Introduction
The word euthanasia is derived from the Greek terms Eu meaning ‘well’ and Thanatos meaning ‘death’. The Oxford Dictionary defines euthanasia as the practice of killing a person suffering from a disease that cannot be cured without pain. Thus it is projected as mercy killing of an unbearably suffering patient by the physician upon the patient’s request.
According to Black’s Law Dictionary (8th edition), euthanasia means the act or practice of killing or bringing about the death of a person suffering from an incurable disease or condition that is particularly painful by grace. However, it is to be noted that it is not an everyday affair. Countries all over the world have limited it mainly to the people with terminal illness or who have become incapacitated and don’t want to witness the sufferings of life.
It has been a matter of controversy in the Indian legal jurisprudence for quite some time. It was seen as a direct contest between the fundamental rights of the people and the binding structure of the society. It has seen ups and downs in the legal arena of the world. It, however, found a positive ending with the indulgence of Hon’ble Judges of the Supreme Court of India.
Historical Background of Euthanasia
Any practice is the manifestation of continuity and cannot exist alien to the past which conceived it. Thus before discussing the legal position of euthanasia in India, it is quintessential to revisit the pages of history in order to trace the roots of euthanasia, if any. The right to die or end one’s life is not an alien concept for human civilization.
Traces of euthanasia being practiced in Greece and Rome are found in the Spartan empire. Moreover, the religious texts like Bible, Koran and Rig Veda mention self-destruction and suicide. The Mahabharata and the Ramayana are also full of instances of religious suicides.
Govardana and Kulluka, while writing commentaries on Manu, observed that a man may undertake the mahaprasthan (great departure) on a journey which ends in death when he is incurably diseased or meets with a great misfortune, and that, it is not opposed to Vedic rules which forbid suicide[i].
Later Developments
However, these practices found themselves in great trouble in the modern world due to the lack of specific provisions in most legal systems. It was regarded akin to suicide or murder.
In the late 20th century, several European countries had special provisions in their criminal codes for lenient sentencing and the consideration of extenuating circumstances in prosecutions for euthanasia.
The first country to legalize euthanasia was the Netherlands in 2001 and then Belgium in 2002. In 1997 Oregon became the first state in the United States to decriminalize physician-assisted suicide. In 2009 the Supreme Court of South Korea recognized a “right to die with dignity” in its decision to approve a request by the family of a brain-dead woman that she be removed from life-support systems[ii].
The potential of modern medical practice to prolong life through technological means has provoked the question of what courses of action should be available to the physician and the family in cases of extreme physical or emotional suffering, especially if the patient is incapable of choice. Passively doing nothing to prolong life or withdrawing life-support measures has resulted in criminal charges being brought against physicians; on the other hand, the families of comatose and apparently terminal patients have instituted legal action against the medical establishment to make them stop the use of extraordinary life support[iii].
Religious Understanding
The practice of any community is a reflection of the core religious practices. The different religious communities view this practice differently.
The Hindu religion holds mixed feelings with respect to euthanasia. On one hand, it is said that by helping to end a painful life a person is performing a good deed and so fulfilling their moral obligations. However, on the other hand, people also believe that an ideal death is a conscious death. By impeding the time of death of a person, one interrupts the karmic consequences which ultimately affects the process of liberation.
The Muslims on the other hand, are strictly against this practice. They believe that all human life is sacred because it is given by Allah and that Allah chooses how long each person will live. Human beings should not interfere with this. A similar vies is held by the Christians as well.
The Sikhs derive their ethics largely from the teachings of their scripture, Guru Granth Sahib, and the Sikh Code of Conduct (The Rehat Maryada). The Sikh Gurus rejected suicide (and by extension, euthanasia) as interference in God’s plan. Suffering, they said, was part of the operation of karma, and human beings should not only accept it without complaint but act so as to make the best of the situation that karma has given them.
The dilemma of medical ethics
The kingpin of this practice is the medical practitioner. Therefore, their opinion is of utmost relevance. However, like the Hindu religion, medical ethics too holds a mixed idea with respect to this practice.
While one side of the fraternity views that personal autonomy and self-determination rest at the core of medical ethics. What counts is what the patient wants and judges to be a benefit or a value in his or her life. If a doctor can see his patients suffer and realize his inability to cure them, it is equivalent to him failing to fulfill his Oath. The aim of a doctor is to cure patients not to see them suffer.
On the other hand, this argument is also quite popular within the fraternity that the practice of euthanasia is totally against medical ethics. Medical ethics call for nursing, care giving, healing and not ending the life of the patient. In the present time, medical science is advancing at a great pace. Even the most incurable diseases are becoming curable today. Thus, there remains no reason for the want of which euthanasia needs to be procured.
Types of Euthanasia
The practice of euthanasia can be broadly classified into active and passive. It is pertinent to note that the dawn of the debate over the legalization of euthanasia is related to the degree of morality the practice offers. Almost every debate, regardless of the jurisdiction in which it was made, found that of all the available types of euthanasia, the one which is not detrimental to the society is passive euthanasia.
Active euthanasia involves painlessly putting individuals to death for merciful reasons, as when a doctor administers lethal dose of medication to a patient. Whereas, passive euthanasia is caused when death is caused because a treatment that is sustaining the life of the patient is held off and the patient dies as a result thereof.
The most important criteria which distinguish euthanasia from murder is the degree of voluntariness on the part of the patient. While the degree of voluntariness is prominently established in case of passive euthanasia, the same has always been under suspicion in the case of its active counterpart. It is due to this risk of being misused, that the practice which has been allowed in almost all the jurisdictions is the passive one.
Journey of Euthanasia in India
The reason the article has been titled as judicial legislation is because this concept owes its inception as well as concretization solely to the decisions of the Hon’ble Supreme Court. It is the Supreme Court of this Country which has streamed this concept in the legal parlance and later concretized it in the interest of the people. The chain of events which sparked this discussion arose with the case of P. Rathinam v. Union of India [iv].
The case involved a challenge to the constitutional validity of Section 309 of IPC which made attempt to commit suicide punishable within laws. It was contested that the said law was violative of Article 14 and Article 19 of the Constitution of India. The matter was decided by a two-judge bench of the Hon’ble Supreme Court of India. The Court found the arguments convincing and opined that the fundamental rights have both positive and negative aspects. Accordingly, the right to live must include in its trail the right to die. The Court opined that Article 21 ordains the right not to live a forced life.
However, this verdict did not survive. A five-judge bench of the Supreme Court overturned this verdict in the case of Gian Kaur v. State of Punjab[v]. The matter which came before the court this time was a challenge to the constitutional validity of Section 306 IPC which made abetment to suicide an offence. Relying on P. Rathinam[vi], it was argued that abetment to suicide could not be penalized as the abettor was only assisting in the enforcement of a fundamental right. It was further opined that all fundamental rights are not the same and hence the same standard must not be applied to them.
Therefore, while the guarantees under Article 19 have a negative component, Article 21 cannot be read in a similar manner. Further, even if Article 21 is interpreted in such a fashion, suicide could not be treated as a part of it, as it always involves an overt act by the person committing suicide. Thus, an unnatural termination of life could not be treated as a part of the right to life. Elucidating the concept of right to life, the court further opined that the right to life would mean the existence of such a right up to the end of natural life. This also includes the right to a dignified life up to the point of death including a dignified procedure of death.
However, a remarkable feature of this case is that it did not put a complete cessation on the scope of the right to die with dignity. The court placed reliance upon the principles laid down by the House of Lords in the Airedale case[vii]. whereby the House of Lords accepted that withdrawal of life-supporting systems based on informed medical opinion would be lawful because such withdrawal would only allow the patient who is beyond recovery to die a natural death.
Thus the court finally opined that euthanasia, whether active or passive, can only be made legal through legislation and not otherwise.
Aruna Ramchandra Shanbaug v. Union of India [viii]
What happened till now was an attempt to find a safe passage from the challenges of living in the world with the burden of responsibilities. However, what happened in 2011 completely changed the way in which euthanasia was being viewed. It was realized then, that euthanasia is not similar to suicide. It is not an easy passage and is rather a dire necessity for people trapped between life and death. The events occurred in the following fashion:
Aruna Shanbaug was a nurse in KEM hospital, Mumbai. She was brutally raped and was inflicted with certain injuries that left her in a permanent vegetative state. She was cared for by the hospital staff and nurses over a very long period of time, however, there was no improvement in her condition. Thus, Aruna was now in a pitiable state of toiling between life and death. Pinki Virani, a social activist, filed a writ petition on her behalf seeking permission for euthanasia for Aruna Shanbaug by the withdrawal of her life support system.
The Supreme Court analyzed in great depth the difference between suicide and euthanasia. The Court opined that it is that as per Human Rights, a man should hold certain rights to have a dignified death. Right to Life guaranteed under the Indian Constitution protects the people against all forms of torture and this would include the right to not live with pain and suffering which would tantamount to torture.
Upon the argument that the issue has been already adjudicated by the Court in Gian’s case, the Court held that the judgment cannot be understood to have blocked the judicial discussion into this matter. The court further opined that the judgment of Gians case does not limit the idea of passive euthanasia to the domain of parliament. On the contrary, the judgment only made active euthanasia impermissible.
The court finally based its reasoning on the Airedale 15 case and other international jurisprudence to hold that passive euthanasia may be allowed for terminally ill patients or patients in a permanent vegetative state by the withdrawal of life support systems, provided that certain safeguards are followed.
Recognising the autonomy of the patient, the Court held that if the patient is conscious and capable of giving consent, his or her opinion must be taken, otherwise, at least the opinion of a next friend is required, who should decide as the patient would have. The matter would then go to the High Court, where a division bench would be required to constitute a board of three competent doctors to examine the patient. It further held that these guidelines should be followed till the Parliament legislates on the matter.
The court, however, clarified that active euthanasia, involving injecting lethal injection to advance the death of such a patient, was a crime under law and would continue to remain so.
Common Cause (Registered Society) v. Union of India & Anr [ix]
After the Aruna Ramchandra Shanbaug v. Union of India[x] case, there was a series of debates and discussions which ultimately led to the conclusion that there was a need to characterize the right to euthanasia as a distinct fundamental right. Consequently, common cause registered society prayed to the Court that the right to die with dignity needs to be secured. This, according to them was possible if the court recognized this right as a fundamental right within the meaning of the Constitution of India.
The Court, therefore picked up the case and went on to find out the possibility of securing the right to die with dignity as a fundamental right. This case helped the right to die with dignity to reach its summit. The most significant aid which the court got in this case was from the dignity jurisprudence which had evolved through the court’s dictum in Justice K.S. Puttaswamy v. Union of India[xi].
Through this case, the Court explored the interrelationship between privacy, dignity and autonomy, and grounded the same in Article 21. With this recognition the concept of dignity evolved in the legal arena. This has now become an intrinsic part of almost all the activities associated with the life of the people.
The court argued that if a person who is under unbearable pain is not provided with the opportunity to decide for himself, it will surely be a negation of his dignity and human rights. The Court thus held that the right to live with dignity also includes the smoothening of the process of dying in the case of a terminally ill patient or a person in a permanent vegetative state.
The court also introduced a new concept of ‘living will’. This has also been ascribed to the dignity and self-autonomy of an individual.
Through this judgment, the court made an overall analysis of the right to euthanasia and specified guidelines to see that the bona fide intention of this judgment is not diluted by any immoral usage.
The Court made the following jurisprudential observations while recognizing the right to euthanasia as a fundamental right:
1. Philosophy of life – Hon’ble Justice Dipak Misra, the Hon’ble CJI, in his judgment made a deep dive into the value of life and made an observation akin to that of the religious philosophers. He opined that death is not an enemy and in fact, death with dignity, as opposed to an undignified continuation of life is a cause for celebration.
2. Sociological approach – Hon’ble Justice Sikri referred to the sociological approach of jurisprudence to reach at the conclusion that the law is meant to serve the society. He reflected his confidence that with this judgment, a major section of the society would be benefitted. He relied upon the Mill’s concept of individual autonomy to derive his conclusions. Referring to the Dworkin’s concept of hard cases, he arrived at the conclusion that when several choices are available, it is the duty of the judge to exercise his discretion in the larger public interest.
3. Dignity Jurisprudence -The court referred to the Gians case to ascertain the difference between right to die and the right to die with dignity. It was opined that while the former could not be considered to be a part of the guarantee to life and personal liberty under Article 21, the latter could be derived from it in a limited manner, i.e. only in the form of passive euthanasia and only for terminally ill. The Court further made use of Puttaswamy’s judgment to arrive at the important intersection between the dignity and self-autonomy.
4. Medical ethics – As already discussed, there is a dilemma in the approach of medical ethics in case of discussions over euthanasia. However, the Court clarified this dilemma and supported this opinion that the best interest of the patient at any given time is the only escort of medical ethics. The Court used the dignity jurisprudence to define the best interest and therefore found it proper for the medical practitioners to assist in passive euthanasia if the case so warrants. The Court also felt a need to make suitable arrangement in order to expunge the criminal liability of the doctors while following the judgment in a scrupulous manner.
5. Comparative jurisprudence – The Court used the comparative jurisprudence and used the ruling of the House of Lords in Airedale to encompass in its judgement the utilitarian viewpoints in its judgement.
As per this approach, people’s level of well-being is determined solely by how much pleasure and pain they experience. While ruling on the issue of whether or not to allow withdrawal of life support from a patient in permanent vegetative state, it is opined that, in cases where patients are unlikely to recover and are in such a state that a large number of medical professionals hold the view that prolongation of life is not in the best interest of the patient, then an exception can be made to the principle of sanctity of life. In fact, giving treatment to a patient who does not wish to continue it, and which confers no benefit upon him, would amount to invasive manipulation of such a patient’s body.
Further, it was also observed that the prolongation of life in such cases is a lose-lose situation as the skill, labour and money that would be utilised in prolonging the life of the patient could be fruitfully employed in other welfare activities.
Thus while invoking the economic theory of jurisprudence, the court opined that society, as well as the state, have a duty not only towards the patient but also to the families who look to us for emotional support and rational decisions to avoid unnecessary emotional and financial burdens.
Apart from the above-mentioned guidelines, the Court also found that since the right is a result of constitutional interpretation, it is obligatory for the court to lay down the safeguards for the terminally ill patients as well as the doctors against any misuse.
Relying on the principle of ‘best interest of the patient,’ the Court has provided stringent safeguards with respect to the execution of such wills and authorizations, to prevent any possible misuse. Further, by outlining the circumstances in which these wills can be executed, it has also attempted to balance the bioethical and societal concerns regarding euthanasia with individual autonomy.
It also recognizes Advance Directives akin to a ‘living Will’ through which persons of sound mind and in a position to communicate can indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted. Thus, the Supreme Court has ruled that the interest of the patient shall override the interest of the State in protecting the life of its citizens and that right to live with dignity is attached throughout the life of the individual. While this case discusses guidelines clearly for passive euthanasia, it does not legalize active euthanasia in India
Slippery Slope
Albeit the judgment of the Court has been greatly lauded and recognized as the epitome of constitutional morality, there is still a question which keeps on haunting the society. As is already discussed, the Supreme Court had vehemently rejected the idea of legalizing suicide. However, the interested parties have now ventured to use the term euthanasia to revive the bleakest hope of legalization of suicide. While equating the active and passive euthanasia with reference to the outcome achieved, the supporters have even lauded it to be a more quick and efficient method of elimination of the sufferings of the patients.
Some of the appreciators of the theory of suicide have even used the idea of ‘Consequentialism’ to argue that passive euthanasia should not be legalized. As per their argument, allowing passive euthanasia will invariably lead to the acceptance or practice of concepts which are currently deemed unacceptable, such as non-voluntary or involuntary euthanasia. Thus, in order to avoid this possible menace, the concept should be stopped at the first place itself.
Conclusion
It is very rightly said by the legal philosophers that the beauty of the law is its ever-changing nature. This opinion finds hold from the jurisprudential doctrines like utilitarianism and sociological jurisprudence. The Hon’ble Supreme Court of India has brought these doctrines to life by its recent pronouncement in the euthanasia judgment.
The current status which the right to die with dignity has achieved is a reflection of the judicial empathy with the plight of the terminally ill patients. This has successfully made the impression of being one of the most prominent examples of the use of judicial activism for the most pious purposes.
It is certain that this judgment would pave a path for broadening the dimensions of social equality by taking care of the interest of the terminally ill patients who were earlier left at their fate.
References
[i] Laws of Manu, translated by George Buhler, Sacred Books of the East by F. Maxmuller (1967 reprint). Vol 25, Pg. 206.
[ii] The Editors of Encyclopaedia Britannica, Euthanasia, 27 Dec 2019
[iii] Ibid.
[iv] AIR 1994 SC 1844.
[v] (1996) 2 SCC 648.
[vi] Supra 4.
[vii] AIREDALE NHS TRUST v. BLAND [1993] 1 ALL ER 821.
[viii] AIR 2011 SC 1290.
[ix] (2018) 5 SCC.
[x] Supra 8.
[xi] WP (C) 494/2012.
