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E U T H A N A S I A

Its my life
Its now or never
I am not gonna live forever
I just want to live while
I am live
Jon Bon Jovi

J S RAJAWAT
1


In a more recent development, the Apex Court has issued notice to all States
and Union territories on a plea for legalizing passive euthanasia. It sparked a
debate like never before in India: does right to life include the right to peaceful
and willing death? The matter came up in the background of a plea filed by an
NGO Common Cause that a person, who is afflicted with a terminal disease,
should be relieved from agony by withdrawing any artificial medical support
provided to him.
2

Euthanasia is the intentional premature termination of another persons life
either by direct intervention (active euthanasia) or by withholding life-
prolonging measures and resources (passive euthanasia), either at the express or
implied request of that person (voluntary euthanasia), or in the absence of such
approval (non-voluntary euthanasia). It is non-voluntary euthanasia that has
forever been the primary reason to oppose mercy killing as opponents of the
idea have regularly said (and rightfully so, if I may add) that mercy and killing
do not go together, no matter what the circumstances. They further cite religion
as a source to support their theory which espouses the line of thought on life
being a gift from God, is sacred in nature and He alone possesses the right to
extinguish it. In the thirteenth century, Saint Thomas Aquinas, a renowned
Catholic Theologian and philosopher, condemned suicide as wrong because it
contravenes ones duty to oneself and because it violates Gods authority over
life, which is Gods gift. Such opinions emanating from the ages have deeply
impacted the modern day views of individuals opposing mercy killing and
equating it to medical termination of pregnancy; the underlying principle being
that both involve voluntary ending of life and should not be left to the whims
and fancies of the individual preferring such an option.
Euthanasia is putting to death a person who because of disease or extremely old
age or permanently helpless or subject to rapid incurable degeneration and can

1
SPL. P P C.B.I , E mail Jsrajawat53@gmail.com
2
TOI Dated 17
th
2014 Jaipur edition Page 1


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not have meaningful life. It may also be defined as the act of ending life of an
individual suffering from a terminal illness or incurable condition, by lethal
injection or by suspension of life support extraordinary treatment. The issue of
euthanasia in last decades has turned out to be most controversial in law,
medicine, ethics, religion and politics
3
. There are some who believe that
individuals should have unqualified right to die. While there are some others
who consider all form of euthanasia to be murder and thus regard it immoral.
Ancient Indian philosophy also justify the idea of willing death. As per Hindu
mythology Lord Rama took jal Samadhi in Saru river and likewise
4
, Lord
Buddha and Lord Mahiaveer attained death in similar way. Veer Savarkar and
Vinoba Bhave also had chosen to die in their lives by refusing to take food.
Mahatma Gandhi also supported the idea of willful death. Thus trace of right to
die existed in earlier times.

Among the western religion euthanasia has always been viewed as illicit
exercise of divine prerogative by the Christians. Right from 5
th
century B.C. it
has been the belief of Christians that every human owes his existence to a
loving being who has graciously brought him or her into this world. Birth and
death are part of the process of life which God has created. So humans should
respect them and therefore no human being has the authority to choose the time
and manner of his death. Islam does not accept any kind of justification for the
killing of person and thus euthanasia and suicide are prohibited in Islam.
Among the eastern religion Hinduism and Buddhism, human beings are
captured in endless cycle of rebirth and reincarnation. It is the deeds (kerma) of
a human in the present life that determine his or her fate for the next life. The
ultimate goal of mortal life is to achieve Moksha of liberation from the cycle of
death and rebirth. As per Hindu mythology Lord Rama took jai Samadhi in Saru
River and likewise, Lord Buddha and Lord Mahiaveer their lives by refusing to
take food. Mahatma Gandhi also supported the idea of willful death. Thus trace
of right to die existed in earlier times.
Suicide is not prohibited in both religions. In ancient India suicide was
permissible under certain circumstances. Manu is his commentatary,
Goverdhana and Kulluka, says that man may under-take mahaprasthan on a
journey which ends in death
5
. When he has incurable disease or meats with
great misfortune, and also because it is taught in sastras and it is not opposed to
the vedic rules which forbids suicide. Similarly the practice of so called
Santhara in practiced in jain religion. From these passage it is clear that in
ancient India, voluntary death by starvation was considered to be a benefiting
conclusion of a hermits life. Jain ascetics are also known to consider the

3
Bal krishan The Right ti Die Regancy publication at page 20
4
Calberine Dupre,Human diginity and withdrawal of medical treatment




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practice of starving unto death.
6
In Biddhism also , there have been instances of
monks practicing suicide. In fact suicide was used as political weapon by
Buddhiast monks during the Vietnam war.

The last decade witnessed significant debates over the legalization of
euthanasia. In April 2001, Netherland became the first country in the world to
legalize euthanasia. Prior to it, it was practiced without any legislative force. In
September 2002, Belgium became second country to legalize to Euthanasia.
From November 1994, The Oregon state of U S enacted a physician assisted
suicide law. Recently U K house of lord has blocked a bill which sought to help
terminally ill people to die.
Under the Indian Law, the Courts have forever struck down petitions by
terminally ill petitions seeking a peaceful death with dignity so as to not
harangue their kith and kin during times of their invalidity. The rationale
given by the Courts while dismissing such petitions has forever been of favoring
life over everything else and how it would tantamount to legalizing suicide
(under Section 309 of the Indian Penal Code, attempt to commit suicide is an
offence punishable with imprisonment/fine/both). In certain instances, the
Courts have directed for the medical practitioners to desist from assisted death
practices as a way to uphold the sacred Hippocratic oath which prohibits them
from killing any person under their watch. Nevertheless, a judgment delivered
by the Apex Court in 2011 reopened the debate over mercy killing more so
because the Honble Court managed to draw a fine line between what would
constitute as active and passive euthanasia under the Indian context and how
the latter would not be termed illegal or as a positive act of killing.




KINDS OF EUTHANASIA

Euthanasia can be either active or passive. Passive euthanasia allow one to die
by withholding or withdrawing life supporting means. Life supporting means
may further be ordinary or extra ordinary. Ordinary means such as nutrition and
hydration which are never to be with held since they are ones basic rights in
order to survive. However, one may not be obliges to used extra ordinary means
to sustain life, such a discontinuance of medical treatment which is burdensome,
dangerous, extra ordinary to the expected out come. To withdraw a life
supportive treatment as condition worsen, is letting one die and not a direct

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Mehatihas Commantry on Manu


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killing. In this case, it is the disease that is killing and not the one who withdraw
or consent to withdraw the treatment.

Active euthanasia or mercy killing is direct international killing of a patient with
either consent or without consent when impossible to obtain, (non voluntary),
without consent when not sought (involuntary). Propounders of this theory have
closed their ear to the Gods command: thou shall not kill , The goal is to
eliminate or relive suffering by an evils means of death. The suffering of the
patient may be lessened, but, this act of killing can never be justified. These
patient , whether having incurable disease, being elderly or suffering in the
other ways, are crying out for help and love. Palliative care, not death is answer.
Suffering and pain is manageable in advanced scientific age. Pain killer can be
prescribed as long as there is no danger. Consciousness of patient is strongly
encouraged, so that if dying, one may prepare to accept to meet the Almighty.

LEGAL ASPECT OF EUTHANASIA

In India, both form of euthanasia are prohibited and illegal as per penal law of
the country. However, exception of section 300 of I P C provides that who
accepts to cause voluntary death may suffer less sentence in terms of
punishment prescribed for murder under section 302 of I P C but in case of
physician assisted suicide, the doctor who provides the necessary prescription to
the deceased will be liable for abetment of suicide and may be punished under
section 305 or 306 of I P C.
This issue came for consideration before Delhi high court and it has been held
that section 309 of I P C, 1860 is anachronism and paradox
7
. This decision was
followed by Bombay high court decision which struck down section 309 as
violative of right to life and liberty enshrined in article 21 of the constitution of
India, where as Andhra Pradesh High court held the section 309 as
constitutionally valid
8
. The above issue came before the apex court and has been
held that section 309 I P C is outdate, irrational and cruel after placing reliance
on 42
nd
law Commission report which has recommended deletion of the attempt
to suicide from penal code, 1860
9
. The supreme court has thus recognized, the
right to die in the above case. If a person has right to live, he has right not to
live. The apex court further held that right to life including the right to live
with human dignity would mean the existence of such right up to the end of
natural death. In other words, this may include the right of dying man also to die
with dignity
10
. In 1994, a two years after a five- judge constitutional bench
upheld the validity making attempt. to suicide an offence.

7
State v. Sanjay kumar 1985 Cr. . l. J. 931 Delhi
8
Murti S. dubai v. maharasthra 1987 Cr. L. J. 743 Bombay
9
42 nd aw commission report 1971
10
P. Rathinam v. union of India A I R 1994 S C 1844


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Everyman as per Hindu religion live to accomplish
Dharma, Artha, Kama and Moksha. When earthly objectives are archived,
religion would required a person not to clinch to the body. Thus man has moral
right to terminate his life, because death is simply changing old body in to new
one. Our mythology is full of incidents when our Gods have terminated their
life. Lord Rama took jal Samadhi is saru river and likewise, Lord Buddha and
Lord Mahaveer attained death in similar way. Veer savarkar and Vinoba Bhave
also chosen their lives by refusing to take food. Instances are there where Jain
Munis have terminated their lives by going fast and which is nothing bur
example of passive euthanasia.

On legislative side in April 2001, Netherland became the first country in the
world to legalize euthanasia. Prior to it, it was practiced without any legislative
force, and thereafter Australia has also recognized it. In September 2002,
Belgium became second country to legalize Euthanasia. From November 1994,
The Oregon states of U S enacted a physician assisted suicide law. Recently U
K House of Lords has blocked a bill which sought to help terminally ill people
to die. In India a bill was introduced in 1972 to amend the Indian Penal code by
deleting section 309. it lapsed, and so far no attempt was made to implement
42
nd
law commission report8 which has recommended deletion of the offence of
attempt to suicide from Indian Penal Code, 1860. Now in 2008 taking the first
step towards legalizing euthanasia of mercy killing, law commission has
recommended to allow terminally ill to end their lives to relieve them of long
suffering
11
.
On social side care of the issue was taken in 1981 by social activist Minoo
Massani who formed the society for right to die with dignity (SRDD). After his
death the baton was passed on to well-known urologist, the late Dr B.N.
Colabawalla who too, passed away in 2002 but the cause of dying with dignity
that Masani passionately campaigned for still lives in the hearts and mind of
nearly 200 persons who are member of the SRDD. Dr Dhelia is one of such
member who has left no stone unturned to propagate the cause and with the
efforts of SRDD a bill in the Maharasthra legislature was introduced in 1984 to
legalize mercy killing, but it was dropped for want of support. The SRDD has
also published a document called the living will or IchaMaran. It specifies the
wishes of a person upon the instances of grave illness. The document would
instruct under which circumstances the person would want to be euthanized
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.
Dr. Narang, member of SRDD says concept that God has given life and only he
can take it away is rubbish. He further says that all I can say , please visit the
Tata memorial cancer hospital and spend a day or two there. Children with huge
bulbous growth, old people suffering inhumanely, is that what you call life.
Doctor like Kumar and Narang spent hours passionately debating the concept of

11
Justice A R Lakshmanan, Chairman , Law commission of India
12
Devotees of mercy by Ketan Tanna Published in times of India on 24
th
April


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Euthanasia and its possible legalization in India. In present political scenario
and sentiments of the people, there seems little hope of it become legalized
despite positive recommendation of law commission.
With the advancement of civilization and scientific knowledge, the traditional
moral view has gone sea change. Euthanasia has become debatable issue in
many countries as there has been a steady increase in number of persons seeking
permission to commit it. Consequently, nation around the globe are revising
their laws. It will only be in the fitness of things that the Indian parliament
would also reconsider the end of life issue a fresh in light of recent law
Commission recommendation.
In a landmark judgment, covering a sensitive topic like mercy killing, the
Supreme Court went on distinguish between active and passive euthanasia
and held that causing the death of a person who is in a permanent vegetative
state, with no chance of recovery, by withdrawing artificial life support is not a
positive act of killing. A Bench of Justices Markandey Katju and Gyansudha
Misra held that the difference between active and passive euthanasia was that in
active euthanasia something is done to end the patients life, while in passive
euthanasia something is not done that would have preserved the patients life
and the latter could be permitted on a case-by-case basis. The Honble Court
also added that the judgment allowing passive euthanasia will remain in force
until such time as Parliament enacts a suitable law on euthanasia. Until then, the
following process will be followed:-
a) A special two-judge bench will be formed in every High Court to decide
applications seeking permission for euthanasia;
b) A committee of three reputed doctors from a panel constituted by the High
Court in consultation with the state government will examine the patient and
submit its report to the High Court Bench.
c) Notices will be issued to all those concerned with the doctors report
attached.
d) After hearing everyone, the bench will give its verdict. The matter must be
dealt with speedily as delays prolong the agony of the patient.
In a more recent development to this issue, the Apex Court issued notice to all
States and Union territories on a plea filed with it, stating that the question of
passive euthanasia (mercy killing) needs a comprehensive examination as there
was no authoritative judicial pronouncement on the issue.
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13
Apex court on 16
th
July 2014, issued notice on PIL filed by Common cause society


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The concept of voluntary euthanasia does not appear to be a degrading concept.
If permitted, it can bring an end to the pain and agony which vast number of
persons is suffering from in our country. The fear of misuse is people base less
as checks and balances can take care of such fear. In any case, every law can be
misused; even medicine or molecules can be misused. Does that mean one
should stop manufacturing medicine? It would be quite appropriate to conclude
this article with quote from decision on human rights
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The very essence of the
convention is respect for human dignity without in any way negating the
principle of sanity of life protected under convention, the court consider that it
is under article 8 that notion of the quality of life take on significance in an era
of growing medical sophistication many people are concerned that they should
not be forced to linger on in old age or in states of advanced physical or mental
decrepitude which conflict with strongly held ideas of self and personal
identity
Every individual has the right to a dignified life and a wholesome life. If by an
unfortunate turn of events, he/she is deprived of that right and is rendered
invalid, he should also have the right to end a life which is soldiering on only
due to dependence on others. Desmond Tutu put it succinctly when he wrote in
support of assisted death saying, People should die a decent death. For me that
means having had the conversations with those I have crossed with in life and
being at peace. It means being able to say goodbye to loved ones if possible,
at home. Prolonging a life which has reached a point of no return, through
machines is purely agonizing and nothing more. For the patient as well as his
loved ones. As they often say, Hope in reality is the worst of all evils because it
prolongs the torments of man. Truer words have not been spoken.
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J S Rajawat, Advocate
SPL. P P/ CBI / Jaipur




14
Diny pretty v. U K-2202 . 35 EHRR 1
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