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.