Euthanasia is one of the issues that have been the subject of intense debate over time. It has been a pertinent issue in human rights discourse as it also affects ethical and legal issues pertaining to patients and healthcare providers. This paper discusses the legal debates concerning the current position of euthanasia in India. It focuses on the legal validity of the Supreme Court’s decision in Aruna Shanbaungs1 case in light of Indian law, IPC and Constitution.
The Supreme Court of India legalised passive Euthanasia in Arunas case. In this case, the SC totally relied on the Common Law of England. It didn’t look into the question through the prism of Indian laws and thus completely ignored them. As a result, the decision proves to be a one ultra vires to the constitution and penal laws of India. This paper discusses how this decision is illegal in the context of Indian laws.
What is the legal validity of Euthanasia in India? And the main focus is on the validity of the Supreme Court’s decision on the point.
Every human being is desirous to live and enjoy the fruits of life till he dies. But sometimes a human being is desirous to end his life by use of unnatural means. To end one’s life in an unnatural way is a sign of abnormality. When a person ends his life by his own act we call it “suicide” but to end life of a person by others though on the request of the deceased, is called “euthanasia” or “mercy killing”.
Euthanasia is mainly associated with people with terminal illness or who have become incapacitated and don’t want to go through the rest of their life suffering. Euthanasia is a controversial issue which encompasses the morals, values and beliefs of our society. Euthanasia has been a much-debated subject throughout the world.
The debate has become increasingly significant because of the recent developments in Netherlands and England euthanasia has been allowed. As a result, many of the nations across the world are now hotly debating whether or not to follow the Dutch example. Recently the Supreme Court in Aruna Shanbaungs1 case gave its decision on this point and allowed passive euthanasia in India.
Meaning and Types of Euthanasia :
The term Euthanasia comes from two Ancient Greek words: ‘Eu’ meaning ‘Good’, and ‘thantos’ meaning ‘death’, so Euthanasia means good death. It is an act or practice of ending the life of an individual suffering from a terminal illness or in an incurable condition by injection or by suspending extra ordinary medical treatment in order to free him of intolerable pain or from terminal illness. Euthanasia is defined as an intentional killing by an act or omission of person whose life is felt is not to be worth living. It is also known as ‘Mercy Killing’ which is an act where the individual who, is in an irremediable condition or has no chances of survival as he is suffering from painful life, ends his life in a painless manner.
It is a gentle, easy and painless death. It implies the procuring of an individual’s death, so as to avoid or end pain or suffering, especially of individuals suffering from incurable diseases. According to Black’s Law Dictionary (8th edition) euthanasia means the act or practice of killing or bringing about the death of a person who suffers from an incurable disease or condition, esp. a painful one, for reasons of mercy. Encyclopaedia of ‘Crime and Justice’, explains euthanasia as an act of death which will provide a relief from a distressing or intolerable condition of living. Simply euthanasia is the practice of mercifully ending a person’s life in order to release the person from an incurable disease, intolerable suffering, misery and pain of the life. In the modern context, euthanasia is limited to the killing of patients by doctors at the request of the patient in order to free him of excruciating pain or from a terminal illness.
Thus the basic intention behind euthanasia is to ensure a less painful death to a person who is, in any case, going to die after a long period of suffering. Euthanasia may be classified as follows:-
(1) Active or Positive
(2) Passive or negative (also known as letting-die)
Active or Positive: – Active euthanasia involves painlessly putting individuals to death for merciful reasons, as when a doctor administers a lethal dose of medication to a patient. Passive or negative: – euthanasia is passive when death is caused because a treatment that is sustaining the life of the patient is held off and the patient dies as a result thereof. For example, withdrawing life supporting devices from a serious patient, removing which, the patient dies. In “passive euthanasia” the doctors are not actively killing anyone; they are simply not saving him.
Voluntary: – it is voluntary when the euthanasia is practiced with the expressed desire and consent of the patient. voluntary euthanasia is primarily concerned with the right to choice of the terminally ill patient who decides to end his or her life, choice which serves his/her best interest and also that of everyone else.
Involuntary: – when the patient is killed without an expressed wish to this effect, it is a form of involuntary euthanasia. It refers to cases wherein a competent patient’s life is brought to an end against the wishes of that patient that oppose euthanasia and would clearly amount to murder.
Non-Voluntary:- it refers to ending the life of a person who is not mentally competent to make an informed request to die, such as a comatose patient. In Non-Voluntary euthanasia the patient has left no such living will or given any advance directives, as he may not have had an opportunity to do so, or may not have anticipated any such accident or eventuality. In cases of non-voluntary euthanasia, it is often the family members, who make the decision.
There are various ways of euthanasia. The most popular methods include –
(a) lethal injection – Injection of a lethal dose of a drug, such as a known poison, KCl, etc
(b) Asphyxiation – The most popular gas used is Carbon monoxide (CO). Nerve gases like sarin & tabun etc. are also added in small amounts to fully ensure death. One of the methods is also Dr. Jack Kevorkian’s death machine (mercirtron, thanatron). He is also known as Dr. Death. It’s a unique method in which a person can end his life himself. With the use of this machine, a person can end his life himself painlessly at the time chosen by the patient.
Thus it can be said that Euthanasia is the deliberated and intentional killing of a human being by a direct action, such as lethal injection, or by the failure to perform even the most basic medical care or by withdrawing life support system in order to release that human being from a painful life.
Position of euthanasia in different countries8
In 2002, the Netherlands passed a law legalizing euthanasia including physician-assisted suicide. This law codifies the twenty-year-old convention of not prosecuting doctors who have committed euthanasia in very specific cases, under very specific circumstances. The Ministry of Public Health, Wellbeing and Sports claims that this practice “allows a person to end their life in dignity after having received every available type of palliative care.” In September 2004 the Groningen Protocol was developed, which sets out criteria to be met for carrying out child euthanasia without the physician being prosecuted.[
The Northern Territory of Australia became the first country to legalize euthanasia bypassing the Rights of the Terminally Ill Act, 1996. It was held to be legal in the case Wake v. Northern Territory of Australia (1996, 109 NTR 1) by the Supreme Court of Northern Territory of Australia. But later a subsequent legislation that was the Euthanasia Laws Act, 1997, which made it again illegal by repealing the Northern Territory legislation.
Laws in the United States maintain the distinction between passive and active euthanasia. Euthanasia has been made totally illegal by the United States Supreme Court in the cases Washington v. Glucksberg (521 US 702, 1997) and Vacco v. Quill (521 US 793, 1997) but physician-assisted dying is legal in the states of Oregon under the Oregon Death with Dignity Act, 1997, in Washington under Washington Death with Dignity Act, 2008 and in Montana by the State judiciary and not the legislature. A law to allow voluntary assisted dying in the state of Victoria will come into effect in mid-2019.
In Canada, patients have the right to refuse life sustaining treatments but they do not have the right to demand for euthanasia or assisted suicide. In Canada, physician assisted suicide is illegal as per sec 241(b) of the Criminal Code of Canada. The Supreme Court of Canada in Sue Rodriguez v. British Columbia (Attorney General)(1993,3 SCR 519), said that in the case of assisted suicide the interest of the state will prevail over individual’s interest.
In England, the House of Lords in Airedale NHS Trust v. Bland16 permitted non-voluntary euthanasia in case of patients in a persistent vegetative state. It was a case relating to withdrawal of artificial measures for the continuance of life by a physician. It was held that it would be unlawful to administer treatment to an adult who is conscious and of sound mind, without his consent. Such a person is completely at liberty to decline to undergo treatment, even if the result of his doing so will be that he will die. It was further held that if a person, due to accident or some other cause becomes unconscious and is thus not able to give or with-hold consent to medical treatment, in that situation it is lawful for medical men to apply such treatment as in their informed opinion is in the best interests of the unconscious patient. It is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a Humanitarian desire to end his suffering, however great that suffering may be. All the judges of the House of Lords, in this case, agreed that Anthony Bland should be allowed to die.
Position in India
SUPREME COURT ON EUTHANASIA
In a historic decision, the Supreme Court declared passive euthanasia and the right of persons, including the terminally ill, to give advance directives to refuse medical treatment legally permissible in Common Cause (A Regd. Society V. Union Of India. The Constitution Bench held that the Right to Life under Article 21 includes easing the process of dying in the case of a terminally ill patient or a person in a persistent vegetative state with no hope of living
The Supreme Court’s decision, in this case, raises important questions about the meaning of life, death and their relationship to law and to state power. Unfortunately, the judgment in the case not only fails to grapple adequately with these issues but also betrays faulty legal reasoning and an utter disregard for the law and the legal process. It gives short shrift to important constitutional issues and is more concerned with foreign precedents than with Indian statutes, case law, rights and process. In doing so, it gets it all terribly wrong.
The case revolved around ArunaShanbaug, a 60 years old woman who was violently raped in1973. She had sustained severe injuries resulting in brain damage, because of which she was in a permanent vegetative state for the almost 40 years. She was being taken care of by the staff of the KEM Hospital in Mumbai, where she was herself a nurse at the time of the attack. In 2009, a petition was filed before the Supreme Court by Ms. Pinki Virani as Ms. Shanbaug’s next friend. She sought a direction to the KEM Hospital to stop feeding Ms. Shanbaug and to let her die peacefully instead of prolonging her life. Thus the question before the Court was whether Indian law permits passive euthanasia for a person in a PVS9. The court rejected the plea under article 32 referring to Gian kaurs case, saying that no fundamental right has been violated but accepted it on the ground of importance of Euthanasia. In the latest case, it was common Cause that filed a plea again and Supreme Court re-affirmed the earlier decision allowing passive euthanasia and Advance directives[living wills] were legalised in India (Common Cause (A Regd. Society) V. Union Of India on 9 March 2018)10
Taking Rights Lightly
Taking rights out of the picture is also evident in the very framework of the judgment. The decision is based on the following illogical sequence:
- If passive euthanasia is not expressly prohibited by law, it is permitted.
- Passive euthanasia is an omission.
- Omissions are not criminalized.
- Therefore passive euthanasia is not criminalized.
- Therefore passive euthanasia is permitted.
Let us examine each of these claims. Reading the judgment it appears that the Court started out from the premise that if passive euthanasia is not expressly prohibited by law, it is to be permitted. However, Article 21 already provides for a broad prohibition against the taking of life except according to procedure established by law. Therefore, with Article 21 as the guiding principle, the starting premise rightly ought to have been – if the taking of life is not expressly permitted by the procedure established by law, it is to be prohibited. This would have shifted the focus to examining whether in Indian law there is any law that permits the taking of life in such circumstances, rather than examining whether there is a prohibition to the effect. [Should the law permit the taking of life in such circumstances- that’s a different question entirely, and we would argue that in matters of life and death and the control of the state thereon, it should be for the legislature to decide.]
The Court, however, did not engage with the right to life at all, except to point out that in Gian Kaur v. State of Punjab [(1996) 2 SCC 648]1 it had held that the right to life does not include the right to die. It completely failed to consider the relevance of the substantive protection of the right to life for the case at hand. This is symptomatic of the disregard for law flowing through the entire judgment. There was hardly any discussion of Indian law beyond the brief mention of the Gian Kaur case, and Section 309 of the Indian Penal Code (IPC), which criminalizes attempts to commit suicide. The court relied heavily on foreign precedents instead, and that is why its other premises fail.
How for is it legal?
Even with the Court’s starting position that passive euthanasia is permitted unless expressly prohibited; the Court did not investigate Indian law to examine whether there exists such permission. The decision was based on the erroneous major premise that omissions are not criminalized under Indian law. The Court stated, referring to the distinction between active and passive euthanasia that:
An important idea behind this distinction is that in passive euthanasia, the doctors are not actively killing anyone; they are simply not saving him. While we usually applaud someone who saves another person’s life, we do not normally condemn someone for failing to do so. If one rushes into a burning building and carries someone out to safety, he will probably be called a hero. But, if someone sees a burning building and people screaming for help, and he stands on the sidelines – whether out of fear for his own safety, or the belief that an inexperienced and ill-equipped person like himself would only get in the way of the professional fire fighters, or whatever – if one does nothing, few would judge him for his action. One would surely not be prosecuted for homicide (Atleast, not unless one started the fire in the first place)… There can be no debate about passive euthanasia: You cannot prosecute someone for failing to save a life. Even if you think it would be good for people to do X, you cannot make it illegal for people to not do X, or everyone in the country who did not do X today would have to be arrested 1
Thus, according to the Court since omissions are not crimes, and since passive euthanasia is an omission, there is no criminal prohibition against it. Is that understanding correct in law?
The classic definition of a crime requires an act (actusreus) and a corresponding mental element (mens rea). Whether an act includes an omission has always been a tricky question.
In the decision of the House of Lords in Airedale v. Bland7, the Law Lords held that omissions do not constitute the requisite actusreus for homicide. In Aruna Shanbaung,1 the Court accepted this as true of the Indian position as well, without examining the IPC.
Section 32 of the IPC (to which the Supreme Court did not refer) states: “In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done, extend to illegal omissions.” Thus, an illegal omission can be the requisite actus reus for a crime. Does that extend to homicide? Section 300 of the Penal Code defines murder as an act (and by virtue of Section 32, an omission) which is done with the intention of causing death. It is pertinent to note that Exception 5 to Section 300 of the Code states that if a person causes the death of another with that person’s consent the resultant crime will still be culpable homicide not amounting to murder. Consequently, a doctor can be held liable for culpable homicide not amounting to murder, even if he/she caused death with the patient’s consent. The Code thus expressly criminalizes both active and passive euthanasia even if done with the patient’s consent.
What then about a person in a persistent vegetative state, and therefore incapable of consenting? It is useful to refer to Section 92 of the Indian Penal Code to understand the legislative mandate. This section, in dealing with the necessity defence, says that a person can do an act which benefits another if that other person is not in a position to consent to the act. The section in its proviso, clearly says this does not extend to causing death or doing any act which is likely to cause the death of that person. Applying this section to the present context, the Penal Code provides that if a patient is not in a position to give consent, a doctor can do anything that benefits the patient, short of actions that cause death or are likely to cause death.
Returning to omissions, it is important to remember that Section 32 refers to illegal omissions. What does “illegal” mean? Section 43 of the Indian Penal Code defines the term to mean “…everything which is an offence, or which is prohibited by law, or which furnishes ground for a civil action. It can possibly be argued that since withdrawing life support to a person in a persistent vegetative state has not been made an offence, or expressly prohibited by law (though as we have shown, that might not be the case because of Section 92), the only question that remains is whether the person or his/her “next friend” would have a ground for civil action against the doctors. This would depend on the duty of care that the doctor owes towards the patient. It could be argued that if the doctor believes that it is in the patient’s “best interests” to stop treatment or withdraw life-support, s/he might be satisfying the duty of care required. However, this is a grey area, one on which there is no clarity in Indian law. It is hence possible to argue that withdrawing life support from a person in a persistent vegetative state is not an “illegal omission.” It was open to the Court to take this interpretation. The problem with the ArunaShanbaug1 decision is that it did not discuss any of these provisions. It assumed that under the Indian Penal Code, omissions cannot constitute the actus reus for murder, or for any other crime. It blindly relied on Airedale7 to come to this conclusion. Was this reliance justified?
In Airedale7, the House of Lords held that a doctor may withdraw care from a patient in a persistent vegetative state, with judicial approval. It is very important to note (which the Court did not) that in English law, the terms “murder” or “manslaughter” are defined not in a legislation but through case law. Hence, the House of Lords in Airedale had the power to state that under the English law of homicide, a positive act is required to constitute the actus reus. By virtue of Section 32, IPC, it was not open for the Indian Supreme Court to follow suit.
Airedale7 also suffers in being an ill-reasoned judgment where the Law Lords took leaps of logic which defy explanation. It is no surprise that Airedale is a much-criticized case. More importantly, to arrive at its conclusions, Airedale relied on prior judgments of the House of Lords, based on English common law. These do not apply in the Indian context since there are express Indian laws covering the field.
For example, in Airedale, the Law Lords based their judgment primarily on whether a doctor’s act/omission will be illegal if s/he acts in the “best interests” of the patient. To do so, they relied on a previous decision of theirs in In Re F (1991)7. In that case, the Law Lords had held that providing treatment to an unconscious or mentally incompetent individual, without that person’s consent would not amount to assault or battery if it was in the patient’s “best interests” to do so. They used the principle of necessity to come to that conclusion. In Airedale7, they extended this principle to ceasing treatment to a patient in a persistent vegetative state. However, this logic does not apply in the Indian context, since as we have argued earlier, unlike in the United Kingdom, the principle of necessity is codified in Section 92 of the Indian Penal Code, and it does not extend to causing death. Therefore in the Indian context, the logic of In Re F cannot extend to the circumstances under consideration in ArunaShanbaug1.
Thus, the Supreme Court in ArunaShanbaug blindly relied on Airedale v. Bland, quoting extensively from the judgment and relying almost entirely on it, without considering that the law stated there is contrary to the Indian position. It also did not deal with the Indian statutory position at all to support its decision. Thus it engaged not in judicial borrowing, but in judicial imitation.
Right to life” which is a natural right, but euthanasia is an unnatural termination of life and, therefore, inconsistent and incompatible with the concept of ‘right to life’. It is the duty of the State to protect the life of peoples and give medical aid. If euthanasia is legalised, then there is a grave apprehension that the State may refuse to invest in health (working towards Right to life). Legalised euthanasia has led to a severe decline in the quality of care for terminally-ill patients in Holland. In the era of declining integrity and social values, there is a risk of misusing euthanasia by relatives or society for inheriting the patient property.Passive euthanasia occurs in a majority of the hospitals across the county, where poor patients and their family members withdraw or refuse treatment because of the tremendous amount required for keeping them alive. The commercial health sector will serve death sentence to many elderly and disabled citizens of India for a meagre amount of money if euthanasia is legalised. No one has a right to take away the life of an individual, not even individual him or herself. The concept of the sanctity of life is inviolable and doctors have taken an oath (The Hippocratic oath) “to preserve life at all cost” cannot justify a patient to die. The government should give proper health care system to poor people because investment in health is not a charity as a right to life in our constitution also include a right to health, not right to death.
By -Sheikh Saqib Ansari
Department of Law, Central University of Kashmir
- Indian penal code by Professor S.N. Mishra. Ed. 20th.Page no.515
- https://lawandotherthings.com/2018/03/repost-misadventures-of- the-supreme-court-in-aruna-shanbaug-v-union-of-india/
- An article on Position of Euthanasia in India by Dr. Ceaser Roy
- Constitutional law by Dr. J. N. Pandey, 51st edition, page 267-268
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