RIGHT TO DIE IN INDIA – Lex Humanitariae

The Right to die is a notion which is based on the opinion that a human being is entitled to make any decisions about ending his or her life. Possession of this right is frequently understood to signify that a person with a terminal illness, or without the determination to continue living, should be permitted to end their own life or to reduce life-prolonging treatment. The first question that emanates is whether people should have the right to die and what may be the principle justifying such right.

Right to life is a basic natural right of humans. In India, it is indeed a fundamental right guaranteed under Article 21 in the Part-III of the Indian Constitution. Article 21 says that:

“No person shall be deprived of his life or personal liberty except according to procedure established by law”¹

This fundamental right approves an obligation on the state to make sure good quality of life, livelihood, liberty and a dignified life to the people, both citizens and otherwise.

This right has been elucidated by the Indian judiciary in several ways so as to incorporate within its scope several new rights such as the right to live with human dignity, right to livelihood, right to shelter, right to privacy, right to education, right to food and clothing, right to get pollution free air and water and some other rights which are quite crucial to enhance the condition of the life of the people, that is for the true enjoyment of the right to life.

The question that right to life can incorporate within its scope the right not to live or the right to die is one that has been debated in various cases. Death can be explained as the ending of life. Death can be classified fundamentally into two kinds – (i) natural and (ii) unnatural death. It can be caused by the action along with the inaction of a person. Causing the annihilation of a life unnaturally by the action of oneself over himself or over someone else is morally bad and also legitimately punishable. Every single living being in this planet wants to live a long life and by every possible means wants to extend the sustainability of their lives and encouraging end of that life is not the contemplated result of this right.

For a common man, when life turns more painful and unbearable than death, then it is very normal for him to wish death. This voluntary acceptance of death is known as euthanasia or mercy killing. Some people as the great saints or heroic persons embrace wilful death when they believe that they have achieved the purpose of their lives.

Analysis Of The Right To Die

When the Indian judiciary considered this subject matter, it viewed a lot of cases debating Section 309 of the Indian Penal Code that is instigation of suicide. Undertaking the above analysis, if right to die means that M has the right to commit suicide, then N will have a duty to assist him do so and that is not the right conclusion to draw.

The ambit of the right to die in India stretches to only permitting terminally ill patients or their family to choose when to withdraw life support and to let the individual die with dignity. Here, if M has the right to die with dignity when he is terminally ill, N or the state has the duty to let him use this right.

As in the case of attempting suicide, nonetheless, section 309 of IPC was lately held to be arbitrary, also the state withdrew the earlier punishment for persons who attempted suicide, the state still does not encourage suicide. The state solely refrains from prescribing it understanding that it is a matter of mental health.

Several Arguments For Legalizing Euthanasia Have Been Put Forth

(i) It is a way to end an exceptionally sorrowful and painful life. Urging to postpone the death against patient’s wills are against law, inhumane, not medically sound and wise.

(ii) The family members of the patient are alleviated of the physical, emotional, economical and mental stress on them. It also gives solace to the patient and comforts his pain.

(iii) The patients also have a right to repudiate medical treatment. If a doctor treats a patient against his will, he can be charged with assault.

(iv)Execution of euthanasia will free up the medical funds of the state to assist other poor and needy people.

(v) A person has the freedom to use his right to die. The constitution pledges the fundamental rights and freedoms where a positive right also covers a negative right. For example, freedom of speech includes freedom not to speak within it etc.

Arguments Against Legalizing Euthanasia

(i) Indian society, operated by religion, will reject the concept of euthanasia as the religious scriptures disobey it.

(ii) Commercialization of euthanasia can happen.

(iii) The poor people could utilize this in order to escape from pecuniary adversities of medication.

(iv) Old and impoverished are sometimes regarded as a burden and people can resort this to get rid of their responsibilities.

(v) Permitting euthanasia will degrade human dignity and will affront the principle of sanctity of life. It will leave sick, disabled people more endangered than the rest of the population and can also give a ‘cloak for murder’.

Legal Status Of Right To Die 

The history of the legitimacy of right to die in India begins from the case of State v. Sanjay Kumar Bhatia² where the Delhi High Court condemned section 309 of IPC as an ‘anachronism and a paradox’ and then is succeeded by diverse opinions of different High Courts on section 309 of IPC.

In the case of Naresh Maratrao Sakhre v. Union of India,³ the court noticed the difference between Euthanasia and suicide. It was discussed that suicide was an act of self-destruction, to end one’s own life without the assistance of any human agency whereas euthanasia is different as it involves the intercession of a human agency to terminate one’s life. This mercy killing is from nowhere covered in section 309 of Indian Penal code which states that;

“Attempt to commit suicide. — Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year [or with fine, or with both”⁴

In P. Rathinam v. Union of India,⁵ the court, giving relief to the niggards attempting suicide, section 309 was held to be unreasonable and deserves to be cancelled from the statute book to civilize our penal laws. It strives in doubly punishing the man who is in immense pain and would be undergoing humiliation because of failure to commit suicide.

Shortly, this was also overruled in the case of Gain Kaur v. State of Punjab⁶ and it was held that the right to life does not include the right to die or the right to be killed. It was additionally held that right to life was a natural right incorporated in Article 21, but suicide was unnatural termination of life and therefore, ‘irreconcilable and unstable’ with the concept of the right to life. The right to life includes right to live with human dignity would mean the existence of such a right till the end of natural life. Although, the court seems to accept passive euthanasia by holding that one may have the right to die with dignity as a part of the right to live with dignity.

Consequently, any form involving unnatural extinction of life has been held to be illegitimate until the case of Aruna Shanbaug and the latest case filed by the NGO common cause where the legitimacy of the matter was re-discussed and on 9th March 2018 in the case of Common Cause (A Registered Society) v. Union of India,⁷ a five-judge bench of the Supreme Court acknowledged and gave authorization to passive euthanasia and living will/ advance directive. The insinuation of this is that from now Right to Die with Dignity is a Fundamental Right.

The judgment was delivered by a Bench consisting of Chief Justice of India Dipak Misra, Justice A.K. Sikri, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Ashok Bhushan. The matter was moved to it by a three-Judge Bench, which held that the Constitution Bench in the case of Gian Kaur v. State of Punjab, had not ruled upon the legality of active or passive Euthanasia, even though the bench had ruled that Right to Live with Dignity under Article 21 of the Indian Constitution was comprehensive to the right to die with dignity.

The Three-Judge Bench then noted that the judgment decided in Aruna Shanbaug v. Union of India⁸ is based upon a false preposition that the Constitution Bench in the case of Gian Kaur v State of Punjab had upheld passive euthanasia. However, the Five-Judge Bench in the case of Common Cause (A Regd. Society) v. Union of India and Another has now unitedly held that the Two-Judge Bench in the case of Aruna Shanbaug had falsely ruled that passive euthanasia can be made legal only by legislation through a wrong interpretation of the judgment in Gian Kaur case. The Judges in that judgment have also laid down the procedure for a “Living Will” or an “Advance Directive” through which terminally ill people or those with perishing health can wish not to endure in a vegetative state with life support system if they go into a state when it will not be feasible for them to express their wishes.

Conclusion

“For those who are facing a terminal illness, who are in irremediable pain and suffering, and wish to exercise their right to die with dignity, a system should be available to them”.⁹

Dr Jack Kevorkian

The spirituality of human life does not insinuate the compelled prolongation of life in pain and suffering. Given that a person has the right to lead a dignified life, he cannot be forced to live to his destruction. If a person suffers from an incurable disease, it would be cruel to force him to live a painful life. A terminally ill person should be allowed to end his pain and suffering by choosing to do so.

In fact, these are not cases of quenching life but only of expediting the process of natural death, which has already started. The proposition purely is that the legislation must provide for an option, if the terminally ill patient so wills, having obeyed with the required conditions, to replace his slow and painful death with a fast and painless death.

Medical science in India is progressing as in the rest of the world, and hence presently we have techniques that can extend life by artificial means. This may indirectly extend terminal suffering and may also prove to be very costly for the families of the subject in question. Hence, end-of-life issues are becoming vital ethical deliberations in the modern-day medical science in India. Permitting euthanasia completely in the case of terminally ill patients is sensible.

In 2018, the landmark Supreme Court judgment has provided a major boost to pro-euthanasia activists though it is a long way to go before it becomes a law in the parliament. Furthermore, concerns for its misuse remain a considerable issue which ought to be discussed before it becomes a law in our country. The conclusive outcome of this debate lasts uncertain. It must, however, be remembered that an acrobatic argument that admits technological advances but dismisses the developing ethical issues which constitute uncomfortable and interrupting questions is unjust to the section of patients.

Suggestions

No one can run away from death. But one thing which every human deserves in his life is the Right to life as well as the Right to die with dignity. No one should be underprivileged of this right

I think this is the correct time when the Right to die with dignity should be permitted under Article 21 for terminally ill patients. Even a medical committee should be formed to discuss and determine the diseases which fall under the” Terminally ill” group. And for those diseases “right to die with dignity” through Physician-Assisted Suicide should be permitted. So, terminally ill patients can die without facing any suffering and pain.

If we consider theory of “Survival of the fittest” by Charles Darwin, then we will find that in today`s world only the rich people can live well for their existence. And those who are poor are born to survive with agony misery. But death is the final stage of life which never sees who is rich and who is poor. So, at least final stage of life should be free of suffering and pain.  

Finally, it`s high time to amend Article 21 of Constitution of India and to include Right to die with dignity.

[*] Student, B.A.L.L.B (Hons.), 2nd year, Damodaram Sanjivayya National Law University.

1. https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2021#:~:text=Constitution%20of%20India&text=Protection%20of%20life%20and%20personal%20liberty.&text=No%20person%20shall%20be%20deprived,to%20procedure%20established%20by%20law.
2. State v. Sanjay Kumar Bhatia, 1986 (10) DRJ 31
3. Naresh Maratrao Sakhre v. Union of India, 1996 (1) BomCR 92
4. https://indiankanoon.org/doc/1501595/
5. P. Rathinam v. Union of India, 1994 AIR 1844
6. Gain Kaur v. State of Punjab, 1996 AIR 946
7. [Common Cause (A Registered Society) v. Union of India, Writ Petition (Civil) No. 215 OF 2005
8. Aruna Shanbaug v. Union of India, Writ Petition (Criminal) No. 115 OF 2009
9. https://www.scribd.com/document/259625495/Euthanasia