The debate over euthanasia continues to be a grey area in the fields of law and human rights while considering it from a moral standpoint. Concerns of a moral and legal nature have been raised in relation to the practice of physician-assisted suicide (PAS). The right to die with dignity is regarded as a fundamental component of the right to life in India, as stated in Article 21 of the Constitution of India. On the other hand, terminal illness not only causes excruciating physical pain but also emotional suffering and psychological anguish in both the patient and the care giver. Should terminally ill patients be allowed to select the manner in which they wish to die? The primary question that arises is whether a person who has a terminal illness ought to be given assistance in passing away or whether they ought to be permitted to suffer in pain until they meet their death naturally. The question that needs to be asked is whether or not a person's wish to die is more significant than the laws of a state that prohibit him/ her from doing so. However, it is tempting to dismiss predictions about the likely consequences of legalizing voluntary euthanasia because these predictions are based on speculation.
In its own unique way, today's modern society both accepts and rejects the practice of euthanasia. There is some scepticism regarding the ethical execution of euthanasia as well as the malpractices that may be carried out in the guise of euthanasia that could have disastrous consequences. While the majority of people are sympathetic to the idea of ending someone's life to relieve them of a long-standing and redundant state of pain and misery through voluntary or passive means, there is some speculative notion regarding the ethical execution of euthanasia.
The ethical question of euthanasia is a minefield that can never be satisfactorily answered. This discussion covers a wide range of intricate and ever-changing facets of civilized society, including legal, moral, ethical, human rights, health, religious, economic, spiritual, social, and cultural issues. Some people believe that euthanasia is the equivalent to murder and find the practice to be morally unacceptable and reprehensible. One section is of the opinion that euthanasia demeans the sanctity of life to have the option of deciding one's own death. On the other side of the argument are those who support the "right-to-die" movement, who believe that people who are suffering from diseases that are terminal, incurable, disabling, degenerative, or otherwise debilitating should have the right to die with dignity[1].
Even though now there is a legal status given to passive euthanasia in India, there persist problems that make its legalization unsuitable and inappropriate for the country due to a number of factors. It is necessary to obtain consent before carrying out passive euthanasia, and this consent at times may be coerced, influenced, or corrupted in any of these ways. However, if the appropriate legal and ethical frameworks are in place, passive euthanasia could be a step towards granting terminally ill patients who are suffering interminably with some hope with the right to die with dignity. This would be a significant step towards ending their suffering. In a broad sense, the term "euthanasia" refers to the practice of ending the life of a patient, who is terminally ill, in order to alleviate the patient's long-term suffering or pain that is caused by some disease.
The term "euthanasia" comes from the Greek phrase "eu thanatos", in which "eu" means "good" and "thanatos" translates into "death." Literally speaking, the maxim translates to "easy death".
The practice of euthanasia can be classified into the following two categories:
1. Active Euthanasia: Active euthanasia is a method that involves taking active steps to end a life. This involves taking positive steps to end a patient's life, such as by administering them a dose of medication through their intravenous line that will kill them. Active euthanasia is also sometimes referred to by the term "aggressive euthanasia”.
2. Passive Euthanasia: Passive Euthanasia is defined as the deliberate act of causing someone's death by withholding or withdrawing artificial life support, such as a ventilator, from a patient who is terminally ill. In a case like this, something that is essential to save a patient’s life is not done.
In spite of the fact that the vast majority of countries have made passive euthanasia legal, either through legislation or judicial interpretation, the question of whether or not active euthanasia ought to be legalized continues to be a topic of debate.
The three broad forms of Euthanasia are:
- Voluntary Euthanasia: When a patient makes the conscious decision to end his/ her own life, this is known as "voluntary euthanasia". The individual who is making the request needs to be in unbearable pain and be in a terminal condition that is recognized by the medical community.
- Non-voluntary Euthanasia: “Non-voluntary Euthanasia” is a subset of the practice known as "voluntary euthanasia", which involves the termination of a person's life when that person is unable to express their preferences and must instead rely on some form of proxy request to end their life, most likely for reasons related to their health and presumably for their own benefit.
- Involuntary Euthanasia: In the case of “Involuntary Euthanasia”, a patient is considered to be suffering from a terminal illness or in excruciating pain for an extended period of time, but has not been given a direct or indirect invitation to end their life. In this context, the term "lack of consent" refers to a patient's inability to genuinely give assent. This can include protracted and prolonged periods of sleep or coma in which the patient's preferences are unclear.
Constitutional and Legal Analysis of Euthanasia in India and Cases Before Indian Courts
The application of Article 21 of the Indian Constitution, which states that "No person shall be deprived of his life or personal liberty except according to the procedure established by law" is broad enough to include several fundamental rights that fall under the category of "personal liberty". Such rights include the right to health, the right to a livelihood, the right to live with dignity, the right to shelter, and the right to privacy, amongst other rights. “Life”, as envisaged under Article 21, has been very broadly understood by the Supreme Court and has been given expansive interpretation.
In accordance with the provisions of Article 21 of the Constitution, the right to life and liberty would be devoid of any significance if it did not also protect the dignity of the individual. In the case of K.S. Puttaswamy v. Union of India[2], the Supreme Court of India reiterated the principle that human dignity is an indispensable part of Article 21. Right to live with dignity is also said to include the smoothening of the process of dying in the case of a terminally ill patient with no hope of recovery. The legal position as it stands today is that “right to life” does not include “right to die”, but “right to live with dignity” does include “right to die with dignity”.
The Right to one's physical and mental health is also guaranteed by the Constitution, being covered under Article 21 and protected under Part III of the Constitution. In the context of decisions regarding health and medical care, the exercise of self-determination and autonomy by a person includes the right to decide whether and to what extent he or she is willing to submit to medical procedures and treatments that are consistent with the individual's goals and values. This right applies both in the abstract and in concrete terms.
It has been determined that the Right to privacy is an essential component of the Right to life and liberty, as outlined in Article 21, and safeguarded by Part III of the Constitution. This ensures that individuals retain their autonomy when it comes to making decisions concerning the private sphere of death, in addition to maintaining their bodily integrity. People place a high value on being able to make decisions for themselves during their lifetime, and they also place a high value on being able to decide for themselves whether or not to continue living when the quality-of-life declines.
In the case of State of Maharashtra v. Maruty Sripati Dubal[3], the Bombay High Court ruled that under Article 21, the Right to life encompasses the Right to die in and of itself, as a result, the Court invalidated and declared as ultra vires section 309 of the Indian Penal Code, 1860.
The writ petitioners in P. Rathinam v. Union of India[4] argued before the Supreme Court that Section 309 of the Penal Code, 1860 was unconstitutional on the grounds that it went against Articles 14 and 21 of the Constitution of India. The two-judge bench came to the conclusion that the right to life, which is guaranteed under Article 21, can be said to include the right to not live a life that is forced upon one, and they ruled that Section 309 of the Indian Penal Code is unconstitutional as a result.
The Constitution Bench deliberated and considered the correctness of the decision rendered in P. Rathinam’s (supra) in the case of Gian Kaur v. State of Punjab[5]. In the case of Gian Kaur (supra), the Appellants were found guilty by the lower court of an offence punishable under Section 309 of the Indian Penal Code, 1860, which conviction was challenged interalia on the ground that Section 309 of the Indian Penal Code is unconstitutional. It was held that the right to life under Article 21 of the Constitution does not include the right to die. To give meaning and content to the word “life” in Article 21, it has been construed as life with human dignity. Any respect of life that makes it dignified may be read into it but not that which extinguishes it and is inconsistent with the continued existence of life resulting in effacing the right itself. The ‘right to die’, if any, is inherently inconsistent with the ‘right to life’ as is ‘death’ with ‘life’. As such, it was held that both euthanasia and assisted suicide were not lawful in India. However, no final view was taken on non-voluntary passive euthanasia while deciding the said case.
Adverting to the concept of euthanasia, the Court in Gian Kaur (supra) observed that protagonism of euthanasia on view of that existence in persistent vegetative state (PVS) is not a benefit to the patient of a terminal illness being unrelated to the principle of “sanctity of life” or the “right to live with dignity” is of no assistance to determine the scope of Article 21 for deciding whether the guarantee of “right to life” therein includes the “right to die”. The “right to life” including the right to live with human dignity would mean the existence of such a right up to the end of natural life. This also includes the right to dignified life up to the point of death including a dignified procedure of death. But the “right to die” with dignity at the end of life is not to be confused or equated with the “right to die” an unnatural death curtailing the natural span. Instances where death as a result of termination of natural life is definite and impending and the process of natural death has started may fall under the purview of the "right to die with dignity” as a component of the “right to live with dignity”. These are instances of hastening the natural process of dying, which has already started, rather than incidents of extinguishing life. Even in these situations, the issue of allowing physician assistance in ending life remains up for dispute. It is sufficient to state that Article 21 cannot be read to include the right to shorten a person's natural lifespan on the grounds that doing so would decrease the amount of suffering that would otherwise occur throughout the course of a definite natural death. The Constitution Bench in Gian Kaur (supra) went on to declare Section 309 IPC as constitutional. The Court held that the right to live with human dignity cannot be construed to include within its ambit the right to terminate natural life, at least before the commencement of the process of certain natural death.
The issue of euthanasia directly came up before the Supreme Court in the case of Aruna Ramchandra Shanbaugh v. Union of India[6]. This case was filed through an application by a friend of the petitioner who sought to use "passive euthanasia" in order to end the life of the petitioner, a rape victim who had been in a persistent vegetative state (PVS) for the last 38 years. The petitioner worked as a nurse in Mumbai. A sweeper of the same hospital attacked her and wrapped her neck with a dog chain and tried to rape her. The next day, she was found lying on the floor in an unconscious state with blood all over. It was believed that the supply of oxygen to the brain stopped because of strangulation by the chain and hence, the brain got damaged, which led her into a permanent vegetative state. An activist-journalist Pinky Virani filed a petition in the Supreme Court under Article 32 of the Constitution alleging that there was no possibility for her to revive and get better and as such prayed that she should be allowed to go with passive euthanasia to absolve her from her pain and agony.
A two Judge Bench, discussed in detail various nuances of euthanasia by referring to active and passive euthanasia as well as voluntary and involuntary euthanasia, legality and permissibility thereof and relationship of euthanasia viz-a-viz offences concerned under the Indian Penal Code. The judgment legalized passive euthanasia and issued a set of broad guidelines for the same. However, this was to be done subject to certain stringent conditions which included the approval of a High Court after following due process as laid down by the Court. The Court in Aruna Shanbaugh’s case (supra) was of the opinion that passive euthanasia should be permitted when the patient is in a persistent vegetative state and held that it is ultimately for the Court to decide, as parens patriae, as to what is in the best interest of the patient. The wishes of close relatives and next friends and opinion of medical practitioners should be given due weight by the Court in coming to its decision.
Taking cue from the judgment in Vishakha v. State of Rajasthan[7], the Court laid down the law, while allowing passive euthanasia i.e. the circumstances when there could be withdrawal of life support to a patient in permanent vegetative state. The question as to whether one can seek right to die has been dealt with in the context of Article 21 of the Constitution, namely whether this provision gives any such right. The Court in Aruna Shanbaugh’s case (supra), maintained the position as held in Gian Kaur (supra), that “right to die” had not been accepted as an integral part of “right to life” and thus, in so far as active euthanasia was concerned, the same was not accepted, however, passive euthanasia under certain circumstances has been accepted.
Major development in the debate took place when the Seventeenth Law Commission of India in 2012 published its 241st report on the issue of euthanasia. In the report, the Law Commission in the context of provisions of the Indian Penal Code, clarified that where a competent patient takes an 'informed decision' to allow nature to have its course, the patient
is, under common law, not guilty of attempt to commit suicide (under section 309 IPC) nor is the doctor who omits to give treatment, guilty of abetting suicide (under section 306 IPC) or of culpable homicide (under section 299 read with Section 304 of IPC).
Before the Supreme Court of India, Common Cause, a registered society, preferred a writ petition under Article 32 of Constitution of India seeking to declare “right to die with dignity” as a fundamental right within the fold of “right to live with dignity” guaranteed under Article 21 of the Constitution. It also sought directions to adopt suitable procedure to ensure persons of deteriorated health or terminally ill patients should be able to execute a document which can be presented to the hospital for appropriate action in the event of executant being admitted to the hospital with serious illness which may threaten termination of the life of the executant and sought guidelines with regard to “living wills”.
A five-Judge Constitution Bench in Common Cause v. Union of India[8] interalia came to the conclusion that Gian Kaur’s (supra) case reflects the right of a dying man to die with dignity when life is ebbing out and in the case of a terminally ill patient or a person in permanent vegetative state, where there is no hope of recovery, accelerating the process of death for reducing the period of suffering, constitutes a right to live with dignity; it is not the ratio of Gian Kaur (supra) that passive euthanasia can be introduced only by legislation; in active euthanasia, a specific overt act is done to end the patient’s life whereas in passive euthanasia, something is not done which is necessary for preserving a patient’s life and it is due to this difference, that most of the countries, have legalized passive euthanasia either by legislation of by judicial interpretation with certain conditions and safeguards; right to life and liberty as envisaged under Article 21, includes within it the right to live with dignity, which in turn also includes the smoothening of the process of dying in case of a terminally ill patient or a person in permanent vegetative state with no hope of recovery; though sanctity of life has been kept on a high pedestal, yet in cases of terminally ill patients where there is no hope for revival, priority shall be given to the Advanced Directive and the right of self-determination.
An Advanced Directive is a legal document that specifies what actions should be taken for a person if they become unable to make decisions due to illness or incapacity. If a person has specified in their Advanced Directives that they do not want to be kept alive through artificial means if they have a terminal illness, their wish can be upheld to ensure that the person is not subjected to life sustaining treatment against their wish. The Court laid down requirements for Advanced Directives including who could execute the same and how, what should it contain, how should it be recorded and preserved, when and by whom it can be given effect to, what if the permission is refused by the Medical Board and revocation or inapplicability of Advanced Directives.
Thereafter, in a Miscellaneous Application[9] filed by Indian Society of Critical Care Medicine, seeking clarification of the judgment in Common Cause (supra) directives vide judgment dated 24.01.2023, the Supreme Court has simplified the procedure for execution of Living Will and Advanced Directive since the directions as passed originally had become virtually unenforceable owing to the complexity of the procedure prescribed in the original judgment. Several changes and modifications were introduced by the five-Judge bench to the original procedure as prescribed in the 2018 judgment. The Court opined that Advanced Medical Directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. The said Directive will dispel many doubts at the relevant time of need during treatment of the patient. That apart, it will strengthen the mind of the treating doctors as they would be able to ensure, after being satisfied that they are acting in a lawful manner.
The Court noted that in the actual working of the directions, certain insurmountable obstacles were being posed. For instance, the requirement that the Advanced Directive should not only be in the presence of attesting witnesses who are preferably independent witness, but also it should be countersigned by a judicial magistrate, was a clause which was leading to defeating the very object of the Court issuing directions. The Court thus, modified the earlier directions. Some of the changes introduced include modifying the requirement of execution in the presence of two attesting witnesses and counter signing by a judicial first-class magistrate, changes with regard to surrogate decision-maker, role of district court judiciary, changes with regard to informing family members and family physician and the government, changes with regard to ascertaining authenticity, changes with regard to preliminary opinion and final opinion of medical board, withdrawal of treatment, refusal of first medical board, appeal before High Court etc.
Conclusion
While some still consider euthanasia a form of murder and believe in the sanctity of life and supremacy of God for the culmination of life, many supporters, with the development of human rights and technology strongly support the autonomy and the will of an individual in ending one’s life. With the aim to live dignified life and similarly having a dignified end to it, forms of euthanasia are slowly being accepted in order to enable an individual to end his pain and suffering before death. No power or authority supersedes what comes from within and thus, the ultimate choice of cessation of life should be a decision only in the hands of an individual himself. The debate regarding the same, however, will go on as there is a fine line between where the individual has an absolute right and where the state should step in for the protection of its citizens. Being linked with suicide and having loopholes such as misuse and involvement of medical practitioners, having a universal solid acceptance of euthanasia is still improbable.
The Common Cause8 judgment, passed by the Supreme Court of India in 2018 came as a landmark ruling upholding the autonomy of an individual on grounds that no person can be compelled by State or any other power to “suffer”. Passive euthanasia now possesses unequivocal legal sanctity as a result of the law being articulated in the Common Cause8 judgment. The Supreme Court has laid down progressive guidelines that can be put to use until such legislation is enacted. The concept of Advance Directive and Living Will pave way for the clarity on the said issue.
The debate over euthanasia in India is, however, still wide open as no legislation has been brought about and medical practitioners as well as individuals continue to rely upon the guidelines put forth by the Courts. The law on the subject is still in development and evolution stage as can be seen from the judgment of 2018, which had to be modified vide order dated January 24, 2023, to make execution of Advanced Directives and Living Will more workable. This may thus be still work in progress, on which it cannot be said with certainty, that last word is out, till at least the Legislature comes out with a comprehensive law on the subject.
The problems posed for law and morality by an assertion of a right to die are complex. The challenge is to achieve a calculated balance between the safeguards and discretion, and by restricting the administration of euthanasia to well defined situations. Moral dilemmas arise when life is supplied by modern machinery and medicines to dying human beings, whose existence is often an intolerable burden to themselves, their families and to the community in general.
It is fitting to recall in the context of euthanasia the observation that assuredly, one test of a civilization is its concern with the survival of the ‘unfittest’, a reversal of Darwin’s formulation.
[1] Math SB, Chaturvedi SK. Euthanasia: right to life vs right to die. Indian J Med Res. 2012 Dec;136(6):899902.
[2] K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors., (2017) 10 SCC 1
[3] State of Maharashtra v. Maruty Sripati Dubal, (1986) 88 Bom LR 5
[4] P. Rathinam v. Union of India, (1994) 3 SCC 394
[5] Gian Kaur v. State of Punjab, (1996) 2 SCC 648
[6] Aruna Ramchandra Shanbaugh v. Union of India, AIR 2011 SC 1290
[7] Vishakha v. State of Rajasthan, AIR 1997 SC 3011
[8] Common Cause v. Union of India, (2018) 5 SCC 1
[9] Miscellaneous Application 1699 of 2019 and Writ Petition (Civil) No. 215 of 2005 decided on 24.01.23