Article on Euthanasia

POSITION OF EUTHANASIA IN INDIA AN

ANALYTICAL STUDY.

Caesar Roy*

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ABSTRACT

When a person ends his life by his own act it is called suicide but to end life of a person

by others though on the request of the deceased, is called euthanasia or mercy killing.

This paper seeks to discuss what euthanasia is and its possible application in three

different occasions of a living person since very birth. In ancient societies of the countries

like Greece and India how the practice of self-destruction was a customary, what was the

attitude towards the annihilation of life of different religions like Hindu, Muslim,

Christian and Sikh. Though the purpose of suicide and euthanasia is self-destruction but

there is clear difference between the two. Euthanasia may be classified in five categories

and also there are various ways for its application. These apart the opinion of sociologists

regarding euthanasia, its legal position in India in view of the Constitution of India,

Indian Penal Code and other laws in vogue, so also the position of different countries of

the world are all taken for discussion. Although the Supreme Court has already given its

decision on this point but still some doubts arise in our point which we need to analyze

carefully. Lastly, arguments are put forward for and against legalizing euthanasia and this

article has been concluded with a definite comment in favour of legalizing passive

euthanasia in India.

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*LL.M, PG Diploma in Criminology & Forensic Science & Research Scholar, Department of Law, The University of Burdwan. West Bengal.

Assistant Professor in law, Midnapore Law College, Midnapore, West Bengal. PIN 721102. Mobile No. 9434320999. Email [email protected]

Key words: Euthanasia, Mercy killing, Suicide, Voluntary euthanasia, Consent for killing, Passive euthanasia.

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INTRODUCTION

Every human being is desirous to live and enjoy the fruits of life till he dies. But

sometimes a human being is desirous to end his life by use of unnatural means. To end

ones life in an unnatural way is a sign of abnormality. When a person ends his life by his

own act we call it suicide but to end life of a person by others though on the request of

the deceased, is called euthanasia or mercy killing.

Euthanasia is mainly associated with people with terminal illness or who have become

incapacitated and dont want to go through the rest of their life suffering. A severely

handicapped or terminally ill person should have the right to choose to live or die. The

right to choose to live or die should not be a right allocated for bodied individuals of

sound mind but to all human beings. Euthanasia is a controversial issue which

encompasses the morals, values and beliefs of our society.

Euthanasia has been a much debated subject through out the world. The debate has

become increasingly significant because of the recent developments in Netherlands and

England euthanasia has been allowed. As a result many of the nations across the world

are now hotly debating whether or not to follow the Dutch example. Recently our

Supreme Court in Aruna Shanbaug case1 has already given its decision on this point and

allowed passive euthanasia in India.

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1. Aruna Ramchandra Shanbaug v. Union of India, 2011(3) SCALE 298 : MANU/SC/0176/2011

MEANING AND DIFFERENT TYPES OF EUTHANASIA

According to Blacks Law Dictionary (8th edition) euthanasia means the act or practice of

killing or bringing about the death of a person who suffers from an incurable disease or

condition, esp. a painful one, for reasons of mercy. Encyclopedia of Crime and Justice,

explains euthanasia as an act of death which will provide a relief from a distressing or

intolerable condition of living. Simply euthanasia is the practice of mercifully ending a

persons life in order to release the person from an incurable disease, intolerable

suffering, misery and pain of the life. The term euthanasia was derived from the Greek

words eu and thanatos which means good death or easy death .It is also known

as Mercy Killing. Euthanasia has been defined as the administration of drugs with the

explicit intention of ending the patients life, at the patients request2. Euthanasia literally

means putting a person to painless death especially in case of incurable suffering or when

life becomes purposeless as a result of mental or physical handicap3. Euthanasia or mercy

killing is the practice of killing a person for giving relief from incurable pain or suffering

or allowing or causing painless death when life has become meaningless and dis-

agreeable4. In the modern context euthanasia is limited to the killing of patients by

doctors at the request of the patient in order to free him of excruciating pain or from

terminal illness. Thus the basic intention behind euthanasia is to ensure a less painful

death to a person who is in any case going to die after a long period of suffering.

Euthanasia may be classified as follows:-

(1) Active or Positive

(2) Passive or negative (also known as letting-die)

(3) Voluntary

(4) Involuntary

(5) Non-Voluntary

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2. Brody, Baruch. (1998). Life and Death Decission Making, New York; Oxford University Press.

3. Dr. Parikh, C.K. (2006). Parikhs Textbook of Medical Jurisprudences, Forensic Medicine and Toxicology. 6th Edition, Page 1.55. Ne Delhi, CBS Publishers & Distributors.

4. Nandy, Apurba. (1995). Principles of Forensic Medicine, 1st Edition, Page 38. Kolkata, New Central Book Agency (P) Ltd.

Active or Positive: - Active euthanasia involves painlessly putting individuals to death for

merciful reasons, as when a doctor administer lethal dose of medication to a patient.

Passive or negative: - euthanasia is passive when death is caused because a treatment that

is sustaining the life of the patient is held off and the patient dies as a result thereof. For

example, withdrawing life supporting devices from a serious patient, removing which, the

patient dies. In "passive euthanasia" the doctors are not actively killing anyone; they are

simply not saving him5.

Voluntary: - it is voluntary when the euthanasia is practiced with the expressed desire and

consent of the patient. voluntary euthanasia is primarily concerned with the right to

choice of the terminally ill patient who decides to end his or her life, choice which serves

his/her best interest and also that of everyone else.

Involuntary: - when the patient is killed without an expressed wish to this effect, it is a

form of involuntary euthanasia. It refers to cases wherein a competent patients life is

brought to an end against the wishes of that patient that oppose euthanasia; and would

clearly amount to murder.

Non-Voluntary:- it refers to ending the life of a person who is not mentally competent to

make an informed request to die, such as a comatose patient. In Non-Voluntary

euthanasia the patient has left no such living will or given any advance directives, as he

may not have had an opportunity to do so, or may not have anticipated any such accident

or eventuality. In cases of non voluntary euthanasia, it is often the family members, who

make the decision.

There are various ways for euthanasia. The most popular methods include

1. Lethal injection - Injection of a lethal dose of a drug, such as a known poison,

KCl, etc.

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5. Aruna Ramchandra Shanbaug v. Union of India, 2011(3) SCALE 298; MANU/SC/0176/2011

2. Asphyxiation - The most popular gas used is Carbon monoxide (CO). Nerve

gases like sarin & tabun etc. are also added in small amounts to fully ensure

death. One of the methods is also Dr. Jack Kevorkians death machine

(mercitron, thanatron). He is also known as Dr.Death. Its a unique method in

which a person can end his life himself. With the use of this machine a person

can end his life himself painlessly at the time chosen by the patient.

HISTORICAL BACKGROUND

Before discussing the legal position of euthanasia in India, let us try to find out its

historical background.

The right to die or end ones life is not something new or unknown to human civilization.

In ancient Greece and Rome helping others die or putting them to death was considered

permissible in some situations. For example, in the Greek city of Sparta newborns with

severe birth defects were put to death. Voluntary euthanasia for the elderly was an

approved custom in several ancient societies. Many ancient texts including the Bible, the

Koran and the Rig-Veda mention self destruction or suicide. In India, the history of Vedic

age is replete with numerous examples of suicides committed on religious grounds. The

Mahabharata and the Ramayana are also full of instances of religious suicides.

Most Hindus would say that a doctor should not accept a patient's request for euthanasia

since this will cause the soul and body to be separated at an unnatural time. The result

will damage the karma of both doctor and patient. Other Hindus believe that euthanasia

cannot be allowed because it breaches the teaching of ahimsa (doing no harm). However,

some Hindus say that by helping to end a painful life a person is performing a good deed

and so fulfilling their moral obligations. Govardana and Kulluka, while writing

commentaries on Manu, observed that a man may undertake the mahaprastha (great

departure) on a journey which ends in death when he is incurably diseased or meets with

a great misfortune, and that, it is not opposed to Vedic rules which forbid suicide.6

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6. Laws of Manu, translated by George Buhler, Sacred Books of the East by F. Maxmuller

(1967 reprint). Vol. 25, page 206

There are two Hindu views on euthanasia:

By helping to end a painful life a person is performing a good deed and so fulfilling their

moral obligations.

By helping to end a life, even one filled with suffering, a person is disturbing the timing

of the cycle of death and rebirth. This is a bad thing to do, and those involved in the

euthanasia will take on the remaining karma of the patient.

The same argument suggests that keeping a person artificially alive on a life-support

machines would also be a bad thing to do. However, the use of a life-support machine as

part of a temporary attempt at healing would not be a bad thing. The ideal death is a

conscious death, and this means that palliative treatments will be a problem if they reduce

mental alertness.

Muslims are against euthanasia. They believe that all human life is sacred because it is

given by Allah, and that Allah chooses how long each person will live. Human beings

should not interfere in this.

a) Life is sacred

Euthanasia and suicide are not included among the reasons allowed for killing in Islam

Do not take life, which Allah made sacred, other than in the course of justice.

If anyone kills a person - unless it be for murder or spreading mischief in the land- it

would be as if he killed the whole people.

b) Suicide and euthanasia are explicitly forbidden

"Destroy not yourselves. Surely Allah is ever merciful to you.

Christians are mostly against euthanasia. The arguments are usually based on the

argument that life is a gift from God and that human beings are made in God's image.

Birth and death are part of the life processes which God has created, so we should respect

them. Therefore no human being has the authority to take the life of any innocent person,

even if that person wants to die.

Sikhs derive their ethics largely from the teachings of their scripture, Guru Granth Sahib,

and the Sikh Code of Conduct (The Rehat Maryada). The Sikh Gurus rejected suicide

(and by extension, euthanasia) as an interference in God's plan. Suffering, they said, was

part of the operation of karma, and human beings should not only accept it without

complaint but act so as to make the best of the situation that karma has given them.

EUTHANASIA AND SUICIDE

Suicide and euthanasia cannot be treated as one and the same thing. They are two

different acts. Therefore, we shall have to make a distinction between euthanasia and

suicide. Suicide as mentioned in Oxford Dictionary7 means the act of killing yourself

deliberately. Therefore, suicide could be termed as the intentional termination of ones

life by self- induced means for various reasons, such as, frustration in love, failure in

examinations or in getting a good job, but mostly it is due to depression. Euthanasia has

not been defined in the religious books but since it is very close to concept of suicide,

therefore it can be presumed that it is prohibited by all religions. In Indian law intention

is the basis for penal liability. An act is not criminal act if it is committed or omitted

without the intention and law of crimes in India is based on the famous Roman maxim,

Actus non facit reum nisi men sit rea. Now applying the above maxim in cases of

euthanasia one may conclude that since the victim has given the consent to die therefore,

the accused is not liable for any offence. But does giving a consent for killing a person

absolve the offender from his criminal liability is very important question. If answer to

this question is in affirmative then euthanasia is not an offence. But the Indian law is very

clear on this point. One may argue that giving the consent absolves a person from liability

or he may plead the defense of volenti non fit injuria. Law relating to consent as

contained in Indian Penal Code is very exhaustive and leaves no ambiguity to explain it.

Section 87 of the Indian Penal Code clearly lays down that consent cannot be pleaded as

a defense in case where the consent is given to cause death or grievous hurt. The Bombay

High Court in Maruti Shripati Dubal case8 has attempted to make a distinction between

suicide and euthanasia or mercy killing. According to the court the suicide by its very

nature is an act of self killing or termination of ones own life by ones act without

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7. Oxford Advanced Learners Dictionary of Current English. (2000). Sixth Edition. ; Oxford University Press.

8. Maruti Shripati Dubal v. State of Maharastra; 1987 Cri.L.J 743 (Bomb)

assistance from others. But euthanasia means the intervention of others human agency to

end the life. Mercy killing therefore cannot be considered in the same footing as on

suicide. Mercy killing is nothing but a homicide, whatever is the circumstance in which it

is committed. In another case9 the Bombay High Court also observed that suicide by its

very nature is an act of self killing or self destruction, an act of terminating ones own act

and without the aid and assistance of any other human agency. Euthanasia or mercy

killing on the other hand means and implies the intervention of other human agency to

end the life. Mercy killing is thus not suicide. The two concepts are both factually and

legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the

circumstances in which it is affected.

Herein, the concept of assisted suicide is also involved, which can be defined as

providing an individual with the information, guidance and means to take his or her own

life with the intention that it will be used for this purpose. Assisted suicide is

distinguished from active euthanasia in the sense that the in the former, person must take

deliberate steps to bring about his or her own death. Medical personnel may provide

assistance, but the patient commits the act of suicide while in active euthanasia, it is the

doctor who ends the life of the patient. When a doctor helps people to kill themselves it is

called doctor assisted suicide.

Our Supreme Court in Gian Kaur v. State of Punjab10, clearly held that euthanasia and

assisted suicide are not lawful in our country. The court, however, referred to the

principles laid down by the House of Lords in Airedale11 case, where the House of Lords

accepted that withdrawal of life supporting systems on the basis of informed medical

opinion, would be lawful because such withdrawal would only allow the patient who is

beyond recovery to die a normal death, where there is no longer any duty to prolong life.

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9. Naresh Marotrao Sakhre v. Union of India; 1995 Cri.L.J 95 (Bomb)

10. 1996 (2) SCC 648 : AIR 1996 SC 946

11. Airdale NHS Trust v. Bland, 1993(1) All ER 821 (HL)

TRENDS OF EUTHANASIA IN DIFFERENT COUNTRIES

The laws pertaining to euthanasia and the practice of euthanasia throughout the world,

has gained importance (and continues to be a significant contention for debates) for the

most part, in the second half of the 20th Century. There are several instances pertaining

to suicide and euthanasia in different countries, some of which have been illustrated

below.

Netherlands

In April 2002, Netherlands became the first European country to legalize euthanasia and

assisted suicide. Euthanasia in the Netherlands is regulated by the "Termination of Life

on Request and Assisted Suicide (Review Procedures) Act", 2002. It states that

euthanasia and physician-assisted suicide are not punishable if the attending physician

acts in accordance with the criteria of due care. It legalizes euthanasia and physician

assisted suicide in very specific cases, under very specific circumstances. . According to

the penal code of the Netherlands killing a person on his request is punishable with

twelve years of imprisonment or fine and also a assisting a person in committing suicide

is punishable with three years of imprisonment or fine. But the law allows a medical

review board to suspend prosecution of doctors who performed euthanasia when each of

the following conditions is fulfilled -

The patient's suffering is unbearable with no prospect of improvement

The patient's request for euthanasia must be voluntary and persist over time (the

request cannot be granted when under the influence of others, psychological

illness, or drugs).

The patient must be fully aware of his/her condition, prospects and options

There must be consultation with at least one other independent doctor who needs

to confirm the conditions.

The death must be carried out in a medically appropriate fashion by the doctor or

patient, in which case the doctor must be present

The patient is at least 12 years old (patients between 12 and 16 years of age

require the consent of their parents).

Australia

The Northern Territory of Australia became the first country to legalize euthanasia by

passing the Rights of the Terminally Ill Act, 1996. It was held to be legal in the case

Wake v. Northern Territory of Australia12 by the Supreme Court of Northern Territory of

Australia. But later a subsequent legislation that was the Euthanasia Laws Act, 1997

made it again illegal by repealing the Northern Territory legislation.

United States

Laws in the United States maintain the distinction between passive and active euthanasia.

Euthanasia has been made totally illegal by the United States Supreme Court in the cases

Washington v. Glucksberg13 and Vacco v. Quill14 but physician assisted dying is legal in

the states of Oregon under the Oregon Death with Dignity Act, 1997, in Washington

under Washington Death with Dignity Act, 2008 and in Montana by the State judiciary and

not the legislature.

Canada

In Canada, patients have the right to refuse life sustaining treatments but they do not have

the right to demand for euthanasia or assisted suicide. In Canada, physician assisted

suicide is illegal as per section 241(b) of the Criminal Code of Canada. The Supreme

Court of Canada in Sue Rodriguez v. British Columbia (Attorney General)15, said that in

the case of assisted suicide the interest of the state will prevail over individuals interest.

Belgium

The Belgian Parliament legislation Belgium Act on Euthanasia was made euthanasia

legal in May, 2002 which is quite similar to that passed in the Netherlands.

Switzerland

According to Article 115 of Swiss Penal Code, suicide is not a crime and assisting suicide

is a crime if only if the motive is selfish. It does not require the involvement of physician

nor is that the patient terminally ill. It only requires that the motive must be unselfish.

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12. (1996) 109 NTR 113. 521 US 702 (1997)14. 521 US 793 (1997)15. (1993) 3 SCR 519

Switzerland has an unusual position on assisted suicide; it is legally permitted and can be

performed by non-physicians. However, euthanasia is illegal,

Both in Russia and Spain the euthanasia and the physical assisted suicide are illegal.

In England, the House of Lords in Airedale NHS Trust v. Bland16 permitted non-

voluntary euthanasia in case of patients in a persistent vegetative state. It was a case

relating to withdrawal of artificial measures for continuance of life by a physician. It was

held that it would be unlawful to administer treatment to an adult who is conscious and of

sound mind, without his consent. Such a person is completely at liberty to decline to

undergo treatment, even if the result of his doing so will be that he will die. It was further

held that if a person, due to accident or some other cause becomes unconscious and is

thus not able to give or with-hold consent to medical treatment, in that situation it is

lawful for medical men to apply such treatment as in their informed opinion is in the best

interests of the unconscious patient. It is not lawful for a doctor to administer a drug to

his patient to bring about his death, even though that course is prompted by a

humanitarian desire to end his suffering, however great that suffering may be. All the

judges of the House of Lords in this case were agreed that Anthony Bland should be

allowed to die.

After the Airedale17 case as decided by the House of Lords it has been followed in a

number of cases in U.K., and the law is now fairly well settled that in the case of

incompetent patients, if the doctors act on the basis of informed medical opinion, and

withdraw the artificial life support system if it is in the patients best interest, the said act

cannot be regarded as a crime. The question, however, remains as to who will decide

what the patients best interest is where he is in a persistent vegetative state (PVS).

Though there are large numbers of decisions of Courts in U.S.A. in this connection, often

taking diverse approaches.

________________________________________________________________________16. 1993(1) All ER 821 (HL)17. ibid18. Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93

(1914).

Justice Cardozo, while on the Court of Appeals of New York observed that Every

human being of adult years and sound mind has a right to determine what shall be done

with his own body, and a surgeon who performs an operation without his patients

consent commits an assault, for which he is liable in damages.18

LEGAL ASPECTS OF EUTHANASIA IN INDIA

The legal position of India cannot and should not be studied in isolation. India has drawn

its constitution from the constitutions of various countries and the courts have time and

again referred to various foreign decisions.

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 law in India is also very clear on the

aspect of assisted suicide. Right to suicide is not an available right in India it is

punishable under the India Penal Code, 1860. Provision of punishing suicide is contained

in sections 305 (Abetment of suicide of child or insane person), 306 (Abetment of

suicide) and 309 (Attempt to commit suicide) of the said Code. Section 309, IPC has

been brought under the scanner with regard to its constitutionality. Right to life is an

important right enshrined in Constitution of India. Article 21 guarantees the right to life

in India. It is argued that the right to life under Article 21 includes the right to die.

Therefore the mercy killing is the legal right of a person. After the decision of a five

judge bench of the Supreme Court in Gian Kaur v. State of Punjab19 it is well settled that

the right to life guaranteed by Article 21 of the Constitution does not include the right

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19. 1996 (2) SCC 648 : AIR 1996 SC 946

to die. The Court held that Article 21 is a provision guaranteeing protection of life and

personal liberty and by no stretch of the imagination can extinction of life be read into it.

In existing regime under the Indian Medical Council Act, 1956 also incidentally deals

with the issue at hand. Under section 20A read with section 33(m) of the said Act, the

Medical Council of India may prescribe the standards of professional conduct and

etiquette and a code of ethics for medical practitioners. Exercising these powers, the

Medical Council of India has amended the code of medical ethics for medical

practitioners. There under the act of euthanasia has been classified as unethical except in

cases where the life support system is used only to continue the cardio-pulmonary actions

of the body. In such cases, subject to the certification by the term of doctors, life support system may be removed.

In Gian Kaurs20 case section 309 of Indian Penal Code has been held to be

constitutionally valid but the time has come when it should be deleted by Parliament as it

has become anachronistic. A person attempts suicide in a depression, and hence he needs

help, rather than punishment. The Delhi High Court in State v. Sanjay Kumar Bhatia21, in

dealing with a case under section 309 of IPC observed that section 309 of I.P.C. has no

justification to continue remain on the statute book. The Bombay High Court in Maruti

Shripati Dubal v. State of Maharashtra22 examined the constitutional validity of section

309 and held that the section is violative of Article 14 as well as Article 21 of the

Constitution. The Section was held to be discriminatory in nature and also arbitrary and

violated equality guaranteed by Article 14. Article 21 was interpreted to include the right

to die or to take away ones life. Consequently it was held to be violative of Article 21.

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20. 1996 (2) SCC 648 : AIR 1996 SC 946

21. 1985 Cri.L.J 931 (Del.).

22. 1987 Cri.L.J 743 (Bom.)

ARUNAS CASE A NEW DIMENSION IN INDIAN LEGAL CONTEXT

Recently the judgment of our Supreme Court in Aruna Ramchandra Shanbaug v. Union

of India23 opened the gateway for legalization of passive euthanasia. In this case a petition

was filed before the Supreme Court for seeking permission for euthanasia for one Aruna

Ramchandra Shanbaug as she is in a Persistent Vegetative State (P.V.S.) and virtually a

dead person and has no state of awareness and her brain is virtually dead. Supreme Court

established a committee for medical examination of the patient for ascertaining the issue.

Lastly the Court dismissed the petition filed on behalf Shanbaug and observed that

passive euthanasia is permissible under supervision of law in exceptional circumstances

but active euthanasia is not permitted under the law. The court also recommended to

decriminalized attempt to suicide by erasing the punishment provided in Indian Penal

Code.

The Court in this connection has laid down the guidelines which will continue to be the

law until Parliament makes a law on this point.

1. 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

also be taken by the doctors attending the patient. However, the decision should

be taken bona fide in the best interest of the patient.

2. Hence, even if a 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 as laid down in Airedales24 case (supra) as this is even more necessary

in our country as we cannot rule out the possibility of mischief being done by

relatives or others for inheriting the property of the patient.

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23. 2011(3) SCALE 298 : MANU/SC/0176/2011

24. 1993(1) All ER 821 (HL)

In this case question comes before the Court is under which provision of the law the

Court can grant approval for withdrawing life support to an incompetent person. Then the

Court held that it is the High Court under Article 226 of the Constitution which can grant

approval for withdrawal of life support to such an incompetent person. The High Court

under Article 226 of the Constitution is not only entitled to issue writs, but is also entitled

to issue directions or orders.

According to the instant case, when such an application is filed the Chief Justice of the

High Court should forthwith constitute a Bench of at least two Judges who should decide

to grant approval or not. Before doing so the Bench should seek the opinion of a

committee of three reputed doctors to be nominated by the Bench after consulting such

medical authorities/medical practitioners as it may deem fit. Preferably one of the three

doctors should be a neurologist; one should be a psychiatrist, and the third a physician.

The committee of three doctors nominated by the Bench should carefully examine the

patient and also consult the record of the patient as well as taking the views of the

hospital staff and submit its report to the High Court Bench.

After hearing the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the

patient, and in their absence his/her next friend, the High Court bench should give its

verdict. The above procedure should be followed all over India until Parliament makes

legislation on this subject.

The High Court should give its decision assigning specific reasons in accordance with the

principle of best interest of the patient laid down by the House of Lords in Airedales

case (supra).

LAW COMMISSION OF INDIA AND ITS RECOMMENDATION

The Law Commission in its 42nd Report25 recommended the repeal of section 309 of India

Penal Code. The Indian Penal Code (Amendment) Bill, 1978, as passed by the Rajya

Sabha, accordingly provided for omission of section 309. Unfortunately, before it could

be passed by the Lok Sabha, the Lok Sabha was dissolved and the Bill lapsed. The

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25. http://lawcommissionofindia.nic.in/1-50/Report42.pdf , last visited on 03.12.2011

Commission submitted its 156th Report26 after the pronouncement of the judgement in

Gian Kaurv. State of Punjab27, recommending retention of section 309.

Later the Law Commission in its 210th Report28 submitted that attempt to suicide may be

regarded more as a manifestation of a diseased condition of mind deserving treatment and

care rather than an offence to be visited with punishment. The Supreme Court in Gian

Kaur focused on constitutionality of section 309. It did not go into the wisdom of

retaining or continuing the same in the statute. The Commission has resolved to

recommend to the Government to initiate steps for repeal of the anachronistic law

contained in section 309, IPC, which would relieve the distressed of his suffering.

This 196th Report29 of the Law Commission on Medical Treatment to Terminally Ill

Patients (Protection of Patients and Medical Practitioners) is one of the most important

subjects ever undertaken by the Law Commission of India for a comprehensive study.

This Report is relating to the law applicable to terminally ill patients (including patients

in persistent vegetative state) who desire to die a natural death without going through

modern Life Support Measures like artificial ventilation and artificial supply of food.

The Commission has given the following recommendations.

1. Obviously, the first thing that is to be declared is that every competent patient,

who is suffering from terminal illness has a right to refuse medical treatment (as

defined i.e. including artificial nutrition and respiration) or the starting or

continuation of such treatment which has already been started. If such informed

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26. http://lawcommissionofindia.nic.in/101-169/Report156Vol2.pdf , last visited on 03.12.2011

27. 1996 (2) SCC 648 : AIR 1996 SC 946

28. http://lawcommissionofindia.nic.in/reports/report210.pdf , last visited on 03.12.2011

29. http://lawcommissionofindia.nic.in/reports/rep196.pdf , last visited on 03.12.2011

decision is taken by the competent patient, it is binding on the doctor. At the same

time, the doctor must be satisfied that the decision is made by a competent patient

and that it is an informed decision. Such informed decision must be one taken by

the competent patient independently, all by himself i.e. without undue pressure or

influence from others.

It must also be made clear that the doctor, notwithstanding the withholding or

withdrawal of treatment, is entitled to administer palliative care i.e. to relieve pain

or suffering or discomfort or emotional and psychological suffering to the

incompetent patient (who is conscious) and also to the competent patient who has

refused medical treatment.

2. We propose to provide that the doctor shall not withhold or withdraw treatment

unless he has obtained opinion of a body of three expert medical practitioners

from a panel prepared by high ranking Authority. We also propose another

important caution, namely, that the decision to withhold or withdraw must be

based on guidelines issued by the Medical Council of India as to the

circumstances under which medical treatment in regard to the particular illness or

disease, could be withdrawn or withheld.

In addition, it is proposed that, in the case of competent as well as incompetent

patients, a Register must be maintained by doctors who propose withholding or

withdrawing treatment. The decision as well as the decision-making process must

be noted in the Register. The Register to be maintained by the doctor must contain

the reasons as to why the doctor thinks the patient is competent or incompetent, as

to why he thinks that the patients decision in an informed decision or not, as to

the view of the experts the doctor has consulted in the case of incompetent

patients and competent patients who have not taken an informed decision, what is

in their best interests, the name, sex, age etc. of the patient. He must keep the

identity of the patient and other particulars confidential. Once the above Register

is duly maintained, the doctor must inform the patient (if he is conscious), or his

or her parents or relatives before withdrawing or withholding medical treatment.

If the above procedures are followed, the medical practitioner can withhold or

withdraw medical treatment to a terminally ill patient. Otherwise, he cannot

withhold or withdraw the treatment.

3. A patient who takes a decision for withdrawal or withholding medical treatment

has to be protected from prosecution for the offence of attempt to commit

suicide under sec. 309 of the Indian Penal Code, 1860. This provision is by way

of abundant caution because it is our view that the very provisions are not

attracted and the common law also says that a patient is entitled to allow nature to

take its own course and if he does so, he commits no offence.

Likewise, the doctors have to be protected if they are prosecuted for abetment of

suicide under sections 305, 306 of the Penal Code, 1860 or of culpable homicide

not amounting to murder under sec. 299 read with sec. 304 of the Penal Code,

1860 when they take decisions to withhold or withdraw life support and in the

best interests of incompetent patients and also in the case of competent patients

who have not taken an informed decision. The hospital authorities should also get

the protection. This provision is also by way of abundant caution and in fact the

doctors are not guilty of any of these offences under the above sections read with

sections 76 and 79 of the Indian Penal Code as of today. Their action clearly falls

under the exceptions in the Indian Penal Code, 1860.

We are also of the view that the doctors must be protected if civil and criminal

actions are instituted against them. We, therefore, propose that if the medical

practitioner acts in accordance with the provisions of the Act while withholding or

withdrawing medical treatment, his action shall be deemed to be lawful.

4. We have therefore thought it fit to provide an enabling provision under which the

patients, parents, relatives, next friend or doctors or hospitals can move a Division

Bench of the High Court for a declaration that the proposed action of continuing

or withholding or withdrawing medical treatment be declared lawful or

unlawful. As time is essence, the High Court must decide such cases at the

earliest and within thirty days. Once the High Court gives a declaration that the

action of withholding or withdrawing medical treatment proposed by the doctors

is lawful, it will be binding in subsequent civil or criminal proceedings between

same parties in relation to the same patient. We made it clear that it is not

necessary to move the High Court in every case. Where the action to withhold or

withdraw treatment is taken without resort to Court, it will be deemed lawful if

the provisions of the Act have been followed and it will be a good defence in

subsequent civil or criminal proceedings to rely on the provisions of the Act.

5. It is internationally recognized that the identity of the patient, doctors, hospitals,

experts be kept confidential. Hence, we have proposed that in the Court

proceedings, these persons or bodies will be described by letters drawn from the

English alphabet and none, including the media, can disclose or publish their

names. Disclosure of identity is not permitted even after the case is disposed of.

6. The Medical Council of India must prepare and publish Guidelines in respect of

withholding or withdrawing medical treatment. The said Council may consult

other expert bodies in critical care medicine and publish their guidelines in the

Central Gazette or on the website of the Medical Council of India.

PRESENT SCENARIO AND THE LIABILITY OF DOCTORS

Due to development of Science and technology in the last century the concepts of life and

death has been changed. Nowadays, a person who is in a persistent vegetative state,

whose sensory systems are dead, can be kept alive by ventilators and artificial nutrition

for years. In the light of these developments, legal, moral and ethical issues have arisen as

to whether a person who is under ventilator and artificial nutrition should be kept alive

for all time to come till the brain-stem collapses or whether, in circumstances where an

informed body of medical opinion states that there are no chances of the patients

recovery, the artificial support systems can be stopped. If that is done, can the doctors be

held guilty of murder or abetment of suicide? These questions have been raised and

decided in several countries and broad principles have been laid down. Withdrawal of

life support systems is different for Euthanasia or Assisted Suicide. Withholding or

withdrawing life support is today permitted in most countries, in certain circumstances,

on the ground that it is lawful for the doctors or hospitals to do so. Courts in several

countries grant declarations in individual cases that such withholding or withdrawal is

lawful.

It is a well settled principle at common law that a patient has a right to accept medical

treatment or refuse it. This is called the principle of self determination. In Airedale30,

Lord Goff of Chiveley stated that it is established that the principle of self determination

requires respect must be given to the wishes of the patient, so that if any adult patient of

sound mind refuses, however unreasonably, to consent to treatment or care by which his

life would or might be prolonged, it shall be obeyed. The doctors must give effect to

his wishes even though they do not consider it to be in the best interests to do so. If a

competent patient wants life support system to be withheld or withdrawn, it is binding on

the doctors unless they come to the conclusion that the patients decision is not an

informed decision. In such cases, the doctor has to take a decision in the best interests

of the patient.

In England and other countries, the doctors or hospitals approach the Court for a

declaration that any decision by hem for withholding or withdrawing medical treatment

be declared lawful. Again, parents of a patient, whether the patient is minor or not, can

also move the Court, if they disagree with the doctor. The parents may want the artificial

treatment be still continued or in some cases, discontinued. They can also approach

Courts.

In Re C (adult: refusal of medical treatment)31, Thorpe J referred to what is now known

as the C-Test-, that the patient must have the competency i.e. the capacity to understand

and decide the medical opinion. But where his faculties are reduced on account of his

chronic illness and he had not sufficiently understood his state and the medical opinion,

his refusal is not binding and the doctors could approach the court for directions. There

cannot be any single test of what is in the best interests of an incompetent patient but it

must depend upon a variety of considerations depending upon the facts of the case.

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30. 1993(1) All ER 821 (HL)31. 1994 (1) All ER 819

Where a patient is not competent, it is lawful for doctors to take a decision to give,

withhold or withdraw medical treatment if they consider that to be the appropriate action

to be taken in the best interests of the patient. So it is very important to define

competent and incompetent patients, informed decision and best interest to know

the position. Accordingly the Law Commission in its 196th Report32 annexed the drafted

Bill namely Medical Treatment of Terminally Ill Patients (Protection of Patients and

Medical Practitioners) Bill, 2006 relating to the law applicable to terminally ill patients

(including patients in persistent vegetative state) who desire to die a natural death without

going through modern Life Support Measures like artificial ventilation and artificial

supply of food.

Now, two questions arise. First, so far as the patient who is an adult and competent who

refuses treatment, does it amount to attempt to commit suicide?

Secondly, so far as the doctors are concerned, in the case of an adult where they obey the

patients refusal or where in the case of competent patient whose decision to refuse

treatment is not an informed one and where the patient is a minor or incompetent or a

PVS they take a bona fide decision to stop artificial life support, on the basis of best

interests of the patient, question arises whether they are guilty of abetment of suicide?

Now, as far as the patient is concerned, when he refuses treatment, whether he is guilty of

attempt to commit suicide or not. The definition of attempt to commit suicide, is

contained in sec. 309 of IPC. But, that is different from a patient allowing nature to take

its own course. When a person is suffering from disease, he may take medicine to cure

himself. A patient may decide for himself that he will allow the disease or illness to

continue and be not bothered by taking medicines or invasive procedures. An attitude

where a patient prefers nature to take its course has been held in almost all leading

countries governed by common law, as pointed out in the preceding chapters, as not

amounting to an act of deliberate termination of ones own physical existence. It is not

like an act of deliberate or intentional hanging or shooting ones self to death or

attempting to drown in a well or a river or in the sea. In view of the settled law on this

aspect, allowing nature to take its course and not taking medical treatment is not an

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attempt to commit suicide. Hence there is no offence under sec. 309. In fact, in Airedale33

the House of Lords clearly held it is not suicide.

So far as the doctor is concerned, let us consider if sec. 306 which deals with abetment

to commit suicide applies. Once the competent patient decides not to take medicine and

allows nature to take its course, the doctor has to obey the instructions. Administering

medicine contrary to the wishes of a patient is battery and is an offence. The omission to

give medicine is based on the patients direction and hence the doctors inaction is not an

offence. In fact, when there is no attempt at suicide or suicide under sec 309, there can be

no abetment of suicide under sec 306.

Even under sec 107 of the Indian Penal Code which generally deals with abetment, the

position is the same. Under that section abetment may be by a positive act or even by

omission. If a doctor omits to give medical treatment at the instructions of a competent

patient, he is not guilty of abetment under sec 107, because under sec 107 the omission

must be illegal. If under common law, the doctor is bound by the patients instruction

for stoppage of treatment, it is binding on him and his omission is legal.

We have seen in Airedale34 case and Cruzan v. Director, MDH35, the question of the

doctors omission has been considered elaborately and it has been held that where there is

no duty under common law to give or continue the medical treatment, the omission of the

doctor does not amount to an offence. Hence, the doctor is not guilty of abetment of

suicide under sec. 306 IPC, even if we read sec. 306 along with sec. 107 which deals

generally with abetment.

It is still necessary to consider whether the action of the doctor in refusing to provide

medical treatment, though with consent of the competent patient, amounts to culpable

homicide not amounting to murder under section 299 of IPC. After reading section 299

of IPC, it can be said that under the main part of sec 299, the doctor is not guilty because

he had no intention to cause death or bodily injury which is likely to cause death.

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33. 1993(1) All ER 821 (HL)34. ibid.35. 497 U.S. 261(1990)

Sections 76, 81 and 88 of IPC provide ample scope for protection of the actions of well-

meaning doctors. Therefore applicability of these sections in a given set of circumstances

needs a special mention. Firstly, Section 76, which provides the defense of mistaken fact,

can be invoked by the doctors in case of passive euthanasia. Section 76 is attracted to the

case of doctors taking action to withhold or withdraw treatment in the case of refusal to

medical treatment by a competent patient. Such refusal being binding on the doctor

(provided, of course, the doctor is satisfied that the patient is competent and the patients

decision is an informed one). In such cases sec 76 brings the doctors action under the

exception.

The act of withholding or withdrawing medical treatment will fall under this exception

under section 79, if the said act is justified by law. This section applies to the doctors

action in the case of both competent and incompetent patients.

Section 81 is the most important provision, which may be invoked in relation to decisions

of terminating life. Significantly, it may be contended not only in cases of passive

euthanasia but also in cases of active euthanasia, since it permits causing harm with an

intention to avoid greater harm. This section may be applicable both in cases of

competent or incompetent patients but involves proof of several questions of fact, even if

there is no criminal intent. In our view, sections 76 and 79 give far greater protection than

sec 81.

Section 88 is also relevant to take decisions for withdrawal and withholding of treatment,

as there is no direct intention on the part of doctors to cause death. This section applies to

competent patients who give consent but the consent is for acts which will cover

benefit. This section also requires several facts to be proved and question is of benefit.

Sections 76, 79 are more appropriate than section 88 and there is no offence under sec

299 read with sec 304 of the Penal Code.

ARGUMENTS FOR LEGALIZING EUTHANASIA

From Rams jalasamadhi to Mahatma Gandhi and Vinoba Bhaves fast till death (in

which Bhave died), euthanasia existed in Indian society. The judiciary has also viewed

euthanasia from a sympathetic angle, which is evident from the observation of the various

judges in cases dealing with right to suicide.

Euthanasia means killing a person rather ending the life a person who is suffering from

some terminal illness which is making his life painful as well as miserable or in other

words ending a life which is not worth living. But the problem lies that how should one

decide whether the life is anymore worth living or not. Thus, the term euthanasia is rather

too ambiguous. This has been a topic for debate since a long time i.e. whether euthanasia

should be allowed or not. In the present time, the debate is mainly regarding active

euthanasia rather than passive euthanasia. The dispute is regarding the conflicts of

interests: the interest of the society and that of the individual. The arguments for

legalizing euthanasia are given below

1. One school of thought argues that it should be allowed keeping in view the fact

that the life of a person is taken away by his own consent. According to the

supporters of euthanasia the decision of the patients should be accepted. If on the

other hand we weigh the social values with the individual interest then we will

clearly see that here the interest of the individual will outweigh the interest of the

society. The society aims at interest of the individuals rather it is made with the

purpose of assuring a dignified and a peaceful life to all. Now if the individual

who is under unbearable pain is not able to decide for himself then it surely will

hamper his interest. In that case it will surely be a negation of his dignity and

human rights. Regarding this debate from legal point of view, Article 21 clearly

provides for living with dignity. A person has a right to live a life with at least

minimum dignity and if that standard is falling below that minimum level then a

person should be given a right to end his life.

2. Supporters of active euthanasia contend that since society has acknowledged a

patients right to passive euthanasia (foe example, by legally recognizing refusal

of life-sustaining treatment), active euthanasia should similarly be permitted.

When arguing on behalf of legalizing active euthanasia, proponents emphasize

circumstances in which a condition has become overwhelmingly burdensome for

the patient, pain management for the patient is inadequate and only death seems

capable of bringing relief. Moreover, in light of increasing pressure on hospital

and medical facilities, it is argued that the same facilities should be used for the

benefit of other patients who have a better chance of recovery and to whom the

said facilities would be of grater value. Thus, the argument runs, when one has to

choose between a patient beyond recovery and one who may be saved, the latter

should be preferred as the former will die in any case.

3. Euthanasia provides a way to relieve the intolerably extreme pain and suffering of

an individual. It relieves the terminally ill people from a lingering death. It not

only relives the unbearable pain of a patient but also relieves the relatives of a

patient from the mental agony. Its aim is altruistic and beneficial as it is an act of

painlessly putting to death to those persons who are suffering from painful and

incurable diseases. So, the motive behind this is to help rather than harm.

4. Article 21 of our Constitution clearly provides for living with dignity. A person

has a right to live a life with at least minimum dignity and if that standard is

falling below that minimum level then a person should be given a right to end his

life. Supporters of euthanasia also point out to the fact that as passive euthanasia

has been allowed, similarly active euthanasia must also be allowed. A patient will

wish to end his life only in cases of excessive agony and would prefer to die a

painless death rather than living a miserable life with that agony and suffering.

Thus, from a moral point of view it will be better to allow the patient die

painlessly when in any case he knows that he is going to die because of that

terminal illness.

5. Another important point on which the supporters of euthanasia emphasize is that a

lot of medical facilities in which amount a lot of amount are being spent on these

patients which are in any case going to die. Our duty is not only towards the

patient but also to the families who look to us for emotional support and rational

decisions to avoid unnecessary emotional and financial burdens. If one can take

his life to save others, an incurably ill person should be morally justified in taking

his life to avoid needless pain. If a person has no duties to perform, either to

himself or to others when he is terminally ill, he may decide to end his life and

relieve himself from the pain of living and others from the burden of looking after

him. Section 309 0f IPC could not have been intended to comprise this kind of

death as 'Suicide' within it.

6. Supporters of euthanasia argue that society is obligated to acknowledge the rights

of patients and to respect the decisions of those who elect euthanasia. It is argued

that euthanasia respects the individuals right to self-determination or his right to

privacy. Interference with that right can only be justified if it is to protect essential

social values, which is not the case where patients suffering unbearably at the end

of their lives request euthanasia when no alternatives exist. Not allowing

euthanasia would come down to forcing people to suffer against their will, which

would be cruel and a negation of their human rights and dignity.

ARGUMENTS AGAINST LEGALIZING EUTHANASIA

The arguments against legalizing euthanasia are given below

1. There is an intense opposition from the religious groups and people from the legal

and medical profession. According to them its not granting right to die rather it

should be called right to kill. According to them it is totally against the medical

ethics. Medical ethics call for nursing, care giving and healing and not ending the

life of the patient. In the present time, medical science is advancing at a great

pace. Even the most incurable diseases are becoming curable today. Thus instead

of encouraging a patient to end his life, the medical practitioners should

encourage the patients to lead their painful life with strength which should be

moral as well as physical. The decision to ask for euthanasia is not made solely by

the patient. Even the relatives of the patient pay an important role in doing that.

Thus, it is probable that the patient comes under pressure and takes such a drastic

step of ending his life. Of course in such cases the pressure is not physical, it is

rather moral and psychological which proves to be much stronger. Also added to

that is the economical pressure. The patient starts feeling him to be a burden on

the relatives when they take such a decision for him and finally he also succumbs

to it.

2. Also, one major argument against euthanasia being legalized is that if such a

person were to kill and claim that he acted out of compassion, who could prove

otherwise? Even if euthanasia is legalized, who or what determines the criteria of

the suffering, the individual is facing so as to allow him to embrace death. Should

it be the recommendation of a recognized doctor that the patient so named cannot

be cured? Or it should be testified by the parents or near relatives that their ward

cannot survive but with acute pain and suffering, which they cannot withstand?

Decisions left in the hands of doctors or relatives are very risky also. It might not

always be clear that relatives and doctors are always acting in the patients best

interests. A doctor may be waiting for an organ for a transplant, for instance, or

for a bed to become free and relatives may simply wish to be relieved of the

burden of an ill member of the family. It has been contended that if such

legislation is to take effect, euthanasia should be administered at or upon the

consent of the patient but this point of consent being taken by the supporters of

euthanasia also fails to consider that if one is in great pain or is suffering from

mental problems then the person is nor in a position to make a free and balanced

decision. The elements of free consent also need to be imported in our case and

for any patient who gives such consent. It could be argued that his consent was

vitiated by undue influence.

3. Moreover, it is argued that when a healthy person is not allowed to commit

suicide then why should a deceased person be allowed to do so. It is pointed out

that suicide in a person who has been diagnosed with a terminal illness is no

different than suicide for someone who is not considered terminally ill.

Depression, family conflict, feelings of abandonment, hopelessness, etc. lead to

suicide regardless of ones physical condition. Studies have shown that if pain

and depression are adequately treated in a dying person as they would be in a

suicidal non-dying person the desire to commit suicide evaporates. Suicide

among the terminally ill, like suicide among the population in general, is a tragic

event that cuts short the life of the victim and leaves survivors devastated.

4. Another favourite argument is that of the slippery slope. The slippery slope

argument, in short, is that voluntary euthanasia would over the years lead to a

slide down the slippery slope and eventually we would end up permitting even

non-voluntary and voluntary euthanasia.

5. Legalized euthanasia would produce huge social pressures on very vulnerable

people to volunteer, causing much stress and suffering.

6. The human life is gift of God and taking life is wrong and immoral human beings

cannot be given the right to play the part of God. The one who suffers pain is only

due to ones karma. Thus euthanasia devalues human life.

7. Even without it being explicitly stated, legalizing euthanasia would mean that the

state was offering it as an alternative to people who were seeking benefits for

sickness or unemployment or to pensioners, to refugees and people with

disabilities. If it were legalized, why not then insist that such people have

euthanasia counseling before they receive care or benefits?

8. Whereas the advocates of euthanasia are mostly members of the chattering classes

who seems to be having difficulty in coming to terms with their own mortality,

the victims would predominantly be the most disadvantaged members of society;

the old, poor, disabled, infirm and unemployed.

SUGGESTIONS

A close perusal of the arguments against euthanasia that have been summarized above

tends to indicate that all the talk about sanctity of life notwithstanding, the opposition to

euthanasia breeds from the fear of misuse of the right if it is permitted.

It is feared that placing the discretion in the hands of the doctor would be placing too

much power in his hands and he may misuse such power. This fear stems largely from

the fact that the discretionary power is placed in the hands of non judicial personnel (a

doctor in this case). This is so because we do not shirk from placing the same kind of

power in the hands of a judge (for example, when we give the judge the power to decide

whether to award a death sentence or a sentence of imprisonment for life). But what is

surprising is that the fear is of the very person (the doctor) in whos hands we would

otherwise not be afraid of placing our lives. A doctor with a scalpel in his hands is

acceptable but not a doctor with a fatal injection. What is even more surprising is that

ordinarily the law does not readily accept negligence on the part of a doctor. The Courts

tread with great caution when examining the decision of a doctor and yet his decision in

the cases of euthanasia is not considered reliable.

It is felt that a terminally ill patient who suffers from unbearable pain should be allowed

to die. Indeed, spending valuable time, money, and facilities on a person who has neither

the desire nor the hope of recovery is nothing but a waste of the same. At this juncture it

would not be out of place to mention that the liberty to die, if not right in strict sense,

may be read as part of the right to life guaranteed by Article 21 of the Constitution of

India. Recently the judgment of our Supreme Court in Aruna Ramchandra Shanbaug v.

Union of India36 legalized the passive euthanasia and observed that passive euthanasia is

permissible under supervision of law in exceptional circumstances but active euthanasia

is not permitted under the law.

Here it is sought only to agree for the legalization of voluntary (both active and passive)

euthanasia. This is because though there may be some cases of non-voluntary or

involuntary euthanasia where one may sympathize with the patient and in which one may

agree that letting the patient die was the best possible option, yet it is believed that it

would be very difficult to separate each cases from the other cases of non-voluntary or

involuntary euthanasia. Thus, it is believed that the potential of misuse of provisions

allowing non-voluntary and involuntary euthanasia is far greater than that of the misuse

of provisions seeking to permit voluntary euthanasia.

It is submitted that in the present scheme of criminal law it is not possible to construe the

provisions so as to include voluntary euthanasia without including the non-voluntary and

involuntary euthanasia while expressly prohibiting non-voluntary and involuntary

euthanasia. Coming back to the argument of the opponents of euthanasia that any

legislation legalizing voluntary euthanasia would lead to a misuse of the provisions, I

would now like to present a scheme by which such misuse could be minimized. The risk

and fear of misuse and abuse could be done away with proper safeguards and specific

________________________________________________________________________


guidelines. Though in this regard the 196th Law Commission Report37 and the guidelines

given in the Arunas38 case are there and guidelines will continue to be the law until

Parliament makes a law on this point. Inspite of those some suggestions are given below

to check the misuse

1. The circumstances in which it would be lawful for a medical practitioner to cease

or to authorize the cessation of life-sustaining treatment of a patient who has no

spontaneous respiratory and circulatory functions or whose brainstem does not

register any impulses.

2. A euthanasia request should come from a patient suffering from unbearable pain

from an incurable condition, the physician must follow certain due care

criterion. He must

(i) Be convinced that request was voluntary, well consider and lasting.

(ii) Be convinced that the patient was facing unremitting and unbearable

suffering.

(iii) Have informed the patient about his situation and prospects.

(iv) Have reached the firm conclusion with the patient that there was no

reasonable alternative solution.

3. The right of medical practitioner responsible for the treatment of a terminally ill

patient to increase the dosage of medication, with the object of relieving pain and

distress, even if the secondary effect of this may be to hasten the patients death.

4. Terminate life should be in a medically appropriate fashion. Like that the practice

is to administer an injection to render the patient comatose, followed by a second

injection to stop heart.

5. A person who is going to die;

(i) Must completely understand what will happen.

(ii) Must know about all other kinds of treatment.

________________________________________________________________________



(iii) Must freely repeat their wish to die over a period of time.

(iv) Must be suffering from something that will not stop or go away.

6. Whether it would be lawful for a medical practitioner to act on the request of a

well informed, mentally competent and terminally ill patient to end his/her

suffering by administering or providing a lethal agent.

7. There should be an explicit and repeated request by the patient which leaves no

reason for doubt concerning his desire to die; mental and physical suffering of the

patient must be very severe with no prospect of relief.

8. The circumstances in which a Court may order the cessation of medical treatment

or the performance of any medical procedure which would lead to the termination

of a patients life.

9. A quasi-judicial officer be appointed by the appropriate authority under the

proposed statute to supervise all cases of euthanasia within a feasible territory.

Such officer must be reasonably well versed with the medical science. Any doctor

who feels that his patients request to die should be fulfilled would report such a

case to the said supervising officer. The supervisor would then interview the

patient to satisfy himself whether the request is free, voluntary and persistent. The

supervisor would also then refer the case to a minimum of two other experienced

doctors to get their opinion on the case. If both the doctors so referred feel that the

patient is beyond recovery, that there is no alternate treatment available and that

death would be a more suitable option for him then the supervisor would inform

the patients relatives about the patients request and the doctors opinion. Finally

the supervisor would issue a certificate allowing the doctor to let the patient die.

10. When the patient is dead, a coroner must look at the body and check the facts of

the case. If case is not found for euthanasia, penal proceeding may be initiated.

Though the procedure outlined above may seem cumbersome. The above mentioned

safeguards are necessary to minimize the chances of misuse of the right of euthanasia.

Moreover, in a country like India where there is tremendous pressure on the available

medical facilities, euthanasia is all the more necessary for the maximum utilization of the

limited facilities.

CONCLUSION

No such law could be guaranteed to be free to the possibility, if not the likelihood, of

abuse, chiefly centered on the lives of other sick persons who did not want their lives

taken. An especially dangerous aspect is that such abuse may be easily made

undetectable. Thus although mercy killing appears to be morally justifiable, its fool-proof

practicability seems near to impossible.

After the Gian Kaurs39 case, suicide has become illegal per se, but the same could not be

said for euthanasia. Recently the judgment of our Supreme Court in Aruna Ramchandra

Shanbaug v. Union of India40 legalized the passive euthanasia and observed that passive

euthanasia is permissible under supervision of law in exceptional circumstances but

active euthanasia is not permitted under the law.

In view of the discussion above I believe that voluntary euthanasia should also be

allowed in India and that the legislature should step in and make a special law dealing

with all the aspects of euthanasia. So we need a law to legalize euthanasia with adequate

safeguards. The recommendations laid down in the Reports of Law Commission of India

and guidelines given in the Arunas41 case are to be taken into consideration when any

law on that point is to be framed to prevent the mal practices and misuse of euthanasia.

Besides, if the suggestions laid down above are implemented then the chances of misuse

of euthanasia would be greatly reduced.

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39. 1996 (2) SCC 648 : AIR 1996 SC 946


41. ibid.

Documents

Article on Euthanasia