Author: Nikhilesh Koundinya Symbiosis Law School, Pune.
INTRODUCTION
Every human being has a right to live a desirous and healthy happy life until he dies. This is a fundamental right that is even guaranteed by the Constitution in Article 21. But sometimes the person may not want to live the years granted to him/her and would want to end his/her life voluntarily. This way of ending life is considered to be unnatural and the person committing the act is termed as someone who has a mental problem or abnormality. There are two ways in which a person can end his/her life. The first way is by killing oneself by committing acts which will lead to death eventually. There are many ways such as shooting yourself, hanging yourself or consuming substances which may cause death. This action of a person is predominantly categorised as “suicide”.
But there is another way by which a person can end his life which is requesting someone else to take his life. This under the law is categorised as “Euthanasia” or in layman’s term as “mercy killing”. The context of how India and other countries have dealt with this phenomenon will be addressed later in the paper but first, we must observe the origin of this practice.
The term euthanasia was derived from the Greek word “eu” and “Thanatos” which means “good death” or “easy death”. Euthanasia or mercy killing is an act of painlessly putting the life of someone who is suffering from extreme pain and incurable disease to end by withholding treatment or withdrawing artificial life support measures. Euthanasia was first legalized in Holland, Netherlands in the year 2008.
According to the Black’s Law Dictionary (8th edition), euthanasia means the act or practise of killing or bringing about the death of a person who suffers from an incurable disease or condition, esp. a painful one, for reasons of mercy.[1]
The understanding of the definition provides us with the rationale of committing the act of euthanasia. The practice is limited to doctors taking their patient’s life when requested to avoid the irresistible pain and terminal illness. Therefore, the rationale is that a patient can be killed today rather than experiencing on-going pain for years to come.
TYPES OF EUTHANASIA
Active or Positive– In this kind of practice the person directs somebody else to take his life. This is essentially the patient making a request to be dead. Since the patient who is suffering makes the request for death from the doctor, it is thus, considered as active euthanasia.
Passive or Negative- Passive euthanasia as a practice differs from active euthanasia as this process is affected by the omission of a person to do something, so the doctor may not administer certain medicines or remove the support which will lead to the person’s death. Hence, in this practice, the result of death is not promulgated by the patient but due to the intentional omission on part of the doctor or any other person.
Voluntary– The most important term under this ambit would refer to the willingness to die and consenting to die. This means that a person who is conscious and makes a decision that he wants to be killed be will be classified as active euthanasia.
Involuntary– This kind of euthanasia may also amount to an offence under criminal law. If a doctor without taking consent of a fully conscious patient kills him, it would classify as murder. But the offence would represent the concept of involuntary euthanasia.
Non-voluntary– If a patient is fully incapacitated, under a lot of pain and is not conscious enough to express his wish then a close family member can make the call to relieve that person from the pain and provide for euthanasia. This is classified as passive euthanasia as even in this case the doctors may remove the life support which would lead the person to die.
There are various ways for performing the practice of euthanasia and the most popular ones are: –
Lethal Injection– Injection of a lethal dose of a drug, such as a known poison, KCl, etc.
Asphyxiation– The most popular gas used is Carbon monoxide (CO). Nerve gases like sarin & tabun etc. are also added in small amounts to fully ensure death.
EUTHANASIA IN INDIA
The practice of euthanasia was not recognised for a long time in the Indian scenario. But then “Aruna Shanbuag v Union of India”[2] a landmark judgement of the Supreme Court came. The facts of the case are as follows:
Aruna Shanbuag was a nurse in King Edward Memorial Hospital located in Mumbai in the Parel area. On 27th November 1973 when she was changing clothes in the basement a sweeper named Sohanlal tried to molest and sexually assault her but when he failed to do so he strangled her with a chain and sodomized.
The perpetrator was later tracked and was sentenced to jail but the case of rape was never filed due to the lack of police investigation. Thus, the mention of sexual assault and anal rape was not presented in the court.
When the incident took place, the court observed that due to the strangling of the neck with a metallic chain the oxygen to the body could not pass and thus she was left in a vegetative state ever since. After the incident, she was admitted to KEM hospital for treatment and was kept alive using a feeding tube.
Pinky Virani who was a social activist wanted to help her and thus instituted a case in the Supreme Court to end Aruna’s life because she was in a vegetative state and this violated her fundamental right to live a life with dignity. The court rejected the petition as the court realised that the doctors and the staff working with Aruna did not want to take her life. Thus, the court while rejecting the petition allowed the practice of passive euthanasia in India.
Aruna died of pneumonia in 2015 being in a coma and vegetative state for the past 42 years.
The judgement was considered to be against the fundamental right under Article 21 which is the right to life and thus in a case in 2014 the court directed the decision of passive euthanasia to be reheard under a constitution bench.
The government in the same year on 23rd December 2014 stated that it agrees with the decision of the Supreme Court with regards to passive euthanasia and because the guidelines have already been issued by the Supreme Court they would be followed.[3]
LEGAL ASPECTS OF EUTHANASIA IN INDIA
Euthanasia has not been completely legalized in the Indian subcontinent. Only the concept of passive euthanasia has found support from the court and from the lawmakers. There have been various decisions passed in relation to euthanasia under Indian law:
State of Maharashtra v Maruty Shripati Dubal[4]– In this case, the main contention raised was the fact that Section 309 of the Indian Penal Code (IPC) violates Articles 19 and 21 of the Constitution. The court held that this section should be scrapped and there is nothing illegal in trying to end one’s life. In fact, when Article 21 of the constitution gives a right to live, it must also give a right to die. The court held that though it is abnormal to end one’s life yet it is not illegal to do it.
Gian Kaur v State of Punjab[5]– In this case, the court held that a person who is terminally ill or is in a constant vegetative state, could not be killed and nobody is infringing on his right to life whereas we are only accelerating the process of death so that the person does not undergo untoward pain.
In the case of Airedale NHS Trust v Bland[6] for the first time right to die was allowed in the English law system where life support services were cut out for the patient. This was a landmark case because it gave powers to the judiciary to decide what to do and when to allow passive euthanasia after judging and coming to a conclusion on the patient’s state.
In the case of Mckay v Bergsted[7] the court for the patient and the state’s interest removed the breathing system from the patient’s mouth. Thus, even in this case, the patient’s interest was taken into consideration.
GUIDELINES REGARDING EUTHANASIA
After the Aruna Shanbuag case there were several guidelines issued by the Supreme Court in relation to what steps are to be followed to conduct the procedure of passive euthanasia:
First of all, for the process of euthanasia to be administered the High Court must allow the practice only after observing that due procedure has been followed.
Whenever a petition is raised for the grant of passive euthanasia for a person who is terminally ill or in a vegetative state the Chief Justice of the High Court will appoint two judges to loom into the matter presented before the court and then make a decision on whether to approve or reject the petition.
Before arriving at the decision, the two-judge bench must consult with at least three doctors to know the exact repercussions of their decision and also the patient’s present state and the hope for recovery. In the meantime, a letter will also be issued to the close relatives of the patient and a copy of the doctor’s report will be made available to them as soon as the report is completed. On the basis of all this, the High Court will make a decision regarding the person’s request.
LAW COMMISSION OF INDIA AND ITS RECOMMENDATIONS
The Law Commission of India had recommended few changes with regards to the law related to suicide where suicide should not be looked like an offence but it should rather be defined as a disease and required treatment should be provided to the concerned person. Furthermore, it had also recommended repealing Section 309 of the Indian Penal Code, 1860.
Accordingly, keeping these factors in mind, the Law Commission of India in one of its report has laid down certain necessary guidelines which should be considered.
[1] EPDF, Black’s Law Dictionary 8th edition (2004), epdf.pub_blacks-law-dictionary-8th-edition.pdf.
[2] 1987 (1) Bom CR
[3] Press release of the Rajya Sabha
[4] (1996) 2 SCC 648.
[5] 1994 SCC (3) 394.
[6] MHD (1993) 2 WLR 316.
[7] 801 P.2d 617 (Nev. 1990).