Euthanasia- Right to Die with Dignity- A Fundamental Right
In a landmark judgement passed by five-Judge Constitution Bench of the Supreme Court in the case of Common Cause (A Regd. Society) v. Union of India, the Court has recognized right to die with dignity as a fundamental right. The Bench has hence recognized passive euthanasia and living will in India.
The Constitution Bench of the Supreme Court in the case has also issued guidelines for enforcement of living wills and the procedure to be followed for euthanasia.
What is passive euthanasia– In literal sense passive euthanasia means withholding treatment or supportive measures which would have otherwise saved the patient’s life. On the other hand active euthanasia means to introduce something to cause death.
What is a living will– It refers to the principle where a patient’s consent has been expressed at an earlier date before he became unconscious or otherwise incapable of communicating it as by a `living will’ or by giving written authority to doctors in anticipation of his incompetent situation
March 09, 2018
Earlier cases and Courts standing
Supreme Court of India
P.Rathinam vs Union Of India on 26 April, 1994
Equivalent citations: 1994 AIR 1844, 1994 SCC (3) 394
In P. Rathinam case, the Supreme Court held that the “right to die” is a right enshrined under Article 21 of the Constitution and hence Section 309 of Indian Penal Code was unconstitutional”It is ironic that Section 309 IPC still continues to be on our Penal Code. … Strange paradox that in the age of votaries of Euthanasia, suicide should be criminally punishable.
Supreme Court of India
Smt. Gian Kaur vs The State Of Punjab on 21 March, 1996
Gian Kaur v State of Punjab
Gian Kaur and her husband Harbans Singh were convicted by a Trial Court under Section 306 of the Indian Penal Code. They were sentenced to six years imprisonment and fine of Rs. 2,000/- for abetting the suicide by Ms. Kulwant Kaur. Section 306 punishes anyone who abets the commission of suicide, while Section 309 punishes anyone who attempts to commit suicide. It was argued that, as held in P. Rathinam v. Union of India, the Article 21 right to life includes the right to die. So, a person abetting suicide is merely assisting in the enforcement of Article 21. A five-judge bench of the Supreme Court overruled P. Rathinam.
Supreme Court of India
Aruna Ramchandra Shanbaug vs Union Of India & Ors on 7 March, 2011
Aruna Ramachandra Shanbaug v Union of India
In this case, the Petitioner was in a permanent vegetative state (PVS) for 37 long years. In the case, the Two-Judge Bench of the Supreme Court allowed passive euthanasia subject to certain conditions and subject to the approval of the High Court after following the due procedure as laid down by the Court in the case
The ‘next friend’ of Ms. Aruna Shanbaug had filed a petition before the Supreme Court asking it to direct the hospital to stop feeding the her and allow her to die peacefully. Ms. Shanbaug was in a Persistent Vegetative State (PVS) since she had been sexually assaulted in 1973. The Court appointed a team of three doctors to examine Ms. Shanbaug and submit a report about her physical and mental condition. Although the court did not allow the withdrawal of medical treatment to Ms. Shanbaug, it discussed the issue of euthanasia at length and allowed passive euthanasia. Invoking the Parens Patriae principle (Latin for “parent of the nation”, where the Court can step in and serve as a guardian) it held that the Court is the ultimate decider of what is best for the patient. It extended this power to the High Courts under Article 226.
Law Commission Report on Euthanasia 28th April, 2006
The Law Commission of India in its 196th Report recommended that there must be a law made to protect terminally ill patients who refuse medical treatment, artificial nutrition, or hydration from Section 309 of the Indian Penal Code. Further, doctors who obey such a decision of the patient, or who make the decision for incompetent patients in their best interests of such patients, must be protected from punishment under Section 306 of the IPC (abetment of suicide) or Section 299 (culpable homicide). The Report clarified that the ‘patient’ must be suffering from a terminal illness, i.e., an illness, injury or degeneration of a physical or mental condition which causes extreme pain and suffering, according to reasonable medical opinion will inevitably cause the untimely death of the patient.
By Dr Prem Lata
