FEW ISSUES ARE AS EMOTIONALLY CHARGED as the state’s involvement in an individual’s right to take his or her own life, particularly when faced with circumstances, medical or otherwise, that make continuing to live untenable. Yet while India’s legislative and judicial branches are poised to make momentous decisions relating to the right to die with dignity, the debate about euthanasia has been relatively muted.
This is due, in part, to the complexity of the matter, and the lack of clarity on the legal status of euthanasia. Four years ago, the Supreme Court laid out guidelines to regulate passive euthanasia, bringing India into a select group of countries that, explicitly or implicitly, have legal precedent for the withdrawal of life-prolonging medical treatment for terminally ill patients. In 2011, in a landmark ruling in Aruna Shanbaug vs Union of India, the court set up a two-stage process for potential candidates for euthanasia. First, it stated that the decision to discontinue life support could be taken by a patient’s parents, spouse, close relatives or, in the absence of any of these, by a “next friend” involved in the patient’s care. Second, each case would require consideration and approval by a high court before life support could be legally withdrawn. In the specific instance of Aruna Shanbaug—a nurse whose rape and strangulation in 1973 shocked the country, and who had been in a vegetative state since—the court ruled that the patient did not qualify for euthanasia for two reasons: she did not require basic life support; and, most importantly, the nurses looking after her, at the same hospital where she had been employed, were committed to continuing their care.
In February 2014, this decision came under scrutiny in a new Supreme Court case that further illustrated the legal complexity of euthanasia. The NGO Common Cause had filed a public-interest litigation calling for the permission of passive euthanasia, and of living wills—in which patients can specify their conditions for euthanasia. The court set up a five-member constitutional bench to look into inconsistencies between Aruna Shanbaug and previous rulings, so as to deliberate on “all the aspects” and “lay down exhaustive guidelines” for euthanasia in India, considering the “social, legal, medical and constitutional perspective.”
Even in countries with advanced and relatively efficient legal and medical systems, where euthanasia can be regulated with a high degree of finesse, it is a sensitive, emotional issue. Around the world, laws and judgments in various countries have brought greater nuance to the laws governing euthanasia. Countries that allow euthanasia, in any form, do so selectively and cautiously, with legal safeguards that enunciate how and when it may be performed. In the United States, for example, where patients have an explicit “right to refuse treatment,” which is recognised as part of a constitutional right to privacy. However, the relevant laws vary in different states, each with its own legal precedents; some include allowing living wills, and some also permit active euthanasia, in which a patient’s life can be ended through a more deliberate act (for example, lethal injection) than the withdrawal of basic life support. Active euthanasia can be voluntary, where a person consents to ending his or her life, or, rarely, non-voluntary, where someone else provides consent on behalf of a person who cannot do so himself or herself. Some countries, such as the Netherlands, also allow physician-assisted suicide, in which a patient takes his or her own life under the guidance of a doctor. In Switzerland, a patient may even legally be assisted in suicide by a non-physician, as long as this helper’s motives can be proven to be unselfish.
Transplanting the laws of any of these countries to India would be difficult. Attempts to define the Indian state’s position on euthanasia have been marked, over the years, by a low-key tussle between the legislature and the courts, which has only created greater confusion. The Government of India, in various cases in the Supreme Court, has consistently argued that the parliament is the organ most appropriate for settling India’s position on a person’s right to die rather than suffer (or have their family suffer) through prolonged and terminal illness. Meanwhile, the courts have pushed for a clearer legal definition of what is and is not permissible—which would require addressing several sections of the Indian Penal Code.
For the first time, however, there is now a possibility that the legislature and the Supreme Court may be on parallel tracks on the issue. In addition to the Supreme Court bench looking into questions raised by Common Cause, last year the home ministry announced it would begin a process of deleting section 309, in which suicide is declared a criminal act, from the IPC. Once this deletion becomes law, it will potentially also clear up some of the murkiness surrounding euthanasia, and open up a critical debate on how it ought to be controlled.
As such, India has no specific legislation that comprehensively covers euthanasia—though interpretations of articles 14 and 21 of the constitution, which guarantee the right to equality and life, certainly have a say. But besides section 309, other sections of the IPC that are relevant to the discussion include section 306, which outlaws the abetment of suicide; and section 300, an exception to which defines a crime, in which a person voluntarily consents to the risk of death, as different from murder. Once section 309 is wiped off the books, defining the legal position of euthanasia will also require clarity on the purview of both this and the other pertinent sections of the IPC.
The move to repeal section 309 is an important step, but it has been a long time coming. In one of its reports, the Law Commission recommended repealing it in 1971, and the Rajya Sabha even passed a bill to that effect in 1978, which later lapsed. The commission reiterated its stance on section 309 in 2008 in another report, where it noted that “effacing” the section would be in keeping with views expressed by the World Health Organization, the Indian Psychiatric Society and the International Association for Suicide Prevention, as well as with the decriminalisation of attempted suicide by all countries in Europe and North America.
In fact, the Law Commission has for years pushed specifically for greater clarity on euthanasia, taking in a number of different considerations. In 2006, the commission’s 196th report supported the legalisation of passive euthanasia, and suggested the Medical Treatment to Terminally-ill Patients (Protection of Patients and Medical Practitioners) Bill, which laid down clear guidelines for medical practitioners in this regard. The proposed bill never made it to parliament, however.
In its 241st report, titled “Passive Euthanasia: A Relook” and published in 2012, the commission argued again that passive euthanasia is not objectionable from either the constitutional or legal points of view, and should be allowed in India on humanitarian grounds. The report suggested that approval from a High Court be a condition for legally taking a patient off life support, thus upholding the Supreme Court’s view in Aruna Shanbaug, and opposing an earlier decision, in 1996, that ruled suicide to be “inconsistent with the concept of right to life.” It also modified its previous draft of the Medical Treatment to Terminally-ill Patients (Protection of Patients and Medical Practitioners) Bill, incorporating the commission’s earlier recommendations and the views and directions of the Supreme Court in Aruna Shanbaug.
Now, in light of somewhat confusing developments in the courts, the constitution of the Supreme Court bench to demystify the position on euthanasia laid out in Aruna Shanbaug is a positive step. Both the Delhi and Bombay High Courts have previously ruled that the IPC sections that criminalise attempt to and abetment of suicides, violate the constitutional “right to life,” and have been vindicated by the Supreme Court in P. Rathinam/ Nagbhushan Patnaik vs Union of India, in 1994. This line of thinking was altered in 1996, with the Supreme Court’s judgment in Gian Kaur vs The State of Punjab, in which it ruled that the constitutional right to life guaranteed in Article 21 did not include the “right to die,” and that sections 306 and 309 of the IPC were constitutionally sound.
Yet looking at euthanasia from only a criminal law perspective undervalues the the myriad dimensions of ethics, medicine, and social mores that it involves. Euthanasia may involve relieving someone from acute pain, or safeguarding an individual’s right to dignity in the face of deteriorating health. It requires the scrutiny of not only the judiciary, but also of the medical fraternity. Any debate on this issue would do well to weigh all the aspects involved, as was rightly pointed out by Justice Sathasivam, then the chief justice of India, while setting up the constitutional bench in the Common Cause case. A holistic introspection on the role that euthanasia can play in society is necessary to shape and inform its legal standing within the walls of criminal jurisprudence.