EUTHANATOS: DO CITIZENS OF INDIA HAVE THE “RIGHT” TO DIE?

AUTHOR:  Mahati Paspuleti, 2^nd Sem, B.A. LLB., OP Jindal Global University

ABSTRACT

What happens in situations where death could be accepted as “better” than life? This harrowing possibility is a reality for those individuals who are suffering from incurable diseases or are in irreversible comas. These harsh words are like drops in an ocean that is colored by the burden and pain felt by these individuals. Their lives and decisions are not directed by the same conditions and privileges that dictate ours. Circumstances like these allow pivotal questions regarding the allowance of Euthanasia and its acceptance in society to surface. In India, the role played by law is not limited to the Letter of the Law but it traverses boundaries into the minds of people. The blurry line between ethics and morality becomes the point of focus in debates about euthanasia. This research paper explores the status-quo of euthanasia in India and aims at establishing the gravitas of legalizing it.

INTRODUCTION

The Greek term, Euthanatos, translates to a good-death¹. Euthanasia is the procedure of relieving persons who are suffering, either from a terminal illness or who are dependent on life-support, by accelerating their death. Since the 5^th Century BC², this cessation has aimed at being a noble choice for a painless end. Ironically, in a developing country like India; with respect to its tremendous advancement in healthcare and its progressive laws, stigma around euthanasia has survived. Presently, it exists as a matter that is conditionally authorized by the law. It is also an unnecessarily outstretched as well as an economically and psychologically draining process in this country. Active, voluntary and involuntary euthanasia are against the law; however, passive and non-voluntary euthanasia could be permitted in the “rarest of rare circumstances”. As part of our Fundamental Rights, there rests a duty on the State towards citizens to ensure welfare, to promote collective interests and to protect them under the law. This thus strengthens the foundation of the claims made in the paper. This research paper begins with a view of the past laws on this matter and how these laws have erroneously been accepted as timeless. Furthermore, the paper also argues for assurance of true justice to whoever seeks it. Euthanasia must become a legally acceptable and accessible option with a standardized procedure that is authorized by the law. The key to access this choice lies in the middle-ground that must be established between the law-makers and the law-abiders.

JOURNEY OF THE LAW

If one were to assume that the Supreme Court has not heard the public’s troubled voices that demand for their Fundamental Rights to be upheld, they would stand corrected. In the case of P Rathinam v. Union of India (1994)³, attempt to suicide under section 309 of the Indian Penal Code 1860⁴ was declared unconstitutional by the Court as it would be cruel to make a distressed person suffer again. Additionally, the Court also decriminalized assisted suicide under section 306 of the Indian Penal Code 1860⁵. The Supreme Court further expanded on how it has interpreted the rights guaranteed in the Constitution. The Apex Court said that just as any other Fundamental Right would include a negative right alongside the positive right guaranteed, even Article 21 of the Constitution⁶ would include the “right to not live”. This was overruled in the case of Smt. Gian Kaur v. State of Punjab (1996)⁷ that upheld section 309 of the IPC 1860. The five-judge bench concluded that the right to die was not covered under the ambit of Article 21 of the Constitution. The 196th Law Commission Report⁸, in 2006, embraced a liberalist approach but did so by giving a warning sign of potential misuse. The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Report concentrated on withholding life-support for artificial living. It also fed the society a misplaced feeling of unease with this idea of unnatural death. This judgment of society then has survived to see tomorrow’s dawn. In 2008, the Law Commission Report on Decriminalization of Attempt to Suicide⁹ found Section 309 of the IPC 1860 inhumane, as an attempt to commit suicide is a manifestation of a “diseased condition of the mind”. The Mental Healthcare Act of 2017¹⁰ also favored this view. The tragic case of Aruna Shanbaug v. Union of India (2011)¹¹legalized passive euthanasia in certain situations where Parens Patriae¹² must be upheld. The Court being the ultimate decider could hold this power. Through Article 226 of the Indian Constitution¹³, this power was also extended to the High Courts. This case gave way for debates that have shaped the thoughts of the masses. In the landmark judgment of Common Cause v. Union of India (2018)¹⁴, the Court expanded on the procedure to obtain authorization for patients that wish to seek an end with dignity. The petitioner’s prayer was to appointment an expert committee that would examine the subject of living wills and passive euthanasia. It further requested the Court to establish rules for the execution of living wills as well as a procedure for executing passive euthanasia. The petitioner used the recent Right to Privacy judgment¹⁵ to strengthen their stance about self-autonomy. The Court encompassed the ‘right to die with dignity’ in the Right to Life. The court had alreadyruled in Gian Kaur that the right to die was a constitutionally guaranteed right however this did not include passive euthanasia. The Court also added that the execution of living wills was a move to safeguard the rights of individual autonomy and self-determination. These phrases could also be used as arguments to support the legalization of passive euthanasia but the Court said that legalization was not the only route. In 2019, a petition filed by the Indian Society of Critical Care Medicine (ISCCM)¹⁶ sought a clarification on the former judgment. The apex court responded to this wide criticism of the public by taking a step forward to simplify the process. This was done by ordering the easement of living wills¹⁷. The new order states that, for Advance Medical Directives, the hospital must constitute both the approval boards and the authorizers must be doctors with a minimum experience of five years. Intimation to the magistrate within forty-eight hours would suffice and must be followed by the signature of a notary in the presence of two witnesses. This merely standardizes and shortens the painful process of approval. However, neither this does it clarify nor simplify the actual process of passive euthanasia. It also does not expedite the authorization for the same. However, footsteps of the ISCCM must be followed if we want to demand legalization on this. It could be done by steering the legal path in the direction of advocating for rights of the people. This could also be done by demanding accountability from the legislators, thus reducing dependency on the overburdened judiciary.

CHANGING TIMES, UNCHANGING LAWS

The only trace of possible legislation on this matter is the 2016 Bill on the Treatment of Terminally Ill Patients¹⁸. It still persists as a bill and its materialization still feels out of reach. Although visionary in its objectives, it still precludes active euthanasia and solely focuses on providing liability protection to patients and physicians. Thus, its scope gets restricted. It mandates that a panel must rule on a case-to-case basis. This would only be after careful consideration by a medical team/practitioner, who would take action with consent and valid consent only, thus ensuring its authenticity. The detailed bill is still flawed as it lays down a cumbersome process in cases where there is lack of informed consent. In situations where patients are incompetent to give consent or make informed decisions, the prescribed process is similar to the Common Cause judgment. The Bill’s critique is essential, not by simply questioning its credibility but by asking the right questions. The status-quo reflects how popular debate has successfully shifted focus of the masses towards facades of faith, moral obligations or doctoral duties. This has conveniently acted as a blanket to conceal the bill that is still in process. The issue, with verifiably greater consequence, is the legalization of physician-assisted suicide, both, actively and passively. It is important to note that while it is substantial to bring-to-surface the morals and ethics of euthanasia, it is also essential to be mindful about other factors of influence when demanding for this procedure to be on paper. Article 21 of the Indian Constitution, notorious for its position in the arguments of countless advocates in numerous landmark judgments, fulfills a rather vital role here. The Common Cause case established the right to die with dignity under the same article which also reflected a dual nature of it¹⁹. On one side, Article 21: Right to Life and Personal Liberty guarantees personal autonomy and self-determination to an individual to make decisions regarding their own health. While on the other hand, it portrays the State’s strong commitment to safeguard human life, which is backed by the Directive Principles of State Policy²⁰. It is essential to not that the translation of these duties into tangible changes is however not satisfactory. In eight well-developed countries²¹, active euthanasia too has been legalized under certain circumstances. Passive euthanasia, legal is twenty-two countries, is beginning to develop a standardized procedure as well. For growth prospects and for funding medical developments with foreign investments, it is a prerequisite for India to hop-on-board with these changes. In the Common Cause case, Chief Justice D.Y. Chandrachud had a concurring opinion that also expanded on and distinguished between the various types of euthanasia. Namely, active euthanasia refers to taking action to accelerate death and voluntary euthanasia would be with consent to end the life of an individual. Passive euthanasia would raise questions when withholding medical treatment would cause suffering instead of relief, non-voluntary euthanasia would be without permission but also disagreement of the person dying. Involuntary euthanasia is taking the life of an individual who does not wish for the same thus is also against the law. These differences directly indicate the issue of a much-required legislation on this matter. Without proper regulations, restrictions and punitive actions for offenders in place, the legalization would only act as an invitation for exploitation. When mercy is shown on sick animals to aid them during their death, the same idea of justice under euthanasia is respected. The sick and dying deserve no less than for their wishes to be fulfilled. It is imperative for one to remember that euthanasia would be presented as a choice and not a conclusive option for all. Having choice in a democracy holds power and shows its legitimacy as well as its respect towards its people. The Hippocratic Oath²² promises no harm which also means no suffering, thus patients in Persistent Vegetative State (PVS)²³ or in palliative care or diagnosed with terminal illnesses not only have the right to knock on the doors of justice but must also have the right to live with dignity and also to die with dignity.

JURISDICTION OR JUSTIFICATION

True protection of the State and its people mean taking active and reasonable action to follow-through with its promises. Rather than allowing for no legislation on this topic to be enough for regarding it as unlawful, or for case laws to solely stand as precedent, it is indispensable to formulate a law that would allow for euthanasia. The legalization of euthanasia is often considered to be a slippery slope as it might put a target on the backs of vulnerable groups, ill-intention of some relatives who might misuse transferable consent, contradictions amongst medical practitioners about the right course of action in treatment, unquestioned power in the hands of doctors, use of coerced consent, seen as a “solution” to end misery and misuse of the law itself. A wide-spread concern is that allowing unnatural death could lead to reduction in funding for medical investments. By changing the perspective by turning this situation into an opportunity to filter-out only reliable drug companies on the field would be of greater benefit. Similarly, it is encouraged to adopt a constructive approach while evaluating the intentions of this legalization. Therefore, awareness of the government on volatile matters with significantly higher rates of misuse and an action made with this knowledge is recognizably better than no action at all. Additionally, this ensures regulated and well-discussed decision making as the government’s action will go through the necessary scrutiny. This in turn means that to respect the desires and rights of the people, regulation on this matter is non-negotiable. By taking an obligation to protect the health of their citizens, the State has tried introducing several bills and orders but their implementation has not included ideas of mercy killing. Compliance with international medical standards²⁴ in fact promotes adaptability in dynamic and difficult times. Understanding the requirements of the people while also maintaining international standards is thus needed. Lack of conscious action towards these nuances will result in misinterpretation and lead to displeased citizens. The countries that have legalized euthanasia actively or passively, are in positions where India aims to be. This shows how India could also strive to be in this list by adopting the required laws, regulations and penalties. With the traction gained from the 2021 Bill on Right to Health²⁵, there is hope for advancement in the 2016 Bill as well. One way that the government could assure proper use is by having pre-legislative debate²⁶. This would significantly improve the bill by accommodating stipulations of the Government as well as desires of the public. Upon research, this Bill can still be perfected. There are several recommendations that could be made to ensure the same. The door to subjectivity of interpretation is wide as the Bill has not set the limits required for definitions and understanding is absent here. Phrases with no definite boundaries allow for exploitation at the hands of scheming persons. The Bill also allows for an increased amount of discretion that lies with the doctor. For example, Chenna Jagadeeswar v. State of A.P (1988)²⁷ that  said the right to die was not part of the Fundamental Rights and Gian Kaur v. State of Punjab (1996) placed importance on preserving the sanctity of life. These cases show the disputes mentioned above and also show the attempts made to twist the Letter of the Law. The Spirit of the Law should be the supreme order that must be maintained through any necessary means. For this, it is unequivocally essential that providing justifications for not passing the laws by focusing on the possible flaws is not an excuse. Instead, it is legislation on these matters that can realistically solve the problem.

CONCLUSION

The deprivation of life goes against the rudimentary ambitions of the Constitution; however, not working towards improving the lives of its citizens is far more violative. Allowing people to suffer in this manner is a gross violation of human rights. This lack of empathy counterproductively works to promote unethical and illegal alternatives for cure or even death. The right to end the life of an individual suffering is a private matter that the State must protect because the worth of a life cannot be reduced to accommodate issues that could potentially be solved by legislation. The State must work to ensure that regulations are put in place which guarantee commitment of doctors, funding maintained by the State, prevention of commercialization of the health-sector and protection for affected innocents. A law must be passed in the Parliament legalizing euthanasia in all of its forms that: firstly, promote death with dignity and secondly, does so with valid consent. The statute must also emphasize and clarify the official procedure authorized for euthanasia, along with the duty of care to be maintained and standard of care to be met by the medical care facilities and physicians. This research paper hopes to encourage dialogue and development further in cases where consent cannot be guaranteed or in cases of incompetent patients. As Marya Mannes said “Euthanasia … is simply to be able to die with dignity at a moment when life is devoid of it”,²⁸.

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