STATUS OF EUTHANASIA

BY
RUPALI GUPTA
ENROLLMENT NO: A8111114049

This Project Report Is Submitted for partial fulfillment of the degree

Of
B.A. L.L.B.(HONS)

UNDER THE GUIDANCE OF

MS. JYOTSANA SINGH
(Assistant Professor)

AMITY LAW SCHOOL

AMITY UNIVERSITY, LUCKNOW CAMPUS UTTAR PRADESH
DECLARATION

Titleofproject:-

STATUS OF EUTHANASIA

Report……………………………………………………………………

I understand what plagiarism is and am aware of the University’s policy in this

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I declare that

(a) The work submitted by me in partial fulfillment of the requirement for the

award of degree B.A.,LLB(H) Assessment in this LEGAL WRITING is my own; it

has not previously been presented for another assessment.

(b) I declare that this LEGAL WRITING is my original work. Wherever work

from other source has been used, all debts (for words, data, arguments and ideas)

have been appropriately acknowledged and referenced in accordance with the

requirements of NTCC regulations and Guidelines.

(c) I have not used work previously produced by another student or any other

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(d) I have not permitted, and will not permit, anybody to copy my work with the

purpose of passing it off as his or her own work.

(e) The work conforms to the guidelines for layout, content and style as set out

in the Regulations and Guidelines.

Date : ………………

Rupali Gupta

A8111114049

B.A.,LLB(H)
CERTIFICATE

I hereby certify that

(a) Rupali Gupta , A8111114049 Student of B.A.,LLB(H) (2014-2019) at Amity

University Uttar Pradesh has completed the Project Report on “STATUS OF

EUTHANASIA ”, during Semester 9th under my supervision.

(b) The presented work embodies original research work carried out by the student

as per the guidelines given in University Regulations.

(c) The Research and writing embodied in the thesis are those of the candidate

except where due reference is made in the text.

(d) I am satisfied that the above candidate’s prima facie, is worthy of examination

both in terms of its content and its technical presentations relative to the standards

recognized by the university as appropriate for examination.

(e) I certify that in accordance with NTCC guidelines, the report does not exceed

the prescribed maximum word limit; or Prior approval has been sought to go

beyond the word limit.

(f) Wherever work form other source has been used, all debts (for words, data,

arguments and ideas) have been appropriately acknowledge and referenced in

accordance with the requirements of NTCC Regulations and Guidelines.

Signature of the Faculty

Ms. Jyotsana singh

Assistant professor
TABLE OF CONTENTS

INTRODUCTION…………………………………………………………………

CHAPTER…………………………………………………………………………3

ANOTHER

CHAPTER……………………………………………………………5

A section of the second chapter……………………………………………6

Another section ……………………………………………………………8

Subsection of the section…………………………………………..10

Another Subsection…………………………………………….….10

Subdivision of the third level……………………….……..11

Further subdivision………………………………….…….12

ANOTHER

CHAPTER………………………………………………….………..15

SUMMARY AND

CONCLUSION……………………………………….………18
APPENDIX A. TITLE OF THE FIRS

APPENDIX………………………………20

APPENDIX B. ANOTHER

APPENDIX…………………………….……………21

REFERENCES……………………………………………………….……………
LIST OF ABBREVIATIONS

 SC- Supreme Court

 HC- High court

 IPC- Indian Penal Code

 CRPC- criminal procedure code

 KEM- King Edward Memorial Hospital

 PVS- Persistent Vegetative State

 CJI- Chief Justice Of India

 UN- United Nations

 MTTIP - Medical Treatment Of Terminally ill Patient

 IAPC- Indian Association of Palliative Care.

 ISCCM-Indian Society Of Critical Care Medicine

1. INTRODUCTION

For over forty years – exactly forty one years and 173 days, for not a flash of suffering have to

be compelled to be discounted, Aruna Shanbaug remained locked up in ward number four of

KEM hospital, Parel, Mumbai. Her struggle to die ended on could eighteen,2015. The absence of

bed sores on Aruna’s dying body was celebrated and therefore the nurses’ tremendous

“attachment” to her was much exalted. All this, despite the bitter indisputable fact that Aruna

lived a life, to use Peter Singer’s words, “so miserable as to not be price living”.(1)1

In March 2011, owing to pinky Virani’s unflagging efforts,the Supreme Court of india deemed

passive mercy killing legal.A detailed discussion of the different ways of implementing passive

euthanasia is due, given the equivocality of the term in the legal document. I hope to throw some

light on many inconsistencies within the verdict’s arguments in favour of passive euthanasia (and

against active euthanasia). beyond the legal debates that ensued, euthanasia needs serious ethical

1
. Singer P. Practical ethics. 2nd ed. Melbourne: Cambridge University Press;
reflection in India. We appear to intuitively perceive that the pain of aching knees is qualitatively

completely different from the pain of chronic cancer paralysis or coma. maybe it's not possible to

analyse and define what this distinction extremely is, each in medical and moral terms. Despite

this ambiguity, the medical fraternity should deal intimately with pain – by finding out its causes

yet as the preventive and measures, by treating it and by simply witnessing it. By virtue of their

profession, are doctors morally duty-bound to “care” for patients, “heal” their pain and thereby,

sustain their lives “unconditionally”? it's necessary to note at the first that the discourse on

euthanasia begins by answering this question in the negative; thence follows another, additional

puzzling question. What are the virtuously permissible ways of implementing euthanasia, given

that the patient is definite to die a slow and painful death as a result of medical condition (like

that of Aruna)?

In this paper, I begin by explicating the condition for the possibility of euthanasia in terms of the

following ethical principle: the doctor got to provide priority to the patient’s suffering over the

patient’s life. I argue that the shape of passive euthanasia that has been lawfully permissible ,

owing to the consequences it entails for the patient. Inevitably, it's acts of commission on the a

part of the doctor that may offer the simplest possible death, that is that the ethical objective of

euthanasia. In order to satisfy this objective, doctors should be seen as agents who possess the

ethical integrity and technical experience to judge once and how the patient’s life got to be

terminated, depending on the patient’s medical condition.

The perception isn't always identical at each stage. There comes a introduce life once the spring

of life is frozen, the rain of circulation becomes dry, the movement of body becomes nonmoving

, the rainbow of life becomes colourless and the word ‗life‘ which one calls a dance in house and
time becomes still and blurred and the inevitable death comes near to hold it as an octopus

absorbing firmly with its tentacles thus that the person ―shall get on my feet never‖. the

traditional Greet philosopher, Epicurus, has said, though during a totally different

context:

Why ought to I worry death? If I am, then death isn't. If death is, then i'm not. Why ought to I

worry that which can only exist when I do not?‖ But there's a misconception within the same

proposition. it's because mere existence doesn't amount to presence.

And generally there is a feebleness of feeling of presence in semi-reality state when the concept

of abstract identity is lost, quality of life is sunk and the sanctity of life is destroyed and such

destruction is denial of real living. ernest hemingway, in his book ‗The recent Man and also the

Sea‘, expounds the concept that man may be destroyed, however can not be defeated. during a

sure context, it can be said, life sans dignity is Associate in Nursing unacceptable defeat and life

that meets death with dignity could be a worth to be aspired for and a moment for celebration.

The question that emerges is whether an individual should be allowed to stay in such a stage of

incurable passivity suffering from pain and anguish in the name of Hippocratic oath or, for that

matter, regarding the suffering as solely a state of mind and a relative perception or treating the

utterance of death as a ―word infinitely terrible‖ to be a rhetoric withoutany meaning. In

contradistinction to identical, the question that arises is should he not be allowed to cross the

doors of life and enter, painlessly and with dignity, into the dark tunnel of death whereafter it is

same that there's resplendence. In delineation of such an issue, there emerges the question in law

– should he or she tend such treatment that has come into existence with the passage of your time

and progress of medical technology so he/she exists presumably not realizing what happens
around him/her or ought to his/her individual dignity be sustained concernedly by smoothening

the method of dying.

THE LEGALISATION OF EUTHANASIA: A LITERATURE REVIEW

Ethical or non-ethical? ethical or immoral? Dignified death or plain murder? everybody is aware

of what pain is; as luck would have it not everybody is aware of what unendurable, constant,

acute pain is. never the less there are those unfortunate people whom are terminally sick and

know so much too well this type of pain. The pains which will create them cry and scream, beg

for a lot of pain medication and even want for his or her death. The question is- do they actually

need their death? Or is it simply that moment during which the pain is just too much? after they

are irrational and wish to finish their lives. As a Indian citizen one is protected against cruel and

weird punishment. Is looking at somebody die slowly and painfully not cruel? Is looking at

somebody finish their life not unusual? These are all the queries raised by the continuing

perplexity of the legalisation of euthanasia.

PROJECT OBJECTIVE(s)

The present study was designed to investigate the attitudes of doctors, lawyers and

academics after legalizing passive euthanasia and physician assisted suicide in

context of their gender, age and length of experience. this study rotated

around four dimensions of the matter under investigation: (i) favourable or

unfavourable attitude of respondents after legalizing passive euthanasia in India;

(ii) the reasons that accounted for their supporting or opposing legitimation of

euthanasia; (iii) the things involved in legalizing the same; and (iv) suggestions for

minimizing or eliminating the risk of its abuse or misuse. the following objectives

were set to be achieved by this study: (1) to explore and determine the
attitudes of the Doctors, Lawyers and academics after legitimation of

passive euthanasia as well as physician assisted suicide and its forms; (2) to
compare their attitudes among themselves with reference to 3 social variables
particularly,

gender, age and length of experience in the profession; (3) to explore and ascertain

their arguments for and against euthanasia as well as the bases of their attitudes;

(4) to grasp and identify the possible areas of the chance of abuse after legitimation
of Passive euthanasia by the patient himself, his family relations or surrogates and
medical professionals; (5) to explore the {ways|ways that|ways in which} and
means by which the abuse of passive euthanasia is reduced or eliminated.
METHODOLOGY TO BE ADOPTED

research discussion and interpretation of empirical data gathered from the field

leads the researcher to end result of his research endeavour by presenting the

summary of his findings and drawing certain conclusions associated with the matter

chosen for investigation. The aim of the current chapter is to do a similar.

Obviously, the logic of analysis demands that the findings ought to be presented in

the context of the objectives of the study in order that it becomes possible to understand the

extent to which the objectives have been achieved. so as to do a similar it is

proposed to present the research endeavour in a nutshell along with its major

findings and conclusions drawn below the subsequent sub-heads: (1) The analysis

Problem: Its Objectives and research Methodology; (2) Major Findings; (3)

Inferences and Implications; and (4) Suggestions for more research.

2. RIGHT TO LIFE

From the second of his birth, a individual is clothed with primary human rights. Right to life is

one of the basic as nicely as fundamental right besides which all rights can't be enjoyed. Right to

life says a human being has an imperative right to live, particularly that such human being has

the right not to be killed by way of every other human being2. But the question arises that if a

person has a right to live, whether or not he has a right not to live i.e whether he has a right to

die? Whiling giving this answer, the Indian courts expressed one of a kind opinions. In M.S

Dubal vs. State of Maharastra3, the Bombay High Court held that right to existence below article

21 of the Indian Constitution consists of ‘right to die’. On the other hand in Chenna Jagadeeswar

vs. State of AP4, the AP High Court stated that right to die is not a imperative right underneath

Article 21 of the Constitution. However in P. Rathinam’s case 5 Supreme Court of India

discovered that the ‘right to live’ includes ‘right now not to live’ i.e right to die or to terminate

2
Rattan Singh, “Right to life and personal liberty”: journal of legal studies.
3
M.S Dubal vs State of Maharastra, CrLJ 549 AIR 1987
4
Chenna Jagadeeswar vs State of A.P, CrLJ 549 AIR 1988
5
P.Rathinam vs Union of India, 3 scc 394, AIR 1994
one’s life. But again in Gain Kaur vs State of Punjab, a 5 member bench overruled the

P.Rathainam’s case and held that right to lifestyles under Article 21 does now not encompass

Right to die or right to be killed.

‘Right to life’ which includes the right to live with human dignity would imply the existence of

such right up to the end of natural life. This may encompass the right of a dying man to die with

dignity. But the ‘right to die with dignity’ is now not to be taken with the ‘right to die’ an

unnatural death curtailing the natural span of life. Thus the idea of right to existence is central to

the debate on the issue of Euthanasia. One of the controversial troubles in the current past has

been the question of legalizing the right to die or Euthanasia. Euthanasia is controversial

considering that it includes the deliberate termination of human life. Patient struggling from

terminal ailments are regularly faced with notable deal of ache as the diseases steadily worsens

till it kills them and this may additionally be so horrifying for them that they would as an

alternative cease their existence than struggling it. So the question is whether humans have to be

given help in killing themselves, or whether or not they must be left to suffer the pain motive via

terminal illness.

‘Right to life’ which includes the right to live with human dignity would mean the existence of

such right up to the cease of natural life. This might also consist of the right of a dying man to

die with dignity. But the ‘right to die with dignity’ is not to be careworn with the ‘right to die’6

an unnatural dying curbing the natural span of life. Thus the thought of right to life is central to

the debate on the difficulty of Euthanasia. One of the controversial troubles in the current

6
J.N Sharma, “Right to die in terminally ill state”: A plea to legalize euthanasia in Law journal, Maharshi Dayanand
Universit
previous has been the query of legalizing the right to die or Euthanasia. Euthanasia is

controversial considering that it entails the deliberate termination of human life. Patient suffering

from terminal illnesses are regularly confronted with awesome deal of pain as the ailments step

by step worsens until it kills them and this can also be so frightening for them that they would as

an alternative give up their life than suffering it. So the query is whether people have to be given

help in killing themselves, or whether or not they need to be left to suffer the pain reason through

terminal illness.

2.1.CONCEPT OF EUTHANASIA

The term Euthanasia comes from two Ancient Greek words: ‘Eu’ says ‘Good’, and ‘thantos’ says

‘death’7, so Euthanasia means good death. It is an act or practice of ending the existence of an

person struggling from a terminal illness or in an incurable condition by injection or by way of

suspending greater normal medical cure in order to free him of insupportable pain or from

terminal illness.Euthanasia is defined as an intentional killing by an act or omission of individual

whose life is felt is not to be well worth living. It is also acknowledged as ‘Mercy Killing’ which

is an act the place the man or woman who, is in an irremediable situation or has no probabilities

of survival as he is struggling from painful life, ends his lifestyles in a painless manner. It is a

gentle, convenient and painless death. It implies the paying for of an individual’s death, so as to

7
http://www.euthanasia.com/
avoid or quit ache or suffering, particularly of individuals suffering from incurable diseases.

Oxford dictionary8 defines it as the painless killing of a individual who has an incurable disorder

or who is in an irreversible coma. According to the House of Lords select Committee on Medical

Ethics, it is “a deliberate intervention underneath taken with the specific intention of ending life

to relieve intractable suffering”.Thus it can be stated that Euthanasia is the deliberated and

intentional killing of a human being by using a direct action, such as deadly injection, or by way

of the failure to perform even the most primary medical care or by way of withdrawing life

support system in order to release that human being from a painful life. It is basically to carry

about the dying of a terminally sick patient or a disabled. It is resorted to so that the last days of a

affected person who has been struggling from such an illness which is terminal in nature or

which has disabled him can peacefully cease up his existence and which can also show to be

much less painful for him. Thus the basic intention in the back of euthanasia is to make sure a

less painful loss of life to a individual who is in any case going to die after a lengthy length of

suffering. Euthanasia is practiced so that a person can stay as well as die with dignity. In brief, it

potential putting a character to painless dying in case of incurable ailments or when existence

grow to be motive much less or hopeless as a result of mental or physical handicap

This research paper therefore deals with one of the most debated topics in the world, is

euthanasia. The debate is concerning the legalization of euthanasia. This debate is a continuing

one as some human beings are of the view that life is sacred and no one has received the right to

8
Oxford Advanced Learner’s Dictionary of Current English. (2000). Sixth Edition. ; Oxford University
Press
quit it whereas on the different hand some say that existence belongs to oneself and so each

individual has bought the right to figure out what he desires to do with it even if it quantities to

dying.

In our day to day lifestyles we frequently come throughout terminally ill patients that are

bedridden and are absolutely established on others. It certainly hurts their sentiments. Looking at

them we would say that loss of life would be a better option for them as a substitute than residing

such a painful life; which is painful physically as well as psychologically. But if on the other

hand we appear at the Netherlands where euthanasia is made legal, we will see that how it is

abused there. So following its example, no one wishes euthanasia to be legalized in India. But

the query that lies before us is which will be a higher option. In this paper, some simple troubles

related to euthanasia are mentioned and then it is left to the reader to determine which route

would be better: legalizing or not legalizing euthanasia. Although the Supreme Court has already

given its selection on this issue, yet some doubts persist on its execution.

2.2.DIFFERENCE BETWEEN SUICIDE AND EUTHANASIA:

There is a conceptual distinction between suicide and euthanasia. In a suicide a man voluntarily

kills himself by stabbing, poisoning or by using any different way. No doubt in suicide one

intentionally attempts to take his life9. It is an act or occasion of intentionally killing oneself

frequently due to despair or some motives such as frustration in love, failure in examinations or

9
Dr.S.S Jaswal and Subhash C. Baseen in Protection of life vis-à-vis Extinction of life: Civil and Military law Journal,
Page no-90
in getting a correct job etc. on the other hand, in euthanasia there is an motion of some different

man or woman to bring to an cease the existence of a third person. In euthanasia, a third person

is either actively or passively concerned i.e he aids or abets the killing of every other person. It is

necessary to point out in this context that there is also a distinction between ‘assisted suicide’ and

‘euthanasia’. Assisted suicide is an act which deliberately helps another to commit suicide, for

instance by offering him with the capacity to do so. When it is a physician who helps a patient to

kill himself (by offering a prescription for lethal medication) it is a ‘physician assisted suicide’.

Thus, in assisted suicide the affected person is in entire manipulate of the system that leads to

death due to the fact he/she is the man or woman who performs the act of suicide. The other

character in reality helps (for example, providing the capacity for carrying out the action). On the

different hand euthanasia may additionally be energetic such as when a health practitioner offers

a deadly injection to a patient or passive such as when a doctor eliminates life support gadget of

the patient.

2.3. TYPES OF EUTHANASIA

Euthanasia is a complicated matter; there are many different kinds of euthanasia. Euthanasia may

additionally be categorised according to consent into three types.

1. Voluntary euthanasia- when the person who is killed has requested to be killed.
2. Non-voluntary euthanasia- when the person who is killed made no request and gave no

consent. In other words, it is performed when the person is unable to communicate his wishes,

being in coma.

3. Involuntary euthanasia- when the person who is killed made an expressed wish to the contrary.

In other words, it is involuntary when the individual killed gives his consent not to die.

There is a debate inside the clinical and bioethics literature on whether or no longer the non-

voluntary or involuntary killing of men and women can be regarded as euthanasia, irrespective of

consent. Some say that consent is now not viewed to be one of their criteria. However others see

consent as essential. According to them killing of a character barring the person’s consent (non-

voluntary or involuntary) is now not euthanasia. It is murder and consequently euthanasia can be

voluntary only. Euthanasia can be additionally divided into two kinds in accordance to skill of

death.

2.4. TYPES OF EUTHANASIA (skill of death)

1. Active Euthanasia- it is additionally recognized as ‘Positive Euthanasia’ or ‘Aggressive

Euthanasia’. It refers to inflicting intentional demise of a human being through direct

intervention. It is a direct motion performed to end vain existence and a meaningless existence.

For example via giving deadly dose of a drug or with the aid of giving a deadly injection. Active

euthanasia is commonly a faster potential of causing demise and all forms of active euthanasia

are illegal.
2. Passive Euthanasia- it is also regarded as ‘Negative Euthanasia’ or ‘Non-Aggressive

Euthanasia’. It is intentionally inflicting death via now not supplying essential, vital and ordinary

care or food and water. It implies to discontinuing, withdrawing or doing away with synthetic

life help system. Passive euthanasia is normally slower and more uncomfortable than active.

Most types of voluntary, passive and some occasion of non-voluntary, passive euthanasia are

legal.

There is no euthanasia except the dying is deliberately caused with the aid of what was once

executed or now not done. Thus, some scientific actions frequently levelled as ‘Passive

Euthanasia’ are no structure of euthanasia, because intention to take existence is lacking. These

acts include now not go-off cure that would now not furnish a gain to the patient, withdrawing

therapy that has been proven to be ineffective, too burdensome or is unwanted, and the giving of

excessive doses of pain-killers that may endanger life, when they have been proven to be

necessary. All those are section of rightly clinical practice, recommended by means of law, when

they are exact carried out.

2.5. GLOBAL POSITION OF EUTHANASIA

2.5.1 ENGLAND

following a collection of choices of the House of Laws bearing on to euthanasia differ

substantially and are continuously problem to adjustments as cultural values shift and better
‘Palliative care’ or redress grow to be available. In some countries it is legalised or in others, it is

criminalized.

2.5.2 AUSTRALIA

The Northern Territory of Australia became the first country to legalize euthanasia with the aid

of passing the Rights of the Terminally ILL Act, 1996. It was once held to be prison in the case

of Wake v. Northern Territory10 of Australia by means of the Supreme Court of Northern

Territory of Australia. Subsequently the Euthanasia Laws Act, 1997 legalised it. Although it is a

crime in most Australian states to help euthanasia, prosecution have been rare. In 2002, the

remember that the household and friends who provided moral help to an elder female to commit

suicide used to be considerably investigated by means of police, but no prices had been made. In

Tasmania in 2005, a nurse was convicted of assisting in the death of her mother and father who

had been both struggling from incurable illnesses. She was once sentenced to two and 1/2 years

in prison but the judge later suspended the conviction due to the fact he believed the

neighborhood did no longer prefer the girl put behind bars. This sparked debate about

decriminalization of euthanasia.

2.5.3 ALBANIA

10
(1996) 109 NTR 1
Euthanasia was legalized in Albania in 1999, it was once noted that any structure of voluntary

euthanasia used to be prison below the rights of the Terminally ILL act of 1995. Passive

euthanasia is viewed criminal if three or greater family contributors consent to the decisions.

2.5.4.BELGIUM

Euthanasia was made legal 2002. The Belgian Parliament had enacted the ‘Belgium Act on

Euthanasia’ in September 2002, which defines euthanasia as “intentionally terminating lifestyles

through anyone different than the person worried at the latter’s request”.Requirements for

permitting euthanasia are very strict which includes the patient must be major, has made the

request voluntary, nicely regarded and repeated and he/she need to be in a circumstance of

consent and insufferable physical or mental suffering that can be alleviated. All these acts should

be referred to the authorities before permitting in order to satisfying vital requirements.

2.5.5. NETHARLANDS

Netherlands is the first U.S.A in the world to legalise both euthanasia and assisted suicide in

2002. According to the penal code of the Netherlands killing a person on his request is

punishable with twelve years of imprisonment or best and also a assisting a character to commit

suicide is also punishable by imprisonment up to three years or fine. In spite of this provision,

the courts of Netherlands have come to interpret the regulation as offering a defence to expenses

of voluntary euthanasia and assisted suicide. The defence allowed is that of necessity. The
standards laid down by means of the courts to determine whether or not the defence of necessity

applies in a given case of euthanasia, have been summarized via Mrs. Borst-Eilers as follows;

1. The request for euthanasia ought to come solely from the affected person and must be totally

free and voluntary.

2. The patient’s request should be rightly considered, long lasting and persistent.

3. The patient must be experiencing intolerable (not necessarily physical) suffering, with no

prospect of improvement.

4. Euthanasia have to be the ultimate resort. Other picks to alleviate the patient’s state of affairs

should be viewed and found wanting.

5. Euthanasia need to be carried out with the aid of a physician.

6. The medical doctor have to consult with an impartial health practitioner colleague who has

journey in this field.

Thus, even though lively euthanasia is technically illegal in the Netherlands, it is regarded

justified (not legally punishable) if the physician follows the guidelines11.

In 2002, Netherlands legalised euthanasia. The law codified a 20 years historical convention of

now not prosecuting docs who have committed euthanasia in very specific cases, beneath very

particular circumstances. It permits a health practitioner to stop the lifestyles of a patient

struggling unbearable pain from an incurable condition, if the patient so requests. The law

11
Euthanasia in the Netherlands.Euthanasia, assisted suicide and nonresuscitation on request [cited 2015
November 9]. Available from: https://www.government.nl/topics/euthanasia/contents/euthanasiaassisted-
suicide-and-non-resuscitation-on-request
requires a lengthy standing health practitioner affected person relationship, patient’s focus of

different on hand scientific selections and that the patient need to have bought a second expert

opinion.

2.5.6. CANADA

In Canada, patients have the right to refuse existence sustaining remedies but they do no longer

have the right to demand for euthanasia or assisted suicide. The Supreme Court of Canada in

Rodriguez vs Attorney12,1994 General for British Columbia said that in the case of assisted

suicide the pastime of the state will be successful over individual’s interest.

2.5.7. U.S.A

There is a distinction between passive euthanasia and active euthanasia. While lively euthanasia

is prohibited however medical doctors are not held in charge if they withhold or withdraw the

existence sustaining treatment of the patient both on his request or at the request of patient’s

authorized representative. Euthanasia has been made completely illegal with the aid of the

United States Supreme Court in the cases Washington v. Glucksberg13 and Vacco v. Quill14.

Only in Oregon, a kingdom in America, health practitioner assisted suicide has been legalized in

1994 beneath Death and Dignity Act. In April 2005, California State legislative committee

accredited a invoice and has turn out to be 2nd state to legalise assisted suicide.

12
(1993) 3 SCR 519
13
521 US 702 (1997)
14
521 US 793 (1997)
2.5.8. ENGLAND

Lords it is now settled that a person has a right to refuse lifestyles sustaining cure as phase of his

rights of autonomy and self- determination. The House of Lords additionally authorised non

voluntary euthanasia in case of patients in a persistent vegetative state. Moreover in a latest case,

a British High Court has granted a woman, paralyzed from neck, the right to die through having

lifestyles aid gadget switched off( Dr. S.S Jaswal and S.C Baseen,civil and navy law journal,p.g-

90).

2.5.9. THE UNITED KINGDOM

Euthanasia is unlawful in United Kingdom however on November 5, 2006 Britain Royal College

of obstructions and gynaecologists submitted a notion to the Nuffield Counsel of Bioethics

calling for consideration of permitting the euthanasia of disabled new-born.

2.5.10. SWITZERLAND

According to Article a hundred and fifteen of Swiss Penal Code, suicide is not a crime and

supporting suicide is a crime if solely if the cause is selfish. It does not require the involvement

of medical doctor nor is that the patient terminally ill. It only requires that the rationale have to

be unselfish. In Switzerland, euthanasia is unlawful but medical doctor assisted suicide has been
made legal. However decriminalizing euthanasia used to be tried in 1997 but it recommended

where a non- doctor helper would have to be prosecuted whereas the doctor would not.

CONSTITUTIONAL RIGHTS

Death is no longer a right, it is the end of all rights and a fate that none of us can escape. we are

as human beings have the right to life, an inalienable right now not even the man or woman who

possesses it can in no way take that away. It is comparable to the fact that our right to liberty

does not give us the freedom to sell ourselves into slavery. In addition, this right to die does no

longer equal a right to ‘die with dignity.’ Dying in a dignified manner relates to how one

confronts death, not the manner in which one dies considering that records recounts many

conditions of individuals dealing with degrading deaths in a dignified way. Of course, what this

objection absolutely relates to is the supposed lack of dignity of forcing someone to undergo

struggling rather than permitting them to cease their life. However better pain reducing strategies

are a greater ethical answer to this hassle than killing these who are suffering. The question

whether Article 21 includes right to die or not first got here into consideration in the case STATE

OF MAHARASHTRA V. MARUTI SHRIPATHI DUBAL15 . It used to be held in this case

through the Bombay High Court that ‘right to life’ additionally consists of ‘right to die’ and

Section 309 was struck down. The court docket honestly stated in this case that right to die is no

longer unnatural; it is simply special and abnormal. Also the court docket cited about many

instances in which a person might also favor to end his life. This was upheld by using the

Supreme Court in the case P. Rathinam v. Union of India. However in the case Gian Kaur v.

State of Punjab16 it used to be held via the five decide bench of the Supreme Court that the “right

15
M.S Dubal vs State of Maharastra, CrLJ 549 AIR 1987
16
Gian Kaur vs State of Punjab, 2 scc 648, AIR 1996
to life” assured by means of Article 21 of the Constitution does not encompass the “right to die”.

The court docket definitely cited in this case that Article 21 only guarantees right to existence

and non-public liberty and in no case can the right to die be blanketed in it. In India, like nearly

in other countries, euthanasia has no criminal aspect. The every act of helping and abetting the

fee of suicide are punished underneath the section 306 of the I.P.C. Distinguishing euthanasia

from suicide, Justice Lodha in NARESH MARATRA SAKHEE VS UNION OF INDIA,

observed that, “suicide by using its nature is an act of self-killing or self-destruction, an act of

terminating one’s own act and barring the aid or help of any other human agency. Euthanasia or

Mercy killing on the different hand potential implies the intervention of other human

organization to end the life. Mercy killing is therefore now not suicide and the provision of area

309 does no longer cover an attempt at mercy killing. The two standards are each factually and

legally distinct. Euthanasia or Mercy killing is nothing fine homicide anything the instances in

which it is affected.”

In case of physicians, there is an intention to cause demise of patient, subsequently he can be

charged beneath clause (1) of section 300 of I.P.C however the place there is legitimate consent

of the deceased, exception 5of section 300 is attracted and therefore the act of the physician is

viewed as culpable homicide not amounting to murder under Part I of section 304. In case of

non-voluntary and involuntary euthanasia, the act of health practitioner can be fall below area 88

and 92 of IPC as there is an intention to causing death of a affected person for his benefit. And

different spouse and children who are conscious of such intention either of the patient or of the

health practitioner can be charged under part 202 of IPC. The Supreme Court explained the role

of Indian regulation on euthanasia in M.S.Dabal vs state of Maharashtra as under:

“Mercy killing is nothing however homicide, something the circumstances in which it is

affected. Unless it is specially prevalent it can't be offences. Indian Penal Code further punishes

not only abetment of homicide, however also abetment of suicide”.

2.6. ARGUMENTS AGAINST EUTHANASIA

The followings are the arguments towards euthanasia17:

1. The human lifestyles is present of God and taking life is wrong and immoral human beings

can't be given the right to play the phase of God. The one who suffers pain is only due to one’s

karma. Thus euthanasia devalues human life.

2. It is completely against clinical ethics, morals and public policy. Medical ethics call for

nursing, care giving and recovery and not ending the life of the patient. In the existing time,

scientific science is advancing at a remarkable pace. Thus even the most incurable illnesses are

becoming curable today. Thus as an alternative of encouraging a patient to give up his life, the

scientific practitioners need to motivate the patients to lead their painful life with electricity

which need to be ethical as nicely as physical. The choice to ask for euthanasia is not made

totally via the patient. Even the family of the patient pay an essential position in doing that.

Hence, it is in all likelihood that the patient comes under stress and takes such a drastic step of

ending his life. Of direction in such instances the stress is now not physical, it is alternatively

17
Rattan Singh in “Right to life and personal liberty: Some arguments with special reference to Euthanasia” in
Journal of legal studies
moral and psychological which proves to be an awful lot stronger. The patient himself starts to

feel that he is a burden on the loved ones when they take such a selection for him and in the end

he additionally succumbs to it.

3. It is feared that if euthanasia is legalised then other groups of extra inclined humans will end

up at danger of feeling into taking that choice themselves. Groups that signify disabled human

beings are in opposition to the legalisation of euthanasia on the ground that such agencies of

inclined humans would feel obliged to decide for euthanasia as they might also see themselves as

a burden to society.

4. It has a slippery slope effect, for instance first off it can be legalised solely for terminally sick

people however later on legal guidelines can be changed.

5. Acceptance of euthanasia as an alternative could exercising a detrimental impact a societal

attitudes and on the medical doctor patient relationship. The physician patient relationship is

based on mutual trust, it is feared this trust might also be lost if euthanasia is legalised.

6. When suicide is no longer allowed then euthanasia ought to also no longer be allowed. A man

or woman commits suicide when he goes into a country of depression and has no hope from the

life. Similar is the state of affairs when a individual asks for euthanasia. But such tendency can

be lessened by way of acceptable care of such patients and displaying hope in them.
7. Patient would no longer be capable to believe both medical doctors or their household as many

of them had been taking about patient’s painless dignified death and it grew to be a euphemism

for assisted murder.

8. Miracles do occur in our society particularly when it is a matter of lifestyles and death, there

are examples of sufferers coming out of coma after years and we need to now not forget human

lifestyles is all about hope.

2.7. ARGUMENTS FOR EUTHANASIA

Followings are the motives to legalise euthanasia;

1. Euthanasia capability ending the lifestyles a individual who is struggling from some terminal

sickness which is making his existence painful as rightly as miserable or in different words

ending a existence which is no longer worth living. But the problem is that how should one

decide whether or not his existence is any longer worth residing or not. Thus, the term euthanasia

is rather too ambiguous. This has been a topic for debate considering that a long time i.e. whether

euthanasia need to be allowed or not. At present, the debate is basically involving energetic

euthanasia alternatively than passive euthanasia. The dispute is involving the conflicts of

interests: the hobby of the society and that of the individual. Which out of these must succeed

over the other? According to the supporters of euthanasia the decision of the sufferers ought to

be accepted. If on the other hand we weigh the social values with the man or woman hobby then

we will surely see that here the activity of the individual will outweigh the pastime of the society.

The society goals at hobby of the humans as an alternative it is made with the reason of assuring

a dignified and a peaceful existence to all. Now if the individual who is below unbearable pain is
not in a position to figure out for himself then it definitely will bog down his interest. In that case

it will truely be a negation of his dignity and human rights.

2. Euthanasia provides a way to relieve the intolerably intense pain and suffering of an

individual. It relieves the terminally unwell human beings from a lingering death.

3. The essence of human existence is to stay a dignified existence and to pressure the individual

to live in an undignified way is towards the person’s choice. Thus it expresses the desire of a

man or woman which is a critical principle.

4. In many developing and underneath developed countries like India, there is lack of funds.

There is shortage of health center space. So, the energy of medical practitioner and medical

institution beds can be used for those people whose lifestyles can be saved alternatively of

persevering with the life of these who desire to die. Another essential point on which the

supporters of euthanasia emphasize is that a lot of clinical services which amount a lot are being

spent on these patients who are in any case going to die. Thus, they argue that alternatively than

spending these on such patients, it will be an awful lot better to use such services for these who

have even truthful possibilities of recovery.

5. Article 21 of the Indian Constitution surely offers for dwelling with dignity. A man or woman

has a right to stay a lifestyles with at least minimum dignity and if that popular is falling below

that minimal stage then a person ought to be given a right to end his life. Supporters of

euthanasia also point out to the reality that as passive euthanasia has been allowed, in a similar

way active euthanasia ought to also be allowed. A patient will wish to quit his lifestyles solely in
cases of excessive ache and would select to die a painless death as a substitute than living a

miserable life with that affliction and suffering. Thus, from a ethical factor of view it will be

higher to permit the patient die painlessly when in any case he is aware of that he is going to die

due to the fact of that terminal illness.

6. Its purpose is altruistic and beneficial as it is an act of painlessly putting to death to those

people who are struggling from painful and incurable diseases. So, the motive at the back of this

is to assist instead than harm.

7. It not only relives the unbearable ache of a patient but additionally relieves the family of a

patient from the mental agony.

8. A factor which is often raised in opposition to the supporters of euthanasia is that if such right

will be granted to the terminally unwell patients then there will be possibilities of abusing it. But

the supporters argue that each right involves a hazard of being abused but that doesn’t suggest

that the right itself have to be denied to the people. We rather appear at the brighter facet of it

than questioning of it being abused.

2.8. NEW DIMENSION IN INDIAN HISTORY- ARUNA’s CASE

Aruna Shanbaug18, who used to be working as a nurse at KEM Hospital, was once assaulted on

the night time of November 27, 1973 by means of a ward boy. He sodomised Aruna after

strangling her with a canine chain. The assault left Aruna blind, paralysed and speechless and she

went into a coma from which she has in no way come out. She is cared for by means of KEM

medical institution nurses and doctors. The female does not favor to stay any more. The doctors

have advised her that there is no danger of any improvement in her state. Her next pal (a criminal

term used for a character speaking on behalf of anyone who is incapacitated) describes

Shanbaug: “her bones are brittle. Her skin is like ‘Paper Mache’ stretched over a skeleton. Her

wrists are twisted inwards; her fingers are bent and fisted closer to her palms, resulting in

developing nails tearing into the flesh very often. Her teeth are decayed and giving her big pain.

Food is definitely mashed and given to her in semisolid form. She chokes on liquids and is in a

persistent vegetative state.” So, she, through her ‘next friend’ Pinki Virani, determined to go the

SC with a plea to direct the KEM Hospital not to pressure feed her. And on 16th December 2009,

the Supreme Court of India admitted the woman’s plea to give up her life. The Supreme Court

bench compromising Chief Justice K G Balakrishnan and Justices A K Ganguly and B S

Chauhan agreed to study the merits of the petition and sought responses from the Union

Government, Commissioner of Mumbai Police and Dean of KEM Hospital.

On twenty fourth January 2011, the Supreme Court of India spoke back to the plea for euthanasia

filed by way of Aruna's pal journalist Pinki Virani, by using putting up a clinical panel to

observe her. The three-member clinical committee consequently set up below the Supreme
18
://en.wikipedia.org/wiki/Aruna_Shanbaug_cas
Court's directive, checked upon Aruna and concluded that she met "most of the criteria of being

in a permanent vegetative state". However, it became down the mercy killing petition on 7th

March, 2011. The court, in its landmark judgement, then again allowed passive euthanasia in

India. While rejecting Pinki Virani's plea for Aruna Shanbaug's euthanasia, the courtroom laid

out suggestions for passive euthanasia. According to these guidelines, passive euthanasia entails

the withdrawing of cure or food that would permit the affected person to live.

Ms Shanbaug has, however, modified perpetually India's method to the contentious issue of

euthanasia. The verdict on her case nowadays approves passive euthanasia contingent upon

circumstances. So different Indians can now argue in courtroom for the right to withhold clinical

treatment - take a patient off a ventilator, for example, in the case of an irreversible coma.

Today's judgement makes it clear that passive euthanasia will "only be allowed in cases the place

the man or woman is in power vegetative kingdom or terminally ill."

In November 2007, a member of Indian parliament who belongs to the Communist Party of India

brought a consignment to legalize euthanasia to the Lok Sabha, the lower residence of

representatives in the Indian parliament. C.K. Chandrappan, a representative from Trichur,

Kerala, added a Euthanasia Permission and Regulation Bill that would allow the criminal killing

of any affected person who is bedridden or deemed incurable. The regulation would additionally

permit any man or woman who cannot carry out day by day chores without help to be

euthanized.
"If there is no hope of recovery for a patient, it is solely humane to allow him to put an end to his

ache and ache in a dignified manner," stated Dr. B. K. Rao, chairman of Sir Ganga Ram Hospital

in New Delhi. "If it is mounted that the treatment is proving to be futile, euthanasia is a practical

alternative for lessening the distress of patients."

Euthanasia is totally extraordinary from suicide and homicide. Under the Indian penal code,

strive to commit suicide is punishable under area 309 of IPC and additionally abetment to suicide

is punishable under part 306 of IPC. A character commits suicide for more than a few motives

like marital discord, dejection of love, failure in the examination, unemployment etc. but in

euthanasia these motives are not present. Euthanasia means inserting a person to painless dying

in case of incurable illnesses or when life grew to be purposeless or hopeless as a result of

intellectual or physical handicap. It is also differs from homicide. In murder, the murderer has

the intention to cause harm or cause dying in his mind. But in euthanasia though there is an

intention to motive death, such intention is in appropriate faith. A doctor practice euthanasia

when the patient, struggling from a terminal disease, is in an irremediable stipulations or has no

chance to get better or survival as he suffering from a painful lifestyles or the affected person has

been in coma for 20/30 years like Aruna Shanbaug.

Therefore it is suggested that penal provision involving attempts to commit suicide and abetment

to suicide be preserved in the hobbies of the society as a everyday rule however euthanasia

(voluntary) must be permitted in sure situations as an exception to the widespread rule. Thus

Indian Parliament ought to enact a law related to euthanasia which permits a doctor to quit the
painful existence of a affected person struggling from an incurable disease with the consent of

the patient. Parliament lay down some circumstances underneath which euthanasia will be

lawful :

2.9. CONDITIONS

A) consent of the affected person should be obtained,

B) Failure of all medical redress or when the patient, suffering from a terminal disease, is in an

irremediable conditions or has no risk to get better or survival as he struggling from a painful

lifestyles or the patient has been in coma for 20/30 years,

C) The monetary or monetary circumstance of the affected person or his household is very low,

D) Intention of the doctor must now not be to cause harm,

E) Right protect need to be taken to avoid abuse of it via doctors,

F) Any other occasions relevant to the unique case

Thus, Euthanasia should be legalized, but the legal guidelines would have to be very stringent.

Every case will have to be cautiously monitored taking into consideration the factor of views of

the patient, the spouse and children and the doctors. But whether Indian society is mature

sufficient to face this, as it is a depend of existence and death, is yet to be seen.

LIABILITY OF DOCTORS
If we cautiously examine the opposition to the legalization of euthanasia, we can conclude that

the most necessary point that the opponents raise is that it will lead to its misuse with the aid of

the doctors. Thus, it is submitted that when a patient or his relatives can willingly put his life in

the hands of the doctor trusting him, then why can’t a health practitioner be given such discretion

to determine what will be in favour of his patient. Another doubt that is often raised is that if the

medical practitioner will be given discretion to exercise voluntary euthanasia then in reality it

will step by step lead to asking for involuntary or non-voluntary euthanasia. But it is humbly

submitted that a separate regulation ought to be made allowing only voluntary euthanasia and no

longer involuntary or non-voluntary euthanasia. As has already been pointed out earlier, we

additionally have to maintain in thought the restrained medical services reachable in India and

the number of patients. This question nonetheless lies open that who have to be provided with

those facilities; a terminally unwell affected person or to the patient who has honest possibilities

of recovery. As the patient himself out of his pain and soreness is asking for death, physician

ought to now not increasing that ache of his must enable euthanasia. It has been dominated in the

Gian Kaur case19 that Article 21 does not encompass right to die by the Supreme Court. But one

may also try to examine it as is evident in the rights of privacy, autonomy and self-determination,

which is what has been achieved with the aid of the Courts of United State and England. Thus,

we can see that as the stated right has been blanketed in the ambit of Article 21, so this can

additionally be included in Article 21. This question used to be not raised in the case earlier.

Again the point that stays unanswered is regarding the abuse of this right by way of the doctors.

But relevant safeguards can be put on this right and as a consequence its abuse can be avoided.

One of the safeguards can be that a acceptable quasi-judicial authority having a desirable know-

how in the scientific discipline can be appointed to seem into the request of the affected person
19
Gian Kaur vs State of Punjab, 2 scc 648, AIR 1996
and the steps taken through the doctor. To make it extra full proof some two or three assistant

officials which include one from the prison discipline can additionally be appointed. This will

keep away from any abuse of this right granted to the terminally ill patients. Here, we have to

regard the painful scenario in which the affected person is and pinnacle priority ought to be

lessening his pain. Now when we already understand that he is anyhow going to die nowadays or

tomorrow and he himself is asking for death, there is no factor that he ought to be denied with

this right of at least leading a life with minimal dignity and willingly. Otherwise his existence

will be no higher in that situation. Thus, considering the monetary and scientific facilities also,

the question nonetheless lies open that what will be better-allowing euthanasia or no longer

permitting euthanasia.
2.10.HISTORICAL JUDGEMENT: LEGALISATION OF PASSIVE

EUTHANASIA IN INDIA

On 9 March 2018 the Supreme Court of India sanctioned passive euthanasia by methods for the

withdrawal of life support to patients in a perpetual vegetative state. The choice was made as a

major aspect of the decision for a situation including Aruna Shanbaug20, who had been in a

Persistent Vegetative State (PVS) until her passing in 2015.

On 9 March 2018, the Supreme Court of India, passed a noteworthy judgment-law allowing

Passive Euthanasia in the nation. This judgment was passed in wake of Pinki Virani's

supplication to supreme court in December 2009 under the Constitutional arrangement of "Next

Friend". It's a milestone law which puts the intensity of decision in the hands of the person, over

government, medicinal or religious control which sees all anguish as "fate". The Supreme Court

indicated two irreversible conditions to allow Passive Euthanasia Law in its 2011 Law: (I) The

brain dead for whom the ventilator can be turned off (II) Those in a Persistent Vegetative State

(PVS) for whom the feed can be tapered and pain palliatives be included, as indicated by set

down worldwide particulars.

20
://en.wikipedia.org/wiki/Aruna_Shanbaug_cas
A similar judgment-law likewise requested the rejecting of 309, the code which punishes the

individuals who survive suicide-endeavors. In December 2014, legislature of India proclaimed

it's goal to do as such.

2.11. Euthanasia: Indian Perspective

The issue of legitimation of kill in Bharat is higher understood from 2 points of view:

2.12.1.) Reflection from cultural and historical heritage of India; and

2.12.2) To modern socio-medico-legal state of affairs.

2.11.1. Reflection from Cultural and Historical Heritage of India

In most societies individual and social life was ruled by social customs throughout the

traditional and medieval ages. Social worth preceded human values. Bharat isn't any

exception to the current rule. Bharat had too remained below the rule of customs,

however therefore ever; a number of them would possibly seem as tyrant and unjustify

nowadays. Indian culture appears to make associate ambivalent perspective towards

suicide and kill, on the one hand quality of life was taken be the best worth and also the

violation of it together with suicide was thought Of the highest sin. however on the

opposite hand dangerous acts were authorised if they occurred in defense of social

values. The customs of Sati, Jauhar, Saka (Keseria) could also be taken as evidences of

providing the on top of arguments. Sati stood for a custom of self-immolation of a

unmarried girl by setting on

the cumulus of her deceased husband. Although, there's scholar like Varun Prabhat

(2006) UN agency argued that Sati wasn't associate ancient custom however its trendy

connotation was fictional by Christian Missionaries. Varun Prabhat writes: “Sati is

associate ancient Sanskritic language term, that means a chaste girl who thinks of no

different man than her own husband. The celebrated examples square measure.

Sati Anusuiya, Savitri, Ahilya etc. none of them committed suicide, let alone

being physical burned. therefore however is that, that they're referred to as Sati? The

word

‘Sati’ means that a chaste girl and it's no co-relation with either suicide or

murder. The term Sati was ne'er in the middle of ‘Pratha’. The phrase,

‘Sati Pratha’ was a Christian Missionary invention. Sati was taken from the

above quoted supply and ‘Pratha’ was taken from the follow of Jauhar,

(by distorting its that means ‘Suicide’ to ‘Murder’) and also the story of ‘Sati

Pratha’ was born to haunt Hindus forever”.

Whatsoever would possibly had been the reality, the actual fact remains that, even at the

Dawn of the trendy age, Raja Ram Mohan Ray (1772-1833) had to initiate the

movement against Sati Pratha and didn't relaxed until the ugly custom

was abolished in 1829 by Lord William Benting, the then governor

of East Indies Company. Even in recent times a lady Roop Kanwar within the
village Deorala district Sikar of Rajasthan performed sati on the burning

pyre of her husband. there have been several native those who supported her and

asked everybody to try to to what she had done therefore courageously and uphold the

hind

traditions and long followed customs of the village. Customs so, do die

hard sati pratha in fact and obsolete custom currently concerning Jauhar and Saka

Wikipedia informs us: “Jauhar and Saka seek advice from the voluntary deaths of men

and ladies of the Rajpoot kin so as to avoid capture and dishonour at the hands of their

enemies.

This was done sometimes by Hindu and Sikh ladies in Mugal times and square measure

recorded incidences of this on a way smaller scale throughout the partition in 1947, when

women most popular death then to being raped by enemies or, was a

slave or being forced in to a wedding and to require their enemy’s religion”.

Jauhar was originally the voluntary death on a cumulus of the queens of

the royal women of defeated Rajpoot Kingdoms. The term is extended to

describe the occasional follow of mass suicide disbursed in medieval

times of Rajpoot ladies and men. Mass self-immolation by ladies was

called Jauhar. This was sometimes done before or at constant time their

husband, brother, father and sons rode get into a charge to fulfill their attackers
and bound death. The upset caused by information that their ladies and

younger kids were dead, little doubt stuffed them with rage during this fight to

the death referred to as Saka.

Besides, Sati, Jauhar and Saka that were performed in defense of social

values and customs, there square measure many stories in Purans and Vedas during

which

both men and ladies voluntarily accepted death by immolating their mortal

bodies by varied means that, together with fireplace. the ability of yoga makes them

oblivious of the pain of the decay of the mortal body. V.G. Julie Rajan

aptly writes : “Hinduism will give a method to finish one’s own

life once two-faced with incurable sickness and nice pain that's fast to death

prayopavesa, below strict community pointers. Gandhi’s associate, Vinoba

Bhave, died during this manner, as did recently Hindu Nirmalanand of Kerala. It

is generally thought of as a follow of yogis, however is suitable for all

persons. Prayopavesa may be a rare choice, one that the family and community

must support to make certain this is often the will of the person concerned and not a

result of untoward pressures.

Thus, Hinduism created the availability of willful death additionally. In his book

‘Merging with Siva’ Satguru Sivaya Subramuniyaswami wrote concerning Hindu

 view of death within the following words: “Pain isn't a part of the method of

death. that's the method of life, which ends in death. Death itself is

blissful. you probably did not want any subject matter. You intuitively recognize what’s

going to happen. Death is sort of a meditation, a Samadhi. That’s method it's

called Omaha (Great) Samadhi”.

Jains, a number one spiritual and profession of Bharat, claim same, or

some time a lot of antiquity as Hinduism. they need associate ancient custom referred to as

sallekhana or santhara, per this practice someone will take a vow not to drink or ea food until his

last breath. Even in trendy Bharat, it is reported that religion resort to santhara during a sizable

range. Gujrat, Rajasthan, Maharashtra and Karnataka account for many santharas within the

country. It is also to be maintained that santhara isn't the preserve of religion monks UN agency

have renounced worldly affairs. per Jitendra Shah of Iran, Director of L D

Institute of Indology “In truth, a lot of standard Jains take up santhara than monks. Another

common idea is that solely folks plagued by illness embrace the follow. That’s not true. Santhara

is obsessed with a view to sacrifying attachments, together with one’s boby” Becides, women-

men ratio of santhara practitioners stands at sixty : forty, maybe as a result of ladies square

measure generally a lot of sturdy willed and have a non secular bent of mind .The cultural

tradition of santhara among Jains isn't associate exception to its critics or opponents UN agency

claim to be rationalists and humanists. In 2006 Human Rights activists Nikhil Soni and his

lawyers Madhav Mishra file a public Interest judicial proceeding (PIL) with the state supreme

court of Rajasthan44. The PIL claimed that santhara was a social evil and may be cosidered to
suicide under Indian legal statute. It additionally extended to people who facililated individuals

taking the vow of with aiding associated abetting an act of suicide. For the Jains, however, the

courts or the other agency intervention in such case would be a transparent violation of the

Indian Constitution’s guarantee of faith freedom. This landmark case sparked dabate in Bharat,

wherever moral philosophy may be a relatively new phenomenan. The defenders of sallekhana or

santhara argued that santhara features a spiritual context, wherever as suicide, and

encouragement to suicide fall in criminal context. Moreover, hunger strikes square measure a

typical form of protest in India however usually finish with forced hospitalization and

criminal charges. Besides, the suicide is itself contentious, since it might

punish solely associate unsuccessful try at suicide, additionally punishable however way this

provides deterrence is questionable. Lastly, suicide is sometimes and outcome

of acute mental depression followed by self-isolation someone might leave a

suicide note additionally. The act of suicide is instant and not a protracted

ritual, wherever as in santhara the person takes a vow to not have food or water

and it's a slow method that takes place admits the pricey ones and different

fallow co-religionists. Santhara isn't practiced with associate intention to finish

one’s life however to finish his own karmas and to attain self purification through

act of renunciation of all worldly actions together with food and water. In

addition to that if a personal feels he will continue or features a want to measure, an

individual will break a vow. Thus, santhara cannot be in any method

considered as suicide. With sallekhana or santhara, death is welcome

through a peaceful, tranquil method providing peace of mind for everybody

involved. really philosophically santhara is rationalized by several

angles and religion philosophers and non secular leaders have truly done therefore. As

regards the question of its lawfulness, it is explicit that like all spiritual

practices the question can't be selected the bases of rationality and law

alone. at the moment it's not clear on what grounds and statistics, santhara is to be command

embezzled. Thus, the cultural heritage of Indian reflects a cultural feeling towards

suicide and kill. In fact, it's necessary to create 2 observations here: 1st, that Sati, Jauhar or Saka

or Omaha Samadhi by yogis or santhara among Jains is definitely a lot of completely different

than kill employed in the trendy sense. All societies together with advance and developing

societies glorify the killing of enemies during a war and; second, the disputation over kill is

of recent origin thanks to advancement of life science and technology and

longevity. it's the merchandise of virtually last 3 or four decades. In Bharat the

controversy gained momentum when the case of Venkatesh in 2004. In

reality it's associated with medical context and socio-legal setting. Voluntary

euthanasia and Dr. self-annihilation became the focal points.

There seems no want of justifying them or rationalizing or legalizing them

on support of cultural history of Bharat. Since the disputation on legalizing

euthanasia in Bharat is of recent origin, it's to be resolved and settled with

reference to modern socio-medico-legal state of affairs in Bharat.

modern Socio-Medico-Legal state of affairs

If one appearance at the modern Indian Society, one might definitely realize it

undergoing the powerful and speedy cross currents of multi-dimensional

processes of powers of social modification. it's engrossed within the method of

development and modernization. though it's a proven fact that its solid building

founded on old traditions of caste and faith is crumbling within the

whirlpool of modification, nonetheless it seems to be still sturdy enough to carry on.

Religion and caste still still give main context for understanding

contemporary Bharat. Society in Bharat continues to be structured on the

principle of social hierarchy and precedent of cluster over the individual. In

fact, modern Indian society seems to be existing at multi level stage

of civilization development at the same time. At its apex there's a layer

advanced cosmopolitan and trendy Bharat. The elites of this layer dominate

most of the areas of social life i.e., political, industrial and beaurocratic.

Then there's a second layer of developing Bharat compromising of thousands

of urbanizing and back word villages reflective the social organisation systems still
holding on caste community and faith. The last layer could also be known as

surviving at primitive level. There square measure lots of folks still illiterate.

Stricken by abject financial condition bereft of food, textile and shelter, they are still

governed by the forces of customs. These layers are not interwoven in a

smooth social fabric. There exist a great hiatus among them reflecting an

imbalanced kaleidoscopic scene. The holistic reality of Indian society

appears to be dismal. The society faces with a crisis of degenerating values

and character.

The body of Indian polity is suffering from many threatening viruses. India

is12th ranked among the corrupt nations. (Wikipedia, 2010)

. The virus of corruption is eating the vitals of institutional organs of socio-political India.

It is most unfortunate that the corruption is being accepted as a part of the

game and becoming a component of people’s mentality. Moreover, there is

criminalization of politics and politicization of crime. There is nefarious

nexus of corrupt politicians unethical beaurocrates debased capitalists and

mafias. Self-centered individualism and materialism have become the courts

of social conduct. The noble professionals like teaching, medicine, and law

have lost the ethical values of their profession. Individual autonomy and
human rights have become a verbose to be talked of in public, not to be

practiced in personal life.

It is important to note that the post-independence Indian society has made

glaring achievements in the field of socio-economic development. The rate

of economic growth during the last sixty years has been appreciable but the

fruits of progress have not trickled down to the bottom of Indian society.

The rich and powerful layer has become richer and more powerful.

As regards the medical and health scenario of Indian society, it can be said

that there has been an impressive progress, the medical science and

technology have made considerable achievements. The process of

immunization has contributed towards a lot in control of many diseases like

malaria, polio and smallpox which were considered to be deadly in the past.

Hence the annual death rate has been reduced and controlled. Medical

facilities have increased. The life expectancy (70 years) has also increased

accordingly. The social problem of the aged has emerged as an important

problem. The medical science and technology in India have now acquired

life supporting system and medications to extend life artificially for a long

period even after the loss of brain activities and the control of bodily
functions. It has brought into relief issues which are altering the pattern of

human living and societal values. Pari passu with these changes is the

upsurge of affirmation of human rights, autonomy and freedom of choice.

These issues compel the revaluation of many social values and medical

ethics. One of these issues is that of dignified death and the related matter of

legalization of euthanasia. Many people have a fear today of being kept alive

artificially by life support system with consequent sufferings and distress to

them and members of their family. They may wish to request the doctor to

withhold or withdraw such treatment so that they may die with dignity

among their dear ones (voluntary passive euthanasia) or may request the

doctor to give a lethal dose to end their suffering (active euthanasia). Herein

lies the origin of debate over the issue of legalizing euthanasia in India.

Should a terminal patient be granted a right to decide the time and manner of

ending his life? Pleading for the case voluntary medical euthanasia the

urologist B. N. Colabwala (1987) have argued : “The prime duty of the

medical professional is to relieve suffering and voluntary euthanasia should

be viewed in that context. Indeed, it is the duty of the physician to treat, heal

and offer an acceptable quality of life to a patient. But above all is the relief
of suffering by all means available to him. An end of point is often reached

when death via the medium of voluntary euthanasia is the only good

medicine. Moreover, the financial implications of a futile treatment have

serious implications for the patient and his relatives to for maintaining and

unmaintainable life.” Dr. Mukesh Yadav (2006) however, argued that

voluntary withdrawal of life support system by terminally ill patient should

neither be treated as passive euthanasia nor an attempt to suicide. As every

medical intervention requires the consent of the patient, he reserves the right

to refuse treatment, even if it is to his detriment.

Opponents of euthanasia however, argue that Hippocratic Oath and

International Code of Medical Ethics insist that a doctor should alleviate the

suffering and pain of his patients at all costs. It does not make sense to

consider ending the suffering of a person by putting an end to the sufferer.

The treatment of the severe headache is not the removal of the head but in

seeking ways of relieving the pain while keeping the head intact. Moreover,

the disease which is incurable today might become curable tomorrow (R. K.

Bansal, S. Das, P. Dayal, 2005)

.
Thus, the medical situation in India does not provide an easy ground for

resolution of the issue of legalization of euthanasia. The rampant corruption

in India and widening gap between rich and poor and their accessibility of

medical services make the problem more enigmatic.

Now it is time to see the current legal status of euthanasia in India. As

already pointed out in chapter one that euthanasia and assisted suicide

continue to be unlawful under the existing law. But the Law Commission of

India (2006)50 has made a comprehensive study of the problem of medical

treatment to terminally ill patient. It has made valuable recommendation to

protect the rights of patients and the medical practitioners in such cases. The

Commission also annexed a draft bill to its report entitled as “Medical

Treatment to terminally ill patient (Protection of Patients and Medical

Practitioners) Bill, 2006”. The major provisions of the Bill relate to the

withholding or withdrawing life support system like ventilation, artificial

supply of food and hydration from a patient who is terminally ill. It has also

laid down the specific procedure to be followed in such cases. To understand

the legal protocol prescribed by the Commission, it is better to clarify three

terms used by the Commission in this context : first, the competent patient is
one who is not incompetent; Secondly, the incompetent patient refers to a

patient who is a minor, or a person of unsound mind or a person who is

unable to –

(a) understand the information relevant to an informed decision about his or her illness or its

treatment;

(b) retain that information;

(c) use or weigh that information as part of the process of making his or her informed

decision;

(d) make an informed decision because of impairment of or a

disturbance in the functioning of his or her mind or brain;

or (e) communicate his or her informed decision (whether by speech, sign, language or any other

mode) as to medical treatment. Thirdly, an informed decision means the decision as to

continuance or withholding or withdrawing medical treatment taken by a patient who is

competent and who

is, or has been informed about

(a) the nature of his or her illness,

(b) anyalternative form of treatment that may be available,

(c) the consequences ofthose form of treatment, and

(d) the consequences of remaining untreated.

The major provisions in this regard have been given as under :

(1) If a competent patient takes an informed decision for withholding or

withdrawing of medical treatment to himself or herself and to allow

nature to take its own course, or for starting or continuing medical

treatment to himself or herself, and communicates his or her decision

to the medical practitioner. Such decision is binding on the medical

practitioner. Provided that the medical practitioner is satisfied that the

patient is a competent patient and that the patient has taken an

informed decision based upon a free exercise of his or her free will.

EUTHANASIA ,PHYSICIAN ASSISTED SUICIDE

(2) Every medical directive (called living will) or medical power-ofattorney

executed by a person shall be void and of no effect and shall

not be binding on any medical practitioner.

(3) A medical practitioner may also take a decision to withhold or

withdrawn medical treatment (a) from a competent patient who has

not taken an informed decision, or

(b) from an incompetent patient.

Provided that : (i) the Medical Practitioner is of the opinion that the

medical treatment has to be withheld or withdraw in the best interests

of the patients;

(ii) adhere to such guidelines as might have been issued by the Medical Council of India (MCI)

in relation to the circumstances under which medical treatment to a patient in respect of

the particular illness could be withheld or withdrawn and

(iii) consult the parents or relatives (if any) of the patient but shall not be bound by their views.

The commission has also provided directions for the above purpose. The medical practitioner

who makes a decision to withheld or withdraws life support system from a patient in the two

situations mentioned above has to follow the procedure which is laid down as follows :

(i) he must obtain opinion of the three medical

practitioners selected a panel of medical experts appointed for this

purpose by the Director General of Health services, in the case of

Union territories or Director of Health Services (or officer holding

equivalent post) in case of states as the case may be as to where the

patient is being treated. The Commission has issued guidelines for the

above authorities to prepare such a panel and issue it to all the medical

institutions in their respective jurisdiction. In case of differences of

opinion among medical experts refer to above the majority decision

will prevail;

(ii) the medical practitioner has to maintain a register

wherein he should record as to why he is satisfied that:

(a) the patient is competent or incompetent;

(b) the competent patient has or has not taken an informed decision about withholding

withdrawing or starting or continuance of medical treatment;

(c) why he things that withholding or withdrawing life support system from a patient is in his

or her best interest.

(d) the age, sex, address and other particulars of the patient.

(iii) Before withholding or withdrawing medical treatment, the medical practitioner shall inform

in written the patient (if he is conscious), his parents or other relatives or guardian about the

decision to withhold or withdraw such treatment in the patient’s best interests. In case the

patient, parents or relatives inform the medical practitioners of their intention to move the High

Court, the medical practitioner shall postpone such withholding or withdrawing by fifteen

days. If no orders are received from the High Court with that period,

he may proceed to implement his decision.

(4) A photocopy of the pages in the register with regard to each such

patient shall be lodged immediately, as a matter of information, on the

same date, with the Director General of Health Services, or Director

of Health Services of the Union territory or State, as the case may be, in which the medical

treatment is being given or is proposed or is proposed to be withheld or withdrawn and

acknowledgement obtained. The medical practitioner is also required to keep the register as

confidential and not to reveal it to public or media. The same obligation of confidentiality is

binding on the relevant authorities who have been informed about such cases and they are also

required to maintain the copies of the information sent by the medical practitioners in their

office.

(5) It is worthy being highlighted that even though medical treatment has been withheld or

withdrawn by the medical practitioner in the case of competent patient and incompetent in

accordance with prescribed procedure such medical practitioner is not debarred from

administering palliative care.

(6) It is also to be noted that if a competent patient refuses medical treatment in circumstances

mentioned above, notwithstanding anything contained in the Indian Penal Code (45 of 1860),

such a patient shall be deemed to be not guilty of any offence under that code or under any other

law for the time being in force.

(7) The same protection is provided to the medical practitioner and anyother person acting under

his direction to withhold or withdraw medical treatment,

(a) In respect of a competent patient, on the basis of the informed decision of such patient

communicated to the medical practitioner for such withholding or withdrawal, or

(b) (i) in respect of a competent patient who has not taken an informed decision,
or (ii) in respect of an incompetent patient, and the medical practitioner take a decision in the

best interest of the patient for withholding or of such treatment, and complies with all the

requests of the law as discussed above. In other words, their action to withhold or withdraw the

medical treatment shall be deemed to be lawful.

(8) As mentioned above, an opportunity recourse to the High Court has been provided to any

patient or his or her parents or his or her relatives or next friend or medical practitioner or the

hospital authority for seeking any interim or final direction from the said court as they may deem

fit. But it has also been provided that such a recourse to High Court declaratory relief and

direction is not a condition precedent to withholding or withdrawing medical treatment if such

withdrawal or withholding is done in accordance with the provisions of this act.

(9) The condition of confidentiality mentioned above has been extended to the appellate High

Court also. The division bench of the High Court shall, whenever a petition is filed under the

proposed act, direct that the identify of the patient, medical practitioner, expert medical

consultant or their relative or next friend or who have given evidence in the court, shall, during

the pendency of the petition and after its disposal, be kept confidential and shall be referred only

by the English alphabets as chosen or assign to each of them by the division bench of High

Court. The same direction of the High Court shall be deemed to be binding on all media. The

violation of the confidentiality would attract not only contempt of court but they may be

prosecuted against in civil or criminal courts. In case, however, the declarations or directions

given by the High Court have to be communicated to the patient, parents, medical practitioner,

hospital or experts concerned, it shall be permissible to refer to the true identity of the patient.

Person or hospital and such communications shall be made in sealed covers to be delivered to

these addresses so that the declarations or directions made by the High Court are understood and
implemented as being with reference to the particular patient. (10) The proposed bill also makes

it mandatory for Medical Council of India to prepare the panel of medical experts of good

standing and at least of twenty years experience to prepare and publish in official gazette of India

and on its website. The Medical Council of India, of course, has also been empowered to modify

or review and publish the same in the gazette. It is worthy to recall that in its subsequent report
21
no. 210th The Law Commission of India (2008) has recommended to government to initiate

steps for repeal of the anachronistic law contained in Sec 309 of Indian Penal Code, and to

decriminalized attempt to suicide as a punishable offence. But the Commission, however, also

recommended to retain Sec. 306 of the IPC which relates to abetment to suicide which covers

assistance to suicide also. It is also worthy to note here that the Commission’s draft bill on

Medical Treatment of Terminally ill Patient (Protection of Patient and Medical Practitioner)

report no. 196th and its recommendation for decriminalization of suicide report no. 210th,

mentioned above have not yet been considered and adopted by the Indian Parliament. Hence,

voluntary euthanasia or withholding or withdrawing life support of a terminally ill patient or

physician assisted suicide continues to be illegal in India. As such the debate on these issues goes

on both among legal scholars and jurists. Parlika Jain (2008) has aptly observed: it is submitted

that in the present scheme of criminal law it is not possible to construe the provisions so as to

include voluntary euthanasia without including non-voluntary and involuntary euthanasia.

Parliament should, therefore, by a special legislation legalize voluntary euthanasia while

expressly prohibiting non-voluntary and involuntary euthanasia. Legalizing euthanasia would not

have any effect on the provisions relating to suicide and abetment thereof as euthanasia and

suicides are two completely different acts”. Similarly, advocate Dhruv Desai (2008) took an

overview of euthanasia and suicide and discussed in the case law of the following words: “In
21
https://www.researchgate.net/deref/http%3A%2F%2Flawcommissionofindia.nic.in%2Freports%2Freport210.pdf
india the contention whether the ‘right to life’ includes within its ambit the ‘right to die’ came for

consideration for the first time in the year 1987. It was in the case of State of Maharashtra v.

Maruti Shripati Dubal22 , wherein the Bombay High Court held that, “Everyone should have the

freedom to dispose of his life as and when he desires.” The said decision of the Bombay High

Court was upheld by the Supreme Court of India in the Case of P. Rathinam v. Union of India ,

where the supreme Court held, “A person cannot be forced to enjoy life to his detriment,

disadvantage or disliking.” However, the Supreme Court rejected the plea that euthanasia (mercy

killing) should be permitted by law, because in euthanasia, a third person is either actively or

passively involved; about whom it may be said that he aids or abets the killing of another person.

It was in Gian Kaur’s case23, that a five Judge Bench of the Supreme Court overruled P.

Rathinam’s case and held, “The ‘right to life’ under Article 21 of the Constitution of India does

not include the ‘right to die’ or ‘right to be killed’… the right to life would mean the existence of

such a right up to the end of natural life. This also includes the right to a dignified life up to the

point of death including a dignified procedure of death.” The Supreme Court also held that

Article 21 of the Constitution of India does not include therein, the right to curtail the natural

span of life.” He concluded that the euthanasia and physician assisted suicide are not simply

legal issues alone; and by terminating them so, we may be missing the crux of the matter. They

are individual, social and moral issues also. He further argued “In spite of every day discoveries

in science and medicine or a possibility of a miracle cure, the patient suffering from Aids,

Cancer, Motor Neuron disease or Persistent Vegetative State, would rather prefer to exercise the

option of euthanasia and physician assisted suicide. The issue in hand is, thus related to cases of

the terminally ill (like the right to decide about life sustaining treatment and right to respect for

22
M.S Dubal vs State of Maharastra, CrLJ 549 AIR 1987
23
Gian Kaur vs State of Punjab, 2 scc 648, AIR 1996
autonomy). Moreover, it is certain that the world of today or hopefully tomorrow would be

governing by the law. The contribution that law in India can make at this juncture is providing a

procedural legal framework that would guide the practice of euthanasia (in the best possible way)

in serving the interests of the contemporary and future society”. But any initiative for legalizing

euthanasia and physician assisted suicide Tejshree M. Dusane (2009) a Professor of Law in

Pune, wrote: “the legalization of euthanasia would be dangerous....all doctors with responsibility

for the care of terminally ill patients should accept their duty to deliver this care at the known

best standards, as they are legally obliged to do in other branches of medical practice. In this

world of fast development and miracles, I staunchly believe that someday man would develop a

mechanism to reduce pain to the minimum possible extent and make life less burdensome. The

appropriate course of action would be to introduce proper care ethics ensuring a dignified

existence rather than attempting to terminate one’s life. The Kerala Law Reforms Commission

(2009)58 has also suggested amendments in the Indian Penal Code (IPC), so as to legalizing

euthanasia and to treat suicide attempts as a non-punishable offence. The Commissions

following words are not only relevant but critical also at this juncture: “Mortality is life’s

inevitability and death is deliverance from dreadful disease and intolerable torment. Life is

sacred, but intense pain with no relief in sight is a torture, which negates the meaning of

existence.” The Commission has drafted a tentative Bill which would hopefully receive deeper

consideration in the state assembly. The Commission ViceChairman, Justice T V Ramakrishnan

has aptly remarked : “Many great minds have opted for euthanasia. The Indian Penal Code and

its author Lord Macaulay are not the last word for the law reformer.” The Kerala Law Reforms

Commission 102 recommendations permit a terminally person to end his life under supervision

and advice of his close relatives and medical practitioners. Detailed provisions have been
incorporated in the draft bill to impose strict conditions and safeguards in the matter of assisting

terminally ill persons without reasonable prospect of continuing life to put an end of their

unbearable pain and pitiable existence. The draft bill in this regard is perhaps the first of its kind

in Kerala and India. Recently, however, the Supreme Court of India in its historic judgment on

8th March (2011) has allowed passive euthanasia involving withdrawal of life sustaining drugs

and/or life support systems-for patients who are brain dead or in a permanent vegetative state

(PVS), and whom doctors have lost hope of reviving even with the most advanced medical aid

the court, however classified that active euthanasia, involving injecting a potent drug to advance

the death of such patients, remained a crime under law. The above landmark judgment was

delivered by the two judges Supreme Court bench of Justice Markandey Katju and Gyan Sudha

Mishra in a PIL petition filed by Pinki Virani as a next friend of Aruna Shanbaug a nurse in

K.E.M. hospital Mumbai. Shanbaug, was brutally sexually assaulted by a ward boy Sohan Lal

Valmiki when she was 25 years old. Sohan Lal used adog chain to throttle her which cut off

blood and oxygen supply to her mind,leaving Aruna paralysed and in a vegetative state. Since

then Aruna lied onbed for 38 years. The staff of the K.E.M. hospital continued to care her as a

real family. Pinki Virani moved the Supreme Court seeking Aruna’s force feeding to be stopped.

The honorable bench of SC, however, dismissed Pinki Virani’s petition while praising her effort.

The Court accepted the prayer of K.E.M hospital staff and viewed that it alone was legally,

emotionally and circumstantially entitled to the position of Aruna’s next friend and clarified that

it wanted her to live till her natural death. It would not be out of place to mention here that Sohan

Lal Valmiki was charged with attempted murder and for robbing Aruna’s earrings. The Court

awarded Valmiki seven years in jail. Although, the Supreme Court rejected the petition of Pinki

Virani for withdrawal of life support to Shanbaug, yet it allowed passive euthanasia in the
manner discussed above. Further, the Supreme Court has laid down the procedure to be followed

in cases of passive euthanasia. The major provisions are as under :

1. When patient is kept alive mechanically, when not only consciousnessis lost, but person only

able to sustain involuntary functioning throughmachines.

2. When there is no possibility of patient ever being able to come out of this. If there has been no

alteration in patient’s condition at least for a few years.

3. High Court can pass orders on plea filed by near relatives or next friend or doctor/hospital

staff praying for permission to withdraw life support.

4. When such a plea is filed, the CJ of HC should constitute bench of at least two judges.

5. Bench should seek opinion of a panel of three reputed doctors preferably a neurologist,

psychiatrist and physician.

6. HC should hear near relatives and state after giving them a copy of panel’s report and make

expeditious decision.

7. The HC would issue notice to parties concerned and give an expeditious judgment since delay

could aggravate the mental agony of the relatives.

Other highlights of the judgment may be noted as follows :

1. Active euthanasia, involving injecting a potent drug to advance the death of such patients

would remain a crime under law.

2. The judgment would have to hold good until Parliament enacts a law on this issue.
3. While giving great weight to the wishes of the parents, spouses or other close relatives or next

friends of the patient and also giving due weight to the opinion of the attending doctors, the SC

has not left the decision entirely to their discretion whether to discontinue the life support or not.

Instead it has laid down the detailed procedure to be followed and a due order of the High Court

should be obtained before taking any step towards passive euthanasia. SC has clarified that even

if K.E.M hospital staff change their mind and in future want euthanasia for Aruna, for this they

have to apply to Bombay High Court for approval of the decision of withdraw life support

system.

4. Thus, entrusting the High Court to take final passive euthanasia call, the Supreme Court has

served two purposes : first, to provide protection of the interest of the patient and the doctors;

and second, to provide safeguards against absence or misuse of the law of unscrupulous vested

interest.

5. The Supreme Court also observed that it was time to decriminalize suicide and delete the

provision for punishment for attempted suicide,

under Section 309 of IPC and asked Parliament to examine it. Although Section 309 of IPC

(attempt to suicide) has been held to be constitutionally valid in Gian Kaur’s v/s State of Punjab

(1996)24 case by Supreme Court, the time has come when it should be deleted by parliament as it

24
It may be noted that the Delhi High Court in State v. Sanjay Kumar, (1985) Crl.L.J. 931, and the
Bombay High Court in Maruti Sharipati Dubai v. State of Maharashtra, (1987) Crl.L.J. 743, had
taken the view that Section 309 of IPC was unconstitutional, being violative of Articles 14 and 21
of the Constitution. On the other hand, the Andhra Pradesh High Court in C. Jagadeeswar v.
State of Andhra Pradesh, (1983) Crl.L.J. 549, had upheld the validity of Section 309 holding that
it did not offend either Article 14 or Article 21 of the Constitution. A Division Bench of this Court
in R. Rathinam v. Union of India and Another, (1994) 3 SCC 394, had held that Section 309 IPC
deserves to be effaced from the statute book to humanise our penal laws, terming this provision
as cruel and irrational, which results in punishing a person again who had already suffered
agony and would be undergoing ignominy because of his failure to commit suicide. It is in this
backdrop Gian Kaur’s case was referred to and decided by the Constitution Bench.
has become anachronistic. With the delivering of the aforesaid order by Supreme Court, can one

come to a conclusion that the controversy over the legalization of euthanasia and PAS has been

settled? Certainly the answer would be in negative. As Veerapaa Moily the Union Law Minister

(2011) said, while reacting the apex court order, “ Supreme Court is right that without a law you

cannot resort this kind of decision with a juridical order. He further added, “there is a need for a

serious debate within the country.” Similarly, Harish Salve (2011) Solicitor General and senior

counsel said : “The Supreme Court judgment underscores the need for the government to enact a

law on the

subject.” Iqbal Chagla (2011)has also taken a positive view of the Supreme Court judgment; he

observed that, “it strikes a very nice balance between the compassionate need of a terminally ill

patient to end his or her life and to any abuse by relatives.” The judgment has raised the voices of

dissent also. Dr. Samiran Nadi (2011) said: “it will open the floodgates what if the relative wants

the patients to die. There are several terminally illnesses which have no cure now. Does that

mean the patient is put to sleep just because he or she is in pain”? In the same way Dr. Pragnya

Pai (2011) opposed the judgment by stating: “Birth, growing up and death are not optional but

inevitable. Some people cannot decide if a person will live or die.” Taking a view based on

professional ethics of a medical practitioner Dr. Farukh Udwadia (2011)66 said “As doctor, our

job is to relieve pain and suffering and not to take life in our own hands.” Thus, in spite of

arguments for and against the SC judgment it can be said that it is defiantly a progressive

juridical order. It has also underlined a need for a serious debate over the issue of legalization of

euthanasia in India duly supported with empirical evidences. Emergent Views Having made a

global and Indian assessment on the present status of

.
Philosophy Of Euthanasia

“I am the master of my fate; I am the captain of my soul”

- William Ernest Henley25

“Death is our friend … he delivers us from agony. I do

not want to die of a creeping paralysis of my faculties – a

defeated man.”

- Mahatma Gandhi

“When a man’s circumstances contain a preponderance

of things in accordance with nature, it is appropriate for

him to remain alive; when possess or sees in prospect a

majority of contrary, it is appropriate for him to depart

from life.”

- Marcus Tullius Cicero

Traditional Hindu religious culture also emphasizes the good death as a reflection of the quality

of life that preceded it26. If a good, dignified death is attained, it is perceived as evidence of

25
As quoted in P. Rathinam v. Union of India & Anr., (1994) 3 SCC 394
26
T N Madan, “Living and Dying” in Non-Renunciation: Themes and Interpretations of the Hindu Culture (New
Delhi, Oxford University Press, 1987).
having lived a worthy life because “the manner of one’s passing out-weighs all previous claims

and intimations of one’s moral worth27

Chronology of events that led to SC recognising 'passive euthanasia'

May 11, 2005: SC takes note of PIL of organisation 'Common Cause' seeking nod to permit

terminally-ill persons to execute a living will for passive euthanasia. It seeks the Centre's

response on the plea that seeks declaration of 'right to die with dignity' as a fundamental Right

underneath Article 21 (right to life) of the Constitution.

Jan 16, 2006: SC permits delhi Medical Council (DMC) to intervene and asks it to file

documents on passive euthanasia.

Apr 28: Law Commission suggests a draft bill on passive euthanasia and says such pleas be

created to HCs that ought to decide when taking experts' views.

Jan 31, 2007: SC asks parties to file documents.

27
T N Madan, “Dying with Dignity” (1992) 35 (4) Social Science and Medicine 425–32.
Mar 7, 2011: SC, on a separate plea on behalf of Aruna Shanbaug, permits passive euthanasia for

the nurse lying in vegetative state at a hospital in metropolis.

Jan 23, 2014: A three-judge bench led by then CJI P Sathasivam starts final hearing within the

case.

Feb 11: DMC files copy of proceedings of International Workshop for Policy Statement on

euthanasia in india and SC reserves verdict.

Feb 25: SC cites inconsistencies in earlier verdicts on passive euthanasia together with the one

given within the Shanbaug case and refers the PIL to a Constitution bench.

July 15: A five-judge bench commences hearing on the plea, problems notices to any or all states

and UTs, and appoints senior advocate T R Andhyarujina as an amicus curiae. He dies during the

pendency of the case.

Feb 15, 2016: Centre says that it's deliberating the issue.

Oct 11, 2017: Five-judge Constitution bench led by CJI Dipak Misra hears arguments and

reserves the verdict.

March 9, 2018: SC recognises 'living will' made by terminally-ill patients for passive euthanasia

and lays down guidelines on procedures to be adopted for it.

CONCLUSION

No such law could be guaranteed to be free to the possibility, of

euthanasia, chiefly centered on the lives of other sick persons who did not want their lives
taken. An especially dangerous aspect is that euthanasia may be easily made
undetectable. Thus although mercy killing appears to be morally justifiable, its fool-proof
practicability seems near to impossible.
After the Gian Kaur’s39 case, suicide has become illegal per se, but the same could not be
said for euthanasia. Recently the judgment of our Supreme Court in Aruna Ramchandra
Shanbaug v. Union of India40 legalized the passive euthanasia and observed that passive
euthanasia is permissible under supervision of law in exceptional circumstances but
active euthanasia is not permitted under the law.
In view of the discussion above I believe that voluntary euthanasia should also be
allowed in India and that the legislature should step in and make a special law dealing
with all the aspects of euthanasia. So we need a proper law to legalize euthanasia with adequate
safeguards. The recommendations laid down in the Reports of Law Commission of India and
guidelines given in the Aruna’s41 case are to be taken into consideration when any law on that
point is to be framed to prevent the mal practices and misuse of euthanasia. Besides, if the
suggestions laid down above are implemented then the chances of misuse of euthanasia would be
greatly reduced

REFERENCING

 Law Commission of India (2006) Medical Treatment to Terminally ill Patients (Protection of

Patients and Medical Practitioners) Report No. 196, New Delhi.

 Aruna Shanbaug Case (2011) Death Dilemma, Times of India, Tuesday, 8 th March, New Delhi,

pp.14-15.

 Law Commission of India (2006) Op. Cit

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