A Constitutional bench of the Supreme Court on 24th January 2023 modified its 2018 order in Common Cause v. Union of India And Anr, which recognized passive euthanasia. This was done to make the procedure of removal (withholding) of life support from terminally ill patients relatively less complicated for the patients, their families and the doctors by limiting the role played by government officials. But before discussing about the above development it is important to understand the ideology, philosophies, legal provisions and events that have transpired with respect to the issue of passive euthanasia.
Euthanasia is a complex ethical issue attracting opinions from a child to a senior citizen. The formulation of laws with respect to euthanasia is no ordinary task. The questions of law tussles with moral and ethical values unlike any other. Until 2011, all forms of euthanasia were considered illegal in India, irrespective of the procedure in which euthanasia would take place, purpose and motive.
The English philosopher Sir Francis Bacon coined the phrase “euthanasia” early in the 17th century. Euthanasia is derived from the Greek word “eu”, meaning “good” and “thanatos”, meaning “death,” and early on signified a “good” or “easy” death. Euthanasia is the administration of a lethal agent by another person to a patient for the purpose of relieving the patient’s intolerable and incurable suffering. The physician’s motive here is merciful and intended to end the constant suffering. Euthanasia is performed by physicians and has been further defined as “active” or “passive.”
Active and passive euthanasia
Active euthanasia refers to a physician deliberately acting in a way to end a patient’s life. Voluntary euthanasia is one form of active euthanasia which is performed at the request of the patient. Involuntary euthanasia, also known as “mercy killing,” involves taking the life of a patient who has not requested for it, with the intent of relieving his pain and suffering. In non-voluntary euthanasia, the process is carried out even though the patient is not in a position to give consent.
Passive euthanasia pertains to withholding or withdrawing treatment necessary to maintain life.
Euthanasia vs suicide
The two concepts are very closely terminally- interlinked and the dividing line between them very thin. At times it can be hard to imagine a legal system where the relatives of a patient in a vegetative state can decide to end his life while a fully competent adult is not allowed to end his own.
In India an attempt to commit suicide is a criminal offence, punishable with imprisonment of up to one year and a fine under Section 309 of the Indian Penal Code, 1860. Some have named this penal provision as unique as an unsuccessful attempt of suicide attracts punishment but if an individual succeed no punishment can exist there will be no one to punish. Those who abet suicide can be imprisoned for up to ten years and fined under Section 306 of the IPC. For a long time, this was the only safeguard against the instigation of sati in India.
In 1971 the Law Commission of India recommended that Section 309 of the IPC, a ‘harsh and unjustifiable’ provision and therefore is required to be deleted.
The Delhi High Court once observed that it was a strange paradox that in the age of votaries of euthanasia suicide was being criminally punishable.
In Maruti Dubal v. State of Maharashtra 1985, (Maruti Dabal), a police constable lost all hope with the inaction of government authorities and therefore had attempted to immolate himself outside the office of Bombay’s municipal commissioner. Criminal charges were pressed against him and he challenged Section 309 of the IPC in the Bombay High Court, saying that it violates Articles 14 and 21 of the Constitution. The court accepted the challenge and agreed that there was ‘nothing unnatural about the desire to die.” It also further said that every man is the master of his own body and has the right to deal with it as he pleases. The Court stated that a person who attempts suicide, whether due to mental disorder or physical ailment, needs treatment and care more than imprisonment. The court concluded that the constitutional right to live includes the ‘right not to live’ or the right to end one’s life. The Bombay High Court held that Section 309 was ultra vires or ‘beyond the powers’ of the Constitution and struck it down. All prosecutions instituted against the petitioner under Section309 were quashed.
The Andhra Pradesh High Court in the following year upheld the constitutionality of Section 309. Keeping in mind of hunger strikes and self-immolation threats the court found that a law punishing an attempt to commit suicide was an important tool in the current day and age. It also held that not every case under Section 309 would necessarily result in punishment or imprisonment; the section only defined the upper limits of possible punishment.
In the Supreme Court case of P Rathinam v. Union of India (Rathinam) the question of constitutional permissibility to penalize suicide arose. Hearing the writ petition, the court held that an attempt to commit suicide indicated a psychological problem rather than any criminal instinct. After weighing every possible legal and moral implication of treating a suicide attempt as a criminal offence, the court struck down Section 309 of the IPC as being void and ineffectual. The court held that Section 309 contravened the right to life under Article 21.
The above judgement did not hold for long. In Gian Kaur v. State of Punjab, a married couple appealed against their conviction for abetting suicide under Section 306. They argued that since the ‘right to die’ fell within the ambit of the right to life under Article 21 (as the Supreme Court held in Rathinam), a person who helped another commit suicide would merely be facilitating the enforcement of a fundamental right, implying that Section 306 of the IPC which penalized abetment of suicide, was also unconstitutional. The apex court rejected this argument. But it also overruled the earlier judgement in Rathinam and ruled afresh that the constitutional right to life did not include the right to die. Thus, Section 309 was once again held to be constitutionally valid and effective. In the words of the Court, “We find it difficult to construe Article 21 to include within it the “right to die” as a part of the fundamental right guaranteed therein. “Right to life” is a natural right embodied in Article 21, but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of “right to life”.
The Supreme Court thus restored the position that committing and abetting suicide were both punishable crimes. This judgement opened a window of opportunity to legalize euthanasia within the existing legal framework. The court held that though the constitutional right to life did not include the right to die but encompassed the ‘right to die with dignity’. In the cases of a terminally ill individual or in an individual in a vegetative state, it could be argued that the process of natural death had already commenced.
In the year 2000, two ‘suicide petitions’ were filed before the Kerala High Court. A retired octogenarian teacher felt that he had led a satisfactory life, having fulfilled all his duties and obligations, such as ensuring that his children were settled and happy. He had wished to ‘quit the world’. He did not want to commit suicide because he acknowledged it was against the law and distinguishable from his desire for a ‘voluntary death’. He wanted to end his life legally by donating his organs. His intention was to highlight the difference between ‘voluntary death’ and suicide, based on motives. He also suggested that ‘voluntary death clinics’ should be set up in every district of Kerala to assist others who felt the same. Inspired by this, another sixty-nine-year-old school principal made a similar plea before the high court.
The Kerala High Court rejected both petitions, stating that suicide was suicide, regardless of the motives. The court said that death of a healthy person causes a loss to society and by allowing the sought prayer it encourage the ‘right to die’ be misused in the future.
Aruna Ramachandra Shanbaug vs Union of India
Aruna Ramachandra Shanbaug vs Union of India 2011 is a landmark judgement. Here Pinki Virani a journalist moved the Supreme Court , praying it to allow a sixty-three-year-old nurse who had spent more than half her life in a vegetative state to die peacefully. Here, the court stepped in to answer a question even though it felt like ‘a ship in an uncharted sea’. The Supreme Court in March 2011 held that passive euthanasia could be given a nod in case of exceptional circumstances and under strict monitoring of the apex court.
Aruna Shanbaug was a nurse at King Edward Memorial (KEM) Hospital, Mumbai. On the evening of 27 November 1973, Aruna, was then 25, was changing her clothes in a room meant for experimental surgeries on dogs. Here a hospital sweeper assaulted her. Intending to rape her, he immobilized her by twisting a dog chain around her neck. But when he discovered that she was menstruating, he sodomized her. She was found nearly twelve hours later, unconscious.
Aruna suffered acute brain damage because the oxygen supply to her brain had been blocked for a long period of time.” She never recovered from the attack and was relegated to the status of a helpless patient for the rest of her life.
The apex court opined that such a decision regarding the death of an individual could not be solely left to the discretion of the patient’s relatives or the ‘next friend’ such as the nursing staff in this case.
The Supreme Court here distinguished between two forms of euthanasia active and passive. ‘Active euthanasia‘ denotes the use of lethal substances to end a person’s life. ‘Passive euthanasia‘ is withholding of any medical treatment (such as life-saving antibiotics) that would ensure the survival of a patient.
The difference between the two is that in case of active euthanasia the procedure that causes death would have caused the death of any person, regardless of the person’s physical condition (for instance, the use of a lethal injection). In several countries, such as Ireland, passive euthanasia is permitted whereas active euthanasia is prohibited. Active euthanasia is illegal all over the United States of America while passive euthanasia is permitted in three of its states. In Mexico, active euthanasia is illegal, but passive euthanasia is permitted in Mexico City, the central state of Aguascalientes and the state of Michoacán; the Mexican Senate has approved a law to extend the same provisions to the national level.
The Supreme Court declared that passive euthanasia as permissible (or, at least, not illegal). Using the rationale that ‘failing to save a person’ could never constitute a crime. On the other hand, it stated that active euthanasia as it involves a deliberate act by a third party usually a doctor-would be tantamount to murder since is caused by a positive ‘action rather than a to act’.
Common Cause vs. Union of India and others
In 2005, an NGO, Common Cause had approached the Supreme Court praying for a declaration that the ‘fundamental right to live with dignity’ under Article 21 of the Constitution is inclusive of the ‘right to die with dignity’ and directions for adoption of suitable procedure for executing ‘Living Wills’, in which a person, when in sound mind and good health, may record his wish that he should not be kept alive with the help of ventilators, if doctors, at any stage of his life, opine that he cannot be kept alive without life support system
On the 9th March, 2018, the Supreme Court gave this landmark verdict making the way for passive euthanasia, which is also described as Physician Assisted Suicide (PAS). The Court reiterated that the right to die with dignity is a fundamental right, as held by the constitutional bench in Gian Kaur case as mentioned earlier. It declared that an adult human being, having mental capacity, to take an informed decision, has right to refuse medical treatment including withdrawal from life saving devices. The Apex Court concluded that a person of competent mental faculty is entitled to execute an advance medical directive.
The 538 page judgment was delivered by the five-judge constitutional bench comprising the then Chief Justice of India, Mr. Justice Dipak Misra, Mr. Justice, A.K. Sikri, Mr. Justice A.M. Khanwilkar, Mr. Justice D.Y. Chandrachud and Mr. Justice Ashok Bhushan. The judgment paved the way for the terminally ill patients to seek death through the passive euthanasia under a “living will”.
A Constitutional bench of the Supreme Court on 24th January 2023 modified its 2018 order in the above case. The requirement of setting up two medical boards, one primary and other review-to examine the medical condition of the patient was retained, the apex court has done away with the earlier rule mandating that the district collector set up a review board. The court said both boards will be constituted by the hospital and there would be one nominee doctor of the district medical officer in the review board. The medical boards is required to take a decision on such cases preferably within 48 hours.
Earlier rules required the consent of the judicial magistrate for conducting passive euthanasia, the new order by the five-judge bench of justices stated that the magistrate just needs to be informed. Several other changes were made to the procedures to make the process less cumbersome. The new guidelines were issued because the earlier guidelines were proving to be unworkable.
The existing rules and regulations on recognizing passive euthanasia have evolved over several decades and has received varied spectrum of views from learned minds. It was good that the apex court has taken a relook on the subject and was dynamic on this subject. Possibilities do exist that even these new guidelines may need to be revised in future. But the principle established is of making things easier for consent-givers without increasing the risk of misuse.
- ‘10 Judgements that changed India’, Zia Mody, Sdé Shobhaa Dé BOOKS.
- Maruti Dubal v. State of Maharashtra 1985
- P Rathinam v. Union of India (Rathinam)
- Gian Kaur v. State of Punjab
- Aruna Ramachandra Shanbaug vs Union of India 2011
- Common Cause vs. Union of India and others 2018
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Article by ADITYA G S