Article 21 of the Indian Constitution which deals with protection of life and personal liberty has gone through successive interpretations by the Courts of law in important landmark judgements. Each of these interpretations has widened the ambit of Article 21 to include such facets of life which provides meaning, purpose and dignity to existence. Article 21 specifically says that no person shall be deprived of their life or personal liberty except according to procedure established by law. The word liberty is the sense and realization of choice of the attributes associated with the said choice and the term life is the aspiration to possess the same in a dignified manner.
The two are intrinsically interlinked. Liberty allows an individual the space to think and act without restriction and life without liberty would be a meaningless survival. Thus, Article 21 in its own unique way has combined the concept of life and liberty and has also linked it through a legal procedure for its deprivation. It was because of this interpretation, right to die was never interpreted in successive judgements to be an integral part of right to life and personal liberty under Article 21.
However, Supreme Court in a landmark judgement the case of Common Cause v. Union of India and Another in March 2018, has laid down broad legal framework to protect the dignity of a terminally ill patient or those in Persistent Vegetative State (PVS) with no hope of cure or recovery and in the process has allowed 1. Passive Euthanasia 2. Right to give Advance Medical Directives or a valid ‘Living Wills’ to smoothen the dying process as a part of fundamental right to live with dignity.
The case of passive euthanasia was earlier recognised by a Two Judge Bench in the case of Aruna Shanbaug in 2011. Now the Constitution Bench in Common Cause case has expanded the scope of euthanasia by adding to it the principle of a ‘living will’, or an advance directive, a practice where a person while in a competent state of mind, leaves written instructions on the sort of medical treatment that may or may not be administered in the event of them reaching a stage of terminal illness.
Euthanasia and its kinds Oxford dictionary meaning of euthanasia is painless killing of a patient suffering from an incurable and painful disease or in an irreversible coma. Euthanasia is also referred as mercy killing or Physician Assisted Suicide (PAS) and it can be described as bringing about of the gentle death of a patient suffering from painful, chronic and incurable disease. There is a distinction between euthanasia and physician assisted suicide. The difference lies in the fact as to who administers the lethal medication.
It has been observed that in euthanasia, a physician or third party administers it while in physician assisted suicide, it is the patient who does it though on the advice of the doctor. Euthanasia is basically an intentional premature termination of another person‘s life either by direct intervention (active euthanasia) or by withholding lifeprolonging measures and resources (passive euthanasia). This can be done by express or implied request of the person concerned (voluntary euthanasia) or in the absence of such approval or consent of the person concerned (non-voluntary euthanasia).
Active euthanasia also referred as positive or aggressive euthanasia, occurs when death is brought about through a positive act or affirmative action or an act of commission entailing the use of lethal substances or forces to cause the intentional death of a person by direct intervention (lethal injection given to a person with terminal cancer who is in terrible agony). Passive euthanasia, on the other hand, also called negative or non-aggressive euthanasia, entails withdrawing of life support measures or withholding of medical treatment for continuance of life.
Eg. Withholding of antibiotics in case of a patient where death is likely to occur as a result of not giving the said antibiotics or removal of the heart lung machine from a patient in coma. Passive Euthanasia is further categorized into voluntary passive euthanasia and nonvoluntary passive euthanasia. Voluntary passive euthanasia is a situation where a person who is capable of deciding for himself decides that he would prefer to die because of various reasons whereas non voluntary passive euthanasia has been described to mean where a person is not in a position to decide for himself (when they are in coma or in Persistent Vegetative State) Supreme Courts across the world including Canada, United States of America, United Kingdom, Netherlands, Switzerland, Belgium, Spain, Austria, Italy, Germany and France has viewed distinction between active and passive euthanasia through the prism of intention where such an act leads to hastening of death.
Thus, the jurisprudence evolved on passive euthanasia throughout the world has common thread and has gained moral and legal sanctity for its acceptance in some form or the other. However, same cannot be said about active euthanasia and there remains uncertainty about granting legal sanction for its approval. Let us understand the concept of right to life, right to die, suicide and euthanasia through successive judgements of Supreme Court of India.
P. Rathinam v. Union of India & Another (1994) In India attempts have been made to include right to die within the concept of right to life and personal liberty which is one of the most interpreted Fundamental Right in the Constitution. In P. Rathinam v. Union of India & Another, many constitutional issues were raised including questions pertaining to constitutional validity of attempt to suicide (section 309 of Indian Penal Code) and right to die. While referring the question whether right to die can be included as an integral part of Article 21, the Court relied on the case of Maruti Shripati Dubal v. State of Maharashtra, where Bombay High Court held that fundamental rights have their positive as well as negative aspects.
Citing an example, it had stated, “freedom of speech and expression includes freedom not to speak and similarly, the freedom of association and movement includes freedom not to join any association or move anywhere and accordingly, it stated that logically it must follow that the right to live would include the right not to live, i.e., right to die or to terminate one‘s life.”
Thus, the Supreme Court in P. Rathinam v. Union of India & Another ruled that right to life embodied in Article 21 also embodied in it a right not to live a forced life, to his detriment, disadvantage or disliking. Supreme Court further declared Section 309 IPC (criminalises attempt to suicide) ultra vires as it violated Article 21. The Court emphasised that attempt to suicide required medical help and not punishment and held that it deserved to be removed from the statute book to humanize the penal laws in India.
Gian Kaur vs. State of Punjab (1996) The ruling of P. Rathinam v. Union of India & Another was challenged in the case of Gian Kaur vs. State of Punjab. The question arose that if attempt to commit suicide was declared void and unconstitutional, then how can abetment to commit suicide (section 306 IPC) could be considered as a punishable offence. A five Judge Constitutional Bench held that the “right to life” is inherently inconsistent with the “right to die” as is “death” with “life”. In furtherance, the right to life, which includes right to live with human dignity, would mean the existence of such a right up to the natural end of life.
The Court further said that right to life is a natural right embodied under Article 21 but suicide is an unnatural termination or extinguishing of life and is therefore incompatible and inconsistent with the concept of right to life. The Court therefore held Section 306 (abetment of suicide) and 309 (attempt to suicide) of IPC to be valid and constitutional. Thus, Gian Kaur vs. State of Punjab effectively overruled the previous judgment of P. Ratinam v. Union of India and declared that right to die does not form part of Article 21.
In Gian Kaur, Supreme Court further distinguished between euthanasia and attempt to suicide. The Court observed that 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. Whereas euthanasia is termination of life of a person who is terminally ill or in PVS. Thus, euthanasia is not a case of “extinguishing life” but only of accelerating the process of natural death which has already commenced. However, the Court held that permitting termination of life in such cases to reduce the period of suffering during the process of certain natural death cannot be included under Article 21 as it amounts to curtailing natural span of life. Thus, 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. Thus, the Court did not allow passive euthanasia as it terminated natural life.
Aruna Shanbaug (2011)
The controversy related to attempt to suicide and abetment of suicide was decided but the issue of euthanasia still remained. Aruna Shanbaug suffered brain stem and cervical cord injury and remained in Persistent Vegetative State for the rest of her life since 1973 till her death in 2015. In 2009, a writ petition was filed under Article 32 before the Supreme Court of India, seeking passive euthanasia for Shanbaug. The Court appointed a team of three very distinguished doctors to examine the petitioner thoroughly and to submit a report about her physical and mental condition.
The team submitted a joint report. In a landmark judgement in 2011, the Court held, “there is no right to die under Article 21 of the Constitution and the right to life includes the right to live with human dignity but in the case of a dying person who is terminally ill or in permanent vegetative state, he may be allowed a premature extinction of his life and it would not amount to a crime. ”Supreme Court allowed doctors at the KEM Hospital in Mumbai to stop force-feeding Shanbaug and withdraw life support to deliberately end her life, on the discretion of the doctors. Thus, Supreme Court allowed withdrawal of life-sustaining treatment from patients not in a position to make informed decision.
This was the first time after Gian Kaur case, when Supreme Court had allowed passive euthanasia under strict guidelines and conditions. However, Supreme Court did not allow active euthanasia and held that ending life through use of lethal substance’ is not permitted in any circumstance. Common Cause v. Union of India and Another (2018) Supreme Court in common cause case has held that fundamental right to life and dignity under Article 21 includes right to die with dignity. Dignity is lost if a person is allowed or forced to undergo pain and suffering because of unwarranted medical support.
To deprive a person of dignity at the end of life is to deprive him of a meaningful existence. Meaningful existence includes a person’s right to self-determination and autonomy to decide their medical treatment. The respect for an individual human being and in particular for his right to choose how he should live his own life is individual autonomy or the right of self- determination. It is the right against non-interference by others, which gives a competent person who has come of age the right to make decisions concerning his or her own life and body without any control or interference of others.
In the context of health and medical care decisions, a person’s exercise of self-determination and autonomy involves the exercise of his right to decide whether and to what extent they are willing to submit them self to medical procedures and treatments, choosing amongst the available alternative treatments or, for that matter, opting for no treatment at all which, as per their own understanding, is in consonance with their own individual aspirations and values. The Court also agreed that right to a dignified life includes a “dignified procedure of death.”
SC distinguished passive euthanasia from suicide and active euthanasia and drew a judicial line between the two as it called passive euthanasia as a “mere acceleration of the inevitable conclusion” whereas it declared active euthanasia as unlawful and illegal. Suicide involves “overt acts” which culminates in an unnatural death. Supreme Court has invoked its inherent power under Article 142 to grant legal status to its advance directives until Parliament enacts legislation on the matter. This is a landmark judgement as it departs from previous judgements on the concept of including right to die with dignity within the larger ambit of Right to live under Article 21.