By: Jahnavi Laungani | 26-06-2017 05:48:40
The Constitution of India under Article 21 guarantees the right to every individual to live with dignity. This is as a Fundamental Right bestowed upon every Indian by the Constitution of India.
When we talk about euthanasia, the main question we are contemplating is "Does the right to live with dignity include the right to die with dignity?" or "Does the right to life give us the right to determine our own death?"
We all have a right to live with dignity, but when life becomes so unbearable as to strip one of basic bodily functions, is it fair to end that life for the sake of holding on to some basic human dignity?
What is Euthanasia?
Euthanasia is also known as assisted suicide, mercy killing or happy release or quietus. Euthanasia being a mode of taking one's own life is seen under the same legal lens as suicide.
Under criminal law in India, Section 309 of the Indian Penal Code actually classifies the act of attempted suicide as a crime punishable by law with imprisonment for a term of up to one year or a fine or both.
There is some sort of co-relation between suicide and euthanasia in the sense that both are types of voluntary ending of one's own life. While the attempt to commit suicide has been treated as a crime (unless it is proven that the person attempting to commit the act is of unsound mind), euthanasia is treated with a little more compassion by the lawmakers.
The Legal View on Euthanasia
Passive Euthanasia is Legal in India.
Passive euthanasia is a means by which a patient is "allowed" to die by a deliberate withdrawal of life sustaining treatment, in order to induce death. Basically, the practice of passive euthanasia is conducted by means of a willful neglect to sustain life. This allows the hand of nature to take its course and allow the body to achieve a final halt.
By way of passive euthanasia, it is legal for doctors to withdraw life support to patients who are in a permanent vegetative state, as per the landmark judgment in Aruna Shanbaug's case.
The law passed in the matter of Aruna Ramchandra Shanbaug v. The Union of India1, is a landmark Judgment in respect to euthanasia in India.
The Honb'le Court opined in this case that "euthanasia is one of the most perplexing issues, which the courts and legislatures all over the world are facing today."
The case in question was a writ petition filed under Article 32 of the Constitution that had been filed on behalf of the Petitioner Aruna Ramachandra Shanbaug by one Ms. Pinki Virani of Mumbai, claiming to be her next friend.
The Petitioner was a staff Nurse working in King Edward Memorial Hospital, Parel, Mumbai. On the evening of 27th November, 1973 she was attacked by a sweeper in the hospital who wrapped a dog chain around her neck and yanked her back with it in his attempt to sexually assault her. Due to strangulation, the supply of oxygen to her brain stopped and she suffered irreparable brain damage. 36 years had passed since the unfortunate incident and the Petitioner, Aruna Ramachandra Shanbaug, had since then lived in a vegetative state.
The main premise of the Petition was that Aruna Ramachandra Shanbaug was found to be in a persistent vegetative state (p.v.s.) and virtually dead having no sense of awareness, as she was brain dead. There was absolutely no chance of her recovering and the only release she had from her misery was by way of death.
The prayer of the Petitioner was that Aruna be allowed to die peacefully, i.e. by way of passive euthanasia.
The case could have easily been dismissed in keeping with the law passed in an earlier judgment in Gian Kaur v. State of Punjab2, wherein it was decided that the right to life as guaranteed under Article 21 of the Constitution does not include the right to die. However, the Court and Hon'ble Judges were struck by the unique needs of Aruna's case and re-opened issues pertaining to the question of whether the right to die is included in the right to live.
After taking all the facts and contentions into account, as put up by the Petitioner and the team of Doctors and Nurses who were caring for Aruna, the Hon'ble Court was of the view that Aruna was definitely found to be in a permanent vegetative state. The question was whether she should be denied food and nourishment in order to bring her to her death faster, i.e. death by passive euthanasia.
This judgment passed in Aruna's case is considered to be a landmark judgment as it made passive euthanasia legal India, but only under certain compelling circumstances and with the sanction of the High Court. This landmark law sought to place the power of choice in the hands of the individual, over government, medical or religious authorities for whom suffering is seen as a person's "destiny" that must be accepted and cannot be changed.
To this end, the Supreme Court specified two irreversible conditions to permit Passive Euthanasia Law in 2011, i.e.:
The brain-dead for whom the ventilator can be switched off;
Those in a Persistent Vegetative State (PVS) for whom the feed can be tapered out and pain-managing palliatives be added, according to laid-down international specifications.
The judgment further prescribed a procedure to be followed in order to avoid any misuse or abuse of the law. The Court observed that it could easily happen that people take undue advantage of such a privilege to usurp property or to abuse those people who are unable to fend for themselves.
So the Court proclaimed that when an application for euthanasia was filed, the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. Before doing so the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit. The committee of three doctors so nominated by the Bench should carefully examine the patient and also consult the record of the patient as well as taking the views of the hospital staff and submit its report to the High Court Bench. The High Court Bench shall also consult the State and close relatives like parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, and supply a copy of the report of the doctor's committee to them as soon as it is available. After hearing them, the High Court bench should give its verdict. The above procedure should be followed all over India until Parliament makes legislation on this subject.
The Latest Law on Euthanasia
On 25th February, 2014, a law was passed by a five-judge bench constituted for the purpose of providing a new set of guidelines on euthanasia. The court acted on a petition filed by an NGO named Common Cause, which argued in favour of the right to die with dignity. It was stated that the procedure set in the Shanbaug verdict did not comply with Article 21 of the Constitution, as the right to life guaranteed by the Article did not include the right to die with dignity under the supreme law of the land. Despite this, the Supreme Court of India legalised passive euthanasia under certain circumstances (as laid down a procedure for its working, as is mentioned hereinabove).
To sum it up, as on date, the law in India dictates that only passive euthanasia is legal in India and that too only under certain conditions, when the procedure prescribed by law is followed.
Euthanasia and the Rest of the World
Since euthanasia is such a controversial and subjective concept, all countries treat it differently.
Here is a list of some prominent countries and their stand on euthanasia.
Euthanasia is illegal
Euthanasia legalised as of 2002.
Voluntary active euthanasia, called "physician assisted dying", is legal in Canada for all people over the age of 18 who have a terminal illness that has progressed to the point where natural death is "reasonably foreseeable."
In 2015 euthanasia was made legal.
Euthanasia is not legal
In France although there are prospective laws in favor of euthanasia, there is still no final law in this regard.
In Ireland, it is illegal for a doctor to actively contribute to someone's death. It is not, however, illegal to remove life support and other treatment should a person (or their next of kin) request it.
In Israel causing the death of another is specifically forbidden, this includes shortening the life of another by euthanasia.
The Japanese government has no official laws on the status of euthanasia and the Supreme Court of Japan has never ruled on the matter. But euthanasia is allowed under special circumstances.
The parliament passed a bill legalizing euthanasia on 20 February 2008.
Euthanasia is illegal.
Active euthanasia is absolutely prohibited but passive euthanasia is allowed in some states.
Here passive euthanasia is legal whereas active euthanasia is not.
Euthanasia in all its forms is illegal.
It can be seen from the above information that the law on euthanasia is very split across the world. Most democratic countries that honor the freedom to live with dignity do make some provision for passive euthanasia. However, there are very few countries that have legalised active euthanasia absolutely due to the impact the abuse of such a right can have on the lives of those who are terminally ill and suffering and therefore unable to protect themselves.
1Aruna Ramchandra Shanbauf v. The Union of India, MANU/SC/0176/2011
2Gian Kaur v. State of Punjab, MANU/SC/0335/1996