By
Shruti Kukreti & Rajat Sharma, III year of B.A.,LL.B. from Fairfield Institute of Management & Technology
“I think those who have a terminal illness and are in great pain should have the right to choose to end their own life, and those that help them should be free from prosecution”.
- By Stephen Hawking
INTRODUCTION
The Constitution of India grants some basic rights to its citizens which are popularly known as Fundamental Rights. These rights are universally enjoyed by every citizen irrespective of race, caste, gender, colour or place of birth. They are mentioned in Part III ranging from Article 12 to 35 of The Indian Constitution. Article 21 being the most important right enjoys dominance over the other fundamental rights.
Article 21 of The Indian Constitution talks about Right to Life and Personal Liberty. This article is defined as the heart and soul of the Constitution. It says that no one would be denied the right to live and privacy except according to the procedure established by law. This right applies not only to the citizens but to every person. The main purpose of Article 21 is to prevent and discourage any encroachment by the State upon personal liberty and deprivation of life of an individual. The expression “Right to Life” here is not a mere living right but rather involves complete, meaningful and dignified living. But with the new judicial pronouncements, it has been observed by the Apex Court that Article 21 does include the right to die. So the question which is raised before our judiciary is whether an individual has any right to refuse his life support system.
OVERVIEW
The word “euthanasia” means "good death". More commonly called “Physician-assisted Suicide”, euthanasia is the practice of intentionally ending someone’s life to relieve suffering and pain. Different countries have different laws related to euthanasia. There are many categories of euthanasia like active, passive, voluntary and involuntary euthanasia.
Active Euthanasia refers to an act which brings the death of a patient who is suffering from an incurable disease. It can be done by injecting a person with heavy drugs or in other ways. Although it is meant to end the suffering of the patient it is considered as something immoral. It is often considered as killing mercy as it somehow involves killing a person deliberately. It is legalised in many countries like Switzerland and the United States but not in India.
Passive Euthanasia refers to the omission of something necessary for patients continued survival. It can be an act of withdrawing life support and letting nature decide the fate of the patient. It is a more accepted form of mercy killing which is somehow considered moral. Many countries have legalised passive euthanasia like India, Germany, California etc.
CONSTITUTIONAL ASPECT
DOES ARTICLE 21 INCLUDE RIGHT TO DIE?
This question has been posed several times in front of our Judicial System. Every time different judgements and interpretations have been given to this Right to Die.
This question was first considered by Bombay High Court in the case State of Maharashtra v. Maruti SripatiDubal[1]. In this case, the Court decided that Right to die comes under Article 21 of the Indian Constitution. Further, the Court struck down Section 309 of the Indian Penal Code and declared it unconstitutional. In-State v. Sanjay Kumar Bhatia[2], the same provision of “Attempt to Suicide” under Section 309 IPC was highly criticised by Delhi High Court. The Apex Court in P. Rathinam v. Union of India[3] supported the judgement of Bombay High Court in MarutiSripatiDubal case on the ground that Section 309 of IPC violates Article 21 and declared the said provision unconstitutional.
In Gian Kaur v. State of Punjab[4], the Apex Court came with a new view regarding the said provision which ultimately gained a lot of public attention. In this case, Gian Kaur and her husband were convicted for abetting the suicide of a lady named Kulwant Singh Kaur under Section 306 of Indian Penal Code. The Appellants gave the reference of the judgement given in P. Rathinam case and contended that Right to die, which comes under Article 21, is a fundamental right and hence they could not be prosecuted for the offence. The Court after carefully examining the case stated that Right to die is a positive concept which aims to protect the life and dignity of an individual and thus cannot be used otherwise to end someone’s life. Hence, the Court overruled the judgement of P. Rathinam case and held that Article 21 of the Indian Constitution does not include the right to die.
Later in the case of ArunaShanbaug v. Union of India [5], again the Court came with a new interpretation. The case was about a nurse named Aruna who was raped and sodomised by the accused who worked as a cleaner in the same hospital. She was first raped and then strangled by a dog chain for 5 hours due to which she entered a permanent vegetative state and remained like that for almost 35 years before her death. A plea was filed by Journalist named Pinki Virani for euthanasia before the Hon’ble Supreme Court. However, the Court rejected the plea for the victim but allowed passive euthanasia in the country. The court ruled that passive euthanasia could be introduced by the legislature.
In Common Cause v. Union of India [6], a new element called “living will” was introduced with the concept of euthanasia. In this case, a registered society named Common Cause filed a writ petition under Article 32 of the Constitution for legalizing passive euthanasia and validates living wills. The petitioners contended that scientific advancement and modern technologies have created such situations due to which life of patients is unnecessarily prolonged which causes a lot of distress to the patients and relatives and passive euthanasia should be given through way of living wills. The Court finally overruled the observations made in ArunaShanbaug case and allowed passive euthanasia by way of living wills.
The Court in the above-mentioned case gave direction for properly executing living wills. The person must be of sound mind and healthy and must record his wish of not using ventilators for continuous life support. This judgment has allowed the patients to end their suffering through passive euthanasia under living will.
CHALLENGES
Even after analysing and deciding numerous above-mentioned cases, the judiciary found it difficult to settle to a single conclusion. The direct and extraordinary contradiction between right to live and right to die is one of the biggest obstacles in the path of legalising euthanasia. If we attempt to analyse both the terminologies in the same panel, then we can see that how the said provision infringes core of our fundamental rights i.e. Article 21 which is guaranteed by Indian constitution to its citizens. Many critics argue that right to live under the said article implies a positive approach and acts as protection against any encroachment on an individual’s life and personal liberty by the state whereas euthanasia or assisted suicide is a negative approach against the said article.
After compiling all the surrounding aspects of Article 21, the judiciary has come up with a midway interpretation i.e. Right to Die with Dignity. The Apex Court observed the same doctrine in a very recent case i.e. HathrasGangrape Case thereby criticising the midnight cremation of the victim by the state authorities.
The concept of euthanasia involves a lot of controversy within itself. Even today, the status of the right to die is found to be very vague and unclear in our Indian Constitution and legislation.
CONCLUSIVE REMARKS
The modifications in the journey of judicial pronouncement ranging from MarutiSripati case to Common Cause case could be examined and seen easily. It has been observed that the Judiciary has preferred to keep “Right to Die” under the umbrella of Article 21 concerning dignified living.
“Modern medical science should balance its quest to prolong life with the need to provide patience and quality of life. One is meaningless without the other”[7]
From the above mentioned judicial precedents, it can be rightly concluded that an individual does have a right to refuse medical treatment including withdrawal from life-saving devices. The struggle between the rule of the sacredness of life and the rights of self-assurance and nobility of a person is to be settled, to begin with and the right to die ought not to be generalized but ought to be worked out as an exemption within rarest of uncommon cases.
” My dear Lord, one who earnestly waits for You to bestow Your causeless mercy upon him, all the while patiently suffering the reactions of his past misdeeds and offering You respectful obeisance with his heart, words and body, is surely eligible for liberation, for it has become his rightful claim”.[8]
[1]1996 Cr LJ 4457(SC).
[2]1986 (10) DRJ 31.
[3]1994 AIR 1844, 1994 SCC (3) 394.
[4] AIR 1996 SC 946.
[5] AIR 2011 SC 1290.
[6] W.P. (Civil) 215 of 2005.
[7] Justice D.Y. Chandrachud.
[8]Srimad Bhagavatam 10.14.8.