Euthanasia: Right to die under Article 21 of Indian Constitution

The right to die and its legality is a concept that is much debated around the world even today. There has been no concrete answer for the same. Some say that “Life is precious gift by divinity and thereby must be protected”¹ and some others say that if life cannot be lead with dignity, the person must be given the choice to choose death as it concerns his body and his life. The duty of a medical practitioner is to protect the person from illness and suffering, but here a question arises as to what can be done about a person who is suffering from terminal disease and the family members of such person is distressed and burdened? As Indians, we all might have heard about ‘Daya Maran’, ‘Swachchhand Mrityu’ and ‘Ichchha maran’. It means Euthanasia or mercy killing. The word Euthanasia has Greek roots and it literally means good death, i.e., easy death.² It is the practice of killing an animal or man who is in endless pain and suffering so as to reduce his pain. This thereby reduces the burden on the distressed dependants.

Historical developments in Euthanasia

It was a settled position in ancient times, when religion was given utmost importance that a life given by God should not be taken away by a person’s will. Thereby, the medical practitioners were asked to take

oath that they will never put the patient’s life in jeopardy. However, there were some sort of departure from such a rule in Greek and Rome was they allowed killing a person suffering from immense pain. Also, they allowed killing of new born with severe deformities. When we speak about Indian scenario, the Law Commission in its 42^nd^ report had made reference to the Brahamanas who committed suicide to attain salvation (moksha). Another commonly known way to attain liberation was fasting till death (Pray- upavasa). ‘Sati’ was also a common practice to end a wife’s life when her husband has left her behind in this world. As we

all know that at present ‘Sati’ is banned terming it as illegal and immoral.

International scenario regarding Euthanasia

Australia- By 1995, Australia became the first country to provide a legislation allowing passive euthanasia. Assisted euthanasia was allowed only for a specific period of time which was over- ruled by Australia’s federal Parliament.

The United States of America- Active euthanasia is illegal; however assisted euthanasia is permissible in Oregon, Washington, Vermont, California and Mexico.

France- The position in France is based on a well developed hospice care program. After Vincent Humbert’s case in 2002 France enacted a legislation which allows taking of life if the medicine provides no other measure than keeping the person alive.

**Developments of laws regarding Euthanasia in India- **

Article 21 of the Indian Constitution guarantees right to life. It says that “no one shall be deprived of his personal liberty except according to the procedure established by law.”³ Now whether right to die is included under Article 21 or not was contested before the Supreme Court in many cases. At present settled position is that right to die is not a part of Article 21, however passive euthanasia is recognized in India. Following are some of the landmark judgments with regard to right to die and euthanasia.

In State v. Sanjay Kumar Bhatia⁴, the court held that section 309 of IPC which penalizes a person for attempt to commit suicide as “unworthy of human society”.

Then in case of Naresh Marotrao Sakhre v. Union of India⁵, the Supreme Court expounded the difference between euthanasia and suicide. Suicide is the attempt to end one’s own life without the aid and assistance of any third person whereas euthanasia involves assistance of a third person and it is nowhere covered under section 309 of IPC.

In P. Ratinam v. Union of India⁶, section 309 of IPC was held to be violative of Article 14 and 21 of the Indian Constitution.

However, in Gian Kaur v. State of Punjab⁷, the court upheld the validity of section 309 and observed that it is not violative

of Articles 14 and 21 of the Indian Constitution as it is incompatible and inconsistent with the right to life concept. In this case reference was made to Airdale NHS Trust v. Blande⁸, wherein the case allowed for passive euthanasia.

The above said cases are in relation to right to die. It is not recognized right under Article 21 of the Indian Constitution. But now let’s see the position with regard to euthanasia.

In 2011, the Supreme Court in Aruna Shanbaug v. Union of India⁹, held that passive euthanasia is allowed in exceptional cases. However, getting permission was not an easy task. It involved a lot of cumbersome procedures including consent from the High court as mandatory. Thereby, very meager number of cases has been approved.

This position was upheld in the landmark judgment of Common Cause (A. Regd. Society) v. Union of India¹⁰ In 2018, the Supreme Court held that a person suffering from terminal disease i.e., who is under vegetative state can opt for passive euthanasia by refusing to get medical treatment.

These two judgments have called for a lot of criticisms as many contested that a life cannot be taken away when it is a gift from a divinity. However, I thoroughly justify the decision of the court as the right to life is not taken away from a person who has some temporary mental or physical illness. Those persons who already are in their way to lose their lives and when medication is of no use other than keeping the person alive, it would be only a humane act to relieve the person from pain and his dependants from endless financial burden and sorrows.

However, a lack of a comprehensive legislation laying down the procedure and formalities plus the issue with regard to the minors’ access to medical termination is a major drawback in the Indian scenario which needs to be addressed. But, one cannot deny that the two landmark judgments on euthanasia as mentioned above has paved way the way for Indian legislature to draft a legislation which is in compatibility with the changing times and needs.

Conclusion

Till recently, the act of euthanasia was disregarded completely by the Indian Judiciary. The courts have tried to incorporate religious and moral values in its judgments. Assisted or active euthanasia is not recognized in India. The issue which the courts had before it was whether the right to life under article 21 includes the right to die. But the position has been cleared as to it in the recent judgments. The right to die with dignity is an integral facet of article 21, thus recognizing the passive euthanasia.