Position of Euthanasia in India

    Every person has the right to savour life to its fullest. But there are times when a person suffers so much with a dreaded, obnoxious and inevitable disease that he gets pushed into an interminable abyss which  makes his life grim and beleaguered. For such a person living with such sufferings and pain is quite onerous. For them, peaceful death is an enticing alternative to living with such unbearable pain and suffering, especially when there is no hope of reinvigoration. As Mirza Ghalib said “Marte hain aarzoo mein marne ki maut aati hai par nahi aati” which means “I’m not afraid of being dead. I’m just afraid of what you might have to go through to get there.” These lines give us a fair idea that sometimes people with terminal illness or disease, would rather like to embrace death peacefully than clinging to interminable and endless sufferings, pain and indignity. A person can end his life either by suicide or via euthanasia.

    No doubt, the former one is completely illegal in India, but the latter is a debatable topic. The word “euthanasia” was originally coined by Sir Francis Bacon in the 17th century. It is derived from two Greek words “eu” meaning good and “thanatos” meaning death and thus means a good or easy death. Generally speaking, it is an act or practice of ending the life of an individual suffering from a chronic or terminal illness or in an incurable condition by injecting extraordinary medical substance to free him of intolerable pain and suffering. Now one may wonder what terminal or chronical illness is? And how can we find whether a person is terminally ill or not? According to the Medical Treatment of Terminally Ill Patients(Protection of Patients and Medical Practitioners) Bill 2006, a terminal illness means:

    1. such illness, injury or degeneration of physical or mental condition which is causing extreme pain and suffering to the patient and which according to reasonable opinion will inevitably cause the untimely death of the patient concerned.
    2. which has caused a ‘persistent and irreversible vegetative’ condition under which no meaningful existence of life is possible for the patient.

    In euthanasia, the patient or any other person on his behalf chooses death for himself because of the inevitability of his/her medical conditions and to end his/her suffering and unbearable pain. Though to some people, it may sound the inhuman and barbaric, the main motive behind the euthanasia is to alleviate the pain and sufferings of people.

    Types of Euthanasia

    Euthanasia can be broadly classified into three types:

    (a) Voluntary Euthanasia,

    (b) Non Voluntary Euthanasia, and

    (c) Involuntary Euthanasia

    Voluntary euthanasia is that form of euthanasia which is performed at the request of the patient itself. On the other hand, when euthanasia is performed even when the patient himself has not requested for it, it is called involuntary euthanasia. It is usually performed when the patient is not in a position to give consent, for instance when he/she is in a coma.. This type of euthanasia is also known as mercy killing. At last involuntary euthanasia, refers to that form of euthanasia which is performed when the person who is killed made an expressed wish to the contrary i.e. he/she had denied of administering euthanasia. It is similar to murder.

    Classification of Euthanasia

     (a) Active Euthanasia, and

     (b) Passive Euthanasia.

    Active euthanasia is sometimes also called positive and aggressive euthanasia. It refers to causing death of a patient by direct intervention to end useless life and meaningless existence. For example, by giving a lethal dose of injection..

    Passive euthanasia on the other hand pertains to causing death of a patient by withholding or withdrawing treatment, medical facilities or life support system necessary to maintain life. It is often called as negative or non aggressive euthanasia.

    Legal Aspect of Euthanasia in India

    In India, euthanasia is considered as a crime. Section 309 of the IPC deals with the attempt to  commit suicide and section 306 of the IPC deals with abetment of suicide. Both of them are punishable. In case of doctors or physicians, if an intention to cause death of a patient is found on his/her part, he can be charged under clause (1) of section 300 of  the IPC. But if there is a proper consent of the patient, i.e., in case of voluntary euthanasia, exception 5 of section 300 will be applicable and the doctor would be transgressed for culpable homicide not amounting to murder under part 1 of section 304. On the other hand, if administering non voluntary and involuntary euthanasia, the doctor/physician can be charged under sections 88 and 92 of the IPC as there is an intention to cause death of patient for his benefit.

    Many people believe that a patient and his family should not be forced to suffer through a long and painful death. Many jurists also argue that Right to Die is itself a part of Right to Life which is enshrined in Article 21 of the Indian Constitution. So a person should be allowed to choose peaceful death rather than suffering interminably. The question whether Article 21 includes Right to Die or not first came in case of State of Maharashtra v. Maruti Shrjpati Dubal[1]. In this case, the Bombay High Court asserted that Right to Life includes Right to Die and section 309, i.e. of suicide was struck down. According to the Bombay High Court’s view, Right to Die is not unnatural, it is just uncommon and abnormal. This view was upheld in P. Rathinam’s v. Union Of India[2]. In that case the Supreme Court observed that Right to Life includes Right not to live, i.e, Right to Die.  Some argue that since nature of euthanasia is similar to suicide, section 309 should be applicable to those who attempt to commit it. However euthanasia is not completely identical to suicide. Justice Lodha in Naresh Marotrao Sakhre v. Union of India[3], observed that “Suicide by nature is an act of self killing or self destruction, an act terminating one’s own act and without the aid or assistance of any other human agency. Euthanasia on the other hand implies the intervention of other human agency to end the life. Mercy killing is thus not suicide and provision of section 309 doesn’t cover an attempt of mercy killing”.

    However there are some conflicting views about this topic. It is a common saying that “Death is not a right, it is the end of all rights and a fate that none of us can escape”. In Chenna Jagadeeshwar v. State of AP[4], the AP High Court avowedly asserted that Right to Die is not a fundamental right under Article 21. In Gian Kaur v. State of Punjab[5] also, a 5 Judge bench observed that Article 21, i.e. the Right to Life doesn’t include Right To Die.

    The Supreme Court is also of the view that Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can the extinction of life be read into it. Right to Life doesn’t give us Right to Die, similarly as Right to liberty doesn’t give us freedom to sell ourselves into slavery.

    Aruna Shanbaug v. Union of India- A Drastic Change in Euthanasia

    A major development regarding the issue of euthanasia took place in March, 2011. In Aruna Shanbaug v. Union of India[6], a petition was filed in the Supreme Court for euthanasia on the behalf of Aruna Shanbaaug who was left blind, paralysed and speechless after suffering from a ghastly attempt of rape. Her bones were brittle, her skin was like paper mache, her wrists were twisted inwards resulting in growing nails tearing into flesh very often. Her condition was very pitiful. Eventually she went into a coma and her brain was virtually dead. Doctors said that there is no hope of her coming back. The Supreme Court established a committee for medical examination of the patient to ascertain the issue. In the end, the Supreme Court dismissed the plea of mercy killing but held that passive euthanasia is permissible under supervision of law in exceptional circumstances. It is to be noted that the Court has recognised passive euthanasia in which the doctor doesn’t cause death of a patient, he simply doesn’t save him by stopping the ongoing treatment, life support machines on the support of which the patient is alive. Active euthanasia which caused death of a patient by injecting a lethal drug or another medical substance is still illegal in India. A two Judge bench laid down a set of strict guidelines under which passive euthanasia can be administered. First, the parents, spouses or close relatives of patients have to make a plea at the High Court. After receiving such a plea, the Chief Justice of that High Court would constitute a bench to decide the case. The bench then would appoint a committee of at least 3 renowned doctors (consisting preferably of psychiatrist, neurologist and physician) to advise them. The bench would then decide whether passive euthanasia has to be administered or not. Some people may wonder that under which provision can the court order withdrawal of life support systems. It has also been answered by the Supreme Court. It held that the High Courts under Article 226 can grant such an order. Article 226 doesn’t only entitle the High Courts to issue only writs but also entitles it to issue orders and directions.

    Should Euthanasia be Legalised in India?

    Arguments in Favour of Euthanasia

    •   Proponents of euthanasia believe that patient and family should not be forced to suffer through a long, and painful death even if the only way to alleviate the suffering is through euthanasia. Euthanasia provides away to relieve the unbearable, intolerable pain and suffering of an individual and relieves the terminally ill people from a lingering death. Further, when the quality and condition of life of a patient has become so low, that it is not worth living and when there is no hope left for him then the choice to end his life is justifiable. A person would end his life only in case of excessive agony and suffering. Thus, morally it would be better to allow a person to die without pain especially when he knows that he/she is going to die anyway because of the terminal illness.
    • In a developing country like India, there is already a dearth of hospitals, doctors and medical equipment. Instead of devoting our facilities, beds, and ventilators to such persons who have no hope of recovering and want to die, it would be wise to facilitate the resources to those persons whose lives can be saved. It is often seen that a gargantuan amount of medical facilities are spent on patients who are inevitably going to die no matter what. Instead of wasting our resources on such people, it would be sagacious to spend those resources on those people who have even a little chance of recovery.
    • Article 21 of the Indian Constitution gives people the right to live with dignity. People argue that if the standard or quality of a person’s life falls below the minimum level, then he /she should have a right to end such an undignified life. According to the proponents of euthanasia, it is ethical and justified when the quality of life of patient becomes so low that death becomes only justifiable means to relieve something.
    1. Merely knowing that one can control the timing and manner of death serves as a form of psychological insurance for dying patients. In other words, knowing there can be an escape from the suffering of illness may alleviate some of the stress associated with the dying process.
    2. Euthanasia is an extension of a person’s autonomy and his right to determine what treatments to accept or refuse. One can also relate it to the principle of self determination. It is also assumed that request for euthanasia is a rational decision as a person only ask for it when terminal illness, pain, increased disability and fears of becoming a burden to family and friends has circumscribed him. Provided that his/her condition can’t be relieved even with the topmost palliative care, the decision to end one’s life is rational and society must respect his/her choice. Also, Article 19 provides every person a right to make choices related to different spheres of his/her life.
    3. Some people argue that the line of differentiation that is drawn between active and passive euthanasia is completely impractical and demarcated. Withdrawing the life support system of a patient on his consent, by the doctors is actually an active step on part of doctors and if the same consent is given for administering a lethal dose of injection, there is no reason why this act should be considered as illegal or immoral.

    https://legalreadings.com/case-nand-lal-thanvi-v-legal-representatives-of-goswami/

    Arguments against Euthanasia

    1. Human life is a gift of God and taking life is wrong and immoral. Human beings can’t be granted the right to play the part of God. A man only suffers pain due to his karma. Thus, euthanasia devalues human life. A chunk of people especially from religious, legal and medical background often opposes euthanasia. According to them granting euthanasia is like granting right to kill somebody rather than right to die. It should also be kept in mind that in India we don’t give death sentences even in case of heinous crimes unless it falls under the category of the rarest of rare. This is because in India we value human life as pivotal. So, granting euthanasia would be against the principles of human lives and nature. Also , it will ultimately devalue the human lives
    2. It is argued that members of the poor section of society will be forced to end their life either directly or indirectly as a means of resolving the difficulties posed by their illness. Physicians might recommend them euthanasia as an alternative to the costly and palliative treatment.  It is generally seen that for vulnerable sections of society, it is an onerous task to bear such behemoth costs of treatment. So such people may be coerced into requesting for euthanasia.
    3. Euthanasia is completely against the medical ethics and public policy. Medical ethics call for nursing, care and healing only and not ending the life of the patient. This can be exemplified in the Hippocratic oath which states ”I will prescribe regimen for the good of my patients according to my ability and my judgement and never do harm to anyone. To please no one will I prescribe a deadly drug, nor give advice that may cause his death”.  Also medical science today is advancing at a very fast rate. The diseases which were incurable in the past have become curable. It is generally seen that a person wants to end his life because he is suffering from terminal disease like AIDS which is incurable now, but what if we find a cure for it in future? It is a high possibility that it may become curable in the future. So instead of encouraging the patient to end his life, doctors should encourage him to be optimistic and fight with the disease with courage till the cure is found.
    4. In our Indian society, family plays a pivotal role in a person’s life. So if euthanasia is allowed, the decision regarding it wil not be taken solely by the patient. Family members will surely play an important role in it. It is possible that family members may subtly suggest death as inevitable because of the social and financial burden involved in caring for terminally ill patients. Hence, it is probable that the patient will come under peer and social pressure and take such a drastic step to end his life as he will start to feel that he is a burden on the family. If that happens, it itself will destroy the main motive behind euthanasia.
    5. When a suicide is not allowed in India, then also euthanasia shouldn’t be allowed as well. Both involve ending one’s life. The main reasons behind suicide are depression, family conflict, abandonment and lack of social support. Studies have shown that if pain and depression are treated adequately treated in a dying patients as they would be in a non suicidal dying patient, the desire to commit suicide vanishes. Such a tendency can be lessened by proper care of patients, by encouraging them and showing them hope for life. Same is the case with persons seeking euthanasia. Several studies have supported the connection between mental disorder or depression and interest in euthanasia suggesting that the suicidal intention in terminally ill patients is undiagnosed and untreated mental illness If doctors  encourage them to be optimistic .and fight with the disease with courage till the cure is found and give them a light of hope, it is highly possible that the desire to end life vanishes in them as well.
    6. If euthanasia is to be made legal, then who will determine the criteria of it?  Should it be the patient’s parents, relatives or doctors? How parents and relatives will destroy the main motive behind euthanasia is already discussed. Physicians also are not capable to decide whether euthanasia should be administered or not. It is also possible that physicians may also allow euthanasia because of their belief that they themselves would not want to live in a condition similar to that of their patients. Also crime is rampant in India. It is quite easy to bribe the hospital staff. A doctor might be waiting for an organ transplant or for a bed to become free. It is possible that to fulfil his evil motive, he may grant the permission for euthanasia. Who will check if his motive is fidel or not? Also countries like Oregon where euthanasia is allowed, psychiatrists play a vital role there. But according to Ganzini estale only 6% of Oregon psychiatrists felt confident in their ability to assess whether a psychiatric disorder was impairing the judgement of a patient requesting euthanasia or not. So, there is not a proper criteria to assess whether euthanasia should be administered or not.

    Conclusion

    By looking at all the merits as well as demerits of euthanasia, we can see that it is the fear that placing the discretion in the hands of the doctor would be placing too much power in his hand and its misuse which is the main concern behind legalising euthanasia. But if we feel placing discretionary power in the hands of judges for deciding a case then why are we fearing placing such power in the hands of a doctor? What is more surprising is that fear is of the very person in whose hand we would otherwise not be afraid of placing our lives. A doctor with a scalpel in his hands is acceptable but a doctor with a fatal injection is not.

    In my opinion voluntary euthanasia can be legalised. Patients who are terminally ill and are suffering unbearable pain should be allowed to die. It is completely illogical to spend time, money and medical facilities on a person who has neither a chance nor any hope of recovery. Also we have to keep in mind that India’s population is proliferating at a fast rate. In this pandemic of COVID as well we are seeing shortages of beds, ventilators and other medical equipment. We don’t know that how many lives we can save by providing medical facilities to the needy from the patients who are going to suffer the inevitable truth(who wants to commit euthanasia due to inevitability of their disease) Some people may consider it cruel. But we are not forcing someone to die. If someone who is suffering from unbearable pain, has no hope of getting reinvigorated and himself wants to die, then there is no point why can’t we respect his opinion. Article 21 may not strictly provide the right to die but the right to die can be read as a part of Article 19.

    Moreover it is completely inhuman to leave those persons on their own fate who are suffering from terminal illness, unbearable pain and have no hope of getting revived. Euthanasia is given to people who are in extreme ill condition and cannot recover. As the patient himself out of agony and pain is asking for death, we should not increase his pain and must permit euthanasia. As a human our top priority should be to lessen the pain of a person. If we already know that he is going to die anyways today or tomorrow and if he is suffering from unbearable pain  there is no point that he should be left to suffer for an interminable time until death naturally comes to him. This will be against his dignity. Especially there are times when people belonging to lower financial strata of the society knows that their family member is going to die but still have to support them financially which poses a great burden on their pockets as well. Ultimately they got trapped into a vicious circle of moneylenders because banks still hesitate to give them loans in the current scenario of India. So, I think that it is a high time that voluntary euthanasia should be decriminalised. To allow a terminally ill patient to end his life is not a crime rather it is a rational decision. But we have to frame strict norms and proper procedure regarding it so that it can’t be misused. The recommendations of 196th Report of Law Commission on the Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) can be taken for it. Some other suggestions are:

    1. The request of euthanasia must come from the  patient himself and the patient must be suffering from an unbearable pain, incurable condition.
    2. The doctor or physician must be convinced that the request was voluntary and the patient was facing unremitting and unbearable suffering.
    3. The doctor should also have informed the patient about his situation and prospects and should have come to the conclusion that there is no alternative solution to lessen the pain of the patient.
    4. There should be explicit and repeated requests from the patient that leaves no doubt regarding his consent and desire to die.
    5. A committee of quasi judicial officers must be made by the judiciary to supervise all the cases related to euthanasia. Such officers must be reasonably well versed with medical science. Physicians should not be allowed to perform euthanasia unless all the members of the committee are satisfied.
    6. The Medical Council of India must prepare and publish guidelines in respect of administering euthanasia which should be complied with while performing euthanasia.

    Thus, voluntary euthanasia could be legalised but the laws would have to be very stringent. Every case has to be carefully monitored while considering the views of patient, and doctors. But whether Indian society is mature enough to face this, it is yet to be seen.

    REFERENCES

    [1] 1987 Cri.L.J 743 (Bom).

    [2] AIR 1994 SC 1844 at 1868.

    [3] 1996(1)BomCR 92.

    [4] 1988 Cri.L.J. 549.

    [5] AIR 1996 SC 946.

    [6] 2011 (3) SCALE 298.


    BY ANUBHAV SHARMA | JAMIA MILLIA ISLAMIA

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