Euthanasia: Legal Framework in India
I. Introduction Euthanasia in greek means Good death or a quick death. It is also known as mercy killing, assisted suicide, or assisted killing. It is intentionally killing, or ending the life of a person in order to relieve him from pain and suffering. It is the termination of the life of a person who is extremely ill,… Read More »
I. Introduction
Euthanasia in greek means Good death or a quick death. It is also known as mercy killing, assisted suicide, or assisted killing. It is intentionally killing, or ending the life of a person in order to relieve him from pain and suffering. It is the termination of the life of a person who is extremely ill, in most cases where the patient’s condition is incurable.
In the game of life and death, life would matter the most but life would be a smooth and peaceful one and not the one with pain and agony. Hence it is a physical attempt to end or terminate a person’s life and hasten the death in order to prevent the patient to die a slow and painful death.
Euthanasia can either active or passive.
Active Euthanasia:
This is also known as mercy killing. This is the director’s intentional killing of the person either (voluntary), With the consent of the patient, or (Involuntarily) without the consent of the patient during incurable circumstances where the possibility of taking the consent is almost zero. These are the patients who are very old, incurable, and in painful conditions at their deathbed. Here the goal is to eliminate the agony and pain through means of death with the help of some drug.
Passive Euthanasia:
Passive euthanasia is the intentional killing of the patient by withdrawing or withholding life-supporting means. This is one tricky area because Ordinary and Extraordinary Means of life comes into the picture. Here ordinary means of life means food, nutrition, hydration to a person which are one’s basic rights on the contrary extraordinary means are complex means which are needed when requirements of such need arise. Such examples are medicines, drugs in order to sustain and win the battle of life.
II. Evolution of Euthanasia
It is trusted that killing began in antiquated Greece and Rome around the fifth century B.C. They did this by premature births and from time to time played out a benevolence killing. Despite the fact that specialists should take after the Hippocratic Oath, numerous did not and in this manner would wind up giving patients poison in the event that they asked them to. Amid the Middle Ages, killing was practically not feasible. In the event that one conferred suicide, the law in Europe was for the body to be “dragged through the lanes or nailed to a barrel and left to float downriver” (procon.org).
Amid the Seventeenth and Eighteenth hundreds of years, killing was a point of discourse. Nonetheless, individuals kept on dismissing killing and helped suicide. It wasn’t until 1828, for the primary American law to make helped suicide illicit. In spite of the fact that America banned willful extermination and helped suicide, a few states were all the while attempting to get a law went at the state level.
Amid the 1930s, willful extermination began to pick up backing in the US and social orders who were supportive of it began to appear in the US, as well as in England also. Be that as it may, World War Two would change willful extermination until the end of time. Hitler and the Nazis executed a huge number of individuals utilizing killing.
Hitler and the organization did this by gassing, medications, and starving the general population. This put an end to the killing development as Americans became less attached to willful extermination. A survey asked Americans in 1950 whether willful extermination was alright and “just 36 per cent replied, “yes” roughly 10 per cent not exactly in the late 1930s”.
The late twentieth and mid 21st century would be the ideal opportunity for willful extermination. The Netherlands would be the primary nation on the planet to legitimize killing, and Belgium would sanction it not long after the Netherlands did. Australia allowed killing for a brief time in the mid-90s also. In 1998, Oregon would be the primary US state to permit willful extermination and Washington and Montana would take after.
III. Indian Scenario
Right to Die not a Fundamental right in India
Article 21 states “Protection of Life and Personal Liberty”. The question of whether the right to die is included in Article 21 or not is questionable. It came into consideration for the first time before the Bombay High Court where the court held that the Right to life Under Article 21 includes a right to die, and consequently the court struck down Section 309 of the Indian Penal Code which provides punishments for an attempt to committing suicide by a person as unconstitutional.
It was further argued that the desire to die by a person is not unnatural but merely abnormal and uncommon. There were several circumstances listed in which people may wish to end their life which may include
- Disease
- Cruel or unbearable conditions of life
- A sense of shame and disenchantment with life
- Incurable Disease or no means to cure the disease.
The court held that everyone should have the freedom to dispose of his life as and when he desires.
On the Contrary, the Andhra Pradesh High Court held that the Right to die does not fall within the purview of Article 21 hence Section 309 Of the IPC is not unconstitutional[1].
In India, euthanasia is undoubtedly illegal. Since in cases of euthanasia or mercy killing there is an intention on the part of the doctor to kill the patient, such cases would clearly fall under clause first of Section 300 of the Indian Penal Code, 1860. However, as in such cases, there is the valid consent of the deceased Exception 5 to the said Section would be attracted and the doctor or mercy killer would be punishable under Section 304 for culpable homicide not amounting to murder.
But it is only cases of voluntary euthanasia (where the patient consents to death) that would attract Exception 5 to Section 300. Cases of non-voluntary and involuntary euthanasia would be struck by proviso one to Section 92 of the IPC and thus be rendered illegal.
The Indian Constitution says that the ”Right to Die’‘ is not a fundamental right under Article 21. The question of whether the right to die is included in Article 21 of the Constitution came for consideration for the first time before the Bombay High Court. The Court held that the right to life guaranteed by Article 21 includes the right to die, and consequently, the Court struck down Section 309 IPC, which provides punishment for attempt to commit suicide as unconstitutional.
The judges felt that the desire to die is not unnatural but merely abnormal and uncommon. They listed several circumstances in which people may wish to end their lives, including disease, cruel or unbearable conditions of life, and a sense of shame or disenchantment with life. They held that everyone should have the freedom to dispose of his life as and when he desires.[2]
The Supreme Court upheld the Bombay High Court’s decision[3] but the same Court in a five-judge Constitution Bench of the Court overruled the P. Rathinam’s case and, held that ”Right to Life” under Article 21 of the constitution does not include ”Right to Die” or ”Right to be Killed.” The Right to Die is inherently inconsistent as is death with life.[4]
IV. Aruna Shanbaugh’s Case
The Incident in 1973
Aruna was a staff Nurse working in King Edward Memorial Hospital(KEM), Parel, Mumbai. On the night of 27th November 1973, she was assaulted by a sweeper in the doctor’s facility who wrapped a canine chain around her neck and yanked her back with it. He attempted to assault her however finding that she was discharged, he sodomized her.
To immobilize her amid this demonstration he curved the chain around her neck. The following day on 28th November 1973 at 7.45 AM, a cleaner discovered her lying on the floor with blood all over in an oblivious condition. It is asserted that because of strangulation by the pooch chain the supply of oxygen to the cerebrum halted and the mind got harmed. This brought on unsalvageable harm to her mind and pushed her into a Permanent Vegetative State (PVS).
Her nearby relatives and her life partner relinquished her following a couple of years. From that point forward, it is the staff of the KEM healing facility that has been taking excellent consideration of their associate. They have been family to her throughout the previous 40 years and treat her as one among them. The way that she didn’t build up a solitary bed-sore however she is on the bed for quite a while is a declaration to their administration.
The Writ Petition in Supreme Court
In 2009, one Ms. Pinki Virani of Mumbai documented a writ request in the Supreme Court asserting to be Aruna’s next companion. (In the lawful speech, a next companion is a man who speaks to someone else who is under inability and not able to choose for himself/herself and who has no legitimate gatekeeper).
In her request, she said that Aruna can’t be said to be a living individual and it is just by virtue of pounded sustenance which is put into her mouth that there is a veneer of life that is absolute without any human component. She additionally said that there is no probability of any change in her condition and her body lies on the bed in the KEM Hospital like a dead creature, and this has been the position throughout the previous 36 years. She implored that the KEM healing facility powers be coordinated to quit bolstering Aruna and let her pass on gently.
It is additionally to be noticed that the court acknowledged this request under Article 32 of the Indian Constitution. This is uncommon since for any case to be acknowledged under this article, the solicitor needs to demonstrate the infringement of any of her central rights. The court said, that in the perspective of the significance of the issues included, they chose to go further into the benefits of the case.
The court additionally issued a notification to the Dean, KEM Hospital. Dr. Amar Ramaji Pazare, Professor and Head in KEM doctor’s facility, expressed in his accommodation that Aruna acknowledges the sustenance in the ordinary course and reacts by outward appearances. He likewise said that Aruna reacts to charges irregularly by making sounds. His accommodation was at change with the accommodation of the applicant. Subsequently, the court chose to choose a three-part advisory group containing understood specialists to investigate Aruna’s case history, look at her, and after that present a report to the court.
Supreme Court Decisions
The Hon’ble Division Bench of the Supreme Court of India, consisting of Justice Markandey Katju and Justice Gyan Sudha Mishra, delivered this historic judgment on 7 March 2011. The Court argued that Aruna was not brain dead on the basis of the doctor’s report and the concept of brain death under the Transplantation of Human Organs Act, 1994.
On 9th March, the Supreme Court ruled that individuals had the right to die in dignity, enabling passive euthanasia with guidance. The need to amend the laws on euthanasia was prompted by the famous case of Aruna Shanbaug. In 2011, the Supreme Court recognized passive euthanasia in Aruna Shanbaug, which enabled the removal of life-sustaining care from patients who were not in a position to do so.
[1] Chenna Jagadeshwar v. State of Andhra Pradesh 1988CR LJ 549
[2] The State of Maharashtra v. Maruti Shripathi Dubal, 1987 (1) BomCR 499
[3] P. Rathinam v. Union Of India, 1994 AIR 1844, 1994 SCC (3) 394
[4] Gian Kaur v. State of Punjab, 1996 AIR 946, 1996 SCC (2) 648