International Journal of Political Science, Law and International Relations (IJPSLIR) ISSN(P): 2278–8832; ISSN(E): 2278–8840 Vol. 10, Issue 1, Jun 2020, 13–28 © TJPRC Pvt. Ltd.

EUTHANASIA LAW; MORAL, ETHICAL OR INHUMAN IN INDIAN SCENARIO

Dr. NAMITA VYAS Head of the Department, School of Law, Renaissance University, Indore, Madhya Pradesh, India ABSTRACTS

Human life is the means as well as the end of all worldly desires. It is considered as the most precious creation of having a sacred sanction. However, mortality is life’s inevitability and every person born on this planet has to capitulate to the nature’s course of action ultimately. is the harsh reality of life and the pain and sufferings associated with the process of dying is the most terrible fear which one faces in his life. There have been several instances in human history, where a person has been confronted with the dilemma of whether to let die or not to let die. The question of putting an end to life does not just affect a single person, but the entire family of the person who is left in lurch or doldrums as a consequence of death. Therefore, maybe a means of relief in view of the person who is liberated

from the shackles of perpetual sickness, however, it brings great to the family of the person as well as the state which Original Article is obligated to protect and preserve life.

KEYWORDS: Euthanasia, & Culpable

Received : Nov 10, 2019; Accepted : Nov 30, 2019; Published : Jan 17, 2020; PaperId .: IJPSLIRJUN20202 INTRODUCTION

The act of killing someone amounts to homicide which is punishable under the Indian Penal Code. Even deliberate termination of one’s own physical existence amounts to “self-” (suicide). It is an act where a man of age of discretion and compos mentis voluntarily kills himself. 1However, it is not punishable under our criminal code since the person who commits suicide is beyond the reach of the judicial system. It is the attempt to suicide which is made punishable under the law. 2 The magnitude of credibility accorded to sanctity of life as well as is evident from such penal provision. However, the constitutional validity of Section 309 has been assailed at several instances and it has also been recommended to be repealed 3. Further, even the act of abetting another to commit suicide is condemnable and criminal 4 from every point of view. However, there is a difference between suicide and euthanasia or mercy- killing. There is a nexus between euthanasia and Section 309 of the Indian Penal Code, 1860 in as much as legal sanction could be accorded to euthanasia if the provision criminalizing attempt to suicide is abolished. Such intricate proximity of mercy killing or euthanasia with homicide and its probability of being misused is what make it a heavily contested topic. Moreover, an act of euthanasia which is committed with the consent of the patient is not much dissimilar to an act of suicide.

Euthanasia is “the act or practice of causing or hastening the death of a person who suffers from an incurable or terminal disease or condition, especially a painful one, for reasons of mercy”. 5 It is known as the

1 Law Commission of India, 210 th Report on Humanization and Decriminalization of Attempt to Suicide (October, 2008) 2 The Indian Penal Code (IPC), 1860, s. 309 3 Law Commission of India, 241st Report on Passive Euthanasia – A Relook (August, 2012) 4 The IPC, 1860, s. 306

5 Garner Bryan A. (ed.), The Black's Law Dictionary 672 (Thomson West, U.S.A, 10th edition, 2014) www.tjprc.org [email protected] 14 Dr. Namita Vyas manifestation of a good or desirable death and does not favour extension of life by means that would lead to an increase of agony and sufferings. Therefore, it includes a deliberate act (active euthanasia) or omission (passive euthanasia) with an intention of bringing an end to a person’s life to relieve him of unbearable, excruciating pain and intractable suffering. Euthanasia is generally practiced on terminally ill or severely debilitated patients who are experiencing excruciating pain or patients in permanent vegetative state, with the consent of the patient himself or his close relative in cases where the patient is incapable of giving consent. There is also a difference between euthanasia and physician assisted death. The difference is with respect to who administers the lethal dose; in euthanasia, this is done by a doctor or by a third person, whereas in physician-assisted death, this is done by the patient himself. 6

The issue of granting legalisation to euthanasia has been the epicentre of debates throughout the world and has gained vital importance primarily because of advancement in life-sustaining medical technology. Moreover, the debate is not just limited to the moral, cultural, ethical and medical issues involved but the social and legal perspectives also have crept in with advancement in society.

Netherlands 7 and 8 are the only countries to have legalized the practice of euthanasia. There exist a few other legislations around the world which have hesitantly recognised the practice of euthanasia with qualifications. For example, Oregon, USA has legalized only Physician in 1997 by enacting Death with Dignity Act, 1997; In Switzerland, suicide is not a crime but assisting suicide is a crime if the motive is selfish. It condones assisting suicide for altruistic reasons. In Israel, passive euthanasia as well as physician assisted euthanasia has been legalized since 2006. However the committed opposition to the practice continues in certain jurisdictions. Britain continues its strong stand against decriminalization of euthanasia. Canada also has resisted attempts to legalize euthanasia. 9

In India, in the absence of specific penal provisions, euthanasia may be either covered under the following penal provisions 10 :

• Culpable homicide not amounting to murder (manslaughter) 11 , i.e. consent killing • Proviso 1 to Section 92 of the IPC, 1860 • Murder 12 (in cases of euthanasia, without consent) • Abetment to Suicide 13 • Attempt to Suicide 14

Currently, there exists no rule book under the Indian jurisprudence regulating and legalising euthanasia. Therefore, in the absence of legislation, the status of euthanasia in our country remains in a flux. However, several attempts have been made by the judicial wing of our country to deal with this legislatively unaddressed issue in order to provide for the lacuna. Right to death is not a constitutionally conferred right, unlike the right to life which has been expressly conferred by virtue

6 Khan Farooq, Tadros George, “Physician-assisted Suicide and Euthanasia in Indian Context: Sooner or Later the Need to Ponder!” 35 IJPM 101-05 (2013) 7 Termination of Life on Request and Assisted Suicide (Review and Procedures) Act, 2001. 8 The Belgian Act on Euthanasia, 2002 9 Sebastian Tania “Legalisation of Euthanasia in India” 2 JILS 361 (2011) 10 Ibid. 11 The IPC, 1860, s. 300: Exception 5 12 The IPC, 1860, s. 302 13 The IPC, 1860, s. 306 14 The IPC, 1860, s.309

Impact Factor (JCC): 4.6038 NAAS Rating: 2.46 Euthanasia Law; Moral, Ethical or Inhuman in Indian Scenario 15 of Article 21 of the Constitution of India. The judicial transition from P. Rathinam Vs Union of India 15 to Gian Kaur Vs State of Punjab 16 to Common Cause vs Union of India 17 , makes it evident that the judiciary is vigilant regarding the issue of “right to death”.

There is a growing awareness amongst jurists and social scientists that euthanasia should be permissible and legal in exceptional cases of terminally ill patients. It is irrefutable that life is sacred and no one has the right to put an end to it, however, intense pain with no relief in sight is a torture which negatives the meaning of existence. This view has also been advocated by the law reform committee of Kerela which stated that, "mercy killing could be considered in cases where death is the only salvation and preservation of life would be medically impossible and visited with insufferable physical or mental pain". 18 The advocates of euthanasia have an attitude of compassion and sympathy towards those suffering from incurable terminally ill diseases and who are without any use to their family and society. Moreover, the arguments in favour of granting legalisation to assisted suicide and euthanasia are no longer focussed on just unbearable suffering but personal autonomy as well. With growing awareness of human rights, there is a rising demand for choice and control over the time and manner of our death. The argument favouring personal autonomy can be appropriately explained by the example of Acharya Vinoba Bhave. When he decided to put an end to his life by fasting unto death, even the guardians of law allowed him to do so. The pro euthanasia arguments further advocates the view that the states duty to preserve life must also encompass recognition of an individual’s right to avoid circumstances in which the individual himself would feel that efforts to sustain life demean or degrade his humanity. 19 But, however convincing the arguments may seem in the favour of euthanasia, it cannot be exercised in cases of terminally ill patients blindfoldedly. There is a great possibility that euthanasia may be misused by unscrupulous people for ulterior motives such as in order to inherit property and wealth. Therefore, the philosophical, medical and psychological aspects play a pivotal role in each distinct case to determine whether euthanasia is morally and legally justifiable, in the absence of a proper legal framework.

Euthanasia is an act of death and there is a wide difference between euthanasia and natural death. 20 Another criticism is that legalising EPAS is closely associated with the fear of slippery slope. In other words, it is apprehended that legalisation of EPAS without adequate safeguards will lead to forms of , i.e., assisting the suicide of another without their permission. It is further apprehended that if a legal status is granted to euthanasia, the quality of medical services in our country will be degraded as the doctors will have immunity from prosecution. The medical professionals will no longer strive to preserve the life of a terminally

Ill patient with excellence. Moreover, it is also argued that legalisation of euthanasia would be against the monopolistic power of the state, which is the sole entity entitled to take away life. Another important argument is regarding the irreversibility of the decision to undertake euthanasia. It would be impossible to bring the person from death once the

15 AIR 1994 SC 1844 16 AIR 1996 SC 946 17 AIR 2018 SC 1665 18 Justice V. R. Krishna Iyer, “The final report of law reforms commission Kerala” (law reforms commission Kerala ,2009) retrieved from: http://keralalawcommission.nic.in/WriteReadData/Report/LRC_Report_Vol._I.pdf

19 Saltzman Andrea, M. Furman , et. al., Law in Social Work Practice 431 (Wadsworth Publishing Company, U.S.A, 3rd edition, 2014) 20 Somerville Margaret (ed.), Death Talk: The Case Against Euthanasia and Physiciana-Assisted Suicide (McGill Queen University Press, London, 2014)

www.tjprc.org [email protected] 16 Dr. Namita Vyas act of euthanasia is committed upon him and it is better to keep the person alive if there is a minuscule possibility of recovery or if there are chances of new recovery treatments being discovered. Therefore, there is a need to balance out the contrasting opinions and reach at a coherent conclusion.

In the landmark judgment of Aruna Ramachandra Shanbaug v. Union of India 21 , the court has extensively dealt with the issue of mercy killing and gave a green signal to passive euthanasia. The court also laid down certain guidelines which are to be followed in cases of passive euthanasia which are to be followed unless the Parliament legislates on the subject. However, the court refused to allow the application of euthanasia in the given case, despite the fact that the victim had been living in a vegetative state for over three decades because it was not a case of passive euthanasia. However, the recent example of the former Formula One world champion, Michael Schumacher perfectly demonstrates a case against euthanasia euthanasia, which was also cited by the Additional Solicitor general of India before the Apex court. 22 He is being kept alive just in the hope that he would come back to life one day, if not to motor racing. However, In common cause (A regd. society) V Union of India 23 , the Supreme Court held that individuals have a with dignity. This ruling thus permits the removal of life-support systems for the terminally ill or those in incurable comas. The court also permitted individuals to decide against artificial life support, should the need arise by creating a living will.

The Court in this case also laid down the principles relating to the procedure for execution of Advance Directive and provided the guidelines to give effect to passive euthanasia in both circumstances, namely, where there are advance directives and where there are none, in exercise of the power under Article 142 of the Constitution and the law stated in Vishaka and Others v. State of Rajasthan and Others. The directive and guidelines laid down by the court shall remain in force till the Parliament brings legislation in the field.

ORIGIN AND HISTORY OF THE CONCEPT OF EUTHANASIA

The concept of mercy killing is not new to the global jurisprudence and is closely associated with human dilemmas with respect to old age and severe illness. It has been a subject of debate since time immemorial, although earlier it did not exist in its multifaceted avatar as it exists today. The idea of what constitutes euthanasia (good death) has significantly changed in different cultures and throughout history with concomitant dynamic changes in society’s moral and social fabric.

Euthanasia owes its origin to the ancient Greek and Roman society, where suicide was considered as a “good death”. The attitudes in ancient Greece and Rome era were tolerant towards infanticide, active euthanasia, and suicide or self-murder. This was primarily because of the moral infrastructure of the society at that time as a majority of the Romans and Greeks had no cogently defined belief in the inherent sacrosanct value of individual human life. 24 They tended to reject any semblance of the belief in the sanctity of human life, or the modern notion that all people enjoy a range of natural rights by virtue of a universal property of their human condition. 25 There were numerous instances of people killing

21 (2011) 4 SCC 454

22 Editorial, “Parliament Must Take A Call on Euthanasia” The New Indian Express, Feb. 17, 2017 23 AIR 2018 SC 1665

24 Dowbiggin Ian, A Merciful End: The Euthanasia Movement in Modern America 2 (Oxford University Press, U.S.A, 2003)

25 Dowbiggin Ian, A Concise History of Euthanasia: Life, Death, God, and Medicine 8 (Rowman & Littlefield Publishers Inc., U.S.A, 2007)

Impact Factor (JCC): 4.6038 NAAS Rating: 2.46 Euthanasia Law; Moral, Ethical or Inhuman in Indian Scenario 17 themselves by poison, fasting, asphyxiation, hanging, or slitting their wrists. 26 There was a generally recognised “freedom to leave” that permitted the sick and despondent to terminate their lives, sometimes with outside help. 27 Moreover, the physicians did not have any responsibility in case of death as medical science was in its rudimentary stages. There existed no legal rules and regulations governing the rules of deathbed until the twentieth century. For centuries, the practice of mercy killing and the ethics of deathbed were regulated by the cultural and social norms prescribed by the society.

The term “euthanasia” was used for the first time, as long back as in A.D 121 by the Roman historian, Suetonius in his work “De vita Caesarum” ( About the Life of the Caesars) to describe the death of Augustus Caesar who “died quickly in the arms of his wife, Livia” on a painless inducement of a quick death. Suetonius employed the word “euthanasia” in its etymological meaning, that is, to signify an easy death through the mitigation of pain rather than a death hastened by a physician through the administration of poison 28 .The appropriate term used for such a practice is “orthonasia” (passive death). It etymologically denotes “correct death” and is against the idea of prolonging natural death process artificially. In ancient Greece, the suicide of the patient who was undergoing extreme pain and had an incurable used to be facilitated by the physician by giving poison. Even had stated that, "Mentally and physically ill persons should be left to death; they do not have the right to live." However, the Hippocratic Oath prohibited doctors from administering “a deadly drug to anybody, not even if asked for”, but only a few Greek and Roman physicians followed the oath faithfully. Moreover, there existed no sharp conceptual distinctions between euthanasia, suicide and cessation of treatment and throughout classical antiquity, there was widespread support for voluntary death as opposed to prolonged agony.

Thereafter, the ancient roman definition of a “good death” was dislodged by the advent of revolutionary Christian doctrine upholding the sanctity of life and condemning anything that resembled suicide, assisted suicide or mercy killing. 29 The views of Hippocratic School forbidding euthanasia were affirmed and reinforced by Christians as well as jews. The rules of deathbed governing the last hour conduct of life were put in writing and published in short manuals, known as ars moriendi, or "the art of dying." Therefore, between the late medieval era and well into the Enlightenment, euthanasia was mainly understood within the framework of ars moriendi. 30 30

The word "euthanasia" was first used in a medical context by Francis Bacon in the 17th century, to refer to an easy, painless, happy death, during which it was a "physician's responsibility to alleviate the 'physical sufferings' of the body." Bacon referred to an "outward euthanasia" and the term "outward" was used by him to differentiate his concept from the spiritual concept of the euthanasia. Later, during the eighteenth century, a tiny handful of European intellectuals including Voltaire, Montesquieu and David Hume expressed tolerant opinions about euthanasia and suicide. 31 The questioning of the prohibition against euthanasia was a natural outcome and a part of the enlightenment celebration of science as an alternative to orthodox doctrines based on unreasonable dogma that human life is intrinsically sacred. During the nineteenth century, a majority of physicians started incorporating a sceptical approach and believed that the palliating

26 Ibid.

27 Coward Harold G., K. Young Katherine, Hindu Ethics: Purity, , and Euthanasia 71 (State University of New York Press, U.S.A, 1989)

28 Id. at p. 23 29 Id. at p.7 30 Lopes Giza, Dying with Dignity: A Legal Approach to Assisted Death: A Legal Approach to Assisted Death 8 (Praeger, U.S.A, 2015) 31 Supra Note 22 at 3 www.tjprc.org [email protected] 18 Dr. Namita Vyas pain during the time of death was more human than fighting tooth and nail to postpone death. The idea of humanely hastening the death of hopelessly ill and bedridden people was gaining support. The complexities surrounding euthanasia have only grown day by day, making it the most debatable issue across the globe. Moreover, a contemporary medical death is no longer perceived as a natural death and the understanding of euthanasia as a painless, peaceful and swift death is not the cardinal approach in the contemporary world. Euthanasia represents an escape from a medico-technical death or an alternative to this medically prolonged and technically supported dying, which is far from a natural death.

Germany, under the rule of Adolf Hitler demonstrates a unique example of how euthanasia proved to be the most efficacious tool of destruction of mankind in history. Inspired by the writings of Hoche 32 supporting mercy killings, Hitler started a program to remove all defective persons from Germany in the name of euthanasia. As head of the Nazi party, Adolf Hitler wanted to create a “master race”, i.e., the most superior race by removing everyone who he considered defective, an economic burden on the State or unfit on eugenic grounds from Germany. The program started with mentally disabled children, which was gradually expanded to the handicapped, old, and the sick without their consent in order to achieve racial improvement. The rationale behind the program was partially economic in as much as the state wanted to get rid of the expense of caring for “useless people” and partially biological as it was believed that only healthy should reproduce (eugenics). Under the garb of utilising euthanasia for a social and ethical purpose, Hitler began mass destruction and distorted the concept of euthanasia by allowing involuntary euthanasia, in the interest of the state rather than interest of the victim. Although, the Nazi corruption of euthanasia has no resemblance with the original meaning of the word, or to its use today in the concept of assisted dying, however it shook the conscience of the society and is one of the reasons which promoted the fears associated with the idea of euthanasia. 33

The first attempt to legalise euthanasia was made by the state of Ohio in the United States of America in 1906 by introducing a draft bill, which was however not approved. Thereafter, the early twentieth century witnessed a new dimension to the concept of euthanasia, i.e., self- determinism. The taboo surrounding the concept of euthanasia had started disappearing owing to the radical changes in the society and shift towards a sceptical approach. As a result, euthanasia societies started developing in different parts of the world to seek public opinion and persuade the legislature to enact legislation in this respect. World’s first euthanasia society (British Society) was constituted in London, England by Lord Moynihan and Dr. Killick Millard in the year 1935, which is striving to pressurise the legislature to pass legislation on active euthanasia since its inception. 34 The reduction of punishment in mercy killing was accepted in Criminal Law in Russia in 1922, but only for a short span. Thereafter, the Euthanasia Society of America was formed in 1936. For the first time in 1958, a book titled “Death of a Man” was published by a woman named Lael Wertenbaker, describing how she helped her ailing husband to commit suicide. In 1967, Luis Kutner along with the other members of the Euthansia Soceity of America (Subsequently named, Society for the right to die) developed country’s first living will and created the Euthanasia Education Council (Subsequently named, Concern for dying) to disseminate information to the

32 Hoche Alfred, The Release of a Life Devoid of Human Value, (Germany, Leipzig, 1920) 33 McDougall Jennifer Fecio, Gorman Martha, Euthanasia: A Reference Handbook 87 (ABC-CLIO, U.S.A, 2 nd Edition, 2007)

34 Otlowski Margaret, Voluntary Euthanasia and the Common Law 334 (Oxford University Press, New York)

Impact Factor (JCC): 4.6038 NAAS Rating: 2.46 Euthanasia Law; Moral, Ethical or Inhuman in Indian Scenario 19 public. The arguments of Luis Kutner have also been published in the Indian Law Journal. 35 Subsequently, many other societies were formed to propagate the cause of euthanasia. 36

The first successful attempt to legalise euthanasia was made by the Northern territory of Australia in 1996 by enacting a specific legislation, which was soon thereafter repealed in the year 1997 37 . was also one of the first countries to have legalised the practice of euthanasia by enacting Termination of Life on Request and Assisted Suicide (Review and Procedures) Act, 2001, which was soon thereafter followed by Belgium (The Belgian Act on Euthanasia, 2002). Some other jurisdictions have also successfully enacted euthanasia legislations, however, only with qualifications. 38

Ancient India was also generally hostile towards the idea of suicide or mercy killing. Almost all religions including Hindu, Buddhists, Muslim, etc. proscribed acts of self- destruction. However, there were certain exceptions with respect to self-destruction and suicide was permissible in ancient India under certain circumstances. This is evident from the statement of Manu where he stated that “A Brahmin having got rid of his body by one of those modes (i.e., drowning, precipitating burning or starvation) practiced by the great sages, is exalted in the world of Brahmana, free from sorrow and fear.” 39 Therefore, people who renounced the world by starving themselves to death in order to achieve freedom from all worldly desires were respected. Although such an act of renunciation has a close nexus with suicide which was generally abhorred, but in certain circumstances such acts were considered as acceptable and a step towards salvation. Likewise the practice of was carried on in ancient India, until it was prohibited by the British in 1829 by enacting The Bengal Sati Regulation, 1829. Even today, the practice of sati is prohibited. 40 Sati included an act wherein, a widow climbed the pyre of her deceased husband to join him in death. 41 Many other different forms of suicide existed in our society, for example, Johars (mass or self-immolation) of ladies from the royal houses in order to circumvent humiliation and degradation by the enemies; Samadhi (termination of one's own life by self-restraint on breathing); Prayopaveshan (starving unto death); and Atmarpana, i.e., self-sacrifice. Such practices generally had a religious significance and were eulogised and commemorated instead of being condemned and abhorred by the society.

However, just as other parts of the World, India has also witnessed transitions with respect to the concept of euthanasia. With development and changes in society, the strong traditional and customary influences regulating the society had started fading away and the rule of law became the new governor of the code of conduct. Modernisation witnessed a dynamic shift towards a more sceptical approach instead of blindfolded trust in favour of antique customs and traditions.

MORAL AND ETHICAL PERSPECTIVE

35 Kutner Luis, “Due Process of Euthanasia: The Living Will, A Proposal” 44 ILJ 539-54 (1969)

36 M. Scherer Jennifer, James Simon Rita, Euthanasia and the Right to Die: A Comparative View 28 (Rowman & Littlefield Publishers Inc., U.S.A, 1999)

37 Euthanasia Laws Act, 1997

38 Supra Note 9 39 Gaur K.D., A textbook on the Indian Penal Code, 1860 556 (Universal law publishing Co. Pvt. Ltd., New Delhi, 4th edition, 2012) 40 Sati (Prevention) Act, 1987 41 Supra Note 23 at 14

www.tjprc.org [email protected] 20 Dr. Namita Vyas

Morals and ethics are considered to be the basic building blocks of our society since time immemorial. Before the existence of codified laws and legislations, it was the moral and social fabric of the society which ruled and regulated the conduct of the members of society. Even the debate on euthanasia and its corollary terms cannot be concluded without considering the moral and ethical background behind it. Right from our birth, we are imparted with instinctive perceptions and bombarded with environmental influences because of which we tend to categorise every act into the category of being good or bad, correct or incorrect. The systemisation of morality into standards of conduct for a defined group of people is called ethics. The most common controversy which human civilisation is facing since time immemorial is whether euthanasia and suicide are morally or ethically justified. Different philosophers have addressed the subject and expressed varying opinions. The basic issue is whether euthanasia and its associated acts violate the moral duties which we owe towards the society, towards oneself and towards God. 42

David Hume was of the opinion that euthanasia is ethically sound and is morally permissible and may possibly also lead to a social benefit. He favoured the concept of suicide and asserted that suicide would be morally permissible only if the good it afforded to the individual outweighs the loss to the society. 43 A similar view was expressed by the Utilitarian thinker Jeremy Bentham. According to him if life became too much of a burden, due to pain and sufferings, it could be morally justifiable to intentionally seek to end it, the life having outlived its benefit or usefulness. 44 Society’s claim over the life of the individual loses its hold. Therefore, he translated his study in terms of the utilitarian principle of pain and pleasure (hedonism). However, Plato generally believed that suicide is a cowardly and unjust act but it could be ethically accepted if the individual committing such act was immoral and had an incorrigible character had committed a disgraceful act, or had lost control over his or her actions due to grief or suffering. Plato favoured the concept of passive euthanasia as he suggested that medical treatment should not be provided to the severely ill and disabled patients. According to Dworkin, recognition to suicide

And assisted suicide would give patients a basic entitlement to defend their own critical interests in the face of an overly paternalistic medical establishment which is committed to the relentless extension of human life. 45 He advocated the concept of personal autonomy by stating that recognition of such a right would ensure empowerment of patients and would confer some measure of control over external forces that often fail to respect their profound choices over life and death questions. 46 Even John Stuart Mill had stated that a person has a right to do whatever they wish with their own body. He was also a supporter of the concept of personal autonomy and was of the view that it is the person’s right or liberty to do what they please as long as such right is not exercised to cause harm to others.

However, in contrast to the above mentioned thinkers, John Locke, , St. Thomas Aquinas, etc. believed

42 Dr. Fieser James, Moral Issues that Divide Us and Applied Ethics: A Sourcebook (2013) (Unpublished Ph.D. Thesis, University of Tennessee)

43 Battin Margaret Pabst (ed.), The Ethics of Suicide: Historical Sources (Oxford University Press, U.S.A, 2015) 44 Paterson Craig, Assisted Suicide and Euthanasia: A Natural Law Ethics Approach 18 (Ashgate Publishing Ltd., England, 2008)

45 Id. at 24 46 Ibid.

Impact Factor (JCC): 4.6038 NAAS Rating: 2.46 Euthanasia Law; Moral, Ethical or Inhuman in Indian Scenario 21 that the act of euthanasia and self-destruction are ethically wrong and impermissible. Locke held that since human beings are the creation of God, God has exclusive property rights over the human body which cannot be infringed by any person. 47 Similarly, Aristotle has stated that people seeking death are weak and depraved. Moreover, by relying on his theory of justice, he stated that to commit suicide is to do oneself injustice as well as to the whole society as it deprived the community of a citizen. 48 Thomas Aquinas argued that “it belongs to God alone to pronounce the sentence of death and life”. Life is God’s gift to us and is subject to his special authority. He gives us a wide range of freedom so that we may carry out our daily tasks and routines. However, ending our lives is not subject our own freedom, but instead to the power of God. 49 In addition to this, Aquinas had also propounded the theory of double effect which justified the act of killing someone in certain circumstances where death is only a side effect or an unintended consequence, but is not an intended consequence of one’s act. This doctrine was also incorporated in the English case of R v Adams 50 for the first time, wherein it was held that “A doctor is entitled to do all that is proper and necessary to relieve pain even if the measures he takes may incidentally shorten life". According to the facts of the given case it was not unethical and illegal for a doctor to administer an excessive dose of morphine with the primary intention of relieving pain, even though the secondary intention was to hasten death.

The main dilemma is whether deliberate killing (active euthanasia) or letting die (passive euthanasia), in certain circumstances can be held to be permissible and justifiable, morally as well as ethically. Morally, euthanasia is a kind of murder and voluntary euthanasia or assisted suicide is a type of suicide and both are considered as acts against the sanctity of sacred human life. On one hand, killing a human being is considered as being against the moral and ethical values of the society, whereas on the other hand, it is also a moral and ethical duty of a member of the society to relieve the dying man of his intractable sufferings, lingering pain and misery. It is true that human life is a sacred creation of God; however it does not imply that the continuance and disposal of human life is also the exclusive and peculiar province of the Almighty. If such was the case, even preservation of life would have been considered as impermissible as one would be acting against the will of the God to end life. Even Humes had stated that “it would be equally criminal to act for the preservation of life as for its destruction.” 51 It is also evident from most of the writings of the philosophers in antiquity that while active euthanasia was mostly impermissible, passive euthanasia could be allowed in certain circumstances for humanitarian reasons. Due to the growing focus in favour of personal autonomy and acceptance of passive euthanasia as an acceptable means of ending life, contemporary thinkers are inclined towards allowing voluntary passive euthanasia. Voluntary passive euthanasia is least likely to be considered as an immoral and unethical act, provided that the circumstances are suitable and justify the same.

RELIGIOUS PERSPECTIVE

In addition to the above mentioned ethical and moral perspective, the religious perspective regarding the concept of

47 Id. at 23

48 D Papadimitriou John, Skiadas Panayiotis, “Euthanasia and suicide in antiquity: viewpoint of the dramatists and philosophers” 100 JRSM 25-28 (2007) 49 Supra note 82 50 [1957] Cri LR 365 51 Supra note 83

www.tjprc.org [email protected] 22 Dr. Namita Vyas euthanasia and its associated terms may be summarised as follows:

Hinduism

The Hindus view life and death as a part of an endless cycle unless one attains salvation and the ultimate goal of liberation or nirvana (Moksha), and every act which one performs during life is associated with karma. The soul (atma) enjoys eternal divine bliss, once liberated from the bondage of the cycle of samsara, i.e., the cycle of life, birth and rebirth. In Hinduism, it is believed that the system of karma perpetuates transmigration that results from ethical and unethical consequences. The taking of another person’s life (including euthanasia) is not only a crime but a great sin and impairs the karma of the person performing such act. 52 The third verse of Ishavasya Upanishad states, “The various abodes of the Asuras, the lower level existence, are in the form of inferior or lower grade worlds, which are like hells coerced by darkness, representing all the negative qualities, collectively called “thamas”. Those who literally kill the Athma become who inhabit such horrible abodes, and, this, they continue to do repeatedly.” Sufferings are associated with reference to the past karma and are an inevitable outcome of a bad karma. Therefore, a person is bound to suffer on account of his bad Karma. Bhismapitamah in Mahabharata also chose to die after a lot of sufferings and kept lying on the bed of arrows, despite the fact that he had the power to choose when to die. Moreover, euthanasia cannot be allowed because it breaches the teaching of ahimsa (doing no harm) and is against dharma. Yajur Veda has also stated “The one who tries to escape from the trials of life by committing suicide will suffer even more in the next life”. Therefore, suicide is highly condemned in Hinduism. Even the death rites and rituals of a person who committed suicide (aatmahatya) are forbidden to be performed. However, there are instances where self-willed death was seen as acceptable and religious act of merit such as a heroic death (martyrdom), an honour death where a captured woman would kill herself to protect her honour (jauhar), a widow death where the wife would throw herself on the husband’s funeral pyre (sati), unless such practice was banned. 53 Moreover, certain acts of self-sacrifice or renunciation were practiced and even eulogised in ancient Hindu tradition such as, self- immolation by entering into fire

(agnipravesa), death by slow starvation (), death by entering into a cave or an underground cell and suspending breath in a state of self-absorption (Samadhi), notion of kasha yatra according to which dying around the Ganges helps absolve the sins of life and leads to nirvana. Also, in the final phase of human life cycle, which is also known as the phase of renunciation (sanyasasrama), people who wanted to achieve liberation from samsara and attain spritiual enlightenment were allowed to sacrifice their bodies through slow starvation. In such cases, suicide is seen as an act of self-purification. Even in the epic Mahabharata, its heroes and heroin Pandavas and Draupadi gave up the kingdom and embarked upon the mahaprasthana; the great departure. 54 However, such practices, even though still exist in the modern world, but are committed in a far lesser extent.

Christianity

In Christianity, all human life is considered to be sacred and God’s special creation. Each individual is known by God, who plans their lives as well as longevity. This is evident from one of the verses of Bible also, which states, “your eyes saw my

52 Cole William Owen, Moral Issues in Six Religions 105 (Heinemann, United Kingdom, 1991) 53 Denise Cush (ed.), Encyclopedia of Hinduism 240 (Routledge, U.S.A, 2008)

54 Srivastava Amit, “Euthanasia: The Indian culture always had reference about it” Merinews, July 20, 2014

Impact Factor (JCC): 4.6038 NAAS Rating: 2.46 Euthanasia Law; Moral, Ethical or Inhuman in Indian Scenario 23 unformed body. All the days ordained for me were written in your book before one of them came to be” (Psalm139:16). 55 It also states that “Thou shall not kill” (Exodus 20:13). Therefore, Christianity is against euthanasia as well as suicide, as both are considered as acts against the God’s plan. It is believed that one should trust God as he will always know what is best for everyone including the right time for them to die. 56 Moreover, a distinction has also been pointed out between killing someone (active euthanasia) and letting die (passive euthanasia). For many Christians, killing someone is always wrong, even if the person who is doing the killing is trying to be kind and saving a person from the sufferings, because pain and sufferings are not to be relieved. However, letting someone die, rather than performing endless treatments and operations is often agreed to be acceptable. Therefore, deliberate killing is impermissible but doctors are allowed to stop treatment in a hopeless case, even though they are not allowed to kill. The Roman teaches the principle of “double effect”, originated by St. Thomas Aquinas, according to which euthanasia is only allowed if it happens as a kind of side effect of the treatment that was meant to help. The legal doctrine of “double effect justifies giving pain-relief treatment, provided it is given with the primary intention to relieve pain, even though it may consequently have unwanted effect of shortening life. 57

Sikhism

From an analysis of the Holy book of Sikhs, i.e., the Guru Granth Sahib, it is clear that the Gurus viewed life as a precious gift given by the God and had a high respect for life. It has been stated that “This body is the Lord’s Temple wherein is revealed the jewel of Divine comprehension” (Guru Amardas, Sri Guru Granth Sahib, Ang 1346). Moreover, they believe that human life (manas janam) was achieved after countless lower life forms (chavraasi lakh joon) which took the soul through the evolutionary process. Human life is a platform which offers the rare opportunity to experience God awareness a field upon which one can experience both, Sukh (pleasure/enjoyment) as well as Dukh (pain and sufferings). Although ones existence maybe impregnated with pain, Sikh teachings emphasize that one should not reject pain by labelling it as bad, but rather accept it with the same demeanour that one accepts pleasure. 58 A Sikh has to accept that the life he/she has was deicided by our Karma and that God has decided how many “breaths” we breathe. 59 There is no place for euthanasia, living wills or assisted suicide in Sikhism as it is God alone who has preordained how long we live. Sikhism teaches that the sick and elderly should be taken care of, however, they do not believe in artificial extension of life. Therefore, it may be inferred that there is some scope of permissibility of passive euthanasia in Sikhism.

Jainism

The doctrine of ahimsa is based on the observance of equality and evolved out of the realisation that just as you do not like misery, others also do not like it (Sutrakrtanga Sutra). Since euthanasia and suicide are acts of violence, they are strictly prohibited. 60 Euthanasia cannot be justified as an act of mercy. It has been stated by Lord Mahavira that “Don't kill any

55 Mayled Jon, Ahluwalia Libby, Discovery: Philosophy & Ethics for OCR GCSE Religious Studies 126 (Nelson Thornes Ltd., England, 2002) 56 Ibid.

57 Ibid.

58 Singh Mandair Arvind-Pal, Sikhism: A Guide for the Perplexed 174 (Bloomsbury Publishing Co., London, 2013) 59 Jhutti-Johal Jagbir, Sikhism Today 82 (Continuum International Punlishing Group, London, 2011) 60 Shah Natubhai, Jainism: The World of Conquerors, Volume 112 (Motilal Banarsidass Publishers Pvt. Ltd., Delhi, 2004)

www.tjprc.org [email protected] 24 Dr. Namita Vyas living beings. Don't try to rule them” (Acharanga Sutra- The holy book of Jainism). It has also been stated that “To kill any living being amounts to killing one self. Compassion to others is compassion to one's own self. Therefore one should avoid violence like poison and thorn (that cause pain)” (Bhagvati Aradhana). However, in Jainism, voluntary death by starvation was considered to be a benefiting conclusion of a hermit’s life. Jain ascetics often undertook the practice of starving unto death (Santh ārā- Sallekhanā) with the purpose of attaining spiritual emancipation (moksha). However, this practice has often been equated with suicide and also held to be illegal by the Rajasthan High Court. 61 This decision has been condemned by the Jain community as they believe that the peaceful act of santhara which is done with spiritual motives cannot be equated with the suicide.

Islam

The Islamic views on suicide and euthanasia can be gathered from the Holy Quran, which is the primary and most reliable source, the religious opinions and decrees (fatwas) from great Muslim scholars. A person’s right to die voluntarily has not been recognised in Quran, which states that life is a divine trust, which cannot be terminated by any form of active or passive voluntary intervention. It is only Allah who decides how long each Muslim will live and two verses support this view. 62 One of the examples of the excerpt is as follows , “ He it is who will cause you to die, and in time will resurrect you. And when the Last Hour dawns, those who had been lost in sin will swear that they had not tarried (on earth) longer than an hour...” (Surah Ar–Rum, 30:55). All the Islamic scholars regard active euthanasia as forbidden (Hiram) and regard suicide as a crime worse than homicide. It has been stated in the Holy Quran that, “"Do not take life, which Allah made sacred, other than in the course of justice" (17:33). It has also been stated, “Destroy not yourselves. Surely Allah is ever merciful to you” (4:29). The moment of death (ajal) is under the control of Allah alone and the human cannot and should not attempt to hasten or delay the death. 63 There is no recognition of concepts of personal autonomy, freedom of choice as it is believed that life does not belong to the human.

CONCLUSIONS

Euthanasia elicits strong emotions as it is concerned with life and death issues. Euthanasia is an attempt to end life which is undergoing lot of suffering, grieve, pain and trauma. Euthanasia or mercy killing has been practiced in most of the countries though it is a highly sensitive issue in relation to any country. No doubt, India is not an exception to that. It involves a question of life or death in its ambit. Every human being is desirous of healthy life and at the end a peaceful death. But the modern life is full of complexities which put a challenge to such desire. The increasing incidents of dreadful diseases i.e. cancer, HIV and many more are proved to be the hindrances in the way of a healthy life. Many people who are terminally ill may desire to die because in such a situation death seems an easy option as compare to the sufferings through which they are undergoing. But on the other side of the picture, all the national as well as international instruments put ‘Right to life’ on the highest pedestal. According to those, it is inalienable right which cannot be waived by a human being at any cost.

REFERENCES

61 Nikhil Soni Vs. Union of India, 2015 CriLJ 4951

62 Narimisa Mehran “Euthanasia in Islamic views” 2 ESJ 170-73 (2014) 63 Ibid.

Impact Factor (JCC): 4.6038 NAAS Rating: 2.46 Euthanasia Law; Moral, Ethical or Inhuman in Indian Scenario 25

1. Law Commission of India, 210 th Report on Humanization and Decriminalization of Attempt to Suicide (October, 2008)

2. The Indian Penal Code (IPC), 1860, s. 309

3. Law Commission of India, 241st Report on Passive Euthanasia – A Relook (August, 2012) The IPC, 1860, s. 306

4. Garner Bryan A. (ed.), The Black's Law Dictionary 672 (Thomson West, U.S.A, 10th edition, 2014)

5. Khan Farooq, Tadros George, “Physician-assisted Suicide and Euthanasia in Indian Context: Sooner or Later the Need to Ponder!” 35 IJPM 101-05 (2013)

6. Termination of Life on Request and Assisted Suicide (Review and Procedures) Act, 2001.

7. The Belgian Act on Euthanasia, 2002

8. Sebastian Tania “Legalisation of Euthanasia in India” 2 JILS 361 (2011)

9. Ibid.

10. The IPC, 1860, s. 300: Exception 5

11. The IPC, 1860, s. 302

12. The IPC, 1860, s. 306

13. The IPC, 1860, s.309

14. AIR 1994 SC 1844

15. AIR 1996 SC 946

16. AIR 2018 SC 1665

17. Bala, R., Sangwan, S., & Duhan, K. Depression in Adolocents: Need for Social and Emotional Skills in Managing Depression.

18. Justice V. R. Krishna Iyer, “The final report of law reforms commission Kerala” (law reforms commission Kerala ,2009) retrieved from: http://keralalawcommission.nic.in/WriteReadData/Report/LRC_Report_Vol._I.pdf

19. Saltzman Andrea, M. Furman David, et. al., Law in Social Work Practice 431 (Wadsworth Publishing Company, U.S.A, 3rd edition, 2014)

20. Somerville Margaret (ed.), Death Talk: The Case Against Euthanasia and Physiciana-Assisted Suicide (McGill Queen University Press, London, 2014)

21. (2011) 4 SCC 454

22. Editorial, “Parliament Must Take A Call on Euthanasia” The New Indian Express, Feb. 17, 2017

23. AIR 2018 SC 1665

24. Dowbiggin Ian, A Merciful End: The Euthanasia Movement in Modern America 2 (Oxford University Press, U.S.A, 2003)

25. Dowbiggin Ian, A Concise History of Euthanasia: Life, Death, God, and Medicine 8 (Rowman & Littlefield Publishers Inc., U.S.A, 2007)

26. Coward Harold G., K. Young Katherine, Hindu Ethics: Purity, Abortion, and Euthanasia 71 (State University of New York Press, U.S.A, 1989)

27. Id. at p. 23

www.tjprc.org [email protected] 26 Dr. Namita Vyas

28. Id. at p.7

29. Lopes Giza, Dying with Dignity: A Legal Approach to Assisted Death: A Legal Approach to Assisted Death 8 (Praeger, U.S.A, 2015)

30. Supra Note 22 at 3

31. Hoche Alfred, The Release of a Life Devoid of Human Value, (Germany, Leipzig, 1920)

32. McDougall Jennifer Fecio, Gorman Martha, Euthanasia: A Reference Handbook 87 (ABC-CLIO, U.S.A, 2nd Edition, 2007)

33. Otlowski Margaret, Voluntary Euthanasia and the Common Law 334 (Oxford University Press, New York)

34. Kutner Luis, “Due Process of Euthanasia: The Living Will, A Proposal” 44 ILJ 539-54 (1969)

35. M. Scherer Jennifer, James Simon Rita, Euthanasia and the Right to Die: A Comparative View 28 (Rowman & Littlefield Publishers Inc., U.S.A, 1999)

36. Euthanasia Laws Act, 1997

37. Supra Note 9

38. Gaur K.D., A textbook on the Indian Penal Code, 1860 556 (Universal law publishing Co. Pvt. Ltd., New Delhi, 4th edition, 2012)

39. Sati (Prevention) Act, 1987

40. Supra Note 23 at 14

41. Dr. Fieser James, Moral Issues that Divide Us and Applied Ethics: A Sourcebook (2013) (Unpublished Ph.D. Thesis, University of Tennessee)

42. Battin Margaret Pabst (ed.), The Ethics of Suicide: Historical Sources (Oxford University Press, U.S.A, 2015)

43. Paterson Craig, Assisted Suicide and Euthanasia: A Natural Law Ethics Approach 18 (Ashgate Publishing Ltd., England, 2008)

44. Id. at 24

45. Ibid.

46. Id. at 23

47. D Papadimitriou John, Skiadas Panayiotis, “Euthanasia and suicide in antiquity: viewpoint of the dramatists and philosophers” 100 JRSM 25-28 (2007)

48. Supra note 82

49. [1957] Cri LR 365

50. Supra note 83

51. Cole William Owen, Moral Issues in Six Religions 105 (Heinemann, United Kingdom, 1991)

52. Denise Cush (ed.), Encyclopedia of Hinduism 240 (Routledge, U.S.A, 2008)

53. Srivastava Amit, “Euthanasia: The Indian culture always had reference about it” Merinews, July 20, 2014

54. Mayled Jon, Ahluwalia Libby, Discovery: Philosophy & Ethics for OCR GCSE Religious Studies 126 (Nelson Thornes Ltd., England, 2002)

Impact Factor (JCC): 4.6038 NAAS Rating: 2.46 Euthanasia Law; Moral, Ethical or Inhuman in Indian Scenario 27

55. Ibid.

56. Ibid.

57. Singh Mandair Arvind-Pal, Sikhism: A Guide for the Perplexed 174 (Bloomsbury Publishing Co., London, 2013)

58. Jhutti-Johal Jagbir, Sikhism Today 82 (Continuum International Punlishing Group, London, 2011)

59. Shah Natubhai, Jainism: The World of Conquerors, Volume 112 (Motilal Banarsidass Publishers Pvt. Ltd., Delhi, 2004)

60. Nikhil Soni Vs. Union of India, 2015 CriLJ 4951

61. Narimisa Mehran “Euthanasia in Islamic views” 2 ESJ 170-73 (2014)

62. Ibid.

AUTHOR PROFILE

Dr. Namita Vyas , H.O.D. (School of Law), Renaissance University Indore, (M.P.) India. Working as a Guest faculty in Govt. New Law College Indore, I am Mentor in Indore Kautilya Academy & Active IJRAR RMS member of international Journals of Research & analytical Review (An International Open Access Journals/ Approved by ISSN & UGC). NGO Active member & participate in many National and State Seminars.

Papers are published in UGC & ISSN APPROVED Journals, details are as mentioned below:

• “NECESSITY OF REGISTRATION OF MARRIAGE” – Published in Volume -1, Issue-2, December-2017 of Jus Imperator Journal(ONLINE) ISSN:2456-9666

• “UNIFORM LAW FOR COMPULSORY REGISTRATION OF MARRIAGE” - Published in Volume -1, Issue-2 , December 2017 of Jus Imperator Journal(ONLINE) ISSN: 2456-9666

• “ANALYTICAL STUDY OF PROCEDURAL LAW RELATING TO MARRIAGE REGISTRATION IN INDIA” - INTERNATIONAL JOURNAL OF RESEARCH AND ANALYTICAL REVIEWS (IJRAR) E – ISSN 2348- 1269, P- ISSN 2349- 5138 An International Open Access Journal Published In IJRAR (WWW.Ijrar.Org) UGC Approved (Journal No. 43602) & 5.75 Impact Factor Volume 6 Issue 2, Date of Publication ; June 2019 2019-06- 07 23:23:54 {Paper ID: IJRAR 19K4337, Registration ID: 206547} Available at : http://www.ijrar.org/IJRAR19K4337.pdf

• “FIR & THE EVIDENTIARY VALUE OF FIR IN INDIA ” - INTERNATIONAL JOURNAL OF RESEARCH AND ANALYTICAL REVIEWS (IJRAR) E – ISSN 2348-1269, P- ISSN 2349- 5138 An International Open Access Journal Published In IJRAR (WWW.Ijrar.Org) UGC Approved (Journal No. 43602) & 5.75 Impact Factor

www.tjprc.org [email protected] 28 Dr. Namita Vyas

Volume 6 Issue 2, Date of Publication ; June 2019 2019-06-07 {Paper ID: IJRAR 19K6565, Registration ID: 211063} Available at : http://www.ijrar.org/IJRAR19K6565.pdf

• “A STUDY ON THE EVIDENTIARY VALUE OF FIR” - ISSN 2229-5518 CERTIFICATE OF International Journal of Scientific & Engineering Research (IJSER) Paper ID: I0137892

• “GEOGRAPHICAL INDICATIONS IN INDIA: THE CASE OF KADAKNATH CHICKEN OF JHABUA” ((Registration ID JETIR1908642) - Published In JETIR ( www.JETIR.org ) ISSN UGC Approved (Journal No: 63975) & 5.87 Impact Factor Published in Volume 6 Issue 6 , June 2019 | Date of Publication: 2019-06-05

• JUVENILE DELINQUENCY AN EMERGING TRENDS IN INDIA (Registration ID JETIR225613) - Published In JETIR ( www.JETIR.org ) ISSN UGC Approved (Journal No: 63975) & 5.87 Impact Factor Published in Volume 6 Issue 6 , June 2019 | Date of Publication: 2019-06-05

• “EUTHANASIA LAW; MORAL, ETHICAL OR INHUMAN IN INDIAN SCENARIO (SCOPUS INDEX & UGC APPROVED JOURNALS)” – Approved Article for publishing in June-2020 Session.

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