INTRODUCTION

From the moment a man is born, he is clothed with certain basic human rights of which the ‘right to live’
is an inherent right without which the other rights cannot be enjoyed. This particularly implies that as
such the human being has the right not to be killed by another human being. But the question which
arises next is that whether the person enjoying the ‘right to live’ has a ‘right not to live’ that is to say
whether he has a ‘right to die’? This may include the ‘right of a dying man to die with dignity’, but the
‘right to die with dignity’ does not imply the ‘right to die’ as an unnatural death. One of the controversial
issues in this aspect in the recent past has been the legalization of passive euthanasia[1] in the country.
According to Black Law’s Dictionary, euthanasia is the act or practice of killing or bringing about the
death of a person who suffers from incurable diseases for reasons of mercy, also termed as ‘mercy
killing’. It is the administration of drugs with the explicit intention of ending patient’s life at the patient’s
request.[2] The debate on euthanasia thus lies on the conflict between the principles guaranteed under
Article 21[3] of the Indian Constitution and whether the ‘right to live with dignity’ so guaranteed
includes the ‘right to die with dignity’.

BACKGROUND

In India, first attempt in legislature was made in 1985 when Sadanand Varde had moved the bill in the
Maharashtra legislature seeking to legalize mercy killing. The Bill was criticized on the ground that such a
law if passed will lead to its arbitrary use. Again, an attempt was made by Mr. B.V. Patil in the Lok Sabha
in 1985. However, both the attempts resulted in naught.[4]

The Euthanasia (Permission and Regulation) Bill, 2007 was introduced in the Lok Sabha by C.K.
Chandrappan, a MP from Trichur, Kerala which provided for painless termination of life of completely
bed ridden individuals.[5]

Recently in 2009, Kerala’s Law Reform Commission, headed by former V.R. Krishan Iyer, Supreme Court
Judge has recommended to legalize euthanasia.[6] In the Aruna Shanbaug case[7], where Supreme
Court legalized passive euthanasia under conditions and pointed that law in this connection will
continue to be the laws until the Legislature looks into this matter. Indeed, even after Aruna Shanbaug
case, the then Law Minister Mr. Veerappa Moily expressed the need of a serious debate in this matter
and also agreed with the Supreme Court.[8]

ARTICE 21

Maneka Gandhi v. UOI widened the scope of Article 21 which now protects the right to life and personal
liberty of citizen and non-citizen from the Executive and the Legislative action. A person can be deprived
of his life and personal liberty if two conditions are complied with, first, there must be law and secondly,
there must be procedure prescribed by that law, provided which should be fair, and reasonable. [9]

The words “personal liberty” came into consideration in A.K. Gopalan’s case[10] where the Supreme
Court narrowed down the expression but finally it got overruled by Maneka Gandhi’s case where
Bhagwati J. observed;

“The expression ‘personal liberty’ in Article 21 is of widest amplitude and it covers a variety of rights
which go to constitute the personal liberty of man and some of them have raised to the status of distinct
fundamental rights and given additional protection under Article 19.”[11]

RIGHT TO LIVE INCLUDES RIGHT NOT TO LIVE?

The question now arises is that whether the ‘right to life’ as guaranteed under Article 21 of the Indian
Constitution include the ‘right to die’? This came for consideration for the first time before the Bombay
High Court in Dubal’s case[12] where the court held that fundamental rights have positive and negative
aspects. Citing an example it stated, “freedom of speech and expression includes freedom not to speak
and similarly the freedom to form association and movement includes the freedom not to join any
association or move anywhere and accordingly, it stated that logically it must follow that the ‘right to
live’ would include the right not to live that is to say the ‘right to die’ ”. The court also attempted to
distinguish between suicide and mercy killing, thereby striking down Section 309[13] of IPC, 1960 as
unconstitutional. [14]

This judgement was later upheld by the Supreme Court in P Rathinam’s case[15], where the section 309
of the IPC was declared to be ultra vires Article 21 of the Constitution and that it should be removed
from the statute to humanize the penal laws in the country. [16]

However the above ruling of the Supreme Court was challenged in Gian Kaur’s case[17] where
constitutionality of sections 306[18] and 309 were challenged. It was held that the right to life is
inconsistent with the right to die and stated that the right to life is a natural right embodied under
article 21 but suicide is an unnatural termination of life and hence inconsistent with the concept of right
to life. It was further observed that right to life including the right to live with human dignity would
mean the existence of such right up to the end of natural life whereas euthanasia has been described as
a way of accelerating the process of natural death which has already commenced. It was also held that
permitting termination of life in such cases to reduce the suffering during the process of natural death
cannot be included under Article 21 as it curtails the natural span of life. Hence, the court did not allow
passive euthanasia to be legalised and sections 306 and 309 of IPC were held to be valid and
constitutional.[19]

In the recent judgement of the Supreme Court in Aruna Shanbaug case[20] has paved the gateway for
legalisation of passive euthanasia in India, though not legalising active euthanasia[21]. It laid down the
safeguards to be observed in the case of a terminally ill patient who is unable to signify consent due to
physical or mental predicaments, thereby permitting passive euthanasia in exceptional circumstances
only where the prior approval of the high court has to be sought to adopt such a course and the court in
turn has to take the opinion of three medical experts in this regard. Thus it is ultimately on the court to
decide as parens patria as to what is in the best interest of the patient.

CONCLUSION:

To deprive a person of dignity is to deprive him of a meaningful existence. An individual has a right to
decide how he chooses to live his life without interference from others, thereby expressing his choice as
a fundamental principle underlying the right to live with dignity. In a recent landmark judgment,[22]
right to die has been included within the ambit of right to live, which means that a patient is allowed to
die painlessly when he already knows he is on his death bed and would eventually die because of the
terminal illness. As such the legalization of passive euthanasia relieves a terminally ill person from a
lingering death. It has been argued many a times that such legalization would lead to its arbitrary use
but every right granted involves a risk of it being abused which does not mean that the right should be
denied to the people.

____________________________________________________________________

REFERENCES

[1] Passive euthanasia is a situation where the medical treatment of a patient is withdrawn with the
cautious intention to accelerate the death of the patient.

The court in 2011 recognized passive euthanasia in Aruna Shanbaug case by which it had allowed
withdrawal of treatment from patients who are not in a position to make an informed decision.

[2] Brody, Baruch. (1998). Life and Death Decision Making, New York; Oxford University

Press.

[3] No person shall be deprived of his life or personal liberty except according to a procedure established
by law.
[4] Somia Malik & Dr. Rajesh Hooda, Developments in India, Need of Legalizing Euthanasia in India (Jun
18th, 2019 , 4:28 PM), https://www.ijlrs.com/papers/vol-3-issue-1/7.pdf

[5] Divya Sharma & Dr.Kuljit Kaur, Legal Developments in the Context of Euthanasia in India,
Jurisprudential Aspects of India: With Special Reference to India,(Jun 18th, 2019 , 4:31 PM)
http://ijlljs.in/wp-content/uploads/2014/06/publish-_3_.pdf

[6]Towards the Law on Euthanaisa, The Hindu, Jun 18th 2019, at

https://www.thehindu.com/opinion/editorial/editorial-on-govts-willingness-to-make-law-on-
euthanasia/article8179920.ece

[7] Aruna Ramchandra Shanbaugh v UOI (1986) 88 Bom LR 589

[8] Serious Debate on Euthanasia Needed, Hindustantimes, Jun 18th, 2019, at

https://www.hindustantimes.com/delhi-news/serious-debate-on-euthanasia-needed-moily/story-
0HEI3zPxBd3iwe8iKZiMbK.html

[9] (1978) 2 S.C.R. 621, (‘78) A.S.C. 597

[10] AK Gopalan vs The State Of Madras (AIR 1950 SC 27)

[11] Dr. J.N. Pandey, Constitutional Law of India, 254(53rd Central Law Agency, 2016)

[12] State of Maharashtra vs. Maruti Sripati Dubal 1986 Mah LJ 913

[13]Attempt to commit suicide.—Whoever attempts to commit suicide and does any act towards the
commission of such offence, shall he punished with simple imprisonment for a term which may extend
to one year 1[or with fine, or with both]
[14] Dr. J.N. Pandey, Constitutional Law of India, 276(53rd Central Law Agency, 2016)

[15]P Rathinam vs Union of India 1994 SCC (3) 394

[16] P Rathinam vs Union of India 1994 SCC (3) 394(Jun 19th , 2019, 2:01 PM) at
https://indiankanoon.org/doc/542988/

[17] Gian Kaur vs State of Punjab 1996 SCC (2) 648

[18] Abetment of suicide.—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 also be liable to fine

[19] Gian Kaur vs State of Punjab 1996 SCC (2) 648 (Jun 19th , 2019, 2:01 PM) at
https://indiankanoon.org/doc/217501/

[20] Supra note 7