Tanya Singh, JEMTEC School of Law
EUTHANASIA: A RIGHT OR A TRAGEDY?
This research article discusses the issue of euthanasia with regards to human rights. Right to life is a basic right guaranteed to all from the moment of birth itself and it brings along various arguments about right to die with dignity. One major thing to note is that ‘right to die with dignity’ should not be confused with ‘right to die’. The former deals with terminally ill patients under palliative care but whereas the latter is described as a cowardly action of suicide. The article will further discuss about the regulations of euthanasia in other countries like that of USA, Switzerland, the Netherlands and many more. Netherlands is the only country to give legal sanction to Physician assisted suicide and euthanasia, both. Indian courts have different opinion about the legalization of euthanasia. Two major case, Gian Kaur vs. State of Punjab and Aruna Ramchandra Shanbaug v. Union of India, shaped the current legal purview of euthanasia in Indian legal system. Legalization of voluntary euthanasia is appreciated but legalization of active euthanasia is not supported yet by any nation. Passive Euthanasia is legal in India. In a recent case of common cause (A Regd. Society) vs. Union of India and Anr. It was held that “right to die with dignity” is a fundamental right of a person. Anyone who is in vegetative state or sustaining on life support can end his life by consulting the doctor. Euthanasia is about protection of human rights which, if not used wisely can be turned as a tool against human rights.
Every person since his birth has right to live and the same has been protected by the Indian constitution under the fundamental rights. Right to life guarantees an individual, the right, to live with dignity and have access to all the necessary resources which play an important role in the same.
But this right also puts forth the question that whether an individual has ‘the right to not live’ or ‘the right to die’? Different nations have different views about the same that shall be discussed in the article ahead. Also, Indian courts have different opinions about the same. The Bombay High Court in MS Dubal vs. State of Maharashtra, held that article 21 of the Indian constitution guarantees right to life which also includes right to die. While on the contrary, the AP High Court, in Chenna Jagadeeswar vs. State of AP, observed that Indian constitution under Article 21 does not include right to die. On the other hand, the honorable Supreme Court of India, in P. Rathinam vs. Union of India observed that right to life includes ‘right not to live’ or ‘right to die.’
But to state the case of Gian Kaur vs. State of Punjab, a five judge bench overruled the supreme court’s judgment of P. Rathinam’s case and held that article 21 does not include right to die.
Right to life means that a person has the right to live his life with dignity up till his last breath and this also includes right to die with dignity. One major thing that has to be noted is that ‘right to die with dignity’ should not be misinterpreted as ‘right to die’. Any actions that curtails the natural living process of a human is not approved by law, hence the natural span of life should not be affected. But whereas talking about the terminally ill patients, they have the right to die with dignity and free themselves from the subsistence and intolerable pain.
Medical science all over the world has advanced to enormous levels but yet a little far to end the pain of terminally ill patients by using medical technology. With this comes the term ‘euthanasia’ or ‘mercy killing’ into its role, for terminally ill under palliative care. Euthanasia is act or omission done in order to end the life of an individual. Euthanasia can be defined as a means to end the suffering of the patient by taking away their life under the supervision of a medical practitioner.
People who are suffering from Acquired Immune Deficiency Syndrome (AIDS) and advanced cancer have become the center of attention for better investigation.
Euthanasia is not an easy process; it involves many other factors, like that of mental and physical health, local law, personal beliefs and many more discussed further.
Euthanasia is also confused as suicide but to make a clear note, both are different. The former is adopted to end the suffering that the person is going through his illness under ‘right to die with dignity’ but the latter is a cowardly way to escape the ordinary life of a human being. Attempt to commit suicide is also an offence under IPC section 309.
Types of Euthanasia
Active and Passive
Active Euthanasia can be described as the act done by a doctor as to end someone’s life directly by inducing the person with a lethal drug or sedative. This is done purposely by the medical practitioner.
Passive Euthanasia, in this case the life supporting treatment of the patient is withdrawn so as to end his life. In many cases doctors also recommend high pain killer medicine which is also known as palliative care blurry.
In Palliative care, patients are taken extra care of, as in, to ease their last days of the life, they are given pain killers to eliminate the pain and hence, in many culture this is not considered as euthanasia.
Voluntary and Non Voluntary
Voluntary Euthanasia is performed when the person is conscious enough, to understand the consequences of the nature of the act. He gives his free consent to the same and accepts to end his life by the method suggested by the physician.
Non Voluntary Euthanasia comes into play when the patients shows no brain activity and is incapable of making any decisions or to give his consent. In such case, generally the near relatives give the consent for the same.
Assisted suicide is also known as Physician Assisted Suicide (PAS), in this case the doctor is consulted and he usually suggests a painless way to the patient, which will lead to his death and free him from any more sufferings of this world.
Euthanasia: a global view
Euthanasia has been a debatable topic in many countries. In USA, Germany, Japan and Switzerland euthanasia is declared legal. Whereas in countries like the Netherlands, Belgium, Luxembourg, Canada and Colombia, euthanasia as well as PAS has been declared, legal.
Euthanasia was declared legal in the case of Wake vs. Northern Territory of Australia by the Supreme Court of Northern Territory Australia. Through this it became the first country to legalize euthanasia by passing the Rights of terminally ill act, 1996.
All forms of voluntary euthanasia were legal under the rights of the terminally ill act, 1995. Albania also declared passive euthanasia as legal if three or more family members give consent to the same.
The Belgian Parliament passed the ‘Belgium Act on Euthanasia’ in September 2002 and made euthanasia legal. That act defines euthanasia as “intentionally terminating life by someone other than the person concerned at the latter’s request”.
According to the penal laws of the Netherlands, killing a person, if the same has requested to do so, is punishable with 12 years of imprisonment or fine and assisting a person in committing suicide will result in three years of imprisonment or fine.
Despite this the Netherlands is the first country to legalize voluntary euthanasia and assisted suicide. The defense of the same is necessity. The judiciary of the Netherlands has interpreted the law as such in which necessity can be taken as defense. The criterion laid down by the court allows the doctor to end the life of the patient, if he is suffering from incurable disease, with the consent of the patient. The law also required that there should exist a long standing relationship between the doctor and patient and also that patient should be aware about the second option of cure available to him, if any. It is also important that the patient must have obtained a second professional opinion.
In Rodriguez vs. Attorney, 1994 General of British Columbia said that in case of assisted suicide the interest of the state shall prevail over the interest of the individual. So now, in Canada, patients have the right to refused life sustaining treatment but do not have a right for euthanasia.
Legal Purview in India
Passive Euthanasia is legal in India. In a recent case of common cause (A Regd. Society) vs. Union of India and Anr. it was held that “right to die with dignity” is a fundamental right of a person. Anyone who is in vegetative state or sustaining on life support can end his life by consulting the doctor.
But this was not the case some time back, doctors who committed euthanasia would fall under the purview of section 300 of IPC. It was believed that they had the sufficient knowledge and intention about the consequences of the act. In any case if the consent was given by the patient then the act of the doctor would fall under section 304 of IPC. The doctor will be liable for culpable homicide not amounting to murder.
All this is about voluntary and passive euthanasia but active euthanasia is a crime in India. The consent of voluntary euthanasia is to be given by the patient of 18+ years of age. But the cases of involuntary euthanasia are already covered under section 92 of the IPC.
In Aruna Ramchandra Shanbaug v. Union of India it was held that, in consideration of incompetent persons, the consent of euthanasia will be given by the court alone, because such people are not capable enough to give their own consent and analyze whether the life support should be removed or not. Although the court will take guidance from near relatives, next friends and doctors but the supreme decision shall be taken by the court itself. So with this case, the court held active euthanasia as absolutely illegal but gave sanction to passive euthanasia, provided if it is preformed with due guidelines.
Why should active euthanasia be legal in India?
1. Every person has right to life, which means that one should live with dignity throughout and also have the freedom to end this life when he wishes to do so due to prolonged illness and free him from the prolonged pain.
2. It safeguards a person from lingering death by providing easy death and indeed is a good cause.
3. In many under developed and developing countries like that of India there is lack of funds. People or the organization generally does not possess enough resources to spend on people who are terminally ill. It is believed that the same money, doctors and hospital staff can be used and put to work on to someone whose life could be saved and on someone who would live a better life than the other person.
4. The main motive of euthanasia is to help people rather than harm them; it does well to the individual and the society. Euthanasia is viewed as an altruistic task and is believed to relieve people from pain.
5. It not only relieves the pain of the person suffering but also the relatives and sets them free from all sort of metal agony and pain.
Why should Active Euthanasia not be legal in India?
1. Not to deny the fact, corruption is deeply rooted in India and if active euthanasia becomes legal then many cruel minds will use it for the monetary purpose and gain profit out of the same.
2. There are so many cases of children born with disabilities, in that case, parents who do not want to look after their children will take the plea of active non voluntary euthanasia and set themselves free from looking after special needs children. This will be a counter act on human rights itself.
3. Another bitter reality is deeply rooted in the wrong mentality of the people. There are so many of them who do not want a girl child, and making active euthanasia legal will give them another chance or another way to escape the act. People as such can deliberately plan major accidents which eventually will lead to her vegetative state and then plead for active euthanasia.
4. Dowry death is another heinous crime and legalization of the active euthanasia would give a chance to the cruel family members of the victim to escape the wrong done by them.
5. Last, and the most important is, euthanasia is an attack to the religious sentiments of a major crowd here in India. All the citizens of the country follow their religion very piously and believe that it is only God who gives life and takes it back, the sufferings a person goes through in his life time (be that mental, physical, emotional or social) is an outcome of his deeds in his present and past lives. Hence, taking away life of a person through active euthanasia might harm the sentiments of the people deeply associated with religion.
All over the world, various countries have legalized euthanasia, and many are still in a process of doing so. India, on the other hand has legalized voluntary passive euthanasia, which is truly appreciated. Indian courts have described their opinions about the same. Though the regulations in India about euthanasia developed through prominent cases like that of Gian Kaur and Aruna Ramchandra. Legalization of euthanasia is important but not at the stake of public peace and harmony. Active euthanasia is not legal for now, and hope so that will never be legal, because the consequences of the same can be lethal for the whole mankind. Euthanasia is about protection of human rights which, if not used wisely can be turned as a tool against human rights.
 1986 Mah LJ 913
 No person shall be deprived of his life or personal liberty except according to the procedure established by law
 1987 Cri LJ 549
 1994 SCC (Cri) 740
 1996 AIR 946
 Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term with may extend to one year(or fine, or with both)
 AIR 2018 SC 1665
 Offence of murder
 Punishment for Culpable homicide not amounting to murder
 Act done in good faith for the benefit of a person without consent
 (2011) 4 SCC 454