Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY

ACADEMIC SESSION:2021-2022

CONSTITUTION LAW-I

RIGHT TO DIE

Submitted to: Submitted by:

Dr. Atul Kumar Tiwari Saddhvi Nayak

Associate Professor (Law) 200101114

RMLNLU 3rd semester (Section B)

B.A.L.L.B(Hons.)
 CONTENTS

S.NO. Topic Pg.NO.

1. Declaration 3

2. Acknowledgement 4

3. Introduction 5-6

4. Analysis of Right to Die 7-8

5. Arguments 8-9

6. Legal Status of Right to Die 9-11

7. Legal Position of Right to Die in Other 11-13

Countries
8. Judicial Decisions in India 13

9. Conclusion 14-15

10. Bibliography 15
 DECLARATION

I hereby declare that the project work entitled “Right to Die”

submitted to the Dr. Ram Manohar Lohiya National Law
University, Lucknow is a record of an original work done by me
under the guidance of Dr. Atul Kumar Tiwari, faculty of
sociology, the Dr. Ram Manohar Lohiya National Law
University and this project is submitted in the partial fulfillment
of the requirements for the award of the degree of B.A.L.L.B
(Hons.). The results embodied in this have not been submitted to
any other University or Institute for the award of any degree or
diploma.
 ACKNOWLEDGEMENT

This research paper would not have been accomplished without the
generous contributions of individuals. First of all, I express my gratitude
to the Almighty, who aided me with his strength, wisdom and patience to
complete this project as a term paper.

Additionally, I express my gratitude and deep regards to my teacher Dr.

Atul Kumar Tiwari for giving me the freedom to work on “Right to
Die” and also for his exemplary guidance, monitoring and constant
encouragement throughout the course of this research paper.

I would also like to thank the authorities of Dr. Madhu Limaye Library
who provided the remote access of the library to provide the research
material.

Moreover, I also thank all my batchmates and seniors who aided me

along the way, and my family and friends for their constant
encouragement without which this assignment would not have been
possible.

I know that despite my best effort some discrepancies might have crept
in which I believe my humble professor would forgive.

THANKING YOU ALL.

Saddhvi Nayak.
 INTRODUCTION
The Right to die is a concept which is based on the opinion that a human being is
entitled to make any decisions about ending his or her life (this also includes
undergoing voluntary euthanasia). Possession of this right is often understood to
mean that a person with a terminal illness, or without the will to continue living,
should be allowed to end their own life or to decline life-prolonging treatment. The
primary question that arises is whether people should have the right to die and
what may be the principle justifying such right. Right to life is a basic natural right
of human beings. In India, it is a fundamental right guaranteed under Article 21
that is Part-III of the Constitution of India. The article 21 of our constitution deals
with Protection of Life and Personal Liberty. Article 21 states that: “No person
shall be deprived of his life or personal liberty except according to procedure
established by law.” This fundamental right confers an obligation on the state to
ensure good quality of life, livelihood, liberty and a dignified life to the people,
both citizens and otherwise. According to this article right to life means the right to
lead meaningful, complete and dignified life. It does not have restricted meaning.
The object of the fundamental right under Article 21 is to prevent any restriction
by the State to a person upon his personal liberty and deprivation of life except
according to procedure established by law.

The meaning of the words personal liberty came up for consideration of the
Supreme Court for the first time in A.K. Gopalan v. Union of India. The scope of
Article 21 was a bit narrow at that time. In this case the Supreme Court held that
the word deprivation was construed in a narrow sense and it was held that the
deprivation does not restrict upon the right to move freely which came under
Article 19 (1) (d). Finally, in Maneka Gandhi v. Union of India, the Supreme Court
has overruled Gopalan's case and widens the scope of the words personal liberty,
which is as follows: The expression personal liberty in Article 21 is of widest in
nature and it covers a bundle 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. This right to life has been interpreted
by the Indian judiciary in various ways so as to include within its purview several
new rights such as the right to live with human dignity, right to livelihood, right to
shelter, right to privacy, right to food, right to education, right to get pollution free
air and water and some other rights which are quite essential to improve the
condition of the life of the people, i.e. – for the true enjoyment of the right to life.
The question that right to life can include within its ambit the right not to live or
the right to die is one that has been debated in several cases. Death can be defined
as the termination of life. Death can be categorized basically into two kinds-
natural and unnatural death. It can be caused by the action as well as the inaction of
a person. Causing the extinction of a life unnaturally by the action of oneself over
himself or over someone else is morally bad as well as legally punishable. Every
living being in this world wants to live a long life and by every possible means
wants to increase the longevity of their lives and promoting end of such life is not
the intended result of this right. For a common man, when life becomes far more
painful and unbearable than death, then it is very normal for him to desire death.
This voluntary embracing of death is known as euthanasia or mercy killing.
Euthanasia is also termed as ‘dayamaran’. Some people as the great saints or
heroic persons embrace ‘echchamaran’ or willful death, when they feel that they
have achieved the purpose of their lives. There are different types of voluntary
deaths in our country like the ‘sati’, ‘johars’, ‘samadhi’, ‘prayopaveshan’ (starving
to death) etc.
 ANALYSIS OF RIGHT TO DIE

The question of whether right to life under Article 21 includes right to die or not,
came for consideration for the first time before the High Court of Bombay in State
of Maharashtra v Maruti Sripati Dubal. In this case the Bombay High Court held
that the right to life guaranteed under Article 21 includes right to die, and the
hon'ble High Court struck down section 309 IPC which provides punishment for
attempt to commit suicide by a person as unconstitutional. If one were to undertake
a Hohfeldian analysis of this right, the jural correlatives brought to question would
be right and duty. According to him, every right has a corresponding duty. This
means that if A has the right to die, then B would have the duty to kill him. This, as
we all know, is not the case. The IPC under section 300 and 302 punished killing
or murder of another person. Then what does right to die comprise of? When the
Indian judiciary looked at this subject matter, it saw a lot of cases discussing
Section 309 of the IPC that is abetment of suicide. Undergoing the above analysis,
if right to die means that A has the right to commit suicide, then B will have a duty
to help him do so and that is not the correct conclusion to draw. The scope of the
right to die in India extends to only allowing terminally ill patients or their family
to decide when to withdraw life support and to let the person die with dignity.
Here, if A has the right to die with dignity when he is terminally ill, B or the state
has the duty to let him exercise this right. As in the case of committing suicide,
though section 309 of IPC was recently held to be arbitrary, as well as the state
withdrew the prior punishment for persons who attempted suicide, the state still
does not promote suicide. The state merely abstains from criminalizing it
understanding that such is a matter of mental health. John Locke, among other
philosopher stated that persons have the right to their life, liberty and property and
by that logic, arguments arise that if one has the absolute right to life, then they
must also be given the right to decide if they want to die or if they want to end their
life in case of terminal illnesses. In P Rathinam v. Union of India a Division Bench
of the Supreme Court supporting the decision of the High Court of Bombay in.
Maruti Sripati Dubal case held that under Article 21 right to life also include right
to die and laid down that section 309 of Indian Penal Court which deals with '
attempt to commit suicide is a penal offence' unconstitutional. This issue again
raised before the court in Gian Kaur v. State of Punjab. In this case a five judge
Constitutional Bench of the Supreme Court overruled the P. Ratinam's case and
held that Right to Life under Article 21 of the Constitution does not include Right
to die or Right to be killed and there is no ground to hold that the section 309, IPC
is constitutionally invalid. To true meaning of the word 'life' in Article 21 means
life with human dignity. Any aspect of life which makes life dignified may be
include in it but not that which extinguishes it. The 'Right to Die' if any, is
inherently inconsistent with the Right to Life as is death with Life.

ARGUMENTS
FOR LEGALIZING EUTHANASIA
 It is a way to end an extremely miserable and painful life, and insistence to
postpone the death against patient’s wishes are against law, unwise, inhumane
and not medically sound.
 The family members of the dying patient are relieved of the physical,
emotional, economical and mental stress upon them. It also provides comfort to
the patient and causes relief of his pain.
 The patients also have a right to refuse medical treatment. If a doctor treats a
patient against his express wishes, he can be charged with assault.
 Performance of euthanasia will free up the medical funds of the state to help
other poor and needy people.
 An individual has the freedom to exercise his right to die. The constitution
guarantees the fundamental rights and freedoms where a positive right includes
a negative right. For instance, freedom of speech includes within it freedom not
to speak, etc.

AGAINST LEGALIZING EUTHANASIA

 Indian society, driven by religion, will not accept the concept of euthanasia as
the religious scriptures defy it.
 Commercialization of euthanasia can take place.
 The poor people could resort to this in order to avoid the pecuniary difficulties
of medication.
 Old and destitute are sometimes considered a burden and people can make use
of this to shove off their responsibilities.
 Allowing euthanasia will devalue human dignity and will offend the principle
of sanctity of life. It will leave sick, disabled people more vulnerable than the
rest of the population and can also provide a ‘cloak for murder’.

LEGAL STATUS OF RIGHT TO DIE

In the words of Pipel and Amsel “Contemporary proponents of ‘rational suicide’ or

the ‘right to die’ usually demand by ‘rationality’ that the decision to kill oneself be
both the autonomous choice of the agent desired by liberals, and ‘a best option
under the circumstances’ choice desired by the stoics or utilitarian, as well as other
natural conditions such as the choice being stable, not an impulsive decision, not
due to mental illness, achieved after due deliberation, etc. The history of the
legality of right to die in India starts from the case of State v. Sanjay
Kumar Bhatia where the Delhi High Court criticized section 309 of IPC as an
‘anachronism and a paradox’ and then is followed by varied views of different
High Courts on section 309 of IPC. In the case of Naresh Marotrao Sakhre v.
Union of India the court observed the difference between Euthanasia and suicide. It
was discussed that Suicide was an act of self-destruction, to terminate one’s own
life without the aid or assistance of any other human agency whereas euthanasia
being different as it involves the intervention of a human agency to end one’s life.
This mercy killing is from nowhere covered in section 309 of Indian Penal code
which states that;

“Attempt to commit suicide.—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]”

In P. Rathinam v. Union of India the court, giving relief to the misers attempting
suicide, section 309 was held to be irrational and deserves to be effaced from the
statute book to humanize our penal laws. It attempts in doubly punishing the man
who is tremendous pain and would be undergoing ignominy because of failure to
commit suicide. Soon, this was also overruled in the case of Gian Kaur v. State of
Punjab and it was held that right to life does not include right to die or the right to
be killed. It was further held that right to life was a natural right embodied in
Article 21, but suicide was unnatural termination or extinction of life and therefore,
‘incompatible and inconsistent’ with the concept of the right to life. The right to
life includes right to live with human dignity would mean the existence of such a
right up to the end of natural life. However, the court appears to approve passive
euthanasia by holding that one may have the right to die with dignity as a part of
the right to live with dignity. Thus, any form involving unnatural termination of
life has been held to be illegal until the case of Aruna Shanbaug and the recent case
filed by the NGO common cause where the legality of the issue was re-discussed
and on 9th March 2018 in the case of Common Cause (A Registered Society) v.
Union of India a five-judge bench of the Supreme Court recognized and gave
sanction to passive euthanasia and living will/ advance directive. The implication
of this is that from now Right to Die with Dignity is a Fundamental Right. The
judgment was delivered by a Bench comprising of Chief Justice of India Dipak
Misra, Justice A.K. Sikri, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and
Justice Ashok Bhushan. The matter was referred to it by a three-Judge bench,
which held that the Constitution Bench in the case of Gian Kaur v. State of Punjab,
had not ruled upon the validity of active or passive Euthanasia, even though the
bench had ruled that Right to Live with Dignity under Article 21 of the
Constitution of India was inclusive of the right to die with dignity. The Three-
Judge Bench then noted that the judgment pronounced in Aruna Shanbaug v Union
of India is based upon a wrong preposition that the Constitution Bench in the case
of Gian Kaur v State of Punjab had upheld passive euthanasia. However, the Five-
Judge Bench in the case of Common Cause (A Regd. Society) v. Union of India and
Another has now unanimously held that the Two-Judge Bench in the case of Aruna
Shanbaug had wrongly ruled that passive euthanasia can be made lawful only by
legislation through an erroneous interpretation of the judgment in Gian Kaur case.
The Judges in their judgment have also laid down the procedure for a “Living
Will” or an “Advance Directive” through which terminally ill people or those with
deteriorating health can choose not to remain in a vegetative state with life support
system if they go into a state when it will not be possible for them to express their
wishes.

LEGAL POSITION OF RIGHT TO DIE IN OTHER

COUNTRIES
As of the records available, it is known that human euthanasia is legal in
Netherlands, Belgium, Ireland, Colombia, and Luxembourg and assisted suicide is
legal in Switzerland, Germany Japan, Canada, and Albania and some parts of
USA.
 1. The United States Of America– It is seen that active euthanasia is illegal
throughout the USA but in Oregon, Washington, Vermont, California and
a country of Mexico assisted euthanasia is legal.

2.  Australia– In 1995, it became the world’s first legislation by legalizing

euthanasia, but assisted suicide was made legal only for a period and now
it is not. Due to the death of four patients under Rights of the Terminally
Ill Act 1995, the act was overturned by Australia’s federal parliament in
1997.

3.  France- The country’s controversy is not much big because of the ‘well -
developed hospice care program’. But in 2000 after the case of Vincent
Humbert, it did jumpstart new legislation which states that when
medicine serves ‘no other purpose than the official support of life’ they
can be ‘suspended or not undertaken.’
As of now, the Australian state of Victoria has become the first state to legalize
assisted dying in the world. The bill has been passed in the parliament and it will
make assisted dying legal in the state from 2019 onwards. After the mark of
Victorian legislation as the world’s first parliament to undergo an extensive
process to introduce voluntary assisted dying, other countries have also introduced
laws through a referendum or a court process.

JUDICIAL DECISIONS IN INDIA

The first case which brought the issue of right to die before the courts is State v.
Sanjay Kumar {(1985) Cr. L.J., 935} wherein the Delhi High Court criticized the
section 309 and considered it to be ‘an anachronism and a paradox’. This decision
was followed by two conflicting decisions of the Bombay High Court and the
Andhra Pradesh High Court in the cases of Maruti Sripati Dubal v. State of
Maharashtra {(1987) Cr. L.J., 743} and Chenna Jagadeeswar v. State of Andhra
Pradesh {(1983) Cr. L.J., 549} respectively. In the first case, section 309 was
considered violative of Article 21 and in the second case it was held
constitutionally valid. In P. Rathinam v. State of U.O.I. and another {AIR 1994 SC
1844}, again section 309 was considered unconstitutional and it was concluded
that the penal laws need to be more humane. But soon this decision was overruled
in Smt. Gian Kaur v. State of Punjab {AIR 1996 SC 1257} and it was held that
Article 21 does not include a right to die. It was further held that right to life is a
natural right but suicide being unnatural termination of life is incompatible with it.
However the court appears to have permitted passive euthanasia. The latest
decision passed by the Apex Court is – ‘Active euthanasia is illegal. Passive
euthanasia is permissible, but it should be done under the supervision of the High
Court.’ This decision was passed in the famous Aruna Shaunbag case and the
Supreme Court rejected the plea or petition to allow her mercy killing.

CONCLUSION

In the words of Dr Jack Kevorkian

“For those who are facing a terminal illness, who are in irremediable pain and
suffering, and wish to exercise their right to die with dignity, a system should be
available to them”.

The sanctity of human life does not imply the forced continuation of existence in
pain and suffering. Given that a person has the right to lead a dignified existence,
he cannot be forced to live to his detriment. If a person suffers from an incurable
disease, it would be inhumane to compel him to live a painful life. A terminally ill
person should be permitted to terminate his pain and suffering by choosing to do
so. In fact, these are not cases of extinguishing life but only of accelerating the
process of natural death, which has already commenced. The proposition merely is
that the legislation must provide for an alternative, if the terminally ill patient so
desires, having complied with the requisite conditions, to substitute his slow and
painful death with a quick and painless one. Medical science is progressing in
India as in the rest of the world, and hence currently we have techniques that can
prolong life by artificial means. This may indirectly prolong terminal suffering and
may also prove to be very costly for the families of the subject in question. Hence,
end-of-life issues are becoming major ethical considerations in the modern-day
medical science in India. Allowing euthanasia exclusively in the case of terminally
ill patients is desirable. The landmark Supreme Court judgment in 2018 has
provided a major boost to pro-euthanasia activists though it is a long way to go
before it becomes a law in the parliament. Moreover, concerns for its misuse
remain a major issue which ought to be addressed before it becomes a law in our
country. The ultimate outcome of this debate remains uncertain. It must, however,
be remembered that an acrobatic argument that acknowledges technological
advances but dismisses the evolving ethical issues which pose uncomfortable and
disturbing questions is unfair to the community of patients.

BIBLIOGRAPHY

 Diganth Raj Sehgal - et al., DOES RIGHT TO LIFE INCLUDE RIGHT TO DIE? IPLEADERS
(2019), https://blog.ipleaders.in/does-right-to-life-include-right-to-die/ (last visited Nov
30, 2021).
 legal Service India, CONSTITUTIONALITY OF THE RIGHT TO DIE - A BRIEF ANALYSIS ,
http://www.legalservicesindia.com/article/608/Constitutionality-of-the-right-to-die---a-
brief-analysis.html (last visited Nov 30, 2021).
 The right to die with dignity: The Indian Supreme Court allows passive euthanasia and
living wills, OHRH, https://ohrh.law.ox.ac.uk/right-to-die-with-dignity-a-fundamental-
right-indian-supreme-court-allows-passive-euthanasia-and-living-wills/ (last visited Nov
30, 2021).