Euthanasia -- Indian View

It hath been often said, that it is not death, but dying, which is terrible.

–Henry Fielding

“Better to flee from death than feel its grip”. I would say “better to embrace death than feel its grip [it shall please both]”

– Homer

1. The word euthanasia is derived from the Greek words ‘eu’ which means good and ‘thanotos’ which means death, thus the word literally means good death’. The term is commonly known as ‘mercy killing’ and is legally and medically defined as ‘an act of terminating or ending the life of an individual who suffers from an incurable disease or situation especially painful’. In common words, euthanasia means intentional killing by an act/omission of person whose life is felt is not to be worth living.

2. Euthanasia has branched into two forms based upon the method by which they are performed:

Passive Euthanasia – It is defined as hastening the death by removing the life support and letting the death by natural phenomenon. The above method is practiced where the chance of recovery of the patient is uncertain and is only done to allow the death naturally. This method thus involves omission to perform the extraordinary acts like removal of life support system, stopping food and water and allowing natural death by de-hydration or not allowing CPR (cardio-pulmonary-resuscitation).
Active Euthanasia – It is an act done in mercy, to end the suffering or a painful and meaningless existence. The above method is done through administering some external source into the patient for example, lethal injection such as sodium pentothal to hasten the death.

3. Further, euthanasia is classified into three forms on the basis of consent:

Voluntary – In this type, the person himself seeks the plea for commission of euthanasia. The patient makes a request orally or written, preferring euthanasia rather than to continue living in suffering. Therefore, under voluntary request both passive euthanasia and active euthanasia can be practiced.
Involuntary – In this type, a person is incompetent to consent to the decision of euthanasia. Therefore, this method includes cases of brain-dead, coma patients, etc.
Non-voluntary – In this type, a person is competent yet non-consenting to the decision of euthanasia. No doubt, this form is direct homicide.

4. Other relevant terms with respect to euthanasia that deserve a mention here are enumerated below:

Physically Assisted Suicide (PAS): Also known as aid-in-dying, PAS is a semi-passive form of euthanasia, whereby the medical practitioner prescribes or introduces the right amount of lethal dose for the termination of life at the request of the patient itself. The dose may either be self – injected by the person or the same be made available to the patient who himself/herself injects or inhales the lethal dose.
Permanent Vegetative State (PVS) : It is a state whereby a patient is in a vegetative stage, where he/she no longer is capable of sustaining on his/ her own means and is on support of any or many life support systems or even other individuals (including family, relatives, doctor, medical staff, etc.) to perform basic human functions.
Terminal disease – It refers to an incurable and irreversible disease or condition that has been medically confirmed and will, within reasonable medical judgment, produce death.
Advanced medical directive – Also termed as ‘living will’, it is a directive given by a person, desiring that he/she may not be given extra-ordinary medical treatment in case of his/her terminal illness. Such a directive to be legal, must be voluntary, competent and in advance.

HISTORY OF EUTHANASIA

6. If we delve into history, the period did not have euthanasia running into so many fields. The period of the Greeks and the Romans accounts for practicing suicide and assisted suicide without attaching any social dilemma. The medical field was not so evolved and was never a noble profession till that part of the history. Moreover, the present advocacy on this subject is based on the ideas of autonomy and individual rights, which are themselves the gospels of ancient Greeks and Romans.

7. The Common Era by its religious teaching of Christianity and Judaism posed first great challenge to practicing euthanasia. Christianity teaches that life is a gift of God, and one must live it till the end. Another religion, Islam is also against the concept of euthanasia, as it professes that life is sacred which is given by Allah, and only he decides how long a man shall live.

8. In India, the moral standards, rules, duties and principles of life and religion in the Srutis, Smritis, Vedas, Upanishads, Puranas, Gita, Mahabharata and the Ramayana and other texts are to be followed in life and upon the death by the people. Hinduism seemed very much advocating suicide and self-liberation. Even Manusmriti talks about attaining self-liberation when suffering from incurable disease.

Hindu religion preaches about themes of life – Dharma, Arth, Karma and Moksha. The first three helps in attaining the final; and it is the fourth and the final belief Moksha i.e. extrication of the soul from samsara (continuous life i.e. cycle of birth, life, death and rebirth) and bringing to an end all the sufferings and thereafter being a subject to repeated cycle of death and rebirth (re-incarnation). Thus, Hindu religion strongly holds the philosophy of rebirth and death is only attributed as dispensing of only body by the soul to attain a new one.

Therefore, Hindu religion finds no ethical issues in taking away one’s own life in certain specific circumstances. It is believed that Lord Rama and his brother Lakshmana took Jal Samadhi in Surayu River, while Lord Mahavir attained death by seeking it. Further, Prayopavesa i.e. fasting onto death was taken up by the Hindu leader Satguru Sivaya Subramuniyaswami in November 2001. Liberation under Hindu religion is permissible but is restricted as to when it shall be pursued. Various religious texts, Vedas, etc. states that a man who has attained all aims in life can seek to achieve liberation from samsara, and hence, when a person who is terminally ill and has no chance of recovery shall be allowed to pursue death.

8. Other religions in India like Buddhism and Jainism also support suicide in some restricted form. Buddhism, supposed to be evolved in around 5^th century BC, based upon the teachings of Siddhartha Gautum who is commonly known as Buddha (meaning ‘the enlightened one’ in Sanskrit and Pali), preached the gospels of samsara (cycle of life and death) and liberation from samsara as the ultimate goal of life. Jainism which emerged around 6^th century BC also holds the concept of rebirth and final liberation.

MEDICAL PERSPECTIVE

9. Medical laws and ethics pose serious opposition to euthanasia yet we find that not the entire medical community is against practicing it. Medical ethics in theory have detailed arguments both in favour and against euthanasia. However, a concrete answer as to its legality and practicability is still debatable. A detailed account on medical ethics is indispensable thereof since, it is ultimately the doctors who would have the call of ‘dignified death’.

10. There are two distinctive and contrary concepts to this issue at hand – the ‘sanctity of life’ and the ‘concept of death’. The ‘sanctity of life’ holds that life in all situations possesses same value and needs protection until natural death.

On the other hand, the ‘concept of death’ further dissects into two sub-concepts – one for a person and one for the organism. The ‘death of a person’ is when one dies and ceases to exist when his/her brains lose the capacity for consciousness in a way that is in principle irreversible, whereas, ‘death of an organism’ is a biological phenomenon that consists in the irreversible cessation of integrated functioning in the major organs and sub-systems (respiratory, circulatory, immune, etc.).

LEGALITY OF EUTHANASIA

11. The status of legality of euthanasia in several countries across the world is reflected below[1]:

Sl. No.	Country	Legal status of Euthanasia	Legal status of PAS
1.	Australia	Illegal (legal in Victoria)	Illegal
2.	Belgium	Legal	Legal
3.	Canada	Unclear (Legal in Québec)	Legal
4.	China	Illegal	Illegal
5.	Colombia	Legal	Illegal
6.	Denmark	Illegal	Illegal
7.	Finland	Illegal	Legal
8.	France	Illegal	Illegal
9.	Germany	Illegal	Legal
10.	India	Illegal	Illegal
11.	Ireland	Illegal	Illegal
12.	Israel	Illegal	Illegal
13.	Italy	Illegal	Illegal
14.	Japan	Unclear	Illegal
15.	Luxembourg	Legal	Legal
16.	Mexico	Illegal	Illegal
17.	Netherlands	Legal	Legal
18.	New Zealand	Illegal	Illegal
19.	Norway	Illegal	Illegal
20.	Philippines	Illegal	Illegal
21.	Russia	Illegal	Illegal
22.	South Africa	Illegal	Unclear
23.	Spain	Illegal	Illegal
24.	Sweden	Illegal	Illegal
25.	Switzerland	Illegal	Legal
26.	Turkey	Illegal	Illegal
27.	United Kingdom	Illegal	Illegal
28.	Uruguay	Illegal	Illegal

EUTHANASIA IN INDIA

12. Indian history of the 19^th century too accounts for some instances of euthanasia. Veer Savarkar and Vinoba Bhave are the two well-known examples who chose to end their lives by refusing to take nutrition.

13. Mahatma Gandhi was also known to have supported the idea of wilful death. He got his name ‘Mahatma Gandhi’ only because of his deeds. He preached ahimsa (non-violence) throughout his life, and supported fasting as purification of the soul and saw no wrong in ending once life for a good cause. Inf act, he himself practiced fasting onto death as a political tool unless his demands were met.

14. India has seen a considerable debate on the subject. The opening note regarding euthanasia was made by the Law Commission of India’s Report No. 42 in 1971[2], which for the first-time recommended deletion of Section 309 of the Penal Code, 1860. Further, the Supreme Court in Rathinam v. Union of India[3] held that Section 309 IPC is violative of Article 21 of the Constitution of India. The Court termed the said section as cruel and irrational, resulting in punishing a person again, who has already suffered agony and would be undergoing ignominy because of his failure to commit suicide. Further, an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society, and that it does not cause any harm to others, because of which States’ interference with the personal liberty of the persons concerned is unwarranted.

15. However, the above judgment was overruled by a Constitution Bench of the Supreme Court in Gian Kaur v. State of Punjab[4], wherein it was held that “right to life” is inherently inconsistent with the “right to die” as is “death” with “life”. In furtherance, the right to life, which includes the right to live with human dignity, would mean the existence of such a right up to the natural end of life. It may further include “death with dignity” but such existence should not be confused with unnatural extinction of life curtailing natural span of life. In addition of the above, the constitutionality of Section 309 IPC, which makes “attempt to suicide” an offence, was upheld, overruling the judgment in Rathinam case[5] .

16. After about a decade, the Law Commission of India in 2006 came up with the 196^th Report[6] on terminally ill patients, which recommended legalising ‘passive euthanasia’ in a very strict and controlled mechanism. The Report made it clear that euthanasia and physician-assisted suicide shall remain illegal, and the Report only dealt with the protection of the patients in cases where the terminally ill patient is in a permanent vegetative state with no chance of recovery. In such a case, the patient voluntarily by oral or written request, can seek for the removal of support system, thereby hastening his death, albeit subject to certain safeguards. The doctors attending to such a patient have the duty to inform the patient completely of his state and future prospects and further, shall forcefully keep the patient on life support against his will. This request as per the Report is made as a direction of the terminally ill patient which is binding on the doctor, and protection from Section 306 IPC is available to the doctor who acts under such instructions of the patient. Further, in cases of incompetent patient a mandatory clearance from the High Court shall be taken by the next friend to give effect to the withdrawal of life support.

17. The Supreme Court considered the whole debate in the landmark case of Aruna Ramchandra Shanbaug v. Union of India[7], where although the above Report was refused, still passive euthanasia was made legal without any legislation under the guidelines provided thereunder. However, active euthanasia was altogether precluded from being legalised under the present statues until and unless Parliament makes a specific law in this regard. Further, commenting upon active form of euthanasia, the Court ruled that it is no doubt a criminal offence punishable under Section 302 or at least 304 IPC, when done by any person, and when executed by a doctor as physician assisted suicide (PAS) is punishable under Section 306. The Court has ruled that active form of euthanasia shall remain illegal unless the legislature comes with a law to legalise it. Thus, presently at hand the Court refused its legality as it would amount to ‘constitutional cannibalism’, ‘judicial murder’ and apprehension of being misused by unscrupulous person to inherit property etc.
The Court[8] gave the following safeguards and conditions:

A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.
Even if the decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned.
However, apprehending misuse of the law at the hands of the unscrupulous person in conspiracy with the doctors to inherit or to grab the property of the patient, the High Court recognised the doctrine of parens patriae (father of the country).
In view of the developments around the world stressing on countries to decriminalise attempt to suicide, Indian Psychiatric Society recommended the Law Commission to prepare a report in this regard. The Law Commission suo motu took up the issue and submitted a report recommending to the Government to initiate steps for repeal of anachronistic law contained in Section 309 IPC. The Report discussed the constitutionality and validity of the section in light of several judgments by the judiciary, and also dealt briefly with situation in other jurisprudence and earlier Report by the Commission on the subject. Finally, the Report stated that the anachronistic law is inhumane, irrespective of whether it is constitutional or unconstitutional and shall be deleted.
The Report of 2012[9] submitted in August, suggested legalisation of passive euthanasia, in the light of Aruna Shanbaug case[10], whereby the Court laid down guidelines for passive euthanasia and rejected decriminalising active euthanasia in toto. The Court in the judgment accepted some of the prepositions of the earlier 196^th Report, hence, this Report saw a relook into legalising passive euthanasia and revised the proposed Bill to be presented before the Legislature. The present Report respecting the views expressed by the Court in the case, recommended that a law is necessary in line of the guidelines made out in Aruna Shanbaug case. However, the Report clarified that active euthanasia and Physician Assisted Suicide shall be illegal and even attributed active euthanasia as punishable under Section 300 (when voluntary) and Section 302 (when involuntary) of the Penal Code, whereas PAS is opposed to Section 306 of the Code.
In Common Cause Union of India[11] , a writ petition was filed by the appellant society praying for declaring ‘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 and to issue direction to the respondent, to adopt suitable procedures, in consultation with the State Governments wherever necessary, to ensure that the persons with deteriorated health or terminally ill should be able to execute a document viz. ‘my living will & attorney authorisation’ which can be presented to the hospital for appropriate action in case of the executant being admitted to the hospital with serious illness which may threaten termination of his life or in the alternative, issue appropriate guidelines to this effect and to appoint an Expert Committee consisting of doctors, social scientists and lawyers to study into the aspect of issuing guidelines regarding execution of ‘Living Wills’. The Court referred the matter to a Constitution Bench of the same Court be holding as under:

“14. Nevertheless, a vivid reading of para 104 of Aruna Shanbaug[12] demonstrates that the reasoning in para 104 is directly inconsistent with its own observation in para 101. Para 104 reads as under:

‘104. It may be noted that in Gian Kaur case[13] although the Supreme Court has quoted with approval the view of the House of Lords in Airedale’s case[14], it has not clarified who can decide whether life support should be discontinued in the case of an incompetent person e.g. a person in coma or PVS. This vexed question has been arising often in India because there are a large number of cases where persons go into coma (due to an accident or some other reason) or for some other reason are unable to give consent, and then the question arises as to who should give consent for withdrawal of life support. This is an extremely important question in India because of the unfortunate low level of ethical standards to which our society has descended, its raw and widespread commercialisation, and the rampant corruption, and hence, the Court has to be very cautious that unscrupulous persons who wish to inherit the property of someone may not get him eliminated by some crooked method.’

15. In paras 21 & 101, the Bench was of the view that in Gian Kaur[15], the Constitution Bench held that euthanasia could be made lawful only by a legislation. Whereas in para 104, the Bench contradicts its own interpretation of Gian Kaur[16] in para 101 and states that although this Court approved the view taken in Airedale[17] , it has not clarified who can decide whether life support should be discontinued in the case of an incompetent person e.g., a person in coma or PVS. When, at the outset, it is interpreted to hold that euthanasia could be made lawful only by legislation where is the question of deciding whether the life support should be discontinued in the case of an incompetent person e.g. a person in coma or PVS.

16. In the light of the above discussion, it is clear that although the Constitution Bench in Gian Kaur[18] upheld that the ‘right to live with dignity’ under Article 21 will be inclusive of ‘right to die with dignity’, the decision does not arrive at a conclusion for validity of euthanasia be it active or passive. So, the only judgment that holds the field in regard to euthanasia in India is Aruna Shanbaug[19] , which upholds the validity of passive euthanasia and lays down an elaborate procedure for executing the same on the wrong premise that the Constitution Bench in Gian Kaur[20] had upheld the same.

17. In view of the inconsistent opinions rendered in Aruna Shanbaug[21] and also considering the important question of law involved which needs to be reflected in the light of social, legal, medical and constitutional perspective, it becomes extremely important to have a clear enunciation of law. Thus, in our cogent opinion, the question of law involved requires careful consideration by a Constitution Bench of this Court for the benefit of humanity as a whole.”

21. The Constitution Bench of the Supreme Court, on the above matter[22] being referred to it, allowed the writ petition, while upholding the observation made in the reference order to the effect that Constitution Bench in Gian Kaur case[23] did not express any binding view on the subject of euthanasia. The Constitution Bench further held[24] as follows:

“M. CONCLUSIONS:

629. From the above discussions, we arrive on following conclusions:

The Constitution Bench in Gian Kaur case[25] held that the “right to life: including right to live with human dignity” would mean the existence of such right up to the end of natural life, which also includes the right to a dignified life up to the point of death including a dignified procedure of death. The above right was held to be part of fundamental right enshrined under Article 21 of the Constitution which we also reiterate.
We agree with the observation made in the reference order of the three-Judge Bench to the effect that the Constitution Bench in Gian Kaur case[26] did not express any binding view on the subject of euthanasia. We hold that no binding view was expressed by the Constitution Bench on the subject of euthanasia.
The Constitution Bench, however, noted a distinction between cases in which physician decides not to provide or continue to provide for treatment and care, which could or might prolong his life and those in which he decides to administer a lethal drug even though with object of relieving the patient from pain and suffering. The later was held not to be covered under any right flowing from Article 21.
Thus, the law of the land as existing today is that no one is permitted to cause death of another person including a physician by administering any lethal drug even if the objective is to relieve the patient from pain and suffering.
An adult human being of conscious mind is fully entitled to refuse medical treatment or to decide not to take medical treatment and may decide to embrace the death in natural way.
Euthanasia as the meaning of words suggest is an act which leads to a good death. Some positive act is necessary to characterise the action as euthanasia. Euthanasia is also commonly called “assisted suicide” due to the above reasons.
We are thus of the opinion that the right not to take a life saving treatment by a person, who is competent to take an informed decision is not covered by the concept of euthanasia as it is commonly understood but a decision to withdraw life saving treatment by a patient who is competent to take decision as well as with regard to a patient who is not competent to take decision can be termed as passive euthanasia, which is lawful and legally permissible in this country.
The right of patient who is incompetent to express his view cannot be outside of fold of Article 21 of the Constitution of India.
We also are of the opinion that in cases of incompetent patients who are unable to take an informed decision, “the best interests principle” be applied and such decision be taken by specified competent medical experts and be implemented after providing a cooling period to enable aggrieved person to approach the court of law.

* * *

In view of our conclusions as noted above the writ petition is allowed in the following manner:

The right to die with dignity as fundamental right has already been declared by the Constitution Bench judgment of this Court in Gian Kaur case[27] which we reiterate.
We declare that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life saving devices.
A person of competent mental faculty is entitled to execute an advance medical directive in accordance with safeguards as referred to above.”

22.In view of the above, it is time for the Government to create public awareness, apart from an ambiguous law, effective implementation and strict adherence. Also, the necessary panel of experts of Doctors and Judges have to be made owing to the number of cases. Further, the Government should also strive to check proper functioning of mechanism and provide necessary infrastructure as and where required. Lastly, there is also a need for drafting a special law on the practice of euthanasia along with amending the relevant provisions of IPC.

*Advocate and a qualified Chartered Accountant. Author is currently a Senior Associate in the Dispute Resolution Practice at L&L Partners Law Offices, New Delhi. Author’s views are personal only.

[1] https://euthanasia.procon.org/euthanasia-physician-assisted-suicide-pas-around-the-world/

[2] 42^nd Report on Indian Penal Code (June 1971)

[3] (1994) 3 SCC 394

[4] (1996) 2 SCC 648

[5] (1994) 3 SCC 394

[6] 196th Report of the Law Commission on Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners (March 2006)

[7] (2011) 4 SCC 454

[8] Ibid

[9] 241^st Report of the Law Commission on Passive Euthanasia — A Relook (August 2012)

[10] (2011) 4 SCC 454

[11] (2014) 5 SCC 338

[12] (2011) 4 SCC 454