“The fear of death follows from the fear of life. A man who lives fully is prepared to die at any time.”
The father of Jurisprudence, Bentham propounded the Principle of Utilitarianism. According to this theory, the right aim of the legislation is to carry out the principle of utility. He defined “utility” as “the property or tendency of a thing to prevent some evil or procure some good”. According to him, the consequence of good and evil are respectively “pleasure” and “pain”.
The theory of pleasure and pain is as a test through which sanctions may be formed. Pleasure and pain are analogous to each other but in certain circumstances, the pain is too acute to expound to any individual including to their near and dear. This type of pain is really questionable that whether it can be perfectly cured by any law by the end of subject matter or to leave the subject matter in its position to fight with its pain.
In fact, death may also be considered as an escape when compared to the pain and suffering prior to death. Here, it can be said “It is not death one fears to face, but dying”. It means that one does not fear to face the darkness of death but fears to go through the sufferings in dying when everyone knows the result- that is, ultimately the end of subject matter.
Hence death forms an integral part of an individual’s lifetime. Thus there lies a legal perplexity as to whether one’s death should be a matter of control as a right. This paper aims to examine the right to die in India and in other countries.
The word Euthanasia is derieved from the Greek term – “Euthanatos”. ‘Eu’ means good and ‘thanatos’ means death. Euthanasia is the killing, with intention to do so, by an act or omission of a dependant human being for his or her alleged benefit.
According to Black’s Law Dictionary (8th edition) euthanasia means “the act or practice of killing or bringing about the death of a person who suffers from an incurable disease or condition, esp. a painful one, for reasons of mercy “.
Euthanasia is the act of killing an individual who is sufferings from some kind of serious and painful illness, so that he can get relief from such pain on the basis of mercy.
Euthanasia may be classified as Passive Euthanasia, Active Euthanasia, Physician Assisted Suicide (PAS), Involuntary Euthanasia.
Though there is no exclusive legislation for euthanasia but there are certain defenses available under some of the existing sections of the IPC namely sections 81 and 88.
Section 81 may be invoked as decision of withdrawing medication are taken deliberately to spare the patient and his family from greater harm of futile prolongation of the dying process, adding burdensome, expensive, and often painful treatments and possible financial ruin. Documented medical reasons should indicate, that the harm to be avoided outweighs the risk of harm from withholding/withdrawal decisions.
Section 88 is relevant for withdrawal and with holding decisions, as they do not directly intend to cause death. Their purpose is only not to retard the natural process of dying, which appears inevitable. In these cases, death is primarily caused by the underlying disease and not by withholding or withdrawal of futile medical interventions.
LEGAL STAND OF RIGHT TO DIE
Article: 21 reads as follows:
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
The Supreme Court has held that the Right to life guaranteed in Article: 21 includes the Right to Live with Human Dignity. The term ‘Life’ is not restricted to mere animal existence but more than that. Hence will a person who is confined by a disease or disorder and is too crippled to lead an independent life, requiring the aid of another to sustain his life, or is too mentally injured to continue with his life, possess the Right to Die by virtue of his Right to lead a Dignified Life under Article 21?
The issue concerning Right to Die initially came before the Bombay High Court in the case of State of Maharashtra v. Maruty Sripati Dubal. In this case, the court held that the Right to Life includes the Right to Die and declared Section 309 of Indian Penal Code, 1860 which makes attempt to suicide as punishable offence, unconstitutional.
This was followed by the Supreme Court in the case P. Rathinam vs. Union of India and Anr wherein the court the court held Section 309, IPC as unconstitutional as it is violative of Article 21 of the Constitution. In this case it was held that Right to Die is included in Article 21 of the Constitution.
But the same court in Gian Kaur vs The State of Punjab held that, Section: 309 of IPC is not violative of Article: 21 and the right to die is not a part of the right to life. The court held that Article 21 guarantees the protection of life and personal liberty and by no exaggeration can extinction of life be included in protection of life. The Supreme Court stated that:
“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”.
The Supreme Court of India in, Aruna Ramachandra Shanbaug vs. Union of India provided a landmark jugmenet with regards to Euthanasia. The Supreme Court held that passive euthanasia is allowed in certain conditions but only on approval by the High Court following the due procedure.
An application for passive euthanasia must be filed before the Chief Justice of the High Court. On receipt of such application, the Chief Justice of the High Court should constitute a Bench of at least two Judges with discretionary powers over the approval of the application. The Bench should obtain the opinion of a committee of three reputed doctors, nominated by the Bench after consulting with medical authorities/medical practitioners. The High Court Bench must 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. The High Court bench would give their verdict after hearing the contentions.
Apart from this the Parliament also enacted THE MENTAL HEALTHCARE ACT, 2017 on 7th April, 2017. The Act aimed to provide for mental healthcare and services for mentally ill persons and safeguard the rights of such persons.
The significant aspect of this Act is that it decriminalizes any act of attemping to commit suicide and presumes persons attempting suicide to be suffering from severe stress. It also imposes a duty upon the Central and State Governments to take measures for care, treatment and rehabilitation of persons with severe stress in order to reduce the risk of recurrence of attempt to commit suicide.
A MODEL LEGISLATION: NETHERLANDS
Active euthanasia is practiced openly only in two countries, Netherlands and Switzerland. In Netherlands, physicians are protected from prosecution if the following guidelines strictly adhered to:
- The patient’s wish to die must be expressed clearly and repeatedly.
- The patient’s decision must be well informed and voluntary.
- The patient must be suffering intolerably with no hope for relief however the patient does not have to be terminally ill (mental suffering is acceptable as a reason for performing assisted suicide and euthanasia in a patient who may be physically healthy).
- The physician must consult with at least one other physician.
- The physician must notify the local coroner that death resulting from unnatural causes has occurred.
Two commentators of Manu, Govardhana and Kulluka, say that
“A man may undertake the mahaprasthana (great departure) on a journey which ends in death, when he is incurably diseased or meets with a great misfortune.”
An individual’s story continues even after his death. Hence it is natural that he should be able to choose how his story must continue. With death being a means of freedom to many people it is necessary to establish a different perspective with respect to death and its legal position.
(This article is submitted by Thiyagarajan B, School of excellence in Law, Chennai)