SOCIO – LEGAL IMPACT OF EUTHANASIA: THE INDIAN PERSPECTIVE
[Vol 4/ Issue 1/ November 2018] [ISSN 2394-9295]
|Ms. Tanya Saxena||Mr.ManasAgrawal|
|Student B.B.A., LL.B (H))||Student B.B.A., LL.B (H)|
|Amity Law School, Noida.||Amity Law School, Noida.|
|Email id- firstname.lastname@example.org||Email id- email@example.com|
“What seems to be the conundrum of the decade is to think upon the fact that if Article 21 includes Right to Life, why it can’t embrace Right to die.”
Many lives are lost time & again, each & every second but wistfully they aren’t chosen for. What seems to be the speculation of time is whether an adult sound person should be given a choice to choose death over life when life seems to be a farfetched fable?This is what the advocates of Euthanasia vindicate. Euthanasia encompasses the mercy killing in a deliberate act of terminating a person’s life so as to alleviate him from immense pain and suffering.
It is an issue which is pertinent in Human Rights as it has a great impact on legal as well as ethical issues pertaining not only to patients but health care providers as well. Euthanasia is often considered a moral and ethical wrong as it is not only regard to a person giving up his life but also negatively indicating that it’s ethereal to take someone’s life. Many a times humanitarian take the argument that killing of an ailing person is not “compassionate”, its “murder”. Euthanasia is radically disapproved by legal fraternities due to inescapable fact that it would lead to commission of crimes by people in pretext of Euthanasia it would also undermine the Right to life as it would be tenuous concept.
Many nations like Netherlands& Belgium have espoused the concept of ‘relieving someone from the constant unbearable life’ whereas legal position of Euthanasia in view of the Indian Constitution& IPC is still vouge in India. The Indian courts have been grappling with this issue since long yet believe in ‘taking some innocent person’s life against the belief of state.’
In the research paper, researchers would endeavour to deal with the problem of euthanasia &its arguments by different shareholders of the domain. Furthermore, researchers would take a supplementary vestige to analyse the prevailing policies of government.
Keywords – Euthanasia, Mercy Killing, Consent, Passive Euthanasia, Dignified death.
The word “euthanasia” finds its roots in the Greek terms “eu” meaning good, nice or merciful and “Thanatos” meaning death or killing.[i] Hence the literally translating the Greek terms into English renders the meaning of euthanasia as “good death” or “merciful death”. Roman historian Suetonius for the first time used the term “euthanasia” after whom Francis bacon used the word to expound “painless death”.[ii] Euthanasia refers to a deliberate and intentional act of prematurely terminating a person’s life either by direct means of intercession (active euthanasia) or by abstaining from means, measures and resources used so as to prolong life (passive euthanasia). Such termination of life could be either at the express or implied will of the ailing person (voluntary euthanasia) or in certain rare circumstances in absence of such approval (involuntary euthanasia).
Euthanasia is an effective elixir to relieve a person ailing from immense pain and suffering by termination of his life so as to allay him from his unbearable agony. The rationale behind such act is that the ailing person attains a “dignified death” and seems to be in the best interest of the patient.[iii]
In the recent times, aiding or assisting a terminally ill person to end his life by his own will has become a much debatable issue, an issue of immense debate concerning health care providers as well as the legal fraternity. Euthanasia, just like cloning and organ donation has become a subject of great controversy in light of the recent technological advancements in the field of medicine. Here the question arises whether the obligation of the state to protect life as enshrined under Art. 21 of the Indian Constitution also includes within its ambit the duty to prolong life as far as possible even though the quality of such life may be poor. Hence this ability to keep a critically ill person alive with the help of highly advanced medical equipment has raised a question for such ill patient, health care providers, legislators and the public in general regarding the “right to die” of such ailing person.
The Indian judiciary has been grappling with this sensitive issue of “euthanasia” since long. It has time and again affirmed its belief that ‘taking an innocent person’s life is against the belief of state’ and for that reason the concept of taking an innocent person’s life has always been unknown and unacceptable to the Indian judiciary. Hence, rendering euthanasia not only as unlawful but also as an offence under Indian Penal Laws. It was only in the past decade when the Indian Judiciary recognized and accepted the concept of euthanasia in its passive form, though it left it on the legislature to decide upon its criminality.[iv]
II. CLASSIFICATION OF EUTHANASIA
Euthanasia comes in a few distinct forms, every one of which brings an alternate arrangement of rights and wrongs. It can be classified into two parts namelyon the basis of nature of act and on the basis of consent.
1. On the basis of nature of act
The nature of the act means that how the act is been done or completed. It is further divided into two parts: Active Euthanasia and Passive Euthanasia.
i. Active Euthanasia
Active euthanasia involves the utilization of deadly substances. It is corresponding to mercy murdering and includes making a move to end an existence. It is defined as any treatment started by a doctor, with the plan of speeding the passing of another human being, who is in critical condition, with the intention of easing that individual from immense enduring.
For example, deliberately giving a man a fatal dose of a medication to end a torturing and delayed time of dying.
ii. Passive Euthanasia
Passive euthanasia is occasionally used to indicate cause of somebody’s death by withholding or withdrawing treatment that is important to continue a life. It is passive when death is caused on the grounds that a treatment that is managing the life of the patient is held off and the patient expires due to that.
For example, withholding of antibiotics where, without giving it, a patient is likely to die, or removing the heart lung machine from a patient in coma[v].
2. On the basis of consent
It is further divided into three parts: Voluntary Euthanasia, Non-Voluntary Euthanasia and Involuntary Euthanasia.
i. Voluntary Euthanasia
Voluntary euthanasia is where anindividual settle on a certain choice to die and requests help to do this.This includes cases ofasking for help with dying, refusing burdensome medical treatment, asking for medical treatment to be stopped, or life support machines to be switched off, refusing to eat and simply deciding to die.[vi]
ii. Non-Voluntary Euthanasia
Non-voluntary euthanasia happens when the individual is paralyzed or generally unfit to settle on an important decision to live or to die, and a fitting individual takes the choice for their sake. While there is no legitimate trouble on account of the previous, the latter represents a few issues.
For example, when a person is in a coma or he is too young or he is mentally retarded to a very severe extent etc.
iii. Involuntary Euthanasia
Involuntary euthanasia is when the patient is killed without a communicated wish. It indicates to cases wherein a capable patient’s life is conveyed to an end against the desires of that patient that contradict euthanasia; and would unmistakably add up to kill.
For example, a soldier has their stomach blown open by a shell burst. He IS in great pain and screaming in agony. The doctor knows that he will die in ten minutes whatever happens. As he has no painkilling drugs with him he decides to spare the soldier further pain and shoots them dead.[vii]
III. LEGAL PROVISIONS AND PRECEDENTS IN INDIA
Euthanasia is still an untouched concept in India and there are no unique arrangements with respect to this either in law or enactment. As of late, couple of medical cases implies the need of euthanasia in India.The main case in which such an issue was brought under the steady gaze of an Indian Court isState v Sanjay Kumar[viii].
In India, the faith in life has been put on the most noteworthy platform. “The Right to life” under Article 21 of the Constitution has gotten the broadest available translation under the capable hands of the judiciary. This privilege is natural and is inalienable in us. This fundamental point appears to escape each one of the individuals who continue clamouring for the “Right to Die”.Section 309 of the Indian Penal Code talks about punishment regarding attempt to suicide. It is an offense however, it ought not be one. You could die, yet in the event that you survive, you ought to get guiding, not go to imprison.
The Constitution Bench of theIndian Supreme Courtin Gian Kaur vs. State of Punjab[ix] held that both euthanasia and assistedsuicide are not lawful in India.a five judge Constitutional Bench held that the “right to life” is naturally conflicting with the “right to die” just like “death” with “life”. Also, the Right to life, which incorporates life to live with human pride, would mean the presence of such a right to end one’s life. It might additionally add “death with pride” yet such presence ought not be mistaken for unnatural elimination of life reducing normal range of life. In movement of the over, the lawfulness of Section 309 of the I.P.C, which makes “Attempt to suicide” an offense, was maintained, overruling the judgment in P. Rathinam vs. Union of India[x].
Aruna Ramchandra Shanbaug v. Union of India[xi]is a landmark case and has opened doors legalise passive euthanasia. This case has held some important decisions given by Supreme Court of India. In this case, a petition of was filed before the Supreme Court for looking for authorization for euthanasia for Aruna Ramchandra Shanbaug as she was in a Persistent Vegetative State (P.V.S) and for all intents and purposes a dead individual and has no condition of mindfulness.The Court rejected the appeal filed for sake of Shanbaug and saw that passive euthanasia is allowable under supervision of law in exceptional conditions be that as it may, active killing isn’t allowed under the law. The court additionally prescribed to decriminalized attempt to suicide by omitting the punishment given in Indian Penal Code.
After this Supreme Court laid down guidelines till the time there is no new law made by the Parliament:
1. A choice must be taken to end life support either by the guardians or the spouse or other close relatives, or without any of them, such a choice can be taken even by a person acting as a next friend. It can additionally be taken by the doctors going to the patient. Be that as it may, the choice ought to be taken real to the greatest advantage of the patient.
2. Regardless of whether a choice is taken by the close relatives or specialists or next friend to pull back life support, such a choice requires approval from the High Court concerned as set down for Airedale’s case[xii]as this is considerably more important in our nation as we can’t eliminate the possibility of misconduct being done by relatives or others for acquiring the property of the patient.
Article 21 of the Indian Constitution talks about the right to life, yet it can be depicted as giving the privilege to take away one’s own life. The Right to life incorporates the privilege to live with poise. Any person has the Right to die with respect and has the privilege to request that medicinal faculty to end his life when the other preference is to delay the death of the person. While the medicinal faculty have promised to ensure life, delaying the death of a man who has no way to live is ethically wrong also.
In the event that we deliberately inspect the resistance to the authorization of killing, we can infer that the most crucial point that is been raised is that it will prompt its misuse by the specialists. Subsequently, it is modestly presented that when a patient or his relatives can put his life in the hands of the specialist believing in him, at that point for what reason can’t a specialist be given such responsibility to choose what will be agreeable to his patient. Another uncertainty that is frequently raised is that if the specialists will be offered caution to rehearse voluntary euthanasia then without a doubt it will continuously prompt requesting involuntary or non-voluntary euthanasia. Be that as it may, it is modestly presented that a different enactment ought to be made permitting just voluntary euthanasia and involuntary or non-voluntary euthanasia. We likewise need to remember the restricted medicinal offices accessible and the quantity of patients.
This query still lies open that who ought to be given those facilities; an at death’s door patient or to the patient who has reasonable odds of recovery. As the patient himself out of his discomfort and anguish is requesting passing, specialist ought not to expand that discomfort of his ought to permit voluntary euthanasia. Thus, Euthanasia should be made legal, but very closely monitored and well regulated.
[i] Catherine Dupre, “Human Dignity and the Withdrawal of Medical Treatment: A Missed Opportunity”, European Human Rights Law Review, 2006, Vol. 6, pp. 678-694.
[ii] Ian Dowbiggin, A Concise History of Euthanasia: Life, Death, God, and Medicine, Pg.23, (Rowman & Littlefield Publishers, Inc., Mary Land, 2007) available at:
http://books.google.co.in/books/about/A_Concise_History_of_Euthanasia.html?id=CNigO7gMGkUC&redir_es c=y (Last Visited on October 4, 2018).
[iii] Hazel Biggs, Euthanasia, Death with Dignity and the Law, 11, (Hart Publishing, Oregon, 2001) available http://books.google.co.in/books/about/Euthanasia_Death_with_Dignity_and_the_La.html?id=E3asTXxKps4C.
[iv] Common Cause (A Registered Society) v. Union of India AIR 2014 SCC 5 338 & Aruna Ramachandra Shanbaug v. Union of India AIR 2011 SCC 4 454.
[v]Aruna Ramachandra Shanbaug v. Union of IndiaAIR 2011 SCC 4 454, Para. 38, also,Law commission of India, 241st Report on Passive Euthanasia- A Relook, (11 August, 2012) available at http://lawcommissionofindia.nic.in/reports/report241.pdf (Last Visited on October 6, 2018).
[vi] “Voluntary and Involuntary Euthanasia” available at
http://www.bbc.co.uk/ethics/euthanasia/overview/volinvol.shtml(Last Visited on October 6, 2018).
[ix] (1996) 2 SCC 648: AIR 1996 SC 946.
[x](1994) 3 SCC 394: AIR 1994 SC 1844.
[xi]AIR 2011 SCC 4 454.
[xii] Airedale National Health Service Trust v Bland,  1 All ER 821.
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