Evolution of Corporate InsolvencyMay 15, 2018
PASSIVE EUTHANASIA: A VIOLATION OF RIGHT TO LIFE?
“Marte hain aarzoo mein marne ki, maut aati hai par aati nahi”
[Markandey Katju in Aruna Ramchandra Shanbhaug v.UOI]
Recently the Constitutional bench of the Apex court in the case of Common Cause v. UOI & Anr recognized the robust system of certification for Passive Euthanasia, broadening the spectrum of Right to Life conferred under Article 21 of the Indian Constitution. Passive euthanasia is a state that allows for withdrawal of medical support for terminally ill patients and patients who are in vegetative state with no hope of recovery. Not only the court laid down guidelines on the mechanism of Passive Euthanasia but has also legally recognized the concept of Living Will. One needs to understand that right to life is the only article in the constitution to have received such widest possible interpretation. Courts in plethora of judgment have discussed the meaning of Right to life. But for us, we need to contemplate whether right to die is an integral part of right to life or not.
The very first case before the court on the issue of right to die was P. Rathinam v. Union of India , wherein the court stated that right to life includes right to die , broadening the scope of article 21. Also, section 309 that criminalizes suicide was held as a violation of article 21.This case created hue and cry amongst the government which was against the idea of decriminalizing suicide. Again the debate ended in the landmark case of Gain Kaur v. State of Punjab , wherein the court concluded right to die not a part of right to life as the word life is explained as life with dignity and it can’t be equated with right to die as an unnatural death curtailing the natural span of life. This case also explained the reasons why section 309 of Indian Penal Code that talks about criminalization of suicide is constitutionally valid. The court in this case was faced with the question where right to die will include persons who are terminally ill with no scope of recovery and the court concluded that this category of persons comes under the ambit of right to die and hence violating the essence of life of dignity. Till this case, the court didn’t talk about euthanasia explicitly till the case of Aruna Ramchandra Shanbaugh v. Union of India & Ors , wherein the court for the first time talked about euthanasia and the need of laws for the same. The court also reiterated that an act of suicide is an individual’s act and it causes no harm to other people. State’s interference into the personal liberty shouldn’t be allowed hence section 309 violates article 21.The court stated –
“If the purpose of the prescribed punishment is to prevent the prospective suicides by deterrence, it is difficult to understand how the same can be achieved by punishing those who have made the attempts. Those who make the suicide attempt on account of mental disorder requires psychiatric treatment and not confinement in the prison cells where their condition is bound to be worsen leading to further mental derangement. Those on the other hand, who makes a suicide attempt on account of actual physical ailments, incurable disease, torture (broken down by illness), and deceit physical state induced by old age or disablement, need nursing home and not prison to prevent them from making the attempts again. No deterrence is going to hold back those who want to die for a special or political cause or to leave the world either because of the loss of interest in life or for self- deliverance. Thus in no case does the punishment serve the purpose and in some cases it is bound to prove self-defeating and counterproductive.”
According to the facts of the case, Aruna was a nurse working in King Edward Memorial hospital in Mumbai. She was assaulted by a ward boy and was strangulated with a dog chain causing severe injuries in body. She was left paralyzed for more than 42 years due to the lack of oxygen supply to her brain at the time of the assault. The trial court sentenced the ward boy on the charges of attempt to murder and theft for robbing Aruna’s earring but not for rape. A petition by journalist turned activist Pinki Virani was filed under article 32 against the decision of trial court and most importantly considering the condition of the patient in Supreme Court pleading to legalize euthanasia and terminating her medical support to let her die peacefully. The court had to constitute a medical board comprising of 3 medical experts to study the condition of Aruna. The medical board after examining, concluded that the patient is not in need of euthanasia as she wasn’t brain dead moreover the hospital staff where she was once a nurse wanted to look after her. The court rejected the use of passive euthanasia for her but legalized the same in India though no guidelines were issued after that either by the Court or the Government. She died on 15 May, 2015. This case generated much debate as our constitution doesn’t recognizes right to die per se thus a moral obligation of that act was questioned.
Coming to the very recent judgment by the Supreme Court wherein the court has elaborately dealt with euthanasia and advance directive, paving a way to show the importance of the essential part of right to life that is dignity. The constitution of India provides for legitimate expectation of every Individual to live a life with dignity which includes different stages of life until death occurs. This fundamental right is subjected to the procedure established by law so the procedure for regulation or deprivation should be well formulated and settled so that it doesn’t include ambiguity. This judgment is quintessential on three grounds. Firstly, it cleared the ambiguity that was present is Gain Kaur’s case where court concluded that Right to life doesn’t include Right to die concluding that right to die is an integral part of right to life. Secondly, while mentioning on the scope of Passive Euthanasia, the Supreme Court provided the guidelines on its mechanism, overruling the aspect of famous Aruna Shaunbag case, wherein the court had explicitly called for the formulation of it by the legislature only. Lastly, the court paved the way for the importance of Living will or advanced directive as it called in medical terms. Its sanctity depends on the fact that it is executed at the time when the person is mentally in a state to give instructions which is otherwise not possible in comatose state. Living will is basically a set of guidelines that a next of kin and medial expert needs to consider as a direction in cases where a person is in a vegetative state. Legalization of it will help doctors majorly as they no more have to fear any legal action against them in cases where a terminally ill patient has no scope of recovery. This very ruling has been stemmed from a petition filed by a registered society named Common Cause and the case was argued by Senior Advocate Prashant Bhusan on their behalf, contending that Living Will should be recognized by the court and medical support should be removed from a persons who is terminally ill and have no chance of recovering back on the permission of a medical expert considering the opinion of the family members. A person who is chronically ill and is in a vegetative state can’t be kept alive on artificial support against his will as it would amount to assault on his/her body. Right of an individual to die with dignity is conferred under Article 21 the constitution of India and it takes precedence over the state’s interest in preserving the sanctity of life.
The court while explaining the need of euthanasia also mentioned the ‘best interest’ test used in English law for people whose are incompetent to make any decision regarding their life. This test can be best used in cases where the person hasn’t left any advance directive and is in the terminal stage where there is no scope of recovery left, then it is in best interest of the patient that the decision on his life be taken by a competent authority that is medical experts with consideration from patient’s family members. The central government which is against the concept of advance directive filed a counter-affidavit stating the reasons why they are against it. The government referred to the report of the Medical Treatment of Terminally –ill Patient (Protection of Patient and Medical Practitioners) Bill, 2006 that was submitted by the law Commission in its 241st report but it was not accepted by the Health and Family Welfare due to of its probability of been misusedThe court while talking on advance directive on paragraph 327th of the judgment rejected the arguments on pleaded from the side of the government and reiterated that it can’t be rejected solely on the basis of it been misused. It was also opined by the Law Commission of India in its 196th and 241st report emphasizing on the safeguards that can be exercised when using advance directives and this can be considered while formulating regulations on it rather than rejecting it completely.
Some important aspect of this case needs to be taken serious and with proper consideration like the decriminalization of suicide that involves the amalgamation of right to life and privacy suggesting that’s right to die be considered a part of it. Also the mandatory provision of double check by the medical board involving judicial magistrate or collector or high court to implement euthanasia and living will. The court in its best capacity has come out with the comprehensive judgment but what we need to look forward is what all effort the government is ready to put in to make the implementation successful
By - Simran kaur Bakshi