies.

      That cannot happen as long as the Parliament does not pass a necessary law permitting mercy killing.

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