HUMAN RIGHTS PROJECT

EUTHANASIA
A Dilemma between Right to live and Right to
“DIE”

Submitted By:-

Rahul Chawla

B.B.A, LL.B(H)

Roll No.: 02516503510

GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY

 ACKNOWLEDGMENT

I would like to pay my gratitude to respected Prof. Sakthi Vel for his
constant help and support in the project. I would also like to thank
him for guiding me through the project to achieve perfection in
attainment of the objectives. His able guidance and useful
suggestions helped me in completing the project work, in time.
Needless to mention, he has been a source of inspiration and for his
timely guidance in the conduct of our project work.

I am fortunate to have the opportunity to work on this project which

has added to my knowledge of a subject of such crucial importance.
It has been an enlightening experience working on this project.
Through my research on this project, I have also been able to expand
my knowledge about the day to day aspects as well as the legal
aspects related to Euthanasia.

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 Table of Contents
ACKNOWLEDGMENT ........................................................................... 1

INTRODUCTION ................................................................................... 3

TYPES OF EUTHANASIA ....................................................................... 5

THEOLOGICAL ASPECT ........................................................................ 7

LEGISLATION IN SOME COUNTRIES RELATING TO EUTHANASIA OR

PHYSICIAN ASSISTED DEATH ............................................................... 9

THE LAW IN INDIA ............................................................................. 14

SUPREME COURTS’ DECISION IN ARUNA’S CASE (2011) ................... 19

REPORTS BY THE LAW COMMISSION OF INDIA ................................. 22

CONCLUSION .................................................................................... 24

BIBLIOGRAPHY .................................................................................. 27

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 INTRODUCTION
Euthanasia is a controversial subject, not only because there are many moral dilemmas associated
with it, but also in what constitutes its definition. At the extreme ends of disagreement, some school
of thoughts are of the opinion that euthanasia, also known as physician assisted suicide or physician
aid in dying is a merciful act of dying. At the other end, there are opponents of euthanasia who
believe that this method is a form of murder.

The term euthanasia was derived from the Greek words “eu” and “thanatos” which means “good
death” or “easy death”. It is also known as Mercy Killing. Euthanasia literally means putting a person
to painless death especially in case of incurable suffering or when life becomes purposeless as a
result of mental or physical handicap1.

The purpose of life is to be happy and to make others happy if possible, to grow old gracefully and to
die with dignity. So the question of euthanasia arises on three occasions2.

1. At the beginning of life (at birth)

2. At the end of natural life ( terminal stage), and

3. When a person is severely impaired as a result of brain damage (unforeseen mishap)

At Birth

a. In case of physically and mentally handicapped infants.

b. Decision rests on the parents or on the doctors aided by the law of the land.

c. The decision should be based on quality of life the child can expect and its consequent impact on
the parents, society and the resources of the State and also care of the child after death of the
parents.

At terminal stage

a. The dying conscious patient can give his own consent or decision as to continue or not
the ongoing treatment if he wishes to.

b. No moral obligation on doctors to preserve life at any cost.

1
Vij Krishan. The textbook of Forensic Medicine and Toxicology, 3rd Edition,2005,

2
Parikh C. K. Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology. 6th Edition, reprint 2000,

3
Unforeseen mishap

a. When a person is severely impaired as a result of brain damage either due to violence,
poisoning or natural causes where the brain suffers from hypoxic brain damage from which
it cannot recover irrespective of the treatment given his life can be SUSTAINED by artificial
means but only IN A STATE OF SUSPENDED ANIMATION.

b. This gives rise to the confusion whether the treatment is prolonging LIFE or DEATH!!

c. In such cases he may be allowed to die in comfort and with dignity (Such a step would also
save the resources of the State for more rational uses).

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 TYPES OF EUTHANASIA
Euthanasia can be classified –

1. On basis of consent

a. Voluntary euthanasia

Voluntary euthanasia — that is, with those instances of euthanasia in which a clearly
competent person makes a voluntary and enduring request to be helped to die. In other
words Euthanasia conducted with consent is termed voluntary euthanasia.3

b. Involuntary euthanasia

The term involuntary euthanasia is used to describe the killing of a person who has not
explicitly requested aid in dying. This term is most often used with respect to patients
who are in a persistent vegetative state and who probably will never recover
consciousness. Euthanasia conducted without consent is termed involuntary euthanasia.
Involuntary euthanasia is conducted where an individual makes a decision for another
person incapable of doing so.4

c. Non-voluntary euthanasia

Instances of euthanasia where a person is either not competent to, or unable to, express
a wish about euthanasia and there is no one authorised to make a substituted judgment
(in which case a proxy tries to choose as the no-longer-competent patient would have
chosen had she remained competent) — in the context of considering the claim that
permitting voluntary euthanasia will lead via a slippery slope to permitting non-
voluntary euthanasia.5

2. On basis of procedural decision

a. Active euthanasia

Active euthanasia involves the use of lethal drugs or chemicals to kill. It’s a method
which has faced a lot of controversy. A euthanasia machine is used for the purpose of
active euthanasia. It means a positive merciful act to end useless sufferings and a
meaningless existence. It is an act of COMMISION for example by giving large doses of a
drug to hasten death.

3
Stanford Encyclopedia of Philosophy

4
Osborn’s Legal Dictionary

5
Stanford Encyclopedia of Philosophy

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 b. Passive Euthanasia (letting-die or aid in dying)

i. It implies discontinuing or not using extraordinary life sustaining measures to

prolong life. Others include

ii. Act of OMISSION such as failure to resuscitate a terminally ill or incapacitated

patient (e.g. a severely defective newborn infant). Other methods include
disconnecting a feeding tube, not carrying out a life-extending operation or not
giving life-extending drugs etc. ‘Letting die' ...means to give way to an ongoing
inner-organismic process of disintegration, without supporting or substituting
vital functions. Therefore the extubation [removal from a ventilator] of an
incurably ill patient, though a physical action with subsequent death, is not
killing in its proper meaning...The extubation does not produce the effect of
death; it only influences the time of its occurrence. Calahan (1992) has aptly
illustrated this difference of causality: The lethal injection kills both the ill as well
as the healthy person; the discontinuation of life-sustaining treatment, however,
only causes the death of the mortally ill, whereas on the healthy it would have
no effect at all."

Doctor-Assisted Suicide

Assisted suicide: Someone provides an individual with the information, guidance, and means to take
his or her own life with the intention that they will be used for this purpose. When it is a doctor who
helps another person to kill themselves it is called “physician assisted suicide or doctor assisted
suicide”. In doctor assisted-suicide, the doctor provides the patient with medical know-how (i.e.
discussing painless and effective medical means of committing suicide) enabling the patient to end
his/her own life.6

Ethical Contradiction

The Hippocratic Oath and International code of medical ethics pose ethical contradiction for the
doctors. Hippocrates mentions euthanasia in the Hippocratic Oath, which was written between 400
and 300 B.C. The original Oath states: “To please no one will I prescribe a deadly drug nor give advice
which may cause his death.” According to him, a doctor is to relieve the pain of his patient in one
hand and protect and prolong his life on the other. The first can be used in favour of the doctrine of
euthanasia but the second counters the doctrine. American Medical Association hold it inconsistent
with the ethics of advanced medical technology. Advanced medical technology could or should
prolong sufferings.7

6
Vij Krishan. The textbook of Forensic Medicine and Toxicology, 3rd Edition, 2005, pp: 532-534

7
Parikh C. K. Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology. 6th Edition

6
 THEOLOGICAL ASPECT
1. The Hindu View

Hinduism is less interested than western philosophers in abstract ideas of right or

wrong. Rather it focuses on the consequences of our actions. Most Hindus would say
that a doctor should not accept a patient's request for euthanasia since this will cause
the soul and body to be separated at an unnatural time. The result will damage the
karma of both doctor and patient.

Other Hindus believe that euthanasia cannot be allowed because it breaches the
teaching of ahimsa (doing no harm). However, some Hindus say that by helping to end a
painful life a person is performing a good deed and so fulfilling their moral obligations.

There are two Hindu views on euthanasia:

a. By helping to end a painful life a person is performing a good deed and so

fulfilling their moral obligations.

b. By helping to end a life, even one filled with suffering, a person is disturbing the
timing of the cycle of death and rebirth. This is a bad thing to do, and those
involved in the euthanasia will take on the remaining karma of the patient.

The same argument suggests that keeping a person artificially alive on a life-
support machines would also be a bad thing to do. However, the use of a life-
support machine as part of a temporary attempt at healing would not be a bad
thing. The ideal death is a conscious death, and this means that palliative
treatments will be a problem if they reduce mental alertness.

2. The Muslim View

Muslims are against euthanasia. They believe that all human life is sacred because it is
given by Allah, and that Allah chooses how long each person will live. Human beings
should not interfere in this.

a. Life is sacred

 Euthanasia and suicide are not included among the reasons allowed for killing in
Islam.

 Do not take life, which Allah made sacred, other than in the course of justice."
(Qur'an 17.33)

 If anyone kills a person - unless it be for murder or spreading mischief in the

land- it would be as if he killed the whole people." (Qur'an 5.32)

b. Allah decides how long each of us will live

 When their time comes they cannot delay it for a single hour nor can they bring
it forward by a single hour." (Qur'an 16.61)

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  And no person can ever die except by Allah's leave and at an appointed term."
(Qur'an 3.145)

c. Suicide and euthanasia are explicitly forbidden

 "Destroy not yourselves. Surely Allah is ever merciful to you." (Qur'an 4.29)

The Prophet (pbuh) said: "Amongst the nations before you there was a man who
got a wound and growing impatient (with its pain), he took a knife and cut his
hand with it and the blood did not stop till he died. Allah said, 'My Slave hurried
to bring death upon himself so I have forbidden him (to enter) Paradise.'" (Sahih
Bukhari 4.56.669)

3. The Christian View

Christians are mostly against euthanasia. The arguments are usually based on the
argument that life is a gift from God and that human beings are made in God's image.
Birth and death are part of the life processes which God has created, so we should
respect them. Therefore no human being has the authority to take the life of any
innocent person, even if that person wants to die.

To propose euthanasia for an individual is to judge that the current life of that individual
is not worthwhile. Such a judgment is incompatible with recognizing the worth and
dignity of the person to be killed. Nor should anyone ask for euthanasia for themselves
because no one has the right to value anyone, even themselves, as worthless. Patients in
a persistent vegetative state, although seriously damaged, remain living human beings,
and so their intrinsic value remains the same as anyone else's. So it would be wrong to
treat their lives as worthless and to conclude that they 'would be better off dead'.
Christians believe that the intrinsic dignity and value of human lives means that the
value of each human life is identical. They don't think that human dignity and value are
measured by mobility, intelligence, or any achievements in life.

4. The Sikh View

Sikhs derive their ethics largely from the teachings of their scripture, Guru Granth Sahib,
and the Sikh Code of Conduct (the Rehat Maryada). The Sikh Gurus rejected suicide (and
by extension, euthanasia) as an interference in God's plan. Suffering, they said, was part
of the operation of karma, and human beings should not only accept it without
complaint but act so as to make the best of the situation that karma has given them.
This suggests that the Sikh reaction to situations where people think about euthanasia
would be to provide such good care that euthanasia became an unattractive option.

No religion approves euthanasia. However, philosophers like Aristotle, Plato and Pythagoras
favoured euthanasia. Different organizations have moved from time to time to form public opinion
in favour of euthanasia and legalize it. The Roman Catholics oppose the right of self killing.

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 LEGISLATION IN SOME COUNTRIES RELATING TO EUTHANASIA OR
PHYSICIAN ASSISTED DEATH
Although in the present case we are dealing with a case related to passive euthanasia, it would be of
some interest to note the legislations in certain countries permitting active euthanasia. These are
given below.

1. Netherlands:

Euthanasia in the Netherlands is regulated by the Termination of Life on Request and Assisted
Suicide (Review Procedures) Act, 2002. It states that euthanasia and physician-assisted suicide are
not punishable if the attending physician acts in accordance with the criteria of due care. These
criteria concern the patient's request, the patient's suffering (unbearable and hopeless), the
information provided to the patient, the presence of reasonable alternatives, consultation of
another physician and the applied method of ending life. To demonstrate their compliance, the Act
requires physicians to report euthanasia to a review committee.

The legal debate concerning euthanasia in the Netherlands took off with the Postma case; in 1973,
concerning a physician who had facilitated the death of her mother following repeated explicit
requests for euthanasia. While the physician was convicted, the court's judgment set out criteria
when a doctor would not be required to keep a patient alive contrary to his will. This set of criteria
was formalized in the course of a number of court cases during the 1980s. Termination of Life on
Request and Assisted Suicide (Review Procedures) Act took effect on April 1, 2002. It legalizes
euthanasia and physician assisted suicide in very specific cases, under very specific circumstances.
The law was proposed by Els Borst, the minister of Health.

The procedures codified in the law had been a convention of the Dutch medical community for over
twenty years. The law allows a medical review board to suspend prosecution of doctors who
performed euthanasia when each of the following conditions is fulfilled:

 The patient's suffering is unbearable with no prospect of improvement.

 The patient's request for euthanasia must be voluntary and persist over time (the request
cannot be granted when under the influence of others, psychological illness, or drugs).

 The patient must be fully aware of his/her condition, prospects and options.

 There must be consultation with at least one other independent doctor who needs to
confirm the conditions mentioned above.

 The death must be carried out in a medically appropriate fashion by the doctor or patient, in
which case the doctor must be present.

 The patient is at least 12 years old (patients between 12 and 16 years of age require the
consent of their parents)

The doctor must also report the cause of death to the municipal coroner in accordance with the
relevant provisions of the Burial and Cremation Act. A regional review committee assesses whether
a case of termination of life on request or assisted suicide complies with the due care criteria.
Depending on its findings, the case will either be closed or, if the conditions are not met, brought to
the attention of the Public Prosecutor. Finally, the legislation offers an explicit recognition of the
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validity of a written declaration of the will of the patient regarding euthanasia (a euthanasia
directive). Such declarations can be used when a patient is in a coma or otherwise unable to state if
they wish to be euthanized.

Euthanasia remains a criminal offense in cases not meeting the law's specific conditions, with the
exception of several situations that are not subject to the restrictions of the law at all, because they
are considered normal medical practice. These are:

 Stopping or not starting a medically useless (futile) treatment.

 Stopping or not starting a treatment at the patient's request.

 Speeding up death as a side-effect of treatment necessary for alleviating serious suffering.

Euthanasia of children under the age of 12 remains technically illegal; however, Dr. Eduard Verhagen
has documented several cases and, together with colleagues and prosecutors, has developed a
protocol to be followed in those cases. Prosecutors will refrain from pressing charges if this
Groningen Protocol is followed.

2. Switzerland:

Switzerland has an unusual position on assisted suicide: it is legally permitted and can be performed
by non-physicians. However, euthanasia is illegal, the difference between assisted suicide and
euthanasia being that while in the former the patient administers the lethal injection himself, in the
latter a doctor or some other person administers it.

Article 115 of the Swiss penal code which came into effect in 1942 (having been approved in 1937),
considers assisting suicide a crime if, and only if, the motive is selfish. The code does not give
physicians a special status in assisting suicide; although, they are most likely to have access to
suitable drugs. Ethical guidelines have cautioned physicians against prescribing deadly drugs.

Switzerland seems to be the only country in which the law limits the circumstances in which assisted
suicide is a crime, thereby decriminalising it in other cases, without requiring the involvement of a
physician. Consequently, non-physicians have participated in assisted suicide. However, legally,
active euthanasia e.g. administering a lethal injection by a doctor or some other person to a patient
is illegal in Switzerland (unlike in Holland where it is legal under certain conditions).

The Swiss law is unique because:

1. The recipient need not be a Swiss national, and

2. A physician need not be involved. Many persons from other countries, especially Germany, go
to Switzerland to undergo euthanasia.

3. Belgium:

Belgium became the second country in Europe after Netherlands to legalize the practice of
euthanasia in September 2002. The Belgian law sets out conditions under which suicide can be
practised without giving doctors a licence to kill. Patients wishing to end their own lives must be
conscious when the demand is made and repeat their request for euthanasia. They have to be under

10
constant and unbearable physical or psychological pain resulting from an accident or incurable
illness.

The law gives patients the right to receive ongoing treatment with painkillers -- the authorities have
to pay to ensure that poor or isolated patients do not ask to die because they do not have money for
such treatment.

Unlike the Dutch legislation, minors cannot seek assistance to die. In the case of someone who is not
in the terminal stages of illness, a third medical opinion must be sought.

Every mercy killing case will have to be filed at a special commission to decide if the doctors in
charge are following the regulations.

4. U.K., Spain, Austria, Italy, Germany, France, etc.

In none of these countries is euthanasia or physician assisted death legal. In January 2011 the French
Senate defeated by a 170-142 vote a bill seeking to legalize euthanasia. In England, in May 2006 a
bill allowing physician assisted suicide, was blocked, and never became law.

5. United States of America:

Active Euthanasia is illegal in all states in U.S.A., but physician assisted dying is legal in the states of
Oregon, Washington and Montana. As already pointed out above, the difference between
euthanasia and physician assisted suicide lies in who administers the lethal medication. In the
former, the physician or someone else administers it, while in the latter the patient himself does so,
though on the advice of the doctor.

a. Oregon:

Oregon was the first state in U.S.A. to legalize physician assisted death. The Oregon legislature
enacted the Oregon Death with Dignity Act, in 1997. Under the Death With Dignity Act, a person
who sought physician-assisted suicide would have to meet certain criteria:

 He must be an Oregon resident, at least 18 years old, and must have decision making
capacity.

 The person must be terminally ill, having six months or less to live.

 The person must make one written and two oral requests for medication to end his/her life,
the written one substantially in the form provided in the Act, signed, dated, witnessed by
two persons in the presence of the patient who attest that the person is capable, acting
voluntarily and not being coerced to sign the request. There are stringent qualifications as to
who may act as a witness.

 The patient's decision must be an `informed' one, and the attending physician is obligated to
provide the patient with information about the diagnosis, prognosis, potential risks, and
probable consequences of taking the prescribed medication, and alternatives, including, but
not limited to comfort care, hospice care and pain control. Another physician must confirm
the diagnosis, the patient's decision making capacity, and voluntariness of the patient's
decisions.

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  Counselling has to be provided if the patient is suffering from depression or a mental
disorder which may impact his judgment.

 There has to be a waiting period of 15 days, next of kin have to be notified, and State
authorities have to be informed.

 The patient can rescind his decision at any time.

In response to concerns that patients with depression may seek to end their lives, the 1999
amendment provides that the attending physician must determine that the patient does not have
`depression causing impaired judgment' before prescribing the medication. Under the law, a person
who met all requirements could receive a prescription of a barbiturate that would be sufficient to
cause death. However, the lethal injection must be administered by the patient himself, and
physicians are prohibited from administering it.

The landmark case to declare that the practice of euthanasia by doctors to help their patients shall
not be taken into cognizance was Gonzalez vs. Oregon decided in 2006.

After the Oregon Law was enacted about 200 persons have had euthanasia in Oregon.

b. Washington:

Washington was the second state in U.S.A. which allowed the practice of physician assisted death in
the year 2008 by passing the Washington Death with Dignity Act, 2008.

c. Montana:

Montana was the third state (after Oregon and Washington) in U.S.A. to legalize physician assisted
deaths, but this was done by the State judiciary and not the legislature. On December 31, 2009, the
Montana Supreme Court delivered its verdict in the case of Baxter v. Montana permitting physicians
to prescribe lethal indication. The court held that there was nothing in Montana Supreme Court
precedent or Montana statutes indicating that physician aid in dying is against public policy.

d. Other States in U.S.A.:

In no other State in U.S.A. is euthanasia or physician assisted death legal. Michigan banned
euthanasia and assisted suicide in 1993, after Dr. Kevorkian (who became known as `doctor death')
began encouraging and assisting in suicides. He was convicted in 1999 for an assisted suicide
displayed on television, his medical licence cancelled, and he spent 8 years in jail.

In 1999 the State of Texas enacted the Texas Futile Care Law which entitles Texas hospitals and
doctors, in some situations, to withdraw life support measures, such as mechanical respiration, from
terminally ill patient when such treatment is considered futile and inappropriate. However, Texas
has not legalized euthanasia or physician assisted death.

In California, though 75% of people support physician assisted death, the issue is highly controversial
in the State legislature.

Forty States in USA have enacted laws which explicitly make it a crime to provide another with the
means of taking his or her life.

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In 1977 California legalized living wills, and other States soon followed suit. A living will (also known
as advance directive or advance decision) is an instruction given by an individual while conscious
specifying what action should be taken in the event he/she is unable to make a decision due to
illness or incapacity, and appoints a person to take such decisions on his/her behalf. It may include a
directive to withdraw life support on certain eventualities.

6. Canada:

In Canada, physician assisted suicide is illegal vide Section 241(b) of the Criminal Code of Canada.

The leading decision of the Canadian Supreme Court in this connection is Sue Rodriguez v. British
Columbia (Attorney General), (1993) 3 SCR 519. Rodriguez, a woman of 43, was diagnosed with
Amyotrophic Lateral Sclerosis (ALS), and requested the Canadian Supreme Court to allow someone
to aid her in ending her life.

Her condition was deteriorating rapidly, and the doctors told her that she would soon lose the ability
to swallow, speak, walk, and move her body without assistance. Thereafter she would lose her
capacity to breathe without a respirator, to eat without a gastrotomy, and would eventually be
confined to bed. Her life expectancy was 2 to 14 months.

The Canadian Supreme Court was deeply divided. By a 5 to 4 majority her plea was rejected. Justice
Sopinka, speaking for the majority (which included Justices La Forest, Gonthier, Iacobucci and Major)
observed:

Sanctity of life has been understood historically as excluding freedom of choice in the self infliction
of death, and certainly in the involvement of others in carrying out that choice. At the very least, no
new consensus has emerged in society opposing the right of the State to regulate the involvement of
others in exercising power over individuals ending their lives. The minority, consisting of Chief
Justice Lamer and Justices L'Heureux-Dube, Cory and McLachlin, dissented.

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 THE LAW IN INDIA
Passive euthanasia is legal in India. On 7 March 2011 the Supreme Court of India legalised passive
euthanasia by means of the withdrawal of life support to patients in a permanent vegetative state.
The decision was made as part of the verdict in a case involving Aruna Shanbaug, who has been in a
vegetative state for 37 years at King Edward Memorial Hospital. The high court rejected active
euthanasia by means of lethal injection. In the absence of a law regulating euthanasia in India, the
court stated that its decision becomes the law of the land until the Indian parliament enacts a
suitable law. Active euthanasia, including the administration of lethal compounds for the purpose of
ending life, is still illegal in India, and in most countries.

Prior to the Aruna Shanbaug judgment, like almost in all other countries, euthanasia had no legal
status in India. The practice of euthanasia was a clear act of offence, either a suicide or assistance to
commit suicide or a murder. The previous judgement of Supreme Court declared that:

Right to DIE is not included in the Right to LIFE under Article 21 of Indian Constitution. Article 21 is a
provision guaranteeing protection of life and personal liberty and by no stretch of imagination can
imply ‘EXTINCTION OF LIFE’. ‘Right to life’ is a natural right embodied in Article 21 but suicide is an
unnatural termination or extinction of life and therefore not compatible and inconsistent with the
concept of ‘right to life’.

SUPREME COURT OF INDIA ON SUICIDE, EUTHANASIA, ASSISTED SUICIDE, ABETMENT OF SUICIDE,

STOPPING LIFE SUPPORT TREATMENT (Prior To Aruna Shanbaug Case)

The Supreme Court had occasion to discuss the issues of suicide, euthanasia, assisted suicide,
abetment of suicide, stopping life sustaining treatment in Gian Kaur vs. State of Punjab: 1996(2) SCC
648.

The Court held that ending a person’s life unnaturally is surely a violation of human rights. A human
has a right to live a life on his own terms but that doesn’t allow him to end his life as when he wants.
This life has been given to him by God and thus, it should end naturally.

Euthanasia is illegal in India. If a doctor tries to kill a patient, the case will fall under Section 300 of
Indian Penal Code, 1860. but this is only so in the case of voluntary euthanasia in which such cases
will fall under the exception 5 to section 300 of Indian Penal Code,1860 and thus the doctor will be
held liable under Section 304 of Indian Penal Code,1860 for culpable homicide not amounting to
murder. Cases of non-voluntary and involuntary euthanasia would be struck by proviso one to
Section 92 of the IPC and thus be rendered illegal.

Euthanasia and Suicide were clearly defined in the case Naresh Marotrao Sakhre v. Union of India.
J. Lodha stated- “Suicide by its very nature is an act of self-killing or self-destruction, an act of
terminating one’s own act and without the aid or assistance of any other human agency while
Euthanasia or mercy killing on the other hand implies the intervention of other human agency to end
the life. Mercy killing is therefore not suicide and an attempt at mercy killing is not covered by the
provisions of Section 309. The two concepts are both factually and legally distinct. Euthanasia or
mercy killing is nothing but homicide whatever the circumstances in which it is performed.”

The question whether Article 21 includes right to die or not first arose in the case State of
Maharashtra v. Maruti Shripathi Dubal. The Bombay High Court held that ‘right to life’ also includes
‘right to die’ and Section 309 was struck down. The court stated in this case that right to die is not
unnatural; it is just uncommon and abnormal. Also the court mentioned about many instances in
14
which a person may want to end his life. This was upheld by the Supreme Court in the case P.
Rathinam v. Union of India.

Interestingly in P.Rathinam’s case, even when a Division bench affirmed the view in M.S Dubal v.
State of Maharashtra that the "right to life" provided by the Constitution may be said to bring into its
purview, the right not to live a forced life, the plea for legalising euthanasia was rejected. It was held
that as euthanasia involves the intervention of a third person, it would indirectly amount to a person
abetting the killing of another, which would fall under Section 306 of the I.P.C.

In Naresh Marotrao Sakhre v. Union of India, Lodha J. affirmed that "Euthanasia or mercy killing is
nothing but homicide whatever the circumstances in which it is performed."

In the case of Gian Kaur v. State of Punjab it was held by the five judge bench of the Supreme Court
that the “right to life” guaranteed by Article 21 of the Constitution does not include the “right to
die”. The court held that Article 21 only guarantees right to life and personal liberty and that the
right to die is not included in it.

This leads us to conclude that any act that involves unnatural termination of life- e.g. - an attempt to
suicide or an abetment to suicide or assisted suicide or euthanasia, is illegal. The high level of
credibility accorded to the sanctity of life in India is evident from the fact that even an attempt to
suicide is punishable.

As the Supreme Court referred to some of the provisions of the Indian Penal Code, 1860 in that
connection, we shall refer to those provisions.

(a) Sections 107, 306 and 309 of the Indian Penal Code, 1860:

Section 306 of the Penal Code which refers to ‘abetment of suicide’, reads as follows:

“Section 306: If any person commits suicide whoever abets the commission of such suicide, shall be
punished with imprisonment of either description for a term which may extend to ten years, and
shall be liable to fine.”

Section 107 defines ‘abetment of a thing’ as follows:

“A person abets the doing of a thing, who

First: Instigates any person to do that thing;

Secondly: Engages with one or more other person or persons in any conspiracy for the doing of that
thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the
doing of that thing; or

Thirdly: Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1: A person who by willful misrepresentation, or by willful concealment of a material

fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure a
thing to be done, is said to instigate the doing of that thing.

Explanation 2: Whoever, either prior to or at the time of the commission of an act, does anything in
order to facilitate the commission of that act and thereby facilitates the commission thereof, is said
to aid the doing of that act.”
15
Section 309 of the Code makes ‘attempt to commit suicide’ an offence and it states as follows:

“Section 309: Whoever attempts to commit suicide and does any act towards the commission of
such offence, shall be punished with simple imprisonment for a term which may extend to one year
or with fine or with both.”

Thus, ‘attempt to commit suicide’ is an offence which may result in imprisonment (for a term which
may extend to one year) or with fine or with both.19

While dealing with sec 309, it is necessary to refer to two important decisions of the Supreme Court
of India where, in the first case in P. Rathinam vs. Union of India 1994(3)SCC 394 a two-Judge Bench
of the Supreme Court struck down sec 309 as unconstitutional and in the second case in Gian Kaur
vs. State of Punjab: 1996(2)SCC 648 a Constitution Bench overruled the earlier judgment and upheld
the validity of sec 309.

In both the judgments, the provisions of Art 21 of the Constitution of India which guarantees that no
person shall be deprived of his life or personal liberty except according to procedure established by
law, were interpreted. It was held in both cases, that, in any event, sec 309 did not contravene Art
14 of the Constitution of India.

The first case of P. Rathinam was overruled in the second case, Gian Kaur. But, it is necessary to
state that in P. Rathinam, sec 309 ‘attempt to commit suicide’ was alone in question whereas in the
second case, Gian Kaur, the question was about the validity of both sections 306 (abetment of
suicide) as also sec 309 (attempt to commit suicide). In Gian Kaur, the appellants who were
convicted under sec 306 for ‘abetment of suicide’ contended that if sec 309 dealing with ‘attempt to
commit suicide’ was unconstitutional, for the same reasons, sec 306 which deals with ‘abetment of
suicide’ must be treated as unconstitutional. But, the Supreme Court upheld the constitutional
validity of both sec 306 and sec 309.

In Gian Kaur, the Supreme Court made it clear that ‘Euthanasia’ and ‘Assisted Suicide’ are not lawful
in India and the provisions of the Penal Code 1860 get attracted to these acts. But, the question is
whether there is anything in Gian Kaur’s case upholding sections 306 and 309, which either directly
or indirectly deals with ‘withdrawal of life support’?

(A) Fortunately, in the context of sec 306 (abetment of suicide), there are some useful remarks in
Gian Kaur which touch upon the subject of withdrawal of life support. Before the Supreme Court, in
the context of an argument dealing with ‘abetment’ of suicide, the decision of the House of Lords in
Airedale N.H.S. Trust vs. Bland 1993(1) All ER 821, was cited.

The Supreme Court referred to the distinction between withdrawing life support and euthanasia, as
follows: (p. 665).

“Airedale N.H.S. Trust vs. Bland was a case relating to withdrawal of artificial measures for
continuance of life by a physician. Even though it is not necessary to deal with physician assisted
suicide or euthanasia case, a brief reference to the decision cited at the Bar may be made. In the
context of existence in the persistent vegetative state of no benefit to the patient, the principle of
sanctity of life, which is the concern of the State, was stated to be not an absolute one. In such cases
also, the existing crucial distinction between cases in which a physician decides not to provide, or to
continue to provide, for his patient, treatment of care which could or might prolong his life, and
those in which he decides, for example, by administering a lethal drug, actively to bring his patient’s

16
life to an end, was indicated and it was then stated as under….” (emphasis suggested). and their
Lordships quoted the following passage from Airdale:

“But, it is not lawful for a doctor to administer a drug to his patient to bring about his death, even
though that course is prompted by a humanitarian desire to end his suffering however great that
suffering may be (See R vs. Cox (18.9.1992, unreported per Ognall J in the Crown Court at
Winchester). So to act is to cross the Rubicon which runs between on the one hand the care of the
living patient and, on the other hand, euthanasia-actively causing his death to avoid or to end his
suffering. Euthanasia is not lawful at Common-law. It is of course well known that there are many
responsible members of our society – who believe that euthanasia should be made lawful, but that
result could, I believe, only be achieved by legislation which expresses the democratic will that so
fundamental a change should be made in our law, and can, if enacted, ensure that such legalized
killing can only be carried out subject to appropriate supervision and control”. (emphasis supplied)

The Supreme Court stated, after the above quotation from Airdale as follows: (p 665)

“The desirability of bringing about such a change was considered to be function of the legislature by
enacting a suitable law providing therein adequate safeguards to prevent any possible abuse.”

In effect, the Supreme Court, while making the distinction between euthanasia, which can be
legalized only by legislation, and ‘withdrawal of life-support’, appears to agree with the House of
Lords that ‘withdrawal of life support’ is permissible in respect of a patient in a persistent vegetative
state as it is no longer beneficial to the patient that ‘artificial measures’ be started or continued
merely for ‘continuance of life’. The Court also observed that the principle of ‘sanctity of life, which
is the concern of the State’, was ‘not an absolute one’.

(B) We may also refer to certain observations in Gian Kaur as to whether a ‘right to die’ with dignity
was part of a ‘right to live’ with dignity in the context of Art 21 where death due to termination of
natural life is certain and imminent and the process of natural death has commenced. The Court
observed: (p 661) “A question may arise, in the context of a dying man who is terminally ill or in a
persistent vegetative state that he may be permitted to terminate it by a premature extinction of his
life in those circumstances. This category of cases may fall within the ambit of the ‘right to die’ with
dignity as a part of ‘right to live’ with dignity, when death due to termination of natural life is certain
and imminent and the process of natural death has commenced.”

From the above passages, it is clear that the Supreme Court accepted the statement of law by the
House of Lords in Airedale that ‘euthanasia’ is unlawful and can be permitted only by the legislature
i.e. act of killing a patient painlessly for relieving his suffering from incurable illness. (and be subject
to appropriate supervision and control). Otherwise, it is not legal. ‘Assisted suicide’ is where a doctor
is requested by a patient suffering from pain and he helps the patient by medicine to put an end to
his life. This is also not permissible in law. Again, at p 661, the Supreme Court stated:

“These are not cases of extinguishing life but only of accelerating conclusion of the process of
natural death which has already commenced. The debate even in such cases to permit physician
assisted termination of life is inconclusive. It is sufficient to reiterate that the argument to support
the view of permitting termination of life in such cases to reduce the period of suffering during the
process of certain-natural death is not available to interpret Art 21 to include therein the right to
curtail the normal span of life.” (emphasis supplied).

The last sentence must be understood in the context of ‘assisted suicide’ and not in the context of
withholding or withdrawing life support. But where a patient is terminally ill or is in a persistent
17
vegetative state, a premature extinction of his life in those circumstances, by withholding or
withdrawal of life support, is part of the right to live with dignity and, is permissible, when death due
to natural termination of life is certain and imminent and the process of natural death has
commenced.

The case of ‘withdrawal of artificial measures for continuance of life by a physician’, decided by
Airedale N.H.S. Trust vs. Bland (1993 (1) All ER. 821 (HL) deals with something different from
euthanasia or physician assisted suicide. It relates to the withdrawal of artificial measures used by a
physician for continuance of life. In the context of a patient in a persistent vegetative state with no
benefit to himself, the principle of sanctity of life, which is the concern of the State, has been stated
to be not an absolute one.

In such cases also, there is a crucial distinction between cases in which (a) a physician decides not to
provide or continue to provide treatment or care which can or may prolong his life and (b) where the
physician decides, for example, to administer a lethal drug, actively to bring an end to the patient’s
life. The former is permissible but the latter is not. Taking care of a living patient is different from
crossing the Rubicon to resort to euthanasia. (para 40 of SCC)

If these are the guidelines that can be culled out from the judgment of the Supreme Court in Gian
Kaur’s case, which expressly referred to Airedale N.H.S. Trust vs. Bland, there is no difficulty in
accepting the principles laid down in UK and other countries as to when it would be lawful for a
patient or a doctor to direct stoppage of ventilation or artificial nutrition or other life sustaining
treatment.

18
 SUPREME COURTS’ DECISION IN ARUNA’S CASE (2011)
The case of Aruna Ramachandra Shanbaug [(2011) 4 SCC 454] is the first case in India which
deliberated at length on ‘euthanasia’. The Supreme Court, while making it clear that passive
euthanasia is permissible in our country as in other countries, proceeded to lay down the safeguards
and guidelines to be observed in the case of a terminally ill patient who is not in a position to signify
consent on account of physical or mental predicaments such as irreversible coma and unsound
mind. It was held that a close relation or a ‘surrogate’ cannot take a decision to discontinue or
withdraw artificial life sustaining measures and that the High Court’s approval has to be sought to
adopt such a course. The High Court in its turn will have to obtain the opinion of three medical
experts. In that case, Aruna Shanbaug was in Persistent Vegetative State (PVS for short) for more
than three decades and the Court found that there was a little possibility of coming out of PVS.

However, the Court pointed out that she was not dead. She was abandoned by her family and was
being looked after by staff of KEM Hospital in which she worked earlier as staff nurse. The Court
started the discussion by pointing out the distinction between active and passive euthanasia and
observed that “the general legal position all over the world seems to be that while active euthanasia
is illegal unless there is legislation permitting it, passive euthanasia is legal even without legislation
provided certain conditions and safeguards are maintained”. The distinctive feature of PVS, it was
pointed out, is that brain stem remains active and functioning while the cortex has lost its function
and activity. The Supreme Court addressed the question when a person can be said to be dead. It
was answered by saying that “one is dead when one’s brain is dead”. Brain death is different from
PVS. Reference was made to American Uniform Definition of Death, 1980. Then it was concluded:

“Hence, a present day understanding of death as the irreversible end of life must imply total brain
failure such that neither breathing nor circulation is possible any more”.

After referring extensively to the opinions expressed in Airedale case, the Supreme Court stated that
the law in U.K. is fairly well-settled that in the case of incompetent patient, if the doctors act on the
basis of informed medical opinion and withdraw the artificial life support system, the said act cannot
be regarded as a crime. The question was then posed as to who is to decide what the patient’s best
interest is where he or she is in a Persistent Vegetative State (PVS). It was then answered by holding
that although the wishes of the parents, spouse or other close relatives and the opinion of the
attending doctors should carry due weight, it is not decisive and it is ultimately for the Court to
decide as parens patriae as to what is in the best interest of the patient. The High Court has been
entrusted with this responsibility, following what Lord Keith said in Airdale case. The Supreme Court
referred to the dicta in the Court of appeal decision in J. (A minor) (Wardship: medical treatment) 9,
that the Court as a representative of sovereign as parens patriae will adopt the same standard which
a reasonable and responsible parent would do. The same is the standard for a ‘surrogate’ as well.

But, there is no decision making role to a ‘surrogate’ or anyone else except the High Court, as per
the decision in Aruna’s case.

Referring to the U.S. decisions and in particular the observations of Cardozo J., the Supreme Court
pointed out that the informed consent doctrine has become firmly entrenched in American Tort Law
(vide para 93 of SCC). The logical corollary of the doctrine of informed consent is that the patient
generally possesses the right not to consent i.e., to refuse treatment”.

The court relied on the observation of Rehnquist C.J. that “the notion of bodily integrity has been
embodied in the requirement that informed consent is generally required for medical treatment”.
The Supreme Court referred 9 (1990) 3 All ER 930 extensively to Cruzan’s case10 , wherein the U.S.
19
Supreme Court affirmed the view of the State Supreme Court that the permission to withdraw
artificial feeding and hydration equipment to Nancy Cruzan who was in a PVS state ought not to be
allowed. It was observed that there was a powerful dissenting opinion by Brennan J. with whom two
Judges concurred. The Supreme Court then highlighted the fact that in Cruzan case, there was a
statute of the State of Missouri unlike in Airedale case (where there was none), which required clear
and convincing evidence that while the patient was competent, had desired that if she becomes
incompetent and enters into a PVS, her life support system should be withdrawn. There was no such
evidence in that case. It was in that background, in Cruzan’s case, the Court’s permission was
refused.

Coming to Indian law on the subject, it was pointed out that in Gian Kaur’s case11 , the Supreme
Court approvingly referred to the view taken by House of Lords in Airedale case on the point that
Euthanasia can be made lawful only by legislation. Then it was observed: “It may be noted that in
Gian Kaur case although the Supreme Court has quoted with approval the view of House of Lords in
Airedale case, it has not clarified who can decide whether life support should be discontinued in the
case of an incompetent person e.g. a person in coma or PVS. This vexed question has been arising
often in India because there are a large number of cases where persons go into coma (due to an
accident or some other reason) or for some other reason are unable to give consent, and then the
question arises as to who should give consent for withdrawal of life support”. Then, it was observed:

“In our opinion, if we leave it solely to the patient’s relatives or to the doctors or next friend to
decide whether to withdraw the life support of an incompetent person, there is always a risk in our
country that this may be misused by some unscrupulous persons who wish to inherit or otherwise
grab property of the patient” (1996) 2 SCC 648

Proceeding to discuss the question whether life support system (which is done by feeding her)
should be withdrawn and at whose instance, the Supreme Court laid down the law with prefacing
observations at paragraph 124 as follows: “There is no statutory provision in our country as to the
legal procedure for withdrawing life support to a person in PVS or who is otherwise incompetent to
take a decision in this connection. We agree with Mr. Andhyarujina that passive Euthanasia should
be permitted in our country in certain situations, and we disagree with the learned Attorney General
that it should never be permitted. Hence, following the technique used in Vishaka case, we are
laying down the law in this connection which will continue to be the law until Parliament makes a
law on the subject:

i. A decision has to be taken to discontinue life support either by the parent or the spouse
or other close relative or in the absence of any of them, such a decision can be taken
even by a person or a body of persons acting as a next friend. It can also be taken by the
doctors attending the patient. However, the decision should be taken bona fide in the
best interest of the patient.In the present case, we have already noted that Aruna
Shanbaug’s parents are dead and other close relatives are not interested in her ever
since she had the unfortunate assault on her. As already noted above, it is the KEM
Hospital staff, who have been amazingly caring for her day and night for so many long
years, who really are her next friends, and not Ms. Pinki Virani who has only visited her
on few occasions and written a book on her. Hence, it is for KEM Hospital staff to take
that decision. KEM Hospital staffs have clearly expressed their wish that Aruna Shanbaug
should be allowed to live. However, assuming that the KEM Hospital staff at some future
time changes its mind, in our opinion, in such a situation, KEM Hospital would have to
apply to the Bombay High Court for approval of the decision to withdraw life support.

20
 ii. Hence, even if a decision is taken by the near relatives or doctors or next friend to
withdraw life support, such a decision requires approval from the High Court concerned
as laid down in Airedale case.

In our opinion, this is even more necessary in our country as we cannot rule out the possibility of
mischief being done by relatives or others for inheriting the property of the patient”.

In our opinion, if we leave solely to the patient’s relatives or to the doctors or next friend to decide
whether to withdraw the life support of an incompetent person, there is always a risk in our country
that this may be misused by some unscrupulous person who wish to inherit or otherwise grab the
property of the patient.

“We cannot rule out the possibility that unscrupulous persons with the help of some unscrupulous
doctors may fabricate material to show that it is a terminal case with no chance of recovery. In our
opinion, while giving great weight to the wishes of the parents, spouse, or other close relatives or
next friend of the incompetent patient and also giving due weight to the opinion of the attending
doctors, we cannot leave it entirely to their discretion whether to discontinue the lift support or not.

We agree with the decision of Lord Keith in Airedale case that the approval of the High Court should
be taken in this connection. This is in the interest of the protection of the patient, protection of the
doctors, relatives and next friend, and for reassurance of the patient’s family as well as the public.
This is also in consonance with the doctrine of parens patriae which is well-known principle of law”.
(see p. 520 of SCC)

Then Supreme Court explained the doctrine of ‘Parens Patriae’. The Supreme Court then observed
that Article 226 of the Constitution gives ample powers to the High Court to pass suitable orders on
the application filed by the near relatives or next friend or the doctors/hospital staff seeking
permission to withdraw the life support to an incompetent patient.

The procedure to be adopted by the High Court has been laid down in paragraph 134 (p. 522)as
follows: “When such an application is filed, the Chief Justice of the High Court should forthwith
constitute a Bench of at least two Judges who should decide to grant approval or not. Before doing
so the Bench should seek the opinion of a committee of three reputed doctors to be nominated by
the Bench after consulting such medical authorities/medical practitioners as it may deem fit.
Preferably one of the three doctors should be a neurologist; one should be a psychiatrist, and the
third a physician. For this purpose a panel of doctors in every city may be prepared by the High Court
in consultation with the State Government/Union Territory and their fees for this purpose may be
fixed.

The committee of three doctors nominated by the Bench should carefully examine the patient and
also consult the record of the patient as well as taking the views of the hospital staff and submit its
report to the High Court Bench.

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

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

21
 REPORTS BY THE LAW COMMISSION OF INDIA

The 17th and the 19th Law Commission of India in their 196th and 241st report respectively have both
suggested introducing a Bill to enact law to make passive Euthanasia legal. The Medical Treatment of
Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill, 2006 gives a detailed
outlay on the guidelines to withhold medical treatment of patients who are terminally ill and for
whom there is no scope of recovery and those who are incompetent to make a decision at the same
time laying out the direction for the same.

The Law Commission of India, in its 196th Report, had in its opening remarks clarified in
unmistakable terms that the Commission was not dealing with “euthanasia” or “assisted suicide”
which are unlawful but the Commission was dealing with a different matter, i.e., “withholding life-
support measures to patients terminally ill and universally in all countries, such withdrawal is treated
as lawful”. Time and again, it was pointed out by the Commission that withdrawal of life support to
patients is very much different from euthanasia and assisted suicide, a distinction which has been
sharply focused in Aruna’s case as well. Aruna’s case (supra) preferred to use the compendious
expression – “passive euthanasia”.

The 17th Law Commission of India took up the subject for consideration at the instance of Indian
Society of Critical Care Medicine, Mumbai which held a Seminar attended by medical and legal
experts. It was inaugurated by the then Union Law Minister. The Law Commission studied a vast
literature on the subject before the preparation of report.

In the introductory chapter, the Law Commission also clarified:

“In this Report, we are of the view that ‘Euthanasia’ and ‘Assisted Suicide’ must continue to be
offences under our law. The scope of the inquiry is, therefore, confined to examining the various
legal concepts applicable to ‘withdrawal of life support measures’ and to suggest the manner and
circumstances in which the medical profession could take decisions for withdrawal of life support if
it was in the ‘best interests’ of the patient. Further, question arises as to in what circumstances a
patient Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical
Practitioners) .can refuse to take treatment and ask for withdrawal or withholding of life support
measure, if it is an informed decision.”

The following pertinent observations made by the then Chairman of the Law Commission in the
forwarding letter dated 28 August 2006 addressed to the Hon’ble Minister are extracted below:

“A hundred years ago, when medicine and medical technology had not invented the artificial
methods of keeping a terminally ill patient alive by medical treatment, including by means of
ventilators and artificial feeding, such patients were meeting their death on account of natural
causes.

Today, it is accepted, a terminally ill person has a common law right to refuse modern medical
procedures and allow nature to take its own course, as was done in good old times. It is well-settled
law in all countries that a terminally ill patient who is conscious and is competent, can take an
‘informed decision’ to die a natural death and direct that he or she be not given medical treatment
which may merely prolong life. There are currently a large number of such patients who have
reached a stage in their illness when according to well-informed body of medical opinion, there are
no chances of recovery. But modern medicine and technology may yet enable such patients to
prolong life to no purpose and during such prolongation; patients could go through extreme pain

22
and suffering. Several such patients prefer palliative care for reducing pain and suffering and do not
want medical treatment which will merely prolong life or postpone death.”

As stated in Airdale’s case by Lord Goff: “It is of course the development of modern medical
technology, and in particular the development of life-support systems, which has rendered such as
the present so much more relevant than in the past”. That observation made in 1993 in the case of a
PVS patient applies with greater force to the present day medical scenario.

23
 CONCLUSION

Legalizing euthanasia – the perspectives and views

The question of recognizing and legalizing euthanasia is being debated all over the world. The views
pro and contra rest on philosophical, moral, ethical and legal perspectives. Different views have
emerged, some of them being extreme. In a comprehensive Dissertation on “Legislative Passive
Euthanasia” presented by Mr. Sayan Das8, various viewpoints have been discussed and vast
literature on the subject including end – of – life care has been referred to. I am of the view that
rational and humanitarian outlook should have primacy in such a complex matter. Now, passive
euthanasia in the sense in which it has been described at the beginning of this report both in the
case of competent and incompetent patients is being allowed in most of the countries, subject to
the doctor acting in the best interests of the patient who is not in a position to express the will. The
broad principles of medical ethics which shall be observed by the doctor in taking the decision are
the patient’s autonomy (or the right to self determination) and beneficence, which means following
a course of action that is best for the patient uninfluenced by personal convictions, motives or other
considerations.

In Airedale’s case, Lord Keith observed that the hospital / medical practitioner should apply to the
Family Division of High Court for endorsing or reversing the decision taken by the medical
practitioners in charge to discontinue the treatment of a PVS patient. Such a course should be taken
till a body of experience and practice has been developed, as pointed out by Lord Keith in Airedale’s
case. The course suggested by Lord Keith has been approved by our Supreme Court in Aruna’s case
and this salutary safeguard has been implanted in our legal system now. As far as active euthanasia
is concerned, lot of debate is still going on and there are “many responsible members of our society
who believe that euthanasia should be made lawful, but as the laws now stand, euthanasia (other
than passive euthanasia) is a crime in common law and it can only be made lawful by means of
legislation”, as observed in Airedale’s case and reiterated by Law Commission (196th report). In India
too, many from the legal and medical profession and academia have expressed the view that
euthanasia should be legalized.

V. R. Jayadevan pleads for ushering in an era of active euthanasia. The following pertinent
observations made by him on the subject of legalizing active euthanasia may usefully be quoted:9

“The trend of the decisions of both the US and English courts reveals that the common law systems
continue to proscribe active euthanasia as an offence. At the same time, many realize that active
euthanasia is gaining relevance in the modern world. The objections to legalizing active euthanasia
are based on religious principles, professional and ethical aspects and the fear of misuse. But, it
cannot be forgotten that it was by overruling similar objections that abortion was legalized and later

8
an LLM student at Symbosis Law School, Pune, who has been guided by Dr. Shashikala

Gurupur, Director of Law School & Member(P.T.) of Law Commission; sayandas@symlaw.ac.in

9
V. R. Jaydevan, “Right of the Alive [who] but has no Life at all – Crossing the Rubicon from

Suicide to Active Euthanasia”

24
raised as an ingredient of the right to privacy. It is submitted that just like abortion, the modern
societies demand the right to assisted suicide.”

He has cited many authorities in support of his view point.

Passive euthanasia, subject to the observance of certain restrictions and safeguards, has been
endorsed and recognized by the Supreme Court in the latest case of Aruna Shanbaug and in Gian
Kaur’s case also, there is sufficient indication of its legality and propriety. The verdict in Airedale’s
case has given a quietus to this controversy not only in U.K., but also in other countries where the
ratio of the Judgment has been followed.

It is relevant to mention in this context that the Law Commission of India in a more recent report, i.e.
in 210th Report has recommended the repeal of Section 309 of Indian Penal Code so that the
attempt to commit suicide could be decriminalized. As long back as 1971, the Law Commission in its
42nd report pleaded for obliterating Section 309 from the Statute Book. The moral and philosophical
aspects were also considered in detail. In Aruna Shanbaug too, case the Supreme Court made a
categorical observation:

“We are of the opinion that although Section 309 of the IPC has been held to be constitutionally
valid in the Gian Kaur case, the time has come where it should be deleted by Parliament as it has
become anachronistic.

A person attempts suicide in depression and hence he needs help rather than punishment.”

The Supreme Court recommended to the parliament to consider the feasibility of deleting Section
309 from the Penal Code. If Parliament in its wisdom gives effect to this recommendation, the case
for legalizing euthanasia, even active euthanasia, would logically get strengthened. There would
then be no Section in any penal statute to regard it as a crime. However, we need not go thus far in
the case of passive euthanasia. It is not a crime and there is no constitutional taboo. Rational and
humane considerations fully justify the endorsement of passive euthanasia. Moral or philosophical
notions and attitude towards passive euthanasia may vary but it can be safely said that the
preponderance of view is that such considerations do not come in the way of relieving the dying
man of his intractable suffering, lingering pain, anguish and misery. The principle of sanctity to
human life which is an integral part of Art. 21, the right to self determination on a matter of life and
death which is also an offshoot of Art. 21, the right to privacy which is another facet of Art. 21 and
incidentally the duty of doctor in critical situations – all these considerations which may seem to
clash with each other if a disintegrated view of Art.21 is taken – do arise. A fair balance has to be
struck and a holistic approach has to be taken. That is what has been done by the Law Commission
of India in its 196th Report and the Supreme Court of India in the very recent case of Aruna
Shanbaug. The landmark decision of House of Lords in Airedale’s case has charted out the course to
recognize and legalise passive euthanasia even in the case of incompetent patient. In Airdale, as
seen earlier, the principle of best interests of the patient was pressed into service to uphold passive
euthanasia in relation to incompetent patients and this in turn opened the doors for judicial
determination for granting approval. “The best interest calculus generally involves an open-ended
consideration of factors relating to the treatment decision, including the patient’s current condition,
degree of pain, loss of dignity, prognosis, and the risks, side effects, and benefits of each treatment.”

25
Whether legislation necessary?

The path breaking judgment in Aruna Ramachandra and the directives given therein has become the
law of the land. The Law Commission of India too made a fervent plea for legal recognition to be
given to passive euthanasia subject to certain safeguards. The crucial and serious question now is,
should to the Government be recommended to tread a different path and neutralize the effect of
the decision in Aruna’s case and to suggest a course contrary to the law and practices in most of the
countries of the world? As said earlier, there are no compelling reasons for to do so. Our earnest
effort at the present juncture, should only reinforce the reasoning adopted by the Supreme Court.
On taking stock of the pros and cons, it is better to maintain the legal status quo as stated by the
Supreme Court and legalize Passive Euthanasia, while laying down affirmative laws to overlook its
bonafide and effectuate implementation.

26
 BIBLIOGRAPHY

1. http://medind.nic.in/jal/t08/i2/jalt08i2p92.pdf

2. http://legal-articles.deysot.com/constitutional-law/judicial-interpretation-of-article-21-of-

the-indian-constitution.html

3. http://works.bepress.com/cgi/viewcontent.cgi?article=1002&context=aparna_meduri

4. www.euthanasia.com

5. http://news.bbc.co.uk/2/hi/health/2600923.stm

6. http://bcognizance.iiita.ac.in/mar-apr2010/insight-2.htm

7. www.lawcommissionofindia.nic.in

8. http://indiankanoon.org/doc/235821/

9. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2781018/

10. http://www.bailii.org/uk/cases/UKHL/1992/5.html

11. http://www.religionfacts.com/euthanasia/index.htm

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