Author: S. Sujitha Student, School of Excellence in Law, Chennai
‘How could you live each day knowing that you were simply whiling away the days until your own death?’
-Author Jojo Moyes from ‘Me before You’
These words very much illustrate the lifelike state of the mind of a person suffering from terminal illness, questioning the very purpose of living.
Do you know a tradition in South India called ‘Thalaikoothal’, literally meaning shower, in which old feeble people are forced to drink fresh cow’s milk or given an extensive oil-bath to snuff the life out? Yes, Thalaikoothal is an inhumane practice of involuntary euthanasia in which the elderly are compelled to undergo the procedure against their will. It is still practiced today. The practice is justified for a number of reasons, including ‘concern’ for their parents, irreparable medical or mental conditions and terrible financial circumstances. Arguments such as not wanting their parents to suffer in old age, claiming a scenario where the elderly’s physical or mental health could not be improved and terrible economic situations remain the main drivers of the unlawful activity.
This is nothing but forced Euthanasia. So what’s Euthanasia? Euthanasia, a sensitive and controversial issue, is the deliberate killing of a person for the benefit of that person, having its origin from Greek meaning ‘good death’. As every single person’s perspective is unique and varies largely from one another, similarly, there have been a variety of thoughts put forth on this particular issue in both for and against the legalization of Euthanasia. Probably, ‘Is it legal in India?’ That would be the mandatory question popping up in your mind right now. You would know the answer at the end of the article.
In order to understand the complexity of the issue, there’s a need to know its classification, in particular, active, passive, voluntary and involuntary Euthanasia. Active Euthanasia refers to the administration of a lethal dose of a sedative by the doctor to end someone’s life for the purpose of relieving the person from intolerable suffering, whereas Passive Euthanasia is characterized by withholding of life-sustaining treatments for the same. Next, Voluntary Euthanasia refers to the situation in which a conscious decision is taken by the terminally ill person with full consent and complete knowledge of what will happen; whereas in Involuntary Euthanasia, the decision is usually taken by the immediate family member as the patient is completely unconscious or permanently incapacitated.
Is the Debate over?
Speaking about the debate on Euthanasia, there exists a variety of key concerns in the support and opposition of the issue. Arguments in favour of legalizing Euthanasia start with the idea that, in the face of terminal illness, unbearable pain, growing incapacity and worries of becoming a burden to the family, Euthanasia request is rational. Given the potential that these conditions may not be even alleviated with extensive palliative care and social supports, hastening one’s death may appear logical. Such ideology is highlighted using the Right to Self-determination, relief from unending suffering through a dignified death and contribution towards organ transplantation. Thereby, the Right to die transforms into the Right to life to the organ needy patients. [1]
On the other hand, people who are against, argue that legalization of Euthanasia would lead to unacceptable consequences in the society, ranging from weakening the respect for sanctity of life to the increasing probability of abuse over terminally ill patients. It is a fact that life is God’s gracious gift. No one has the right to end one’s or anybody else’s life, according to the widely held belief. The unnatural termination of life was condemned by all faiths. Everyone should deal with the problems that come their way. Every human being is obligated to respect all other humans. A humanitarian attitude does not allow a person to be left powerless in a crisis. Furthermore, government is tasked with the responsibility for working for the common good of all the inhabitants of the country. In all circumstances, the sanctity of life should be honored. Governments should offer and create methods and mechanisms that allow even the poorest people to get help. In addition, the law does not provide someone with the right to kill another person. Regardless of the circumstances, a person’s humanitarian, constitutional, legal or religious views do not permit them to kill. In India, there is a chance of misuse by the relatives interested in the patient’s possession.
All about the legality of euthanasia in India
There have been plenty of concerns when it comes to the legality of the issue. As there is a need for a consistent policy to be engendered, this is a topic of careful discussion among intellectuals. In India, there have been a lot of discussions. The Law Commission of India’s Report No.42 in the year 1971 set the tone for Euthanasia by recommending the repeal of Section 309 of IPC for the first time. Furthermore, in Rathinam vs. Union of India [2], the Supreme Court concluded that Sec. 309 of IPC is in violation of Article 21 of the Constitution. The aforesaid decision was overturned by a constitutional bench of the Supreme Court in the case of Gian Kaur vs. State of Punjab[3], which found that the ‘Right to life’ is intrinsically incompatible with the ‘Right to die’, just as death is incompatible with life.[4]
Almost after a decade, the Law Commission released the 196th Report on terminally ill patients, recommending the legalization of Passive Euthanasia under very stringent and restricted conditions in the year 2006. This Report made it clear that euthanasia and physician-assisted suicide would remain illegal and primarily addressed the protection of terminally ill patients who are in a persistent vegetative state with little hope of recovery. Furthermore, in the instance of an incompetent patient, the next friend must get a mandatory approval from the High Court before withdrawing the life support.
The Aruna Shanbaug case: The women who triggered the debate on Euthanasia
The Supreme Court of India passed a landmark ruling in March 2011 which legalized Passive Euthanasia in the country. [5] This decision was made in response to the petition filed by ‘Pinki Virani’ regarding the termination of the life of Aruna Ramachandra Shanbaug who was in a persistent vegetative state, in December 2009 which was under the Constitutional provision of ‘next friend’. It is a groundbreaking rule that gives individuals the right of choice above government, medical or religious authority. Additionally, the Supreme Court set two irrevocable criteria for allowing passive euthanasia which are-
The ventilator can be turned off for the brain-dead
Those in a persistent Vegetative State for whom the feed can be weaned off and pain relieving palliatives administered, as per the International guidelines.
The same ruling also called for the repeal of Section 309 of IPC, a statute that punishes people who survive suicide attempts. The Indian Government announced its intention to do so in December 2014.
Common Cause case- ‘Right to die with Dignity’, A Fundamental right
Common Cause, a registered organization dedicated to the common welfare of the people, filed a writ petition under the Article 32 of the Indian Constitution in 2005 to legalize Passive Euthanasia and validate living wills.[6] In 2018, the Supreme Court ruled that the ‘Right to die with dignity’ is a Fundamental right protected by Article 21 of the Constitution. Passive Euthanasia and a living will are also allowed according to the bench. In this context, the Court provided specific recommendations and propositions about the method for executing the Advance Directive and gave instructions for doing so in order to give effect to Passive Euthanasia. Apart from an unclear legislation, efficient execution, and rigorous adherence, it is important for the government to raise public awareness. Due to the large number of cases, a panel of experts consisting of doctors and judges should be formed. Furthermore, the Government should work to ensure that the mechanisms are working properly and that critical infrastructure is available when and where it is needed. Finally, a specific legislation on the practice of euthanasia, as well as amendments to the relevant articles of the IPC, is required.
Conclusion
Passive euthanasia is a contentious idea that presents a slew of complex moral, ethical, social, philosophical, legal, and religious issues. While several nations across the globe have officially recognized and legalized Euthanasia, the concept of legalizing it may not be very enticing. As a result, the courts in India have taken a long time to recognize and legalize euthanasia, from the cases of Gian Kaur and Aruna Shanbaug to the case of Common Cause (a registered society), and have legalized passive, voluntary euthanasia. The Court’s judgment is extremely commendable as it functions as a beacon in the dark. The Supreme Court has focused on the patient’s pain and his calm death while permitting it. The positive enlargement of the right to life under the purview of Article 21 of the Constitution is to ensure the right to die with dignity. Though the legalisation of passive euthanasia is to be applauded, it is now the obligation of Parliament to draught legislation on the subject as well as rules for its implementation.
References
[1] Shikha Mishra and Uday Veer Singh, Euthanasia and its desirability in India (ILI law Review, Summer Issue 2020) https://ili.ac.in/pdf/sms.pdf accessed 23 June 2021
[2] Rathinam vs. Union of India, (1994) 3 SCC 394
[3] Gian Kaur vs. State of Punjab, (1996) 2 SCC 648
[4]Achal Gupta, Euthanasia – Indian View (Published on November 28, 2020) https://www.scconline.com/blog/post/2020/11/28/euthanasia-indian-view/ accessed 23 June 2021
[5] Aruna Ramachandra Shanbaug vs. Union of India, (2011) 4 SCC 454
[6] Common Cause vs. Union of India, (2018) 5 SCC 1