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Euthanasia in India – Meaning, Types And Legal Aspect

Euthanasia fundamentally means physician-assisted suicide or mercy killing. It comes from a Greek word meaning ‘pleasant death’. In the process of euthanasia, the physician administers a lethal substance in the body of the person wishing to end his life or withdrawal of life-saving treatment of the patient. Euthanasia has been declared legal in Netherlands, Switzerland, Thailand and some states in the USA. Euthanasia is of two types- Active and Passive. In India passive euthanasia has been recognized in the landmark judgement of Aruna Ramachandra Shanbaug v. Union of India[1]. Thus, in India too, euthanasia has been recognized as a facet of Article 21 of the Indian Constitution to some extent. The aim of this article is to understand the concept of euthanasia in more detail and to discuss the legal history of euthanasia in India.

Types Of Euthanasia in India

Euthanasia or mercy killing is of two types-

Active Euthanasia

It means injecting a patient with a dose of a lethal drug which would end his or her life. In India, active euthanasia is expressly prohibited. In case a doctor administers active euthanasia, he shall be convicted under Section 304 (Punishment for Culpable Homicide not amounting to Murder) of the Indian Penal Code[2]. If a person himself administers euthanasia, if alive, would be convicted under Section 309 (Attempt to Suicide), under the Indian Penal Code.

Passive Euthanasia

Passive euthanasia means withdrawal of life-saving support from the patient. Such form of euthanasia has been permitted to be administered in case a patient is in a Persistent Vegetative State (PVS). Thus, our subject of discussion is limited to passive euthanasia in India.

General Duty Of Doctors

Regulation 6.7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 explicitly prohibit the practice of euthanasia. In the case of Parmanand Katara v. Union of India[3] it was emphasized that the primary duty of the doctor is to save the life whenever an injured person is brought to the hospital or clinic and not otherwise. Thus, the action of assisted killing was directly against the fundamental duty of the doctors. However, it must be noted that at the same time, the doctor has a duty to do what is right for the patient and his family. It includes not only physical well-being but also mental and economical well-being.

Legal History Of Concept Of Euthanasia In India

The Supreme Court of India has discussed the topic of mercy killing on multiple occasions. With a change in the needs of society, the Supreme Court has expressed its view on the topic at the very outset.

In the Supreme Court case of Gian Kaur v. State of Punjab[4], a five-judge bench held that right to life under Article 21 does not include the negative right to die. Thus, the Supreme Court upheld the constitutional validity of Section 309 of the Indian Penal Code. The case overruled the earlier decision of the division bench of the Supreme Court in P. Rathinam v. Union of India[5]. The five-judge bench recused itself from giving an opinion on physician-assisted suicide or euthanasia and opined that the desirability of bringing about the same was the function of the legislature by bringing the required legislation.

In the case of Aruna Ramchandra Shanbaug v. Union of India[6], the question came before the Supreme Court about passive euthanasia of one Ms. Aruna Ramchandra Shaunbaugh who was in Persistent Vegetative State (PVS) and her brain was virtually dead for the last 30 years. It was contended that she should be permitted to die peacefully. It was recognized that the patient was no longer a living person and her life was devoid of any human element. The Supreme Court directed a team of three doctors to submit a report to them after assessing the mental and physical conditions of the patient. Accordingly, passive euthanasia was permitted for the first time in the history of India.[7]

The Supreme Court also laid down the guidelines for the grant of permission for passive euthanasia. An application under Article 226 has to be filed with the Chief Justice of the High Court. The High Court shall constitute a bench of at least two judges to decide the application. Before deciding the same, the bench should seek the opinion of a committee of three reputed doctors. Preferably, one of the three doctors should be a neurologist, one should be a psychiatrist and the third should be a physician. The report of the doctors shall take into account inter alia the following factors-

  1. Examination of the patient
  2. Records of the patient
  3. view of the hospital staff’

The High Court shall also issue notice to the State and the close relatives of the patient and in their absence, his/ her next friend. The decision of the Supreme Court was based on the doctrine of parens patriae[8], i.e., father of the country. It opined that in case of an incompetent person who is unable to make a decision whether to withdraw life support or not, it is the court alone, as patriae, which ultimately must make the decision taking into account the views of the near relatives, next friends and doctors.

Concept Of Living Will And Attorney Authorisation

An Advance Medical Directive is an individual’s advanced exercise of his autonomy on the subject of extent of medical intervention that he wishes to allow upon his own body at the future date, when he may not be in a position to specify his wishes. The demand for living will and attorney authorization was raised in the case of Common Cause v. Union of India[9]. The matter was thereafter referred to a five-judge bench of the Supreme Court and a decision was given on March 9, 2018[10]. The Supreme Court concluded that an adult of competent mental capacity is entitled to make an informed decision and has a right to refuse medical treatment including withdrawal from life-saving devices. In addition to it, he/ she can execute an Advance Medical Directive. The decision was based on several aspects of Article 21 of the Constitution of India, including inter alia, right of bodily integrity, right of self-determination, right to withdraw life-saving treatment.

Aftermath

In the light of the above-captioned judgements, the High Courts of various states have given their opinion. Some of them are discussed below:

Bombay High Court

In case of Rajni Hariom Sharma v. Union of India and Anr[11] the Bombay High Court declared the wife to be a guardian for the husband who was in Persistent Vegetative State (PVS). Thus the court recognized that a person in a PVS state is incompetent to make his own decisions and a guardian can make decisions for him. In the case of Chandrakant v. State of Maharashtra[12],  the Bombay High Court denied the request of active euthanasia made by the petitioner.

Karnataka High Court

In the case of H.B. Karibasamma v. Union of India[13], the petitioner, a 70-year-old retired school teacher, residing in an old age home filed an application for euthanasia. The petitioner was suffering from slip disc for 10 to 11 years and was also diabetic. She had been mostly bed ridden for this time. Her pension was insufficient to sustain her medical bills. The High Court termed the act as active euthanasia and refused to grant her permission for the administration of euthanasia.

Kerela High Court

In case of Shobha Gopalakrishnan v. State of Kerala[14], the wife filed an application for a declaration of herself as the guardian of her husband who was in a ‘comatose state’. She was unable to pay for the continued treatment of her husband. She had no access to her husband’s property. Thus, the court appointed the petitioner as guardian of her husband’s property.

Thus, in cases where a patient is in Persistent Vegetative State (PVS), the loved ones have the following options-

  1. to be appointed as the guardians of the patient so that he/ she can take decisions relating to the property of the patient.
  2. Apply to the High Court for the permission of administration passive euthanasia.

Difference Between Suicide And Euthanasia

Suicide means the voluntary killing of oneself. It may be confused with euthanasia but there is a difference between euthanasia and suicide, these are-

SUICIDE EUTHANASIA
It is not punishable under the Indian Penal Code. It is punishable under the Indian Penal Code.
Attempt of Suicide is punishable under Section 309 of the Indian Penal Code. Both attempt and commission of euthanasia are punishable under Section 304 of the Indian Penal Code.
Typically, the element of mental health is involved in the actus reas. Typically, the element of illness and chronic infirmity is involved.
Mode– There can be a number of different modes of committing suicide. Mode– There are two modes of euthanasia. Firstly, administration of drugs or secondly, withdrawal of life support/life-saving treatment.
It is inflicted upon oneself. It is administered by the doctor with the permission of the State and the relatives of the patient.

Euthanasia In Other Countries

United Kingdom

Presently, euthanasia is illegal in the United Kingdom. However, the campaign group called ‘Dignity in Dying’ has been actively demanding the legalization of euthanasia in United Kingdom. The proposal has been limited to the assisted killing of people who are terminally ill and are competent adults with the help of doctors and a high court judge. The Suicide Act, 1961 declares the act of Abetment to suicide as an offence.

United States Of America

The legal system of USA is based on a federal structure. Thus, every State is entitled to make its own law. Accordingly, euthanasia has been declared legal in certain States like Oregon, Columbia, Colorado, Hawaii, New Jersey and Maine.

Canada

Euthanasia was illegal in all forms in Canada till 2015. In February 2015, in the case of Carter v. Canada (AG)[15] the Supreme Court of Canada legalized assisted dying and directed the Canadian Parliament to change the law in line with the Supreme Court Judgement.

Australia

Western Australia and the State of Victoria have made assisted dying for the terminally ill people in December 2019 and June 2019 respectively.

Switzerland

Euthanasia is illegal in Switzerland. But, unlike India, Article 115 of the Swiss Penal Code protects people who assist someone commits suicide, if they act with honourable motives.

Conclusion

The Indian Judiciary has made it abundantly clear that Active Euthanasia is prohibited in India in any form and under any circumstances. But a lenient view has been taken when it comes to passive euthanasia. The Supreme Court has recognized a parson with Persistent Vegetative State (PVS), with no scope of improvement has a right to end his life with dignity. The existence of a person who is in a state where his body is no longer able to perform any function whatsoever can no longer be stated to be human. Moreover, the Indian Judiciary has time and again recognized that the right to life means more than a mere animal existence. In such cases, withdrawal of life support is considered valid. Thus, passive euthanasia has been recognized in India as a facet of the Right to Life under Article 21 of the Indian Constitution.

[1] (2011) 4 SCC 454

[2] Ujagar Singh v. State of Punjab, AIR 1918 Lah 145, Dasrath Paswan v. State of Bihar, AIR 1958 Pat 190

[3] AIR 1989 SC 2039.

[4] AIR 1996 SC 946.

[5] AIR 1994 SC 1844.

[6] AIR 2011 SC 1290.

[7] Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454

[8] State of Kerela v. NM Thomas, (1976) 2 SCC 310; Heller v. DOE, 509 US 312; Charan Lal Sahu v. Union of India, (1990) 1 SCC 613

[9] (2014) 5 SCC 338

[10] Common Cause v. Union of India, (2018) 5 SCC 1.

[11] 2020 SCC OnLine Bom 880

[12] 2020 SCC OnLine Bom 10188

[13] 2012 SCC OnLine Kar 9051

[14] 2019 SCC OnLine Ker 739

[15] 2015 SCC 5

This article has been written by Aakriti Gupta, 5th year BALLB student at Army Institute of Law, Mohali

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