LEGAL PROJECT

COURSE CODE – LAW110

GROUP MEMBERS:

Abdul raheman sudes - 11800971

Muskan sanghi - 11802877

Kiranjot kaur - 11802496

Favasharis - 11803382

1|Page
 TEXT CONTENT
1. INTRODUCTION
2. MEANING OF EUTHANASIA
3. HOSTORIACAL PERSPECTIVE OF
EUTHANASIA
4. TYPES OF EUTHANSAI
5. GLOBAL APPROACH
6. INDIAN LEGISLATIVE OUTLOOK
7. JUDICAIL OUTLOOK
8. SUGGESTION
9. CONCLUSION

2|Page
 EUTHANASIA – MERCY KILLING OR KILLING THE MERCY ??

1. INTRODUCTION

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

Article 21 of Indian Constitution has been held to be the heart of the Constitution, the most organic
and progressive provision in our living constitution, the foundation of our laws. It can only be
claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined in
Article 12. Violation of the right by private individuals is not within the preview of Article 21.
‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing. It does not
connote mere animal existence or continued drudgery through life. It has a much wider meaning
which includes right to live with human dignity, right to livelihood, right to health, right to
pollution free air, etc. Right to life is fundamental to our very existence without which we cannot
live as human being and includes all those aspects of life, which go to make a man’s life
meaningful, complete, and worth living. It is the only article in the Constitution that has received
the widest possible interpretation. The constant, ever-lasting debate on whether ‘Right to Die’ can
also be read into this provision still lingers in the air.1

2. MEANING OF EUTHANASIA

The word ‘Euthanasia’ has been derived from Greek word euthanatos where eu= good and
‘Thanatos’= death. It is a noun and is defined as “the act or practice of killing or permitting the
death of hopelessly sick or injured individuals (such as persons or domestic animals) in a
relatively painless way for reasons of mercy.. Euthanasia is the practice of killing someone who
is very ill and will never get better in order to end their suffering, usually done at their request or
with their consent.

1
Available at https://www.lawctopus.com/academike/aruna-ramchandra-shanbaug-v-union-of-india-case-analysis/
(Last seen on October 4, 2018).

3|Page
 3. HISTORICAL PERSPECTIVE OF EUTHANASIA :

Euthanasia was prevalent right from the ancient times even before man could be civilized. It has
been observed that it was a Tribal Custom. There are various numbers of tribes, primeval and
modern, who deserted their aged. In the rest situations they implemented it because the human
being had reached a definite age or phase of weakening of healthiness. Euthanasia was just not
limited to the elders but even the unwanted infants infirm, was throttled, kept hungry, malnutrition,
or else clomped or beaten to death. At times, these acts were completed at the individual's desire.
This practice was practiced amongst the Eskimos. They deserted them in firms as they were of no
use, worthless to the cluster of settlement they lived in and therefore thought it appropriate to
eliminate them. Similar practice was adopted by the tribes of various islands. Each one had their
own individual reason for this eradication. Some believed it that wicked spirits cling on to the
elderly, ripened people. If kept alive these spirits shall prevail in the area, they lived and cause
trouble to the whole civilization. Some relieved the old on the grounds of compassion. These tribes
administered poison to them and got rid of them as their goal was to spare the person from the
wretchedness they were going through. There were tribes who believed nature to be divine and
submitted to the rule of nature in order of life. In the period around 348-428 BC the concept of this
self killing was condemned, criticized and considered this act shameful, scandalous. It was then
acceptable on social moral values and if done for a justifiable cause. It was in this period that the
concept towards annihilation changed in the real sense. The seeds to look it only from the
compassionate point of view were thus unknowingly sown in the populace.

4. TYPES OF EUTHANASIA2

Euthanasia comes in several different forms, each of which brings a different set of rights and
wrongs. Following are the kinds of euthanasia:

4.1 Active and Passive Euthanasia

2
Available at https://www.merriam-webster.com/dictionary/euthanasia (Last seen on October 4, 2018)

4|Page
In active euthanasia, a person directly and deliberately causes the patient's death. In passive
euthanasia, they don't directly take the patient's life, they just allow them to die.

This is a morally unsatisfactory distinction, since even though a person doesn't 'actively kill' the
patient, they are aware that the result of their inaction will be the death of the patient.

Active euthanasia is when death is brought about by an act - for example when a person is killed
by being given an overdose of pain-killers.

Passive euthanasia is when death is brought about by an omission - i.e. when someone lets the
person die. This can be by withdrawing or withholding treatment:

 Withdrawing treatment: for example, switching off a machine that is keeping a person
alive, so that they die of their disease
 Withholding treatment: for example, not carrying out surgery that will extend life for a
short time.

Traditionally, passive euthanasia is thought of as less bad than active euthanasia. But some people
think active euthanasia is morally better.

4.2 Voluntary and Involuntary Euthanasia

Voluntary euthanasia occurs at the request of the person who dies.

Non-voluntary euthanasia occurs when the person is unconscious or otherwise unable (for
example, a very young baby or a person of extremely low intelligence) to make a meaningful
choice between living and dying, and an appropriate person takes the decision on their behalf.

Non-voluntary euthanasia also includes cases where the person is a child who is mentally and
emotionally able to take the decision, but is not regarded in law as old enough to take such a
decision, so someone else must take it on their behalf in the eyes of the law.

Involuntary euthanasia occurs when the person who dies chooses life and is killed anyway. This
is usually called murder, but it is possible to imagine cases where the killing would count as being
for the benefit of the person who dies.

5|Page
4.3 Indirect Euthanasia

This means providing treatment (usually to reduce pain) that has the side effect of speeding the
patient's death. Since the primary intention is not to kill, this is seen by some people (but not all)
as morally acceptable. A justification along these lines is formally called the doctrine of double
effect.

4.4 Assisted suicide

Assisted suicide usually refers to cases where the person who is going to die needs help to kill
themselves and asks for it. It may be something as simple as getting drugs for the person and
putting those drugs within their reach.3

5.GLOBAL APPROACH:

The general legal position all over the world was that while active euthanasia is illegal unless there
is legislation permitting it; passive euthanasia is legal even without legislation provided certain
conditions and safeguards are maintained. Certain countries had passed legislations to allow for
active euthanasia or doctor assisted suicide. In the former, the physician or someone else
administers it, while in the latter the patient himself does so, though on the advice of the doctor.
This study will look after the provisions under domestic laws of various countries.

NETHERLAND
 In 2002, Netherlands became the first country that has legalized euthanasia and assisted
suicide. It was introduced under the ‘Termination of Life on Request and Assisted suicide
Act’ (2001)
 Certain criteria was laid down by their government which had to be met in order to undergo
euthanasia such as, the patient must be suffering pain that is not bearable by him, the
disease or the illness which he is suffering from must not be curable and the patient must
give his consent for euthanasia to be carried out in complete consciousness.
 Not only euthanasia, but palliative sedation is also becoming a widespread practice these
days, in which all the patients whose life expectancy is below two weeks or less are put

3
Available at http://www.bbc.co.uk/ethics/euthanasia/overview/forms.shtml ( Last seen October 8, 2018 )

6|Page
 into an induced coma, to support which all the nutrition and hydration is withdrawn away
from them.

 In the Netherlands, euthanasia and assisted suicide were effectively legalised through the
use of the defense of necessity in prosecutions of (primarily) doctors for providing
euthanasia
SWITZERLAND:

 Article 115 of the Swiss Penal Code (1937) considers assisting suicide a crime if, and only
if, the motive is selfish. It does not require the involvement of physician nor is that the patient
terminally ill. It only requires that the motive must be unselfish. In Switzerland, euthanasia is
illegal but physician assisted suicide has been made legal. The Code does not give physicians
a special status in assisting suicide; although, they are most likely to have access to suitable
drugs. Ethical guidelines have cautioned physicians against prescribing deadly drugs.
 The Swiss law is unique because (1) the recipient need not be a Swiss national, and (2) a
physician need not be involved. Many persons from other countries, especially Germany,
go to Switzerland to undergo euthanasia.

USA:

 Active Euthanasia is illegal in all states in U.S.A., but physician assisted dying is legal in
the states of Oregon, Washington and Montana. Further, Washington and Montana also
have similar legislations in place. Countries like Belgium, Canada have also joined the
move. On the other hand, countries such as Spain, UK, do not express their solidarity
towards euthanasia.

BELGIUM
Euthanasia was made legal in the year 2002. The Belgian Parliament had enacted the ‘Belgium
Act on Euthanasia’ in September 2002, which defines euthanasia as “intentionally terminating
life by someone other than the person concerned at the latter’s request”. Requirements for
allowing euthanasia are very strict, which includes the patient must be major, has made the
request voluntary, well considered and repeated and he/she must be in a condition of consent
and unbearable physical or mental suffering that can be alleviated. All these acts must be
referred to the authorities before allowing in order to satisfying essential requirements.

7|Page
THE UNITED KINGDOM:

Though Euthanasia is illegal in UK, on November 5, 2006 Britain Royal College of

obstructions and gynecologists submitted a proposal to Nuffield Counsel of Biometrics calling
for consideration of permitting the euthanasia of disabled new born.

6.INDIAN LEGISLATIVE OUTLOOK:

In India, euthanasia is absolutely illegal. If a doctor tries to kill a patient, the case will surely fall
under Section 300 of Indian Penal Code, 1860. but this is only so in the case of voluntary
euthanasia in which such cases will fall under the exception 5 to section 300 of Indian Penal
Code,1860 and thus the doctor will be held liable under Section 304 of Indian Penal Code,1860
for culpable homicide not amounting to murder.
Cases of non-voluntary and involuntary euthanasia would be struck by proviso one to Section 92
of the IPC and thus be rendered illegal. There has also been a confusion regarding the difference
between suicide and euthanasia. It has been clearly differentiated in the case Naresh Marotrao
Sakhre v. Union of India . J. Lodha clearly said in this case.
Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating one's
own act and without the aid or assistance of any other human agency. Euthanasia or mercy killing
on the other hand means and implies the intervention of other human agency to end the life. Mercy
killing thus is not suicide and an attempt at mercy killing is not covered by the provisions of Section
309. The two concepts are both factually and legally distinct. Euthanasia or mercy killing is
nothing but homicide whatever the circumstances in which it is effected.

7.JUDICIAL OUTLOOK

ARUNA RAMCHANDRA SHANBAUG v. UNION OF INDIA4

4
Available at https://www.lawctopus.com/?s=aruna+ramchandra+shanbaug-v-union+of+india (Last seen at october
9,2018)

8|Page
The Hon’ble Supreme Court of India, was approached under Article 32 of the Indian Constitution
to allow for the termination of the life of Aruna Ramchandra Shanbaug, who was in a permanent
vegetative state. The petition was filed by Ms. Pinki Virani, claiming to be the next friend of the
petitioner. The Supreme Court taking cognizance of the gravity of the matter involved and the
allied public interest in deciding about the legality of euthanasia accepted the petition.

FACTS:

It was stated that the petitioner Aruna Ramachandra Shanbaug was a staff Nurse working in King Edward
Memorial Hospital, Parel, Mumbai. On the evening of 27th November, 1973, she was attacked by a sweeper
in the hospital who wrapped a dog chain around her neck and yanked her back with it. He tried to rape her
but finding that she was menstruating, he sodomized her. To immobilize her during this act he twisted the
chain around her neck. The next day, a cleaner found her in an unconscious condition lying on the floor
with blood all over. It was alleged that due to strangulation by the dog chain the supply of oxygen to the
brain stopped and the brain got damaged.

Thirty six years had lapsed since the said incident. She had been surviving on mashed food and
could not move her hands or legs. It was alleged that there is no possibility of any improvement in
the condition and that she was entirely dependent on KEM Hospital, Mumbai. It was prayed to
direct the Respondents to stop feeding Aruna and let her die in peace.

FINDINGS OF THE COURT APPOINTED DOCTORS:

The respondents, KEM Hospital and Bombay Municipal Corporation filed a counter petition.
Since, there were disparities in the petitions filed by the petitioner and respondents, the court
decided to appoint a team of three eminent doctors to investigate and report on the exact physical
and mental conditions of Aruna Shanbaug.

They studied Aruna Shanbaug’s medical history in detail and opined that she is not brain dead.
She reacts to certain situations in her own way. For example, she likes light, devotional music and
prefers fish soups. She is uncomfortable if a lot of people are in the room and she gets distraught.
She is calm when there are fewer people around her. The staff of KEM Hospital was taking
sufficient care of her. She was kept clean all the time . Also, they did not find any suggestion from

9|Page
the body language of Aruna as to the willingness to terminate her life. Further, the nursing staff at
KEM Hospital was more than willing to take care of her. Thus, the doctors opined that that
euthanasia in the instant matter is not necessary.

ISSUES RAISED:

 When a person is in a permanent vegetative state (PVS), should withholding or withdrawal

of life sustaining therapies be permissible or `not unlawful’?
 If the patient has previously expressed a wish not to have life-sustaining treatments in case
of futile care or a PVS, should his/ her wishes be respected when the situation arises?
 In case a person has not previously expressed such a wish, if his family or next of kin makes
a request to withhold or withdraw futile life-sustaining treatments, should their wishes be
respected?

In this case, the consent of Aruna could not be obtained and thus, the question as to who should
decide on her behalf became more prominent. This was decided by beneficence. Beneficence is
acting in the patient’s best interest. Acting in the patient’s best interest means following a course
of action that is best for the patient, and is not influenced by personal convictions, motives or other
considerations. Public interest and the interests of the state were also considered. The mere
legalization of euthanasia could lead to a wide spread misuse of the provision and thus, the court
looked at various jurisprudences to evolve with the safeguards.

JUDGEMENT:

The Hon’ble Division Bench of the Supreme Court of India, comprising Justice Markandey Katju
and Justice Gyan Sudha Mishra, delivered this historic judgment on March 7, 2011. The Court
opined that based on the doctors’ report and the definition of brain death under the Transplantation
of Human Organs Act, 1994, Aruna was not brain dead. She could breathe without a support
machine, had feelings and produced necessary stimulus. Though she is in a PVS, her condition
was been stable. So, terminating her life was unjustified.

Further, the right to take decision on her behalf vested with the management and staff of KEM
Hospital and not Pinki Virani. The life saving technique was the mashed food, because of which

10 | P a g e
she was surviving. The removal of life saving technique in this case would have meant not feeding
her. The Indian law in no way advocated not giving food to a person. Removal of ventilators
and discontinuation of food could not be equated. Allowing of euthanasia to Aruna would mean
reversing the efforts taken by the nurses of KEM Hospital over the years.

GUIDELINES ISSUED BY THE COURT :

1. Thus, the Supreme Court allowed passive euthanasia in certain conditions, subject
to the approval by the High Court following the due procedure.

2. When an application for passive euthanasia is filed, the Chief Justice of the High
Court should forthwith constitute a Bench of at least two Judges, who should decide
to grant approval or not.

3. Before doing so the Bench should seek the opinion of a committee of three reputed
doctors to be nominated by the Bench after consulting such medical
authorities/medical practitioners as it may deem fit.

4. Simultaneously with appointing the committee of doctors, the High Court Bench
shall also issue notice to the State and close relatives e.g. parents, spouse,
brothers/sisters etc. of the patient, and in their absence his/her next friend, and
supply a copy of the report of the doctor’s committee to them as soon as it is
available.

5. After hearing them, the High Court bench should give its verdict.

6. The above procedure should be followed all over India until Parliament makes
legislation on this subject.

However, Aruna Shanbaug was denied euthanasia as the court opined that the matter was not fit
for the same.

Alongside, the court also made a recommendation to repeal Section 309 of the Indian Penal Code.
This case is a landmark case as it prescribed the procedure to be followed in an area that has not
been legislated upon.

11 | P a g e
COMMON CAUSE (A REGISTERED SOCIETY) VS UNION OF INDIA5

FACTS OF THE CASE:

● In the year 2002, Common Cause, a registered society wrote to the Ministries of Law &
Justice, Health & Family Welfare, and Company Affairs, State Governments, on the issue
of the right to die with dignity.
● In 2005, under article 32 of the constitution Common Cause knocked the doors of Supreme
Court with an objective to declare “Right to die” with dignity as a fundamental right under
Article 21.
● It requested the Court to issue directions to the Union Government to allow terminally ill
patients to execute ‘living wills’ for appropriate action in the event that they are admitted
to hospitals.
● As an alternative, Common Cause sought guidelines from the Court on this issue, and the
appointment of an expert committee comprising lawyers, doctors, and social scientists to
determine the aspect of executing living wills.
● On 25th February 2014, a 3 Judge Bench of the Supreme Court comprising the Chief
Justice P. Sathasiavn, Justice Ranjan Gogoi and Justice Shiva Kirti Singh referred the
matter to a larger bench, to settle the issue in light of inconsistent opinions in Aruna
Ramchandra Shanbaug vs Union Of India & Ors (2011) and Gian Kaur vs State of
Punjab (1996).

ISSUES OF THE CASE:

The issues before the court were as follows:
● Whether Article 21 of the Constitution which guarantees the Right to Life includes the
Right to Die?
● Can euthanasia be made lawful only by legislation?
● What is the difference between passive euthanasia and active euthanasia?

5
WRIT PETITION (CIVIL) NO.215 OF 2005.

12 | P a g e
 ● Can individuals be allowed to give ‘Advance Directives’, i.e. directives on medical
treatment if they become incompetent or unable to communicate in the future?

JUDGEMENT OF THE CASE:

● The Supreme Court held that individuals have a right to die with dignity.
● This ruling thus permits the removal of life-support systems for the terminally ill or those
in incurable comas.
● The court also permitted individuals to decide against artificial life support, should the need
arise by creating a living will.
● The Supreme Court also laid down the principles relating to the procedure for execution of
Advance Directive and provided the guidelines to give effect to passive euthanasia in both
circumstances, namely, where there are advance directives and where there are none, in
exercise of the power under Article 142 of the Constitution. The directive and guidelines
laid down by the court shall remain in force till the Parliament brings legislation in the
field. .

JUDGEMENT OF THE CASE

 The High Court upheld the judgement of the Trial Court and thereby rejected the appeal.
 Since the act of committing suicide is itself illegal, the act of abetting suicide is also
automatically a punishable offence.

Thus Gian Kaur and her husband were sentenced to six years’ imprisonment and fine of Rs. 2000
each.

Nikhil Soni Vs Union Of India6,

Decision of the High Court:

6
Available at http://www.lawyerservices.in/Nikhil-Soni-Versus-Union-of-India-and-Others-2015-08-10 (Last seen
on October 16,2018)

13 | P a g e
The Court held that Santhara is an illegal practice and directed the State authorities to stop this
practice and treat it as an attempt to suicide, which is punishable under the Indian Penal Code. The
reasons given by the court were:

1. It is true that the right to life includes the right to die with dignity when life is ebbing out.
However this is not to be equated with the right to die an unnatural death, curtailing the natural
life span. Extinguishing life is different from accelerating the process of natural death that has
already commenced.

2. The right to freedom of religion under Article 25 of the Constitution is subject to public order,
morality and health. Also, the Constitution protects only those practices, which form an ‘essential
part of the religion.’ The Jain scriptures do not preach that Santhara is an essential religious
practice, which must necessarily be undertaken to achieve salvation. Article 25 does not protect
such optional religious practices.

Appeal before the Supreme Court:

Members of the Jain community filed appeals against the decision of the High Court. The Supreme
Court stayed the order of the Rajasthan High Court, which means that the practice of Santhara will
not be considered an offence, at least for the time being, until the Supreme Court declares its
verdict on the issue.

Reactions to the Rajasthan High Court judgment

The judgment has generated a substantial amount of controversy. Some who criticize the judgment
argue that Article 25 does not mention ‘essential religious practices. ’ This phrase, when used by
the Supreme Court in 1950 was used in contradistinction to secular practices and not to
determination of the relative importance of practices within the religion. The judgment
characterizes the objective of Santhara as speedy death, ignoring the fact that there are certain pre
conditions such as terminal illness or a great natural disaster, that are to be fulfilled before a person
takes the oath of Santhara. Others argue that the Constitution does not give courts the authority to
decide what practices are essential to a religion and impose their own interpretation on its
followers.

14 | P a g e
On the other hand, some human rights activists allege that Santhara is a social evil, and that elderly
persons are made to undertake the vow by family members who do not wish to care for them.
Some question whether the decision to take Santhara can truly be called voluntary since it is taken
under the risk of being socially ostracized in case of a change in decision. Others ask what the
rationale is for force feeding protesters on a hunger strike but allowing Santhara to continue
unrestricted.

8.Suggestions
After going into the detail of this topic we could conclude that Euthanasia must be legalized due
to the following reasons:
1.Euthanasia provides a way to relieve the intolerably extreme pain and suffering of an individual.
It relieves the terminally ill people from a lingering death.
2.The essence of human life is to live a dignified life and to force the person to live in an
undignified way is against the person’s choice. Thus it expresses the choice of a person which is a
fundamental principle.
3.In many developing and under developed countries like India, there is lack of funds. There is
shortage of hospital space. So, the energy of doctors and hospital beds can be used for those people
whose life can be saved instead of continuing the life of those who want to die.
4. Article 21 of the Indian Constitution clearly provides for living with dignity. A person has a
right to live a life with at least minimum dignity and if that standard is falling below that minimum
level then a person should be given a right to end his life. As passive euthanasia has been allowed,
similarly active euthanasia must also be allowed. A patient will wish to end his life only in cases
of excessive agony and would prefer to die a painless death rather than living a miserable life with
that agony and suffering. Thus, from a moral point of view it will be better to allow the patient die
painlessly when in any case he knows that he is going to die because of that terminal illness.
5.Its aim is altruistic and beneficial as it is an act of painlessly putting to death to those persons
who are suffering from painful and incurable diseases. So, the motive behind this is to help rather
than harm.
6.It not only relives the unbearable pain of a patient but also relieves the relatives of a patient from
the mental agony.

15 | P a g e
7.A point which is often raised against the supporting euthanasia is that if such right will be granted
to the terminally ill patients then there will be chances of abusing it. But it should be noted that
every right involves a risk of being abused but that doesn’t mean that the right itself should be
denied to the people. We should rather look at the brighter side of it than thinking of it being
abused.

9.Conclusion
The research over euthanasia has to basically commence with the thread bare discussion on the
concept of the life and its various aspects, such as, the value of life, quality of life, sanctity of life,
protection of life.
The quality of life has been evaluated in the clinical and legal perspective, as it targeted the intrinsic
value of life in the course of legalizing euthanasia.
Article 21 of the Indian Constitution guarantees, among other things, life, liberty, privacy, and
human dignity. The Indian judiciary magnificently has broadened the horizon of Article 21 by
providing the widest possible interpretation to include various facets of life under this provision.
Unfortunately, the judiciary has not gathered courage to interpret right to die with dignity as facet
of Article 21.
Another issue which attracted the attention of the researcher is the conflict between the state’s
interesting its duty to protect life and the individual liberty and right to die in terminal illness. A
demarcating line ought to be drawn to strike a balance between the States duty and the individuals
interests. The appeal to the sanctity of life raises here the same crucial political and constitutional
issue that it raises here the same crucial political and constitutional issue that it raises about
abortion.
Bibliography
https://www.lawctopus.com/academike/aruna-ramchandra-shanbaug-v-union-of-india-case-
analysis/
https://www.merriam-webster.com/dictionary/euthanasia
http://www.bbc.co.uk/ethics/euthanasia/overview/forms.shtml
https://www.lawctopus.com/?s=aruna+ramchandra+shanbaug-v-union+of+india
WRIT PETITION (CIVIL) NO.215 OF 2005
http://www.lawyerservices.in/Nikhil-Soni-Versus-Union-of-India-and-Others-2015-08-10

16 | P a g e