RIGHT TO DIE VS RIGHT TO LIFE: AN ANALYSIS FROM

CONSTITUTIONAL STANDPOINT
SUBMITTED BY –

RICHA AYENGIA
UID – SF0121048

FACULTY IN-CHARGE –

HIMANGSHU RANJAN NATH

ASSISTANT PROFESSOR OF LAW
NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY

GUWAHATI, ASSAM
INTRODUCTION:

“It hath been often said, that it is not death, but dying, which is terrible”
–Henry Fielding

The right to life is a critical component of our lives. The concept of the right to life is founded
on the premise that everyone should be entitled to the fundamental necessities for survival and
living a dignified life. Because of our country's present economic position, we need to have
these rights in modern society. There is a need to have the right to life for every person and to
ensure that these rights are applied in the genuine sense. The right to life simply implies that
everyone has the right to breathe and live as they like, and that no one, including the
government, has the authority to end their life. Article 21 of the Indian constitution protects the
right to life and personal liberty, Article 21 of Indian Constitution provides for “Protection of
Life and Personal Liberty” and reads as “No person shall be deprived of his life or personal
liberty except according to procedure established by law.” The fundamental right under Article
21 is one of the most important rights provided under the Constitution which has been described
as the heart of fundamental rights by the Apex Court in Unni Krishnans case; it also ensures
that these rights are implemented via Article 32, which is regarded as the heart and soul of our
constitution and empowers every citizen to file writs in their respective courts. Everyone
understands the value of life, and to yet, no alternative has been identified. To its very contrast
is the concept of Death and hereunder we see the right to die and its legality has long been a
source of contention across the world. A medical practitioner's role is to safeguard the
individual from illness and suffering, but the question here is what can be done about a person
who is suffering from terminal disease and whose family members are concerned and
burdened. Every year, an alarming number of individuals of all ages and genders commit
suicide or attempt to terminate their own lives throughout the world, and India is no different.
The notion of the Right to Die is founded on the belief that an individual with free choice
should have the ability to end their life or undergo euthanasia. Except for a few nations, most
countries have decriminalised attempted suicide. Despite being one of the world's greatest
democracies and economies, India does not lack poverty. So, when examined at a micro level
of society, the notion of Euthanasia applied in India appears to have a negative impact on poor
families. The literal definition of Right to die is to purposefully end a person's life. Euthanasia,
a component of the Right to Die, is derived from the Greek words "eu" which means "goodly
or well," and "thanatos" which means "death." Euthanasia is a circumstance in which a doctor
causes the death of a patient by administering a lethal injection to the patient who is in
excruciating pain. There are several medical scenarios in which patients' lives are hanging in
the balance between the possibility of death and the possibility of survival. This refers to a
condition in which a patient is suffering from an incurable sickness or unbearable agony, and
his life has become more unpleasant and terrifying than death, with no possibility of recovery.
In such cases, the patient frequently decides that it is preferable to die than to continue living
in such deplorable circumstances. However, he is not authorised to do so since "suicide is a
crime" and a criminal offence under the law. Furthermore, doctors are powerless in such
circumstances since "abetment to suicide" is a serious offence. Thus, the notion of "Euthanasia"
enters the picture with that of its debating arguments of right to life and death. There have been
several reports of patients who are not even alive enough to tolerate the pain they are
experiencing, such as cancer patients nearing the end of their lives whose families are unable
to cover the bills of hospitalisation. These people are forced to remain in their position. As
such, it may be within the scope of this discussion to analyse whether or not the protracted and
horrific death with excruciating aches and pains is a breach of the right to a decent life from
that of a constitutional standpoint.

THE THREE CONSTITUTIONAL PHASE OF RIGHT TO DIE UNDER THE AMBIT OF

RIGHT TO LIFE
PHASE – I
Everyone acknowledges that life is valuable, and nothing has been discovered to be a
substitute for life as of yet. A medical practitioner's role is to safeguard the individual from
illness and suffering, but the question here is what can be done about a person who is suffering
from terminal disease and whose family members are concerned and burdened. Hereunder, we
get to see the clashing dimensions of right to life and right to die where we get to see first
coming on the concept of right to life essential means to that of every person having the right
to breathe and live as per their own convenience and that no one, including the government,
can take their life and then we get to see the definition of right to die basing its idea on that of
individuals having their own free will to have the right of ending their life. There are several
medical situations in which the patients' lives are hanging in the balance, with death looming
at any moment. This refers to a condition in which a patient is suffering from an incurable
sickness or unbearable agony, and his life has become more unpleasant and terrifying than
death, with no possibility of recovery. In such cases, the patient frequently decides that it is
better to die than to continue living in such deplorable conditions. Except for a few nations,
most countries have decriminalised attempted suicide. Despite being one of the world's greatest
democracies and economies, India is not without poverty concerns. So, when examined at a
micro level of society, the notion of Euthanasia applied in India appears to have a negative
impact on poor families. The very first case before the court on the issue of right to die was
that of P. Rathinam v. Union of India, AIR 1994 SC 1844, The dynamics of the expanding
scope of Article 21 are seen here. The petition was filed in court for the constitutional validity
of Section 309 of the Indian Penal Code, which states that anyone who attempts to commit
suicide and does any act towards the commission of such offence shall be punished with simple
imprisonment for a term that may extend to one year or fine or both. The major question that
the Supreme Court has often addressed is whether or not the right to life provided by Article
21 of the Indian Constitution includes the right not to live a forced existence and, as a result,
the right to die. The point is that if right to die were included under Article 21 then attempt to
suicide would get the sanction as a fundamental right. While responding the question of
constitutional validity of Section 309 of IPC, the Supreme Court held that Section 309 is not
violative of Article 14, but it is violative of Article 21. In this regard, it observed that:

“One may refuse to live, if his life be not according to the person concerned worth living or if
the richness and fullness of life were not to demand living further. One may rightly think that
having achieved all worldly pleasures or happiness he has something to achieve beyond this
life. This desire for communion with God may very rightly lead even a very healthy mind to
think that he would forego his right to live and would rather choose not to live. In any case, a
person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking”.

Here, we have the court distinguishing between suicide and euthanasia by noting that the
arguments for permitting someone to commit suicide do not apply to circumstances of mercy
killing, and anybody who aids and abets euthanasia commits an offence. As a result, the courts
in the preceding rulings have followed an autonomy-oriented approach. This attitude appears
to stem from the belief that, just as destroying property is not a crime, sacrificing one's own
body is not either. The courts have relied heavily on old religious and other writings that
acknowledge a limited right to die. Furthermore, the Court made a reference to the worldwide
perspective on suicide and determined that attempting suicide is not an offence in the United
Kingdom and in The United States of America. Because of these reasons, both the Bombay
High Court and the Supreme Court agreed that it is necessary to decriminalise attempted
suicide by repealing Section 309, and they even went so far as to say that Section 309 is a cruel
and irrational provision that should be repealed from the statute book in order to humanise the
penal laws. It was also argued that while the right to life is a natural right, self-destruction, as
an unnatural termination of life, is incompatible with it. It could be inferred that the Court's
approach to decriminalising suicide was to open the way for 'active euthanasia,' so that
autonomous choices about 'ending one's life' were not only limited to people suffering from
incurable illnesses and in a permanent vegetative state, but also to people who did not believe
life was worth living or who desired salvation. Thus, in this first phase, the law of suicide is
being humanised in a way that benefits the globalised period.

PHASE – II

However, after some time, the Supreme Court's constitutional bench reversed P. Rathinam's
verdict. The Supreme Court ruled that the right to life enumerated in Article 21 of the Indian
Constitution does not include the right to die or be killed. The Supreme Court stated that suicide
is an unnatural end of life, whereas the right to life is a natural right. As a result, the right to
die and the right to live are irreconcilable and contradictory. The Supreme Court was asked to
reconsider the right to die and mercy killing. Section 306 punishes anybody who aids and abets
the commission of suicide, whereas Section 309 punishes anyone who tries suicide. Hereunder
in the case of Gian Kaur v. State of Punjab, Gian Kaur and her husband Harban Singh were
convicted by a trial court under section 306 of the Indian Penal Code. They were sentenced to
six years imprisonment and fine of Rs. 2,000/- for abetting the suicide by Kulwant Kaur. The
matter was decided by the constitutional bench. The court stated that the right to life guaranteed
under article 21 of the Constitution does not include the right to die under its ambit. The bench
held that 'right to life is one of the natural rights under article 21 of the Constitution of India. It
nourishes the human community from the inception of the civilization but on the other side,
suicide is an unnatural termination or ending of life and, therefore, contradictory and
conflicting with the concept of right to life. With respect and in all humility, the court denied
from making any comparison between the right to life and the right to die. Article 21 speaks of
a dignified life. Any aspect of life that makes it dignified may be read into it, but not those
aspects which extinguish it. Such a right to dignified life exists up to the end of natural span of
life. It is true that everyone has right to die with dignity. However right to die with dignity at
the end of natural life should not be confused with right to die an unnatural death curtailing the
natural span of life. Therefore Section 309 was held to be constitutionally valid. On the question
of constitutional validity of Section 306 The Court also pointed out that Section 309 and
Section 306 speak of altogether different offenses. While Section 309 deals with a failed act,
attempt to suicide, section 306 refers to a completed act of suicide. Section 306 punishes
abatement to suicide, and abatement to attempt to commit suicide is not within its purview. So,
Section 306 can stand independent of Section 309. While holding that abatement to suicide is
an offence, the Court referred to Airedale N. H. S. Trust v. Bland, which enunciates the English
position on active euthanasia. The Court found that under English law, it is unlawful for the
doctor to administer a drug to the patient to bring about his death, but the Court did not make
any observation on the Indian position. A point to be noted here is that the Court looked into
the English position on euthanasia while determining the status of abatement to suicide and not
of euthanasia. The, constitutional bench of five judges declared section 306, 309 of Indian
Penal Code, 1860 as constitutional. In this regard, it observed that:

“Whatever may be the philosophy of permitting a person to extinguish his life by

committing suicide, we find it difficult to construe Article 21 to include within it the “right
to die” as a part of the fundamental right guaranteed therein. ‘Right to life’ is a natural
right embodied in Article 21 but suicide is an unnatural termination or extinction of life
and, therefore, incompatible and inconsistent with the concept of ‘right to life’. With
respect and in all humility, we find no similarity in the nature of the other rights, such as
the right to freedom of speech’ etc. to provide a comparable basis to hold that the ‘right
to life’ also includes the ‘right to die’ ”.
The Constitutional Bench of the apex court held that both active and passive euthanasia and
assisted suicide are not lawful in India. The court upheld that euthanasia should be made
applicable only through the legislation. Active euthanasia means to provide/give/do something
to end the life of a patient for removing the agony and sufferance whereas passive euthanasia
means to withdraw the medical support system for ending the life and agony of the patient, it
was also the first time that under this case the terms “active ” and “passive” euthanasia was
introduced before the common people in India. Furthermore, the Court observed that in most
other jurisdiction, even though attempt to commit suicide is not a penal offence; abatement to
suicide as well as abatement to attempt to commit suicide are punishable offenses. This was
found to be desirable to prevent the possible misuse in the absence of such provision. Thus,
Phase II, witnessed a massive curtailment of the freedom of an individual to make a ‘choice to
die’ by limiting it only to those patients who were in a permanent vegetative state and for whom
the process of natural death has already commenced.

PHASE – III

Although the controversy relating to an attempt to suicide or abetment of suicide was put to
rest, yet the issue of euthanasia remained alive. It again came before the Supreme Court
in Aruna Ramchandra Shanbaug v. Union of India (“Aruna Shanbaug”). In this case, a writ
petition was filed by the petitioner's friend before the Court to direct the respondent to stop
feeding the petitioner and to allow her to die peacefully. The Court held that the permission to
stop feeding the petitioner could not be granted since the petitioner could not be termed as
“dead” within medical terminology. The Court observed that while an act of passive euthanasia
is permissible, active euthanasia which requires a positive to end the life of the patient will be
an offense under either Section 302, Section304, or Section306 of the IPC. In this regard, it
was observed that:
“The difference between ‘active’ and ‘passive’ euthanasia is that in active euthanasia,
something is done to end the patient's life while in passive euthanasia, something is not done
that would have preserved the patient's life. An important idea behind this distinction is that
in ‘passive euthanasia’ the doctors are not actively killing anyone; they are simply not saving
him.”

The Supreme Court opined that:

“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”.

The Court has determined that active forms of euthanasia will remain unlawful until the
government passes legislation legalising them. Thus, the Court denied its constitutionality
because it would amount to 'constitutional cannibalism,' 'judicial murder,' and fear of being
utilised by unscrupulous people to inherit property, etc. The Supreme Court stated that the
above-mentioned approach will be followed until parliament passes legislation on the subject.
The judge took this pragmatic step on a delicate topic while the government and legislature
kept the public waiting. Though the judgement is very significant, it is still fraught with several
issues that need to be addressed:
 • Firstly – the Supreme Court has laid down a procedure that is arguably even more
cumbersome than the one currently in force. After the Aruna Shanbaug judgment,
every time passive euthanasia was to be given effect to, permission of the High
Court was required. Consequently, passive euthanasia was invoked in only
one case. With the latest judgment, passive euthanasia is even more difficult to give
effect to, as the procedure prescribed involves execution of the directive in presence
of two witnesses, authentication by a Judicial Magistrate, permission from two
Medical Boards and a jurisdictional collector.
• Secondly – the decision is being criticised by religious groups that claim that the
right to life is in the hands of God, and allowing withdrawal of treatment comes in
way of such right as it may lead to death of a person suffering from terminal illness.
This viewpoint is a hurdle in the way of wholehearted acceptance of the judgment.

Further, several issues remain unaddressed by the court, such as recognition of the
capacities of minors to give advance directives and access to palliative care. The Bill
previously drafted by the government was also seen to be severely lacking. The decision
of the Supreme Court provides an opportunity to draft comprehensive legislation which
fully recognises the right to dignified death. In essence, the decision is a progressive step
that frees people’s loved ones from the guilt of having to take difficult
decisions and relieves doctors of the fear of being tried for culpable homicide.

Now recently, in the case of Common Cause (A Registered Society) v. Union of India, the
Hon'ble Supreme Court acknowledged the Right to Die with Dignity and found it to be a
fundamental component of the Right to Life by legalising Passive Euthanasia. In its
decision, the Supreme Court stated that the right to die with dignity is an inherent aspect
of the right to life under Article 21 of the Indian Constitution. Article 21 recognises dignity
as its fundamental pillar, and hence each individual must have the freedom to choose
whether or not to accept medical help in the case of terminal disease. The right to live with
dignity includes autonomy in relation to the process of dying and choosing to not undergo
pain and sufferingThis view is consistent with Article 1 of the UDHR, which specifies a
decent life, and Articles 6, 7, 17, and 18 of the ICCPR, which enlarge the idea of the right
to a dignified life. The decision is noteworthy because it clears the air in India on passive
euthanasia. In four separate and concurrent opinions, a five-judge Constitutional Bench
led by Chief Justice of India Dipak Kumar Mishra, J., ruled that Article 21 of the
Constitution, which guarantees the right to life and dignity, also includes the right to die
with dignity, and that dignity is lost if an individual is forced to suffer pain due to
unwarranted medical support. D.Y. Chandrachud, J. in his separate opinion has observed that
depriving a person from dignity at the end of life amounts to depriving him from meaningful
existence. A.K. Sikri, J. in his separate opinion has said that even though the religion, morality,
philosophy, law and the society have been conflicting as to whether the Right to Life includes
The Right to die, but they all agree that a person should die with dignity. The Court reiterated
the law declared in Aruna Shanbaug intending to merge the concept of passive euthanasia with
the Constitutional provisions by enhancing the right to ‘live with dignity’ under Article 21 to
also include the right of smoothening the process of dying. It has further envisaged to
strengthen such right by way legalising the usage of Advanced Medical Directives (“AMD”).
It is also worth noting that by recognising the right to passive euthanasia as a component of
Article 21, the Court has created a slew of complications and implications. The Court ruled
that the 'right to live with dignity' includes easing the process of dying in the instance of a
terminally ill patient or a person in Permanent Vegetative State ("PVS") with no possibility of
recovery. The fundamental justification for such a ruling, according to the Court, is that
individual patients have the autonomy and right to self-determination to refuse medical
treatment when they become incurable. By proclaiming the right to die with dignity a basic
right and granting legal sanctity to Advance Medical Directives, the Court has given
individuals a positive right to die when incurable and terminally ill, while also imposing a
positive responsibility on physicians to respect such right. Forcefully feeding incurable patients
against their wishes and artificially prolonging their lives through medical technology violates
their dignity and violates their privacy under Article 21, which has been broadly interpreted
time and again to include both of these concepts as part of the 'right to life and liberty’.

Hereunder the verdict, observations of the Law Commission of India have been referred
to in detail. In 196th Report, Law Commission had opined that ‘Euthanasia’ and ‘Assisted
Suicide’ must continue to be an offense under Indian Law. The Commission had examined the
scope of ‘withdrawal of life support measures and suggested the manner and circumstances in
which the medical professional could decide to the withdrawal of life support provided it is in
the ‘best interest’ of the patient. The report also addressed the circumstances when a patient
can take an informed decision for refusing medical treatment and ask for the withdrawal of life
support measures. The Commission had advocated for passive euthanasia both in the case of
competent and incompetent patients who are terminally ill. In the case of incompetent patients,
the attending doctor should obtain the opinion of three medical experts listed in the approved
panel and thereafter must inform the patient or his close relatives and wait for 15 days so that
patient (if conscious) or relatives may approach the High Court for seeking declaratory relief
on the legality of the decision for withholding medical treatment.

CONCLUSION:
Human rights are evidence of civilisation's growth. They want to safeguard the positive
qualities of human nature, allowing people to live as equals but limiting absolute liberty as little
as possible. Given that a person has the right to live a decent life, he cannot be forced to do so.
It would be cruel to force someone suffering from an incurable condition to live a terrible life.
A terminally sick individual should be allowed to choose to end his or her misery and suffering.
Though it may appear essentially human to aid someone in their death in order to relieve their
suffering, the implications of the Court violating human rights would undermine its very
accomplishments. In a world where human rights are not respected by every state, it is critical
to stand up for, and even suffer for, them if by doing so, the entire globe can one day enjoy
what is right. The asserted human rights do not imply a right to die, nor do they impose a
responsibility on any state to forbid all acts of assisted suicide. As a result, it is argued that,
now that the judiciary has recognised the right to die with dignity as a basic right under Article
21, it should seek to expand such right by emphasising patients' autonomy.
 BIBILOGRAPHY

1. Marya Mannes, Euthanasia vs. the Right to Life , 3 Student LAW. 18 (1975).
2. Shaurya Jain, Securing the Right of Using Other's Land: Emphasising Indian
Easement Act, 1882 and Comparison with English Common Law, 20 Supremo
Amicus 532 (2020).
3. Tanya Minocha, Right to Die as Right to Live, 14 Supremo Amicus 300 (2019).
4. Bruce Vodiga, Euthanasia and the Right to Die - Moral, Ethical and Legal
Perspectives, 51 CHI.-KENT L. REV. 1 (1974).
5. 'Right to Die Vis-à-Vis Right to Life' -An Analysis of the Supreme Court Approach
Towards Passive Euthanasia, 9.1 NLIU LR (2020) 250
6. Right to Life or Death?: For Bharat Both Cannot be ‘Right’, (1994) 4 SCC J-19
7. Right to 'Die with Dignity': Analysis of 'Common Cause v. Union of India' (2018), 60
JILI (2018) 97