EUTHANASIA:

IS RIGHT TO DIE A
FUNDAMENTAL RIGHT?

 Introduction
 History of Euthanasia
 History in India
 Is Right to Die a Fundamental Right?
 S. RAAGAVAN

Introduction
Euthanasia was practiced in Ancient Greece and Roman civilizations as they opined that
there was no need to preserve the life of a person who had no interest in living, or who
thought life as a burden. The term 'Euthanasia' comes from the Greek word EU' meaning
"good", and "Thanatos' meaning "death". The word "euthanasia" was first used in a medical
context by Francis Bacon in the 17th century, to refer to an easy painless, happy death,
during which it was a "physician's responsibility to alleviate the 'physical sufferings.
Following are the types of euthanasia.

Active euthanasia:

It is when death is brought by an act for example taking a high dose of drugs. it means to
end a person's life by the use of drugs, either by oneself or by the aid of a physician.

Passive euthanasia:

When death is brought by an omission Withdrawing treatment: For example switching off a
machine that keeps the person alive. Withholding treatment: For example not carrying out a
surgery that will extend life of the patient for a short time.

Voluntary euthanasia:

It is committed with the willing or autonomous cooperation of the subject. This means that
the subject is free from direct or indirect pressure from others. This is usually called murder,
but it is possible to imagine cases where the killing would count as a favor for the patient.

Indirect euthanasia:

This means providing treatments – mainly to reduce pain that has a side effect of shortening
the patient's life. Since the primary intent wasn't to kill, it is morally accepted by some
people.

Assisted suicide:

This usually refers to cases where the persons who are going to die need help to kill
themselves and ask for it. It may be something as simple as getting drugs for the person,
and putting those drugs within their reach.
History of Euthanasia
Euthanasia is contemplated from distinct perspectives from around the world after the
influence of a plethora of aspects affecting the decision regarding the same. Some aspects
include Religion, Culture, Geography and many others. The origin of the concept should be
studied for interpretation with respect to the current contextual world.

The concept of Euthanasia originated in Rome and Ancient Greece. The term “Euthanasia”
was derived from the Ancient Greek term, “eu” – Good and “thanatos” – Death, thus
acquiring the literal translation of “Good Death”. It involved usage of Conium (a flowering
carrot specie), which may prove to be fatal upon consumption. This process was generally
done in the Island of Kea. Since then, Euthanasia has led to a split up among scholars and it
is still a burning issue in many nations. In Ancient Greek, Socrates and Plato supported
while Hippocrates, the Father of Medicine vehemently stood against it stating, “I will not
prescribe a deadly drug to please someone, nor give an advice that may cause his death”.

With the passage of time, in 1516, Thomas More, an English Scholar canvassed for
Euthanasia provided it is done after the permission from priests and magistrates. He also
expressed in his work, “Utopia” that Euthanasia can be deemed to be legitimate only if the
patient is terminally ill. Francis Bacon, an English philosopher in 1609 established the term
with respect to Western culture. He expressed in his articles that prolonging the life of
incurable patients increases the suffering both by the patient and their relatives.

A sub concept of “Free will” was discussed in the late 1920’s which designates and
recognises the patient’s will over his or her life which was added as a mandatory procedure
under Article 32 of Italian Code of Medical Ethics. Failure of such procedure now amounts to
a criminal offence. A novel method was adopted to treat terminally ill patients through
physical, psychological and spiritual means. In 2001, the Italian Government ratified The
Oviedo Convention of 1997 which stated that “the previously expressed wishes relating to a
medical intervention by a patient who is not, at the time of the intervention, in a state to
express his her wishes shall be taken into account”.

The discussion and debate relating to Euthanasia started to sprout in the United States in
1900’s. The Senate of the State of Ohio rejected the law on Euthanasia in 1906. Similarly, in
1935, a bill on Euthanasia was rejected by the House of Lords. Around the same period,
Hitler drafts a framework to exterminate untreatable people with their consent. The state
sponsored euthanasia later turned into a genocide wherein handicapped and mentally
challenged people were killed in gas chambers. Hitler considered them as a burden to the
nation and thus executed the program.
At the advent of the Cold War, in 1968, the Declaration of Sydney on Death affirmed the
humongous importance of the relationship between the physician and the patient and such
relationship cannot be replaced by any technical procedure. Christianity always countered
euthanasia on the basis that it is against the ideals and beliefs. But 27 groups from 18
nations instituted the “World Federation of Right to Die Societies” in Oxford.

Over the next few years, a plethora of Declarations and papers were signed across the
globe and one of utmost importance was the report by Dr. Leon Schwartzenberg which
caught the eyes of all scholars and philosophers across the world. He distincts “Dignity” from
“Disease”. He states that any incurable disease deprives dignity to live and such life would
be filled with misery. The culmination is that it led to nexus between “Dignity and “Quality of
Life”. Various legislations were passed to draft an unambiguous framework and in its
absence such as in Italy, only restrictions and rules were setup. Those who voiced against
Euthanasia cited ethical and religious reasons.

After a series of influence of various factors, a movement emerged in Europe to make laws
relating to Euthanasia. The Dutch Parliament (Netherlands) on 28th November, 2000
legalized euthanasia thereby is the first nation to do so. Spanish Criminal Code has a
special provision to deal with those who abet suicide. In UK, two main legislations namely
“Suicide Act” and “Mental Capacity Act” laid strict barrier against euthanasia, however,
passive euthanasia is slowly opening up. The State of Oregon is the only state in USA to
legalize euthanasia.

History in India
Before we look into the current situation of Euthanasia in India, we are ought to know about
the historical background of Euthanasia. In the ancient times of the world, ending an
individual’s life is done as a practice in the human civilization. It was considered by
physicians and was a part of their practice. For instance, the children who are born weak or
with defects in the body were killed as new-borns. Voluntary Euthanasia is considered as a
custom by many ancient societies. There are proof that the ancient texts such as bible,
Koran and also Rig-Veda had mentioned about suicide. Several suicides have occurred in
India on religious matters. Later many Hindus in India considered Euthanasia as against
Ahimsa. However, others considered that helping a person who is in a painful situation of life
can perform Euthanasia for his good and peace to the soul. While understanding Manu
(ancient text of Hindu), people came to know that it is allows a person to perform
Mahaprastha which means great departure that ends in death, when the person is affected
from an incurable disease.
The Muslims never considered euthanasia because they say that all human being created
by God i.e. Allah is a sacred life. Therefore, they should not take one’s life which is sacred.
They have forbidden the practice of euthanasia and self-destruction (suicide). Christians
have a different perspective that man is created in the image of the God and given as a gift
from God. So, it was considered killing a person is destroying the image of God. No one has
the right to take the life of other in any circumstances.

Is Right to Die a Fundemental Right?

The Constitution of India confers rights and duties upon the subjects and the State, while
also formulated remedies in case if any right is breached. One of the most salient open-
ended right is Article 21 which deals with Protection of Life and Personal Liberty. Article 21
reads as follows:

“No person shall be deprived of his life or personal liberty except according to procedure
established by law”1

The provision establishes and ensures a life which is complete and dignified. The only
exception to this provision is “procedure established by law”. This provision also seeks to
protect citizen’s individual rights from State’s unnecessary or arbitrary intervention. The
interpretation of Article 21 was done on a narrower perspective initially when this provision
came under the Judiciary for discussion under the case of A.K. Gopalan vs. Union of India.
However, its scope widened later on in the case of Maneka Gandhi vs. Union of India. The
expansion of the scope formed the basis to the question of whether a person has right to
take away his/her life.

The timeline of cases which deals with the issue in hand is listed below:

1. State of Maharashtra v. Maruti Sripati Dubal (1986) 88 BOMLR 589

2. P. Rathinam v. Union of India (1994) SCC (3) 394
3. Gian Kaur v. State of Punjab (1996) SCC (2) 648
4. Common Cause (A Regd. Society) v. Union of India (2018) SCC 208

All the above listed cases deal with Article 21 and Section 309 of the Indian Penal Code. The
constitutionality of Section 309 is debated in all the above cases along with Right to Die.
Section 309 of IPC reads as follows:

1
Art. 21, Constitution of India
“Whoever attempts to commit suicide and does any act towards the commission of such
offence, shall be punished with simple imprisonment for a term which may extend to one
year or with fine, or with both”2

State of Maharashtra v. Maruti Sripati Dubal

(1986)
A police constable with 19 years of service met with an accident which affected his mental
capacity to do normal work. He was diagnosed with Schizophrenia and treated with heavy
dosage medicines. On 27th April 1985, he attempted to commit suicide. He was charged
under Section 309 of IPC and later released on bail. The wife of the petitioner challenged the
constitutionality of Section 309 of IPC. The Bombay High Court struck down Section 309 as
it was ultra-vires of the Constitution, violative of Article 21 and 14. The Court also approves
that Right to Die is impliedly layered in Article 21. It cites the example of Right to Speech and
Expression which includes right to remain silent or not to speak. It also recognized the Hindu
and Jain practise to end life.

The Court cited that the aim of IPC is deterrence from commission of crimes. If a person,
who is mentally ill, aged or stressed attempts to commit suicide, he or she must be given
psychiatric treatment and aid. Confinement of such persons would lead to only worsening
the condition. Thus, it is violative of Article 21, which necessitates such procedure which is
fair and reasonable.

With respect to Article 14, the Court cited the example to murder which was clearly
differentiated as Murder not amounting to culpable homicide and culpable homicide. On the
other hand, Section 309 dictates same punishment to all persons irrespective to
circumstances. Thus, the Court finds it violative of Article 14 of the Indian Constitution.

P. Rathinam v. Union of India (1994)

The Supreme Court of India upheld the decision pronounced by the Bombay High Court in
the case of State of Maharashtra v. Maruti Sripati Dubal thereby tuning our criminal law
with that of global wavelength.3 The Supreme Court considered the status in UK and USA.
Attempt to commit suicide was considered as felony and the property would be confiscated
by the Crown but the Suicide Act was later abrogated. In US, the states have their own laws

2
Section 309, Indian Penal Code, 1860
3
P. Rathinam v. Union of India, (1994) 3 SCC 394
pertaining to the same but no penalty is imposed even after considering it as Felony.
However, assisted suicide is a crime charged under Murder.

Gian Kaur v. State of Punjab (1996)

The 5-Judge Constitutional Bench of Supreme Court overruled the judgements pronounced in
the case of State of Maharashtra v. Maruti Sripati Dubal and P. Rathinam v. Union of India,
thus delivering the judgement that Section 309 is not unconstitutional. This case also deals
with Section 306 (Abetment of Suicide).

Harbans Singh and Gian Kaur were husband and wife who were convicted by the Trial Court
under Section 306 of IPC. On appeal to High Court, the sentence to Gian Kaur alone was
removed. Gian Kaur challenged the constitutionality of Section 306, stated that it was a mere
assistance for enforcement of a fundamental right (right to die) which cannot be penal4. The
counsel for the appellants relied upon the previous cases which declared Section 309 as
unconstitutional and stated that the continuance of Section 309 is an anarchoism unworthy of
human society5.

The Supreme Court afresh started the interpretation of Article 21 to decide whether it
included Right to Die. The Court interpreted Article 21 in a much-varied sense. It said the
analogy drawn in State of Maharashtra v. Maruti Sripati Dubal is incorrect since each
fundamental right has its own characteristics. The significant aspect of ‘sanctity of life’ is
also not to be overlooked6. It also stated that Right to life is a natural right while suicide is
unnatural and inconsistent. With respect to Article 14, the Court as not satisfied on the
grounds dealt in P. Rathinam v. Union of India. It stated that there was no minimum amount
of fine nor days under imprisonment, which is duly upon the discretion of the Court to
decide. If the Court finds any reason to award no penalties, it can do so. Thus, considering all
the factors mentioned above, Section 309 of IPC was held constitutionally valid.

This also led to a conclusion that Section 306 is also constitutionally valid. The Court also
held it as an independent provision capable of surviving even without Section 309. In other
words, assisted suicide and assisted attempt to commit suicide are made punishable under
cogent reasons in the interest of the society7.
4
Gian Kaur v. State of Punjab, (1996) 2 SCC 648
5
State v. Sanjay Kumar Bhatia (1985) SCC 931
6
Gian Kaur v. State of Punjab (1996) 2 SCC 648
7
Ibid
Common Cause v. Union of India (2018)
In all previous cases, the Court discussed under the ambit of whether Right to Die is a
fundamental right or not. The very concept of euthanasia and Living Will was not discussed
in any of the cases and this case ends the ambiguity around it. Living Will can be the
patient’s consent, expressed or implied, which can be used when the patient is unable to
express his or her wishes.

The petitioners, a registered Society demanded that Right to Die with Dignity be forged as a
fundamental right under Article 21 and establish a procedure and guidelines for the same by
the State. The Petitioners pleaded that the unnecessary prolongation of death causes misery
and suffering not only to the patient but also to his or her relatives. The Court states a
confident statement that Right to Die is an inherent part of Article 21. The Society did not
claim right to die as a part of Right to life but right to die with dignity is an inseparable part
of right o live with dignity8. The Court not only relied on Indian precedents but also sought
knowledge from the cases dealt in United States, UK, Singapore, Australia, Denmark and
various other countries which legalized Euthanasia. The Court also stated that right to life
embraces not only physical existence but also the quality of life as understood in its richness
and fullness within the ambit of the Constitution9

The Law Commission in its 241st report suggested passing the Medical Treatment of
Terminally Ill Patients Act but this was rejected on the following grounds which was
included in the counter affidavit:

 Against Hippocratic Oath

 Setback for progression in medical science
 Dynamics of human mind
 Difficult to quantify suffering
 Advancement in the field of Medical science.
The Supreme Court cited the case of Aruna Shaunbaug, wherein a person in Permanent
Vegetative State for 37 years was allowed Passive euthanasia subject to conditions and
approval by High Court of the respective jurisdiction. A three-member committee comprising
of Neurologist, Psychiatrist and a Physician was formed as part of the procedure. Further a
Two-Judge Bench was arranged for granting permission. The committee needs to prepare a
8
Common Cause v. Union of India, (2018) SCC 208
9
State of Himachal Pradesh and Another v. Umed Ram Shankar, (1986) AIR 847
report of the patient’s condition and it should include the opinions of the members of the
Committee and other hospital staff. This report needs to be shared with the family members
or close friends of the patient. Another copy of the report needs to be submitted before the
High Court Bench for approval.

He Constitution Bench in the case in hand observed that the rationale behind P. Rathinam
case was perfect and had a cogent reasoning. Thus, it made it clear that Right to Die is part of
Article 21. The Bench also made a clear demarcation between retrieval of life support system
and usage of lethal drug to end the pain and suffering. The later was not covered under the
ambit of Article 21. This implies that Active Euthanasia is not allowed under law. Thereby, a
person incompetent or competent to express his or her wish on his or her life can be relived
from the pain only upon the doctor’s and relative’s opinion.

Conclusion made by the Bench:

1. Reiteration of “Right to Life: including Right to live with dignity” made in Gian
Kaur’s case.
2. No binding effect on the concept of Euthanasia in Gian Kaur case.
3. Distinction between Active and Passive euthanasia.
4. Prohibition of Active euthanasia.
5. Refusal to treatment to end life in a natural way.
6. Euthanasia necessitates some positive act.
7. Declaration of Passive euthanasia is legal in India.
8. Person incompetent to express the views, not outside the ambit of Article 21.
9. Application of “best interest” principle from the opinion of medical experts.
10. Introduction of “Living Will”.