The right to die (rational suicide) is sometimes associated with the idea that one’s body and one’s life are one’s own, to dispose of as one sees fit. The morality of assisted dying maintain that individuals may only turn to assisted dying as a ‘last resort’.[1]The question that arises is does the sanctity of life include the right to die or the right to choose death for himself? Doesn’t the one suffering has the right to die (euthanasia) with dignity and self-determination?

Ours is a democracy which locates power in the people through Constitution. All our demands get converted into rights-even our feelings and emotions, governed by the rights and duties as given in the Constitution.[2]Article 21 of the Constitution of India provides for Right to life which has been very widely interpreted that it includes to live and die in a dignified manner subject to certain conditions as prescribed by Courts. This also includes that when illness or accident make living with dignity impossible, then the desire for dying with dignity grows.

Judicial reasoning tends to accord an inordinate degree of importance to an absolutist reading of the ‘sanctity of life’ principle. Moreover, the ethical and jurisprudential foundation for extending the right to die to encompass assisted suicide or active euthanasia in controlled circumstances already exists in the present framework.[3]

In India, 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 IPC, 1860. However, as cases if 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. Cases of non-voluntary and involuntary euthanasia would be struck by proviso one to Section 92 of the IPC

The question regarding Right to die first time came before Bombay High Court in State of Maharashtra v. Maruty Sripati Dubal[4]. Here Court declared that Right to Life includes Right to die.But SC in Gian Kaur v. State of Punjab[5], held that Right to life does not include “Right to die” or “Right to be killed”. Right to life is a natural right and right to die is not a natural right and no one has a right to finish their life in unnatural way. It was only after the case of Aruna Ramchandra Shanbaug v. Union of India[6], SC in its judgment declared that Passive Euthanasia is legal in India.

The meaning of the words “personal liberty” came up for consideration of the Supreme Court (SC) for the first time in A.K. Gopalan v. Union of India[7]. The SC held that the word deprivation was construed in a narrow sense and held that – the deprivation does not restrict upon the right to move freely which came under Article 19(1)(d). In Maneka Gandhi v. Union of India[8], the SC overruled Gopalan’s case and widened the scope of the words “personal liberty”, which is as follows:

“The expression personal liberty in Article 21 is of widest in nature and it covers a bundle of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19”.

The question whether right to life under Article 21 includes right to die or not came for consideration before the High Court of Bombay in State of Maharashtra v. Maruti Sripati Dubal[9]. Here, the Court held that the right to life guaranteed under Article 21 includes right to die, and struck down section 309 IPC which provides punishment for attempt to commit suicide by a person as unconstitutional.

Euthanasia opposers argue that if we embrace ‘the right to death with dignity’, people with incurable and debilitating illnesses will be disposed from our civilised society. The practice of palliative care counters this view, as it would provide relief from distressing symptoms and pain, and support to the patient as well as the care giver. It’s an active, compassionate and creative care for the dying.[10]

Conclusion

The action of performance of passive euthanasia in the form of withholding extraordinary life supporting measures is already routinely practiced in critical care units across India and should be legalized. It doesn’t violate any right of the person if performed in accordance with the legal requirements and fulfilment of the necessary pre-requisites. This should be done by putting across the legislation regarding terminally-ill patients. In comparison to the acceptance and allowing of capital punishment (viz. death penalty) vis-a-vis euthanasia agrees to the presence of death penalty as its complete and absolute deletion might further increase the chances the of the abuse of law as if there isn’t already! Its presence is needed in order to at least provide a strong virtual deterrence.

The decision of the SC in allowing the act of passive euthanasia is a welcome decision and should be legislated and regulated properly as directed by the Court.

[1]Michael Cholbi, No Last Resort: Pitting the Right to Die Against the Right to Medical Self-Determination, Abstract – The Journal of Ethics, Springer Link, Volume 19, Issue 2, 143–157. (June 2015)

https://link.springer.co m /article/10.1007/s10892-015-9194-5

[2]B.Jyoti Kiran & Shiladitya Goswami, Right to Die – Legal and Moral Aspects, LSI. http://www.legalserviceindia.com/articles/rd_top.htm

[3]Sushila Rao, The Moral Basis for a Right to Die, Vol. 46, Issue No. 18, (/journal/2011/18) Economic and Political Weekly. (30 April, 2011)

[4]1987 Cri LJ 743

[5](1996)2 SCC 648

[6](2011) 4 SCC 454

[7]AIR 1950 SC 27

[8]AIR 1978 SC 597

[9]AIR 1987 CrLJ 549

(In P Rathinam v. Union of India(1994) SCC 394 a Division Bench of the Supreme Court supported this decision of Bombay High Court.)

[10]Saunders C. Terminal care in medical oncology. In: Begshawe 6. KD, editor. Medical oncology. Oxford: Blackwell; 1975. p. 563-76.

Komal Sinha

“Komal Sinha is a student at Maharashtra National Law University, Mumbai. Her entry was declared as the Winner for the Feature Writing Competition “Inking Justice – Express, Evoke, Engage” organized at Maharashtra National Law University, Mumbai in collaboration with the Justice Collective.”