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The legality of suicide has radically gained in significance in recent years. Changing attitudes towards suicide, and the legal legitimacy they have received, exemplify how legal systems have sought to reconcile traditional legal paradigms with changing values. This is especially true of nations that have only recently gained independence. Most such nations continue to rely on laws and legal systems born of their colonial past. Some, and India is a case in point, are presently striving to move beyond their colonial underpinnings. How such systems interpret the right to die provide us with unparalleled insights into this process. This is because colonial legal paradigms treated suicide as immoral or sinful. Consequently, any recognition given to the right to die is necessarily in counterpoint to colonial doctrines. This article examines how Indian courts have construed this right to die. It focuses on the strategies adopted in the course of this construction, as well as its larger consequences.
Suicide has customarily been the object of much opprobrium. Anglo-Saxon legal traditions, with Christian theological underpinnings, treated it variously as illegal, immoral, sinful, an act of cowardice or a repudiation of the will of God. Only in the present era do we see legal paradigms according any legitimacy to alternative perspectives. Several alternative views have now gained prominence. Some perceive suicide in terms of cultural values, such as the Japanese custom of hara kiri or the ritual starvation practised in the Jain community of India (see, for example, Bilimoria, 1995: 159–61). Others respond to the demands of specific circumstances – euthanasia is a case in point. Still others question the purpose behind criminalising suicide, holding that rehabilitation or psychiatric treatment are more appropriate responses than punishment. But by far the greatest challenge to tradition, both legal and moral, comes from those who assert death to be a matter of right. According to them, individuals must be free to decide whether to live or not, and this is as fundamental a human right as the right to live. Reconciling these perspectives with traditional paradigms poses a challenge to jurists the world over. This is especially true of erstwhile British colonies, whose legal systems were initially modelled on AngloSaxon lines, but which have endeavoured to evolve identities of their own
In 1971. such as whether suicide should be permitted or not. restricted to a scrutiny of the judicial process. what are the long-term outcomes of this development? This article examines the manner in which Indian courts have construed the right to die in respect of art 21. Right to Die: Legal and Historical Background India represents a classic instance of a formerly-colonial legal system striving to establish an identity of its own. the Law Commission submitted its 42nd Report. where it recommended the deletion of s 309 (Law Commission of India. judgments such as MS Dubal v State of Maharashtra 1987 Cri LJ 743 (Dubal). and P Rathinam v Union of India. Specifically. however. What sets it apart from many other legal systems is that the development of alternative approaches to suicide has taken place through a process of judicial interpretation. enshrined in art 21. AIR 1994 SC 1844 (Rathinam). The new Constitution. Consequent to this.1 Inevitably. How suitable is it to achieving the ends of justice? Would a more conventional method involving legislative change have yielded better results? Specifically. which came into force in 1950. however. In fact. have sought to bring the right to die within the scope of the right to life contained in art 21. a wide variety of justifications – legal. expressly recognised in Part III (comprising arts 12 to 35) what it called the Fundamental Rights of the people. rather than on the basis of any established legislative policy. 1971: 244). as well as the larger consequences of such judicial activism. most importantly. Similarly. the Indian Penal Code . and even semantic – have been adduced to read the right to die into the Fundamental Rights in arts 12 to 35 of the Constitution. After independence. Its treatment of the right to die illustrates this beautifully. As a result.158 Asian Law [Vol 6 after independence.2 which made attempted suicide a punishable offence. except in so far as they are relevant to the main topic. theological. the extent of their recognition of alternative perspectives on suicide may even serve as an index of their efforts at growing beyond their colonial provenance to the extent that they represent a departure from the inherited Anglo-Saxon paradigm. Before independence. this singular mode of legal evolution begs a series of larger questions. ethical. is the strategy of reading the right to die as part of the right to life a correct one? Does this actually bear legal scrutiny? And. I therefore refrain from addressing questions involving the ethical or social ramifications of suicide. several significant legal developments took place. the matter was governed solely by s 309 of the Indian Penal Code 1860. I also do not deal with specialised situations such as euthanasia. This article is. This included a right to life and personal liberty. The foregoing also holds true for India.
have come to involve two common features. And. for example. and especially the underprivileged sections of the general public. for example. The foregoing holds true of India also.3 Suicide pacts and their consequences have also attracted some legislative attention (see. Once again. Crimes Act 1900 (NSW) s 31A) or. After making changes. it seeks to widen existing rules of locus standi to ensure that the interests of the public at large. 347 US 483 (1954) and Fri v Sierra Club. This continued colonial legacy sets apart Indian law from most other common law traditions. In 1979. The only suicide-related penal offences still in force pertain to aiding. that is not relevant to the present topic. judicial activism and its progeny. public-interest litigation. abetting or inciting suicide (see. Another dimension has been added to the right-to-die debate in India by the remarkable rise of judicial activism in its higher judiciary. Specific concerns such as assisted suicide and euthanasia have emerged as topics in their own right (van der Weyden. (2). First. Suicide Act 1961 (UK) s 1. the Lok Sabha was dissolved and the Bill ultimately lapsed. but also specific topics like assisted suicide and euthanasia are treated in terms of (and as derivatives of) the former. specifically. Suicide Act 1961 (UK) s 2(1). Crimes Act 1900 (NSW) s 31B). As a result. Since then. after which it was sent to the Lok Sabha (the lower house). as mentioned. euthanasia. Many legislatures have explicitly decriminalised suicide (see. which sought to repeal s 309. One of the most remarkable features of the Indian Constitution is the writ jurisdiction it confers . this is not true of Indian law. Criminal Code (Qld) s 311. are given proper representation in courts. However. repealed provisions that penalise suicide per se. 1997). the upper house of the Parliament. and Criminal Code (WA) s 288) and. there has been no legislative effort made to mitigate the harshness of s 309. but. it endeavours to enlarge the scope of relief granted in order to more directly and tangibly benefit the interests of the public (Hurra. this bears distinctive features not commonly found in other common law legal traditions. 1993: 4–5). It is in the course of this two-pronged development that decisions such as Brown v Board of Education. at least. What makes it so distinctive is the legal procedure that has brought this about.2004] The Right to Die: The Indian Experience 159 (Amendment) Bill 1972. given the continued presence of s 309 in its statute books. for example. was placed before the Rajya Sabha. Not only is the general debate on the right to die still relevant. the Rajya Sabha passed it in November 1978. 412 US 541 (1973) (to take but two examples from American law) have emerged. Crimes Act 1900 (NSW) s 31C(1). secondly.4 By and large. right-to-die debates have by and large shifted focus away from a general discourse on whether an individual has the right to take his or her own life.
and the right to shelter (Shantistar Builders v NK Totame. It is against this background that the right to die has begun to be recognised in the eyes of the law. After he became Chief Justice. the right to education (Mohini Jain v State of Karnataka. AIR 1979 SC 1360). AIR 1989 SC 190). AIR 1993 SC 2178). thereby giving them a certain constitutional legitimacy (Singh. cited in Rathinam. AIR 1975 SC 1378). terming it an ‘anachronism in society’ among other things. nevertheless. Moreover. no ruling was passed on that count. Bihar. . that much judicial activism in India has derived from this writ jurisdiction.160 Asian Law [Vol 6 on the higher judiciary. Similarly. Since the validity of s 309 was not an issue here. stated that the word ‘life’ should be interpreted in wide and far-reaching terms. Under art 226.5 Emergence of the Right to Die We may note that s 309 has received severe judicial criticism on more than one occasion. AIR 1978 SC 1675 (Sunil Batra). the right to information (RP Ltd v Proprietors. Unni Krishnan v State of Andhra Pradesh. even though art 21 is worded in negative language. Indian Express Newspapers. he or she may even directly move the Supreme Court under art 32 for redress through appropriate writs. Sachar J. In this vein. the litigant may petition the High Court of competent jurisdiction to issue writs to redress any violation of a public-law right. Consequently. Pty Ltd. AIR 1992 SC 1858. In regard to this jurisdiction. AIR 1986 SC 180 (Olga Tellis). 1995: 140). Bombay. Sunil Batra v Delhi Administration. if the wrong done to the litigant involves a breach of a Fundamental Right in Chapter III. criticised the provision in the most stringent terms. Small wonder. the right to a speedy trial (Hussainara Khatoon v Home Secretary. A favourite strategy of Indian courts has been to interpret in the widest and most liberal terms the fundamental right to life enshrined in art 21 and read into it various other rights. he passed similar remarks in the unreported judgment of Court on its Own Motion v Yogesh Sharma (Criminal Revision no 230/1985. AIR 1994 SC 1844 at 1848–9) in which the court quashed 119 proceedings pertaining to s 309 and acquitted all accused. then. held that ‘life’ here means more than mere animal-like existence. the right to privacy (Govinda v State of Madhya Pradesh. Olga Tellis v Bombay Municipal Corporation. arts 32(2) and 226(1) concentrate enormous discretionary powers on the Supreme Court and High Courts respectively. the question before the Delhi High Court was whether the investigation of a case relating to s 309 should be allowed to continue beyond the time period fixed by the Code of Criminal Procedure. it imposes on the state a positive duty to protect individuals’ rights over their person. In State v Sanjay Bhatia 1985 Cri LJ 931. AIR 1990 SC 630) have been deemed aspects of the right to life.
The judgment is remarkable for the innovative way it sought to interpret constitutional provisions.2004] The Right to Die: The Indian Experience 161 The relation between s 309 and the Constitution was first explored by the Bombay High Court. The Andhra Pradesh High Court took a different view in Chenna Jagadeeswar v State of Andhra Pradesh 1988 Cri LJ 549 (Chenna Jaga- . ruled that the right to freedom of trade contained in art 19(1)(g) includes the right not to carry on a business. It also observed that if s 309 is indeed unconstitutional. and this amounted to treating unequal cases equally. For example. There was no precise definition of what acts constituted an attempt to suicide. It enumerated five instances of suicide traditionally accorded a degree of legitimacy in ancient India. Indeed. the three main fundamental rights. according to RC Cooper v Union of India. 19 and 21 respectively. Finally. and atmarpan (self-sacrifice) (1987 Cri LJ 743 at 752). Accordingly.6 samadhi (termination of life by self-restraint on breathing). the section treated all suicide attempts by the same measure. The court even ventured into an extensive discussion on how different religions and cultures treated suicide differently (1987 Cri LJ 743 at 749–51). Furthermore. Hence what applies to one must necessarily apply to the others as well. For these reasons. AIR 1979 SC 25. prayopaveshan (starving to death). AIR 1970 SC 1318. namely johar (mass-suicide or selfimmolation). the court noted that the wording of s 309 was ambiguous and open to doubt. namely the rights to freedom of equality. In the same vein. as it deals with abetting suicide. if the right to trade includes within itself the right not to trade. and that no stigma should be attached to it as such (1987 Cri LJ 743 at 748). but also laid the groundwork for. For this reason. The court (speaking through Sawant J) began by stating that the desire to die was not intrinsically unnatural. The rationale given for this is as follows. liberty and life. it ruled that the right to life guaranteed by art 21 included in its scope the right to die. It is well established that every positive right conferred by the Fundamental Rights chapter of the Constitution includes within its scope a negative right as well. the right to life must contain the right to die. continuing to treat abetting suicide as a criminal offence defies logic. s 309 is ultra vires art 21. it not only foreshadowed. enshrined in arts 14. sati (self-immolation of a widow). the court held that s 309 also violated the right to equality contained in art 14 (1987 Cri LJ 743 at 753). regardless of the circumstances involved. Since the act of suicide itself ceases to remain a crime. the court in Excel Wear v Union of India. Consequently. Moreover. are to be read together. in Dubal. the developments introduced in later decisions like Rathinam. s 306 must also be unconstitutional. euthanasia and mercykilling cannot be treated as illegal any more (1987 Cri LJ 743 at 752).
the court framed a total of 16 questions. This two-judge bench decision constitutes an important milestone in the evolution of this right. it has the implied positive duty to protect the life of individuals. as the rest are clearly beyond the scope of this article. AIR 1993 SC 2178. but also because it undertook to examine the issue from a range of legal. it ruled that ss 309 and 306 are inherently linked and if the former is struck down it is very unlikely that the latter will survive (1988 Cri LJ 549 at 557). The court also held that s 309 does not violate art 14 either. in fact. only a few need concern us. It relied on Unni Krishnan v State of Andhra Pradesh. Of these. not only because it was the first such case before the Supreme Court. speaking through Hansaria J. Consequently. At the same time. where a five-judge bench held that art 21 had positive as well as negative content (AIR 1994 SC 1844 at 1852–3) and on this ground it rebutted criticisms of the analogy with art 19 made in Dubal. it gives judges enough leeway at the sentencing stage to mitigate punishment according to the facts involved. Right to Die and the Supreme Court: Rathinam and Gian Kaur The issue of right to die was first brought before the Supreme Court in Rathinam. It summarily rejected the contention that the right to live includes the right to die (1988 Cri LJ 549 at 557). For this reason. The state exists for the common good of the people. The court. it rejected the ruling that s 309 is ultra vires art 14 as well. began by holding that suicide and euthanasia were intrinsically dissimilar. ranging from ‘How suicide-prone persons should be dealt with [sic]?’ to ‘Is suicide immoral?’ to ‘Does suicide produce adverse sociological effects?’ (AIR 1994 SC 1844 at 1852). It then proceeded to uphold the Dubal principle that the right to life includes the right to die (AIR 1994 SC 1844 at 1850). because even though the provision does not take into account the circumstances behind the act. the court found it difficult to hold that the right to life enshrined in art 21 also includes the right to die. On this point. even though art 21 only imposes on it a negative duty not to deprive them of their life. all other fundamental rights would become meaningless. moral and philosophical perspectives unprecedented in their diversity. This was because unless individuals were assured of their physical existence. Following this. it approved the logic given in Chenna Jagadeeswar (AIR 1994 SC 1844 at 1851). even though in certain ways they resembled each other (AIR 1994 SC 1844 at 1849).162 Asian Law [Vol 6 deeswar). . The court began by asking whether art 21 has any positive content or whether it is only negative in its reach. Finally.
The court. For this reason. The judgment does not provide any direct answer. according to some. ruled that this reasoning is only partly correct. variable and indefinable (AIR 1994 SC 1844 at 1864–6). It noted that. emphasis in original). in so far as the nature of the right to death precludes any coexistence with its positive counterpart. it not only followed Dubal but also sought to counter criticisms levelled against that case (AIR 1994 SC 1844 at 1854). Are we to infer. the absence of anything to look forward to in life and so on. which forms the basis of the right to life. it concluded that no one could say for certain whether suicide goes against public policy (AIR 1994 SC 1844 at 1866). At the same time. since s 309 was cruel and barbaric in his opinion (1994: 522–3). Although many of its rulings had been anticipated in Dubal. the court examined whether a person residing in India has a right to die. This begs the inevitable question of whether euthanasia remains illegal. Last. however. As a consequence. since in the others the negative aspect does not ipso facto extinguish the positive aspect. Another question dealt with by the court concerned whether suicide is contrary to public policy. Rathinam nevertheless succeeded in sparking a furious. Here also. the court examined the relationship between suicide and euthanasia. It overruled the Chenna Jagadeeswar ruling that s 306 cannot survive in the absence of s 309. debate. there is no reason to suppose that such coexistence is necessary. the right not to live takes away life itself. the right not to trade may coexist harmoniously with the right to trade. BB Pande (1994) and MP Singh (1995) separately . ‘In any case. From this. welcomed the rulings. indeed. disadvantage or disliking [sic]’ (AIR 1994 SC 1844 at 1854. the two offences are conceptually distinct and stand on different footings (AIR 1994 SC 1844 at 1867). On the other hand. such as desire for communion with God. The eminent scholar PM Bakshi. For example. on the contrary. one’s fundamental right could. the court also held that contrary to what was stated in Olga Tellis.2004] The Right to Die: The Indian Experience 163 Following this. even after s 309 is struck down. no harmonious coexistence between the right to live and the right to die is possible (AIR 1994 SC 1844 at 1854). It only says that the right to die should not be truncated merely because it encourages the proponents of mercy killing (AIR 1994 SC 1844 at 1866). then. that suicide and public policy are in fact not inconsistent? The judgment is silent on the point. On the other hand. for example. a person cannot be forced to enjoy right [sic] to life to his detriment. even acrimonious. One’s will to live may be weakened by so many factors. the Dubal rationale of equating the right to life with other fundamental rights was not correct. The court cited numerous references to demonstrate that the notion of public policy is inherently ambiguous. be waived. holding that.
the court expressly overruled Rathinam by holding that s 309 did not violate art 21 (AIR 1996 SC 946 at 953). this right to die can only lead to self-destruction and thus represents a retrograde step (Pande. the court provided an interesting insight. Hence the analogy with other fundamental rights does not apply to art 21 (AIR 1996 SC 946 at 952). theological and other extra-legal aspects of suicide. On this view.164 Asian Law [Vol 6 criticised the judgment in most severe terms. Consequently. On the basis of this logic. AIR 1996 SC 946 (Gian Kaur). since they undermine the sanctity and dignity of life. the exercise of their negative aspect requires the right holder to merely abstain or refrain from certain positive acts. They both pointed out that other rights read into the right to life – such as the right to privacy and the right to a speedy trial – are intended to improve or enrich the quality of life enjoyed by an individual. all he or she has to do is not indulge in trading. as well as positive. 1995: 135. positive acts. In any case. ended the debate rather abruptly by overruling Rathinam on most counts. On the other hand. and held that ‘[a]ny aspect of life which makes it dignified may be read into it but not that which extinguishes it’ (AIR 1996 SC 946 at 952). it concurred with the latter’s ruling that s 309 was not inconsistent with art 14 either (AIR 1996 SC 946 at 954). About the relationship . As to the relation between the right to life and the right to die. if any. In contrast to Rathinam. whose performance cannot be protected under art 21. On the other hand. 137). a five-judge bench in Gian Kaur v State of Punjab. the right to die cannot be read into the right to life. For example. It even criticised Rathinam for having accorded these aspects such significance as to treat them virtually as a reason for striking down s 309 (AIR 1996 SC 946 at 951): The desirability of retaining s 309 in the Statute is a different matter and non sequitur in the context of constitutionality of that provision which has to be tested with reference to some provision in the Constitution of India. According to it. The court drew a distinction between suicide and euthanasia. the analogy drawn with other fundamental rights to show that the right to life has negative. any exercise of the right to die necessitates the commission of certain overt. It interpreted the word ‘life’ as ‘life with human dignity’. 1994: 22. holding that instances involving the former ‘are not cases of extinguishing life but only of accelerating conclusion [sic] of the process of natural death which has already commenced’ (AIR 1996 SC 946 at 953). if an individual wants to exercise the right not to trade. is as inherently inconsistent with the “right to life” as “death with life” [sic]’ (AIR 1996 SC 946 at 952). On the other hand. ‘[t]he “right to die”. it eschewed lengthy discussions on the moral. In the case of other rights. content is essentially superfluous. Singh.
therefore. since they bear little relevance to the facts of the case. but how long it will remain so is uncertain. read with s 107 of the Indian Penal Code. we may discern broadly three possible positions of law. as we saw. notwithstanding its deviance from involved facts. Right to Die: Legal and Other Consequences Is Gian Kaur Legally Binding? I will now turn to the question of how legally binding the Gian Kaur judgment actually is. We are thus forced to conclude that the rulings laid down in Gian Kaur in respect of s 309 are in the nature of obiter dicta. which contains the definition of abetting. the legal status of the right to die is a consequence of three factors and their interrelation. and the nature and extent of art 21 of the Constitution. AIR 1975 SC 1087). For this reason. it would seem that the observations it makes about s 309 are. Gian Kaur comprises binding law as of now. this very decision states that the two offences are distinct and separate: ‘It is significant that s 306 enacts a distinct offence which is capable of existence independent of s 309’ (AIR 1996 SC 946 at 954). rather. We may note that its facts concern abetting suicide under s 306 rather than suicide per se or its attempt (AIR 1996 SC 946 at 948). s 309. Hence. in fact. it would seem to constitute binding law. . Right to Die and Right to Life In the Indian scenario. Income Tax Commissioner v Vazir Sultan. In such circumstances. As a result. however. From our perusal of judicial trends in the foregoing paragraphs. They comprise the act of suicide. it held that the two pertain to subjects that are distinct from each other.2004] The Right to Die: The Indian Experience 165 between s 309 and s 306. irrelevant to the issue before it. Moreover. To sum up. AIR 1959 SC 814. what is the legal status of s 309? Several decisions state that even obiter dicta by the Supreme Court are binding on lower courts as long as they are well thought out and not in the nature of casual observations (see. ss 306 and 309 are so distinct in their scope that striking down or deleting one will have no affect whatsoever on the other’s survival (AIR 1996 SC 946 at 955). Section 306 deals with abetting suicide (that is. Municipal Committee v Hazara Singh. it is rendered vulnerable to being overruled by future judgments. Since this criterion is clearly satisfied in Gian Kaur. its criminalisation under s 309 of the Penal Code. for example. its successful commission) while s 309 punishes only attempted suicide. The punishment for abetting attempted suicide does not flow from s 306 but.
is the way this right has always been understood or construed specifically in terms of the right to life. What exactly does the right to life entail? Its language indicates that it is in the nature of a Hohfeldian claim-right simpliciter. the meaning of the word ‘life’ has been held to also include one’s bodily members: The provision equally follows the mutilation of the body by the amputation of an arm or leg. and it needs to be examined must more closely. Dubal onwards. the entire history of the right to die. Gian Kaur held that the right to life exists to uphold the dignity and sanctity of human life. And finally. it has been established beyond doubt that the fundamental rights listed in arts 12 to 35 are available only against the state and not private persons (see. Moreover. then naturally s 309 becomes unconstitutional. I submit this is especially true of the Gian Kaur ruling that the right to life is intended towards the protection and enhancement of life rather than its extinction. it is through the right to life rather than any personal liberty enshrined in it. (2) On the other hand. and therefore at liberty to. no grounds exist for this assumption. and indeed. Such was the state of law after Rathinam. criminalise the act of attempted suicide. In my opinion. (Munn v Illinois 94 US 113 (1877) at 142)7 From the foregoing. then the state is under no duty not to. In fact. rather than merely a negative duty not to interfere with the individual’s life. if suicide is deemed a part of right to life under art 21. jurists have generally assumed that if the right to die bears any relevance at all to art 21. or the putting out of an eye. for example. PD Shamdasani v Central Bank of India Ltd. AIR 1952 SC 59. 1919: 36). This differs from (1) in that it casts on the state a positive duty to protect life. Such claimrights are characterised by the imposition of a corresponding duty on the party against whom the right is given (Hohfeld. Characteristic of all three positions. any such interference by the state or its agents violates this duty. which gives rise to the individual’s claim to . (3) Finally. it will inevitably lead to paradoxes and inconsistencies. AIR 1956 SC 108). or the destruction of any organ of the body through which the soul communicates with the outside world.166 Asian Law [Vol 6 (1) If the commission of suicide is held not to fall within the scope of the right to life as guaranteed by art 21. Vidya Verma v Shiv Narayan Verma. This was the position of law before the advent of Rathinam. as I hope to demonstrate. Otherwise. we may conclude that the right to life under art 21 casts on the state a duty not to interfere with the individual’s life or any bodily member. Consequently.
however. Once again. AIR 1984 SC 1026). If suicide is repugnant to the sanctity and dignity of human life. is inconsistent with art 21. A man may even have a vasectomy operation performed on himself. the court expressly stated that the right to die cannot be read into art 21. seems to present an exception. it if the state forces any of these on an individual. This leads us to a strange inference. and not the second. custodial deaths or torture fall within the scope of this right. or even killed in an accident. On the other hand. no rational justification is provided for such differential treatment. one more crucial question remains unexplored concerning the way courts have characterised the right to die. So any time a person is murdered. If suicide is indeed inconsistent with the sanctity and dignity of human life. If we go to Gian Kaur. which the state has a positive duty to protect and uphold.2004] The Right to Die: The Indian Experience 167 have that wrong remedied. So how does the right to life apply to suicide? As we recall. for example. Rudul Sah v State of Bihar. Since the argument above indicates that suicide amounts to a violation of the right to life. a person is at liberty to cut off a finger. For example. his or her next of kin could theoretically claim compensation from the state. Suicide and Personal Liberty Apart from the consequences of Gian Kaur discussed above. Gian Kaur interprets art 21 to cast a positive duty on the state to protect and uphold human life in all its sanctity and dignity. AIR 1983 SC 1086. but which violate art 21 if the state imposes such acts on them. it violates that person’s right to life. then surely so is homicide in all its forms. because suicide is inconsistent with this sanctity and dignity. will successful suicide cases make the state liable to the next of kin for damages? Let us follow this reasoning to its even more absurd consequences. several cases have held the state liable to pay monetary compensation in respect of fundamental rights violations (see. then surely it must mean that any time a person successfully commits suicide the state fails in its positive duty? Furthermore. Secondly. then what is the rationale for creating this distinction between prima facie similar acts? The Gian Kaur ruling leads to another paradox. Cases involving. And if suicide and homicide differ in that only the first. it seems to violate art 21 regardless of whether the state or the individual is the perpetrator. There exist many acts that private individuals may freely perpetrate upon themselves. Does this right bear any relation at all to the right to life? . say. Sebastian M Hongray v Union of India. The termination of life. or even a whole limb: no provision in the Penal Code or any other statute imposes any duty not to do so.
implies the absence of duty and imposes on the state what Hohfeld terms a ‘no-right’ (Hohfeld. Stated simply. AIR 1978 SC 597 (Maneka)). as a result of which the state is duty bound not to interfere with this liberty in any manner. the liberty. As we saw. Maneka). suicide) from undue interference by the state. the former is in the nature of a claim-right. what the person does or performs with his or her life and bodily members is already protected by the right to life. killing oneself and waving one’s arms are formally similar (notwithstanding the extreme consequences of one as compared to the other). although one’s arms are protected by the right to life. To take an example. as it imposes on the state a corresponding duty not to interfere with the individual’s life or bodily member. since they both stem from the same genus (namely. For example. If we analyse the phrase ‘right to die’. By its nature. that is. they can demand that the state desist from interfering with their enjoyment of this liberty. but rather actions. such as by illegally declining to issue passports (Satwant Singh Sawhney. Such a step will not in any way affect their right to life. In fact.168 Asian Law [Vol 6 Article 21 incorporates two separate rights. The first component. In other words. in so far as it applies to their arms. . Maneka Gandhi v Union of India. New Delhi. for example. In other words. individuals can actually claim non-interference from the state. but rather to protect the commission of an act (that is. This means that the state cannot make a legal claim that they have a duty not to do so. This bars the state from making claims on individuals not to exercise their liberty. namely the right to life and the right to personal liberty. one’s freedom to wave them is secured by the right to personal liberty. such as inside parliament or a courthouse. that is. this liberty is backed up by a right. we find that it is also in the nature of a liberty rather than a claim-right. Furthermore. individuals enjoy a claim-right to this liberty. individuals are recognised as having the liberty to travel abroad (this has been held to be an aspect of the right to personal liberty: see. actions to be performed). the right to personal liberty is in the nature of a liberty protected by a right. At the same time. What lends further credence to the contention that the two rights are separate entities is the observation that curtailing one does not affect the other. a law may take away individuals’ liberty to wave their arms in certain situations or circumstances. On the other hand. the difference between the two is that the right to personal liberty protects not a person’s life or bodily members. To put it another way. the state becomes duty-bound not to restrict the holders’ liberty under any circumstances. 1919: 41 et seq). AIR 1967 SC 1836 (Satwant Singh Sawhney). such a right seeks not to safeguard life itself or any bodily member. Satwant Singh Sawhney v Assistant Passport Officer.
2004] The Right to Die: The Indian Experience 169 In such circumstances. Instead. Responding to certain submissions made on the right to die. It first finds mention in Dubal (1987 Cri LJ 743 at 748) in connection with the analogy drawn between arts 21 and 19. The right to life cannot contain the right to die any more than the right to go abroad or wave one’s arms. the notion of the right to live is dispensed with altogether (AIR 1996 SC 946 at 952): ‘Right to life’ is a natural right embodied in Art 21 but suicide is an unnatural termination or extinction of life and. One right can be read into another only if both are of the same type. use the term ‘right to life’ anywhere. Where did this right to live come from? No provision in the Constitution mentions such a right. therefore. the right to die is consistently referred to as a derivative of the right to live. It refers to a series of judgments on art 21 and then concludes: ‘In these decisions it was held that the word “life” in Art 21 means right [sic] to live with human dignity’ (AIR 1994 SC 1844 at 1853). incompatible and inconsistent with the concept of ‘right to life’. Nevertheless. and the Gian Kaur ruling that the two rights are inconsistent. This judgment does not. Finally. however. which states that the right to life includes the right to livelihood. it says: ‘The fundamental rights enumerated in art 19 are only extensions of the right to life and have no meaning without it’ (1987 Cri LJ 743 at 747). For example. any attempt to associate the right to die with the right to live necessarily suffers a logical inconsistency. Dubal even misled subsequent commentators on this point. the context in which the right was mentioned indicates that it refers to the right to life rather than personal liberty. as the following instance indicates: ‘It [Dubal] held that under Art 21. From this inference it asserts: ‘Keeping in view all the above. the positive right to live carries with it the negative right not to live’ (Kaushik. or vice versa. we state that the right to live of which art 21 speaks of [sic] can be said to bring in its trail the right not to live a forced life’ (AIR 1994 SC 1844 at 1854). In Gian Kaur. on the other hand. On the other hand. which indisputably includes the right to life’ (1987 Cri LJ 743 at 747). it says: ‘[T]he submission essentially arises out of the content of art 21. We reach the same conclusions when we look at the manner in which the link between the right to life and the right to die was forged. speaking of the analogy with art 19. it draws support from Olga Tellis. see also Pande. 1994: 375. . This holds equally true for the Rathinam argument of the right to die deriving from the right to life. 1994: 22). No claim stricto sensu can include within its scope a liberty. Rathinam reveals a similar situation. neither can the right to personal liberty be invoked to protect one’s right not to have one’s arms chopped off or be forced to undergo a vasectomy.
whose semantic opposite is not ‘die’ but ‘death’. therefore. The right to live or. the right to live amounts to nothing but the right to personal liberty. as mentioned above. In fact. Since both are liberties. say. Logically. both have to be semantically similar. It is self-evident that for one right to flow from the other. Dubal and Rathinam are perfectly correct in so far as they assert that the right to die flows from the right to live. similarly. so can his right to life in its entirety be distinguished from his right to live. the analysis followed in most of the judgments described above is based on an inaccurate appreciation of the issues involved. Hence. this cannot be said of their identifying the right to live with the right to life. So. deriving one from the other does not alter the character of the parent right. If not. the freedom to cut them off surely stems from one’s liberty to do what one wants with them. Just as. then the derivative right threatens to even alter the character of the parent right. As we saw. Similarly. But. The latter is limited to protecting the arms from state interference. one’s liberty to die must necessarily be derived from one’s liberty to live. the personal liberty guaranteed by art 21.170 Asian Law [Vol 6 I again contend that deriving the right to die from the right to life is logically impossible. an aspect of his right to life. However. just as X’s right over his arms. the freedom not to speak is implicit in the freedom to do what one wants with one’s power of speech. we effectively imply that the right to life is wide enough to accommodate a liberty like the right to die. which comprises his right to personal liberty in its entirety. that is. the liberty to live. to that extent. implies the liberty to do what one wants with one’s life. All I seek to establish here that is that the former cannot under any circumstances be . the verb ‘die’ finds its semantic opposite in ‘live’ rather than ‘life’. For this reason. on the other hand. the right to die should flow from a right to live instead of the right to life. it is clear that the right to cut off one’s arms flows from the right to personal liberty rather than the right to life. but the right to personal liberty. differs from his right to do what he wants with them (such as wave them) which forms a part of his right to personal liberty. The word ‘life’ is in the nature of an abstract noun. strictly speaking. If we seek to derive the second from the first. which is nothing but personal liberty. This is not to make a positive assertion that the right to die is a necessary consequence of the right to personal liberty. one’s freedom of speech. Coming back to the issue of suicide. the right to life is in the nature of a claimright. that is. I conclude that suicide is properly an aspect not of the right to life. For this reason. The right to life then no longer remains the claim-right stricto sensu it used to be and so its very character thereby changes. while the right to die is characterised as a liberty.
. So far. But does this distinction bear any practical implications or does it amount simply to yet another piece of legal sophistry? We may make an interesting observation at this juncture. 1994: 377–8) Once again. The [Rathinam] judgment has two implications:. All that one can say here is that the right to die cannot bear any relation whatsoever with the right to life.2004] The Right to Die: The Indian Experience 171 derived from the right to life. much of the controversy associated with this issue becomes superfluous. the distinction between the right to life and the right to personal liberty is crucial: and the right to die properly flows from the latter rather than the former. The moment the right to die is acknowledged as flowing from the right to personal liberty instead of the right to life. the claim-right against state interference with one’s body). Distinction between Right to Life and Personal Liberty: Practical Implications Doubtless. the inconsistency stands removed. If we derive the right to die from the right to personal liberty. even if the right to personal liberty grants the liberty to kill ourselves. the recognition of the ‘right to die’ greatly waters down this obligation (to preserve the right to live [sic]) and secondly. Apprehensions have been voiced that recognition of the right to die will undermine the seriousness of the right to life. for example. Take. . . not the right to life.firstly. the yardstick of measurement of the quality of life provided by the state ie the extent of its obligation is made uncertain . the only possible way of doing so is by reading it into the right to personal liberty. Not only does suicide not waive one’s right to life (that is. (Kaushik. The right to life continues to uphold the sanctity and dignity of human life. The logical conclusion of recognising the ‘right to die’ would mean that a person can waive his ‘right to life’ . if it is at all to be read into art 21. the Gian Kaur ruling that the right to life is intended to uphold the sanctity and dignity of human life and is therefore inconsistent with the right to die (AIR 1996 SC 946 at 952). So what exactly is the relation between the right to die and the right to personal liberty? Does the former flow from the latter? That will depend on whether our legislatures and courts think s 309 constitutes a reasonable limitation on the right to personal liberty. Moreover. so it is difficult to draw a conclusion either way. neither legislatures nor courts have addressed this issue. but the larger state obligations read into the right to life continue to exist unabated. disengaging the right to die from the right to life seems to solve these problems. while individuals attempt suicide on the basis of the exercise of their personal liberty. . .
Instead he proceeded to examine euthanasia cases to see whether the right to refuse medicine is a ‘liberty-interest’ or a ‘fundamental claim’ (Pande. any of those that followed it. this has been a welcome development. and was even cited in Rathinam (AIR 1994 SC 1844 at 1849). It is broad-based and people-oriented. 1994: 24). AIR 1981 SC 298 at 317) Indeed. The jurisprudential import of a [sic] right to die is likely to be very farreaching. Had it not been for the judicial attention the issue received. indeed. most innovations introduced in the last few decades. ‘public interest litigation’. especially those crafted by the judiciary. VS Deshpande. a former judge of the Delhi High Court. 1984: 13–14). it seems that the import of the statement was not realised in either that judgment or. and ‘representative proceedings’. have been dedicated to this very end. mentioned in his criticism of s 309 that in certain circumstances s 309 ‘would be unconstitutional as being contrary to art 12 and infringing the personal liberty of the person’ (Deshpande. the community or the family? How would the conflicts between this right and other rights be reconciled? Regrettably. he chose not to examine the matter any further. together with its subsidiary issues like euthanasia. little [sic] Indians in large numbers seeking remedies in courts through collective proceeding. the idea that the right to die stems from the right to personal liberty seems to have been anticipated a number of times in the past. Krishna Iyer J observed: Our current processual jurisprudence is not of individualistic [sic] AngloSaxon mould. Speaking on the trend of relaxing the requirements of locus standi in public interest matters. is no exception to this rule. Pande (1994: 24) sought to speculate on the jurisprudential consequences of the right to die. it might in all probability have . and envisions access to justice through ‘class actions’. This. And the right to die.172 Asian Law [Vol 6 Strangely enough. Subsequently. of course. Is the right to die a fundamental right or merely a ‘liberty interest’? Would the right create correlative duties on the State. is an affirmation of participative justice in our democracy. Indeed. Conclusion Indian courts have consistently reiterated the need to interpret both the Constitution and ordinary laws in such as way as to make them relevant to the people. However. Without doubt. (Akhil Bharatiya Soshit Karamchari Sangh v Union of India. instead of being driven to an expensive plurality of litigants [sic]. was said before any of the judgments dealing with the right to die had been passed.
if the former is evaluated instead in the light of the right to personal liberty (with which it is formally consistent) much of the debate surrounding it is automatically rendered irrelevant. Hence. Judge-made laws are critically dependent on existing legislation. This is as it should be. it perforce encompassed a liberty as well. but only interpret. We may note that altering or amending constitutional provisions can never be. the right to life imposed on the state merely a negative duty not to interfere with the individual’s life or bodily members. while at the same time it compels them to conform to the broad outlines of policies already laid down. As I demonstrated.2004] The Right to Die: The Indian Experience 173 languished the way the Indian Penal Code (Amendment) Bill 1972 lapsed. In my discussion on the right to die. The process of interpretation seems to constitute an acceptable compromise. Laying down legislative policy is the job of the legislature. The first was when the right to life was held to confer on the state a positive duty to uphold the sanctity and dignity of human life. the only manner in which they can bring about legal innovations is by construing interpretations of remarkably wide amplitude. But when the right to die was read into it. But once it was interpreted to also prescribe a positive duty. The entire construct is imperilled when an interpretation turns out to be so wide as to effectively sever connections with the parent statute itself. in itself. The reason for this is that – officially – courts do not create. The second instance. been appreciated properly. Similarly. But when such alterations are the result of an incorrect understanding of . It gives judges ample scope to innovate. Originally. but also its inevitable consequences tend towards the absurd. the right to life originally entailed only a claim-right. which was included in the Constitution precisely to evaluate liberties of this type. its very character changed. Not only was such a duty not contemplated when the provision was drafted. judges are obliged to conform to the policies already laid down by the legislature. constitutional) provision. of course. the distinction between claim-rights and liberties. Had the proper import of negative and positive duties. it did so to the exclusion of the right to personal liberty. Consequently. in this case. or indeed. as well as the jurisprudential concepts involved. laws. bad or undesirable. More seriously. At the same time. pertains to interpreting the right to die in terms of the right to life. much of the ensuing controversy could have been avoided. In my view. our experience of the right to death also alerts us to certain pitfalls that any form of judicial activism – particularly judicial law-making – inevitably entails. Moreover. I identified two examples of this. not the judiciary. such interpretations are due to an incorrect understanding of both the parent legislative (or. interpretations of this type affect even the nature of the parent provision.
see Sathe. the Indian judicial experience with the right to die shows us that after all the law is a system. Hurra. Article 21: No person shall be deprived of his life or personal liberty except according to procedure established by law. 2002. or with both. 1993 is also a useful contribution to the literature on the topic. such as Kharak Singh v State of Uttar Pradesh. . Hohfeld. the objective behind the entire exercise remains unattained. LLB (National Law School of Indian University). Article 25(1) explicitly states that the right to freedom of religion is subject to public order. which came to effectively supplant this voluntary aspect. then at one level. PM (1994) ‘Suicide and Criminal Law’ 36 Journal of the Indian Law Institute 522. The practice of sati in its pristine form was intended as a voluntary act by the bereaved widow. But more seriously. If not. Olga Tellis. Deshpande. The Supreme Court of India has quoted this with approval in several decisions. S (1993) Public Interest Litigation. To sum up. P (1995) ‘Legal Rulings on Suicide in India and Implications for the Right to Die’ 5(2) Asian Philosophy 159. For an excellent analysis of this phenomenon. Bilimoria. morality and health. Ahmedabad: Mishra & Co. New Haven: Yale University Press. This seems an extremely curious argument. Judicial activism in India is simply too vast a topic to be covered here in any but the briefest of terms. For any innovation to be effective. the very underpinnings of the system may also be compromised. no court has attempted to derive the right to die from art 25. New Delhi.174 Asian Law [Vol 6 underlying jurisprudential concepts. shall be punished with simple imprisonment for a term which may extend to one year or with fine. 1995: 160) have even tried to locate the right to die in the right to freedom of religion embodied in art 25. patriarchal incursions had added to it a strong coercive element. it is today commonly (and justifiably) perceived as an example of the extreme forms of gender violence. 3 4 5 6 7 References Bakshi. Some legislatures have even legalised euthanasia under certain circumstances. AIR 1986 SC 180. WN (1919) Fundamental Legal Conceptions as Applied in Judicial Reasoning. Such a wide-ranging proviso considerably weakens the scope for using it as a basis for striking down a penal provision of the nature of s 309. Section 309: Whoever attempts to commit suicide and does any act towards the commission of such offence. See. It is to be noted that though several judgments (eg Dubal 1987 Cri LJ 743 at 749–51. AIR 1963 SC 1295. care has to be taken that the systemic values themselves are not compromised. As a result. for example. Notes ∗ 1 2 BA. AIR 1994 SC 1844 at 1861–2) have dwelt on the relation between suicide and religion. However. Some commentators (eg Bilimoria. Rathinam. its origins and its consequences. surely this cannot augur well for the well-being of the Constitution. Hurra. Rights of the Terminally Ill Act 1995 (NT) (subsequently overruled by Euthanasia Laws Act 1997 (Cth)). VS (1984) ‘To Be or Not To Be’ (1984) 3 Supreme Court Cases (Journal Section) 10. Advocate.
SP (2002) Judicial Activism in India: Transgressing Borders and Enforcing Limits. Indian Express Newspapers. AIR 1978 SC 597 Mohini Jain v State of Karnataka. New Delhi: Oxford University Press. van der Weyden. Municipal Committee v Hazara Singh. Pande. Both Cannot Be “Right” ’ (1994) 4 Supreme Court Cases (Journal Section) 19. Sathe. AIR 1979 SC 25 Fri v Sierra Club. Pty Ltd. Bihar. AIR 1994 SC 1844 at 1848–9) Excel Wear v Union of India. AIR 1983 SC 1086 Satwant Singh Sawhney v Assistant Passport Officer. Bombay. MB (1997) ‘Deaths. MP (1995) ‘Can There Be a Fundamental Right to Die?’ 17 Delhi Law Review 134. AIR 1996 SC 946 Govinda v State of Madhya Pradesh. AIR 1994 SC 1844 RC Cooper v Union of India. AIR 1975 SC 1087 Munn v Illinois 94 US 113 (1877) Olga Tellis v Bombay Municipal Corporation. AIR 1989 SC 190 Rudul Sah v State of Bihar. Ministry of Law.2004] The Right to Die: The Indian Experience 175 Kaushik. BB (1994) ‘Right to Life or Death? For Bharat. AIR 1956 SC 108 . AIR 1967 SC 1836 Sebastian M Hongray v Union of India. Dying and the Euthanasia Debate in Australia’ 166 Medical Journal of Australia 173. AIR 1981 SC 298 Brown v Board of Education 347 US 483 (1954) Chenna Jagadeeswar v State of Andhra Pradesh 1988 Cri LJ 549 Court on its Own Motion v Yogesh Sharma (Criminal Revision no 230/1985. RP Ltd v Proprietors. 412 US 541 (1973) Gian Kaur v State of Punjab. AIR 1979 SC 1360 Income Tax Commissioner v Vazir Sultan. New Delhi. Singh. AIR 1986 SC 180 PD Shamdasani v Central Bank of India Ltd. AIR 1952 SC 59 P Rathinam v Union of India. AIR 1975 SC 1378 Hussainara Khatoon v Home Secretary. cited in Rathinam. AIR 1984 SC 1026 Shantistar Builders v NK Totame. AIR 1992 SC 1858 MS Dubal v State of Maharashtra 1987 Cri LJ 743. AIR 1990 SC 630 State v Sanjay Bhatia 1985 Cri LJ 931 Sunil Batra v Delhi Administration. AIR 1959 SC 814 Maneka Gandhi v Union of India. AIR 1978 SC 1675 Unni Krishnan v State of Andhra Pradesh. Law Commission of India (1971) 42nd Report: Indian Penal Code. AIR 1970 SC 1318. AIR 1993 SC 2178 Vidya Verma v Shiv Narayan Verma. SS (1994) ‘The Suicide Judgement – An Analysis’ 18 Cochin University Law Review 375. Government of India. Cases Akhil Bharatiya Soshit Karamchari Sangh v Union of India.
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