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VOLUME 2 : ISSUE 7 || February 2021 ||

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WHITE BLACK LEGAL: THE LAW JOURNAL

4 www.whiteblacklegal.co.in ISSN: 2581-8503 : A REALITY IN INDIA? By- Khushi Rastogi and Raunicka Sharma (Symbiosis Law School NOIDA, Third year students- BBA LL.B.)

ABSTRACT Questions relating to , dying, and killing of an individual has often been raised by various professionals of diverse fields. Euthanasia is one such concept which seeks to provide relief to terminally ill patients from suffering by ending their life. However, over past decades, the subject of Euthanasia attracted controversy on religious, moral, legal, and ethical grounds.

Indian constitution guarantees ‘ and Personal liberty’ under Article 21. The Courts in India, through a series of judicial decisions have dealt with the question whether this ‘Right to life’ also include ‘ with dignity’. In 2018, Hon’ble Supreme Court’s landmark judgment in Common Cause (A Regd. Society) v. UOI opened the gates for , allowing terminally ill patients or those in incurable comas to seek death through a voluntary passive euthanasia under a "living will". The Bench further laid down detailed guidelines for executing such living wills.

This paper elaborately discusses legal history and position of euthanasia in India and further addresses upon the possibility and potential consequences of legalizing Active euthanasia and Physician Assisted (PAS) in India.

INTRODUCTION “Death is certain for that which is born, as birth is for that which is dead.”1 Every human being has a lifespan and throughout this, an individual faces various situation where he wishes to end his life such as in cruel or unbearable conditions of life, terminal diseases, sense of shame or incurable physical impairment etc. But what if an individual is physically unable to end his own life? Does an individual even possess the right to end his own life in the first place?

The very concept of ending an individual’s life before the completion of his natural lifespan, with the prior consent of that individual has been very controversial on moral, religious, and jurisprudential grounds. This concept came to be known as ‘Euthanasia’, which is often

1 PATTON, THE BHAGAVAD GITA 205-206 (Laurie, ed. Penguin Classics 2008).

5 www.whiteblacklegal.co.in ISSN: 2581-8503 linked and compared with ‘Suicide’. But suicide whether irrational or rational, for unrelated reasons is not euthanasia. Nor is euthanasia the forced killing of another person.

The word euthanasia originates from Greek word – ‘Eu Thanatos’, literally meaning, ‘good death’. Killing of a person on the prior request or consent of the deceased or his family members is called, Euthanasia. In modern context, Euthanasia is “The painless killing of a patient suffering from an incurable and painful disease or in an irreversible coma.” It is also known as ‘Mercy Killing’. The option to pass on or end one's life isn't something new or obscure to human progress. In antiquated Greece and Rome, helping other individual to die or putting to death on his will was allowable under certain circumstances. For instance, in the Greek city of Sparta, with extreme birth defects were killed. Intentional killing for the elderly was an affirmed custom in a few antiquated social orders. Numerous ancient writings including the Bible, the Quran and the Rig-Veda talk about suicide or self-destruction.

Euthanasia has been much debated and as result of various euthanasia movements around the globe, various countries like – England, , Germany, Japan and several states of U.S. have legalised certain modes of Euthanasia. In 2018, The Supreme Court of India delivered its very landmark judgement in Common Cause (A Regd. Society) v. UOI2, passing an order allowing passive euthanasia in India. This judgement was a very significant development in India’s own euthanasia movement. This historic judgement further allows us to question, whether other modes, especially active euthanasia should also be legalised in India.

MEANING OF EUTHANASIA 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, especially a painful one, for reasons of mercy. Encyclopaedia of ‘Crime and Justice’, explains euthanasia as “an act of death which will provide a relief from a distressing or intolerable condition of living”. In simple words, Euthanasia is an act which refers to ending the life of a person deliberately who has been terminally ill or has been in vegetative state for a long time. Today, euthanasia is primarily associated and limited to patients suffering from an incurable disease or , at the request of whom doctors use procedures to cause a premature death. This premature ending of life has triggered various debates across the world related to legal, ethical, human rights, health, religious, social, and cultural aspects of society. Different

2 Common Cause (A Regd. Society) v. UOI, W.P. (C) No. 215 (2005) S.C. (India).

6 www.whiteblacklegal.co.in ISSN: 2581-8503 people, from diverse backgrounds, following distinct ideologies have put forward various arguments in favour and against euthanasia. Some measures by common people have also been taken to create awareness and sensitisation across the globe. There have been several movies and documentaries in both, Indian and International cinema like- Me before You, Woodshock, Honey, Guzaarish, How to die in Oregon, Whose life is it Anyway etc.

TYPES: There are 5 major forms of euthanasia:

 Active Euthanasia: In this mode of euthanasia, death of the patient is brought through a direct ‘act’. The act is performed deliberately to cause direct death of the patient. e.g.- giving a person an over-dose of sleeping pills or injecting a toxic substance into the patient’s body.  Passive Euthanasia: Death is caused by a voluntary omission by withholding the life-sustaining treatment, either at the request of the patient or when prolonging life is considered futile. e.g.- removing a patient’s life support system required for his survival. This type is also known as ‘letting-die’.  Physician- (PAS): Here, the physician only gives a prescription to the patient or third party, it is not the physician who directly administers the legal medication.  : It is conducted with the consent of the patient.  Non-voluntary Euthanasia: It is conducted where patient’s consent is unavailable. The patient is unable to give an informed consent. e.g.- ‘Child euthanasia’, which is illegal in majority countries.  : It is different from non-voluntary euthanasia as in this, the patient could give an informed consent but didn’t because either he was not willing to die or because he was not asked for a consent in the first place.

RIGHT TO LIFE V. RIGHT TO DEATH The Indian constitution guarantees ‘Right to life and Personal liberty’ under Article 21. This right is intrinsic and fundamental to the existence of a human being. Many have argued that ‘Right to life’ also includes ‘Right to die’, therefore euthanasia is an individual’s right. Consequently, S. 309 (Attempt to commit suicide) and S. 306 (abatement of suicide) of

7 www.whiteblacklegal.co.in ISSN: 2581-8503 Indian Penal Code, 1860 has continuously been criticized for being ultra vires to the constitution.

This question was first dealt by the Indian Courts in, Maruti Shripati Dubal v. State of Maharastra3. In this case, a Bombay Police Constable who was mentally deranged was refused the permission to set up a shop and earn a living; out of frustration he tried to set himself ablaze in his office room. The Bombay High Court held that the right to life guaranteed by Art. 21 includes a right to die. Court further elaborated that “Every individual has the freedom to dispose his life, whenever he desires.” And consequently, it struck down s.309 IPC. This judgement stirred a lot of controversy and debates reflecting conflicting views of the society. However, later in Chenna Jagadeeswar V. State of A.P.4 the Andhra Pradesh High Court held that ‘Right to die’ is not within the meaning of ‘Right to life’ under Article 21. It remarked that right to life does not signify or point towards any such right which entitles an individual to choose to die, which is an offence and hence s.309 IPC is not unconstitutional.

This question was dealt by Supreme Court in P. Rathinam v. Union of India5, the court took the view that ‘fundamental rights have their own positive as well as negative aspects’. For example: freedom of speech and expression under Article 19 includes freedom not to speak. And accordingly, the Right to live will also include Right not to live i.e. Right to die or terminate one’s own life. Thus, ‘Right to life’ under Article 21 enshrined in the Indian Constitution, also gives right to an individual not to live a forced life. The court declared s. 309 and s. 306 IPC as ultra vires, held it to be violative of Article 21 of the Constitution.

However, the five judges Bench of the Supreme Court in Gian Kaur v. State of Punjab6 over-ruled this judgement and held that euthanasia is unlawful in India. The court scrutinized the reasons given in P. Rathinam case and held that the overt acts performed for committing a suicide is against the “sanctity of life” and such acts will not extend to the protection under Article 21. Regarding euthanasia, it clarified that right to die with dignity at the end of life is not to be confused or equated with right to die an unnatural death curtailing the natural span of life.

In 1973, Aruna Ramchandra, a junior nurse at King Edward Memorial Hospital, Mumbai was sexually assaulted, and the severe injuries resulted her body to go into a vegetative state. This

3Maruti Shripati Dubal v. State of Maharashtra, (1986) 88 BOMLR 589 (India). 4 Chenna Jagadeeswar V. State of Andhra Pradesh, (1988) Crl.L.J.549 (India). 5 P. Rathinam v. Union of India, (1994) AIR 1844 (India). 6 Gian Kaur v. State of Punjab, (1996) AIR 946 (India).

8 www.whiteblacklegal.co.in ISSN: 2581-8503 incident shook the entire country and stirred controversy over its poor and inadequate disposal of justice. In 2009, Pinki Virani, a social activist filed a plea in Supreme court to allow euthanasia of the rape victim who has been in a vegetative state for more than 37 years. This plea plays a very significant role in India’s euthanasia movement as it raised questions upon dimensions of Justice. Was it justifiable to prolong the suffering of a person who was already a victim of such heinous crime like rape? Whether not allowing Aruna who was living in a vegetative state for almost 40 years and making her subject to a futile treatment was at all, in her best interest? Or was it just prolonging her suffering caused by the offender?

In 2011, Supreme Court in its revolutionary judgement of Aruna Ramchandra Shanbaug v. Union of India7 held passive euthanasia to be allowed under certain exceptional circumstances under the strict monitoring of the Court. It issued wide guidelines regarding “Withdrawal of life support to an incompetent person” and laid down procedures to be adopted by High Courts. Though it dismissed Aruna’s petition by holding that Pinki Virani did not qualify as the “next friend”, instead the KEM Hospital staff did, which wished Aruna to live. Pinki Virani later remarked that “Because of this woman who has never received justice, no other person in a similar position will have to suffer for more than three and a half decades.”

In the most recent case of Common Cause (A Regd. Society) v. UOI commonly known as the Euthanasia case, Supreme Court held that, an individual has a right to die with dignity as a part of his Right to life and personal liberty under Art.21 of the Indian Constitution. This ruling thus permits the removal of life-support systems for the terminally ill or those in incurable comas. The court further recognized the need for creating a living will. Living wills are the written documents that allow patients to give explicit instructions with regard to the medical treatment to be administered when they are not able to express informed consent.

COMMON CAUSE v. UNION OF INDIA This landmark case of Indian judiciary cleared the passage for passive euthanasia in the country. Common cause, a non-profit organisation had filed a petition under Art. 32 of the Indian Constitution, for providing legal recognition to passive euthanasia and living wills. The main contention being that ‘Right to life’ guaranteed by Art. 21 of the constitution should also include ‘Right to die with dignity’. Identifying the differences between voluntary

7 Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454 (India).

9 www.whiteblacklegal.co.in ISSN: 2581-8503 active and passive euthanasia; determining the validity of the “Living Wills”8 of patients to refuse taking life-sustaining treatments were the other major issues of the case. It was argued by the petitioners, that every human should have a right to decide their own fate and one’s life should not be unnecessarily prolonged using modern technology and drugs. Moreover, in case where patients are suffering from incurable and degenerative diseases with no cure, the artificial support systems only end up prolonging the pain and suffering of those patients. Further, it places an unnecessary burden upon the lives of such patients and the people associated to them. Thus, to protect an individual’s right to live with dignity, it necessary to validate the execution of “Living Wills”, in which a person, when in sound mind and good health, may record his wish that he should not be kept alive with the help of ventilators, if doctors, at any stage of his life, opine that he cannot be kept alive without life support system.

Another significant argument made by the petitioners was that the organs of patients opting for euthanasia can be donated, therefore legalising euthanasia will not only provide patients with right to die with dignity but also enforce the right to life of the patients who can be saved by organ donations.

A three-judges Bench of Supreme Court concluded that the Shanbaug case was based on wrong interpretation of Gian Kaur v State of Punjab. The court also opined that the decision made was “internally inconsistent” as it was said that euthanasia can be allowed by the legislature but rather it was the judiciary that made guidelines for the same. Hence, a larger bench was requested, and the case was conclusively decided on March 9,2018; by the five- Judges constitutional bench, comprising Former Chief Justice of India J. Dipak Misra, J. A.K Sikri, J. D. Y Chandrachud, J. Ashok Bhushan & J. A.M Khanwilkar.

The bigger Bench, reiterated that an individual has a fundamental right to die with dignity, ensured under Art.21 of the Indian Constitution as already held by the Constitutional Bench in Gian Kaur case earlier. This ruling thus permits the removal of life-support systems for the terminally ill or those in incurable comas. The court further recognized the need for creating a living will. Thus, this judgement has paved the way for the terminally ill patients to seek death through a voluntary passive euthanasia under a "living will".

8 Living wills are the written documents that allow patients to give explicit instructions regarding the medical treatment to be administered when they are not able to express informed consent.

10 www.whiteblacklegal.co.in ISSN: 2581-8503 POSITION OF EUTHANASIA IN INDIA In the landmark case of Common cause (A Regd. Society) v Union of India, the Supreme court laid down the guidelines for voluntary passive euthanasia in the country. The guidelines were related to who can execute the living will and how, how will it be recorded and what all should it contain. The required permission from the medical board etc. The process and guidelines which are to be followed for executing voluntary passive euthanasia on patients who are suffering from a long-term pain and illness are discussed in detail below-.

- Who can execute living will and how? What all should it contain? It must be in written form and must be formed by a person voluntarily, who is of sound mind. It must specify when the person wishes the treatment to be withdrawn and if any typical treatment which should not be given to him which will lead to death.

It should clearly indicate when the treatment should be withdrawn and mention about the guardian or relative who will have the right to command withdrawal of treatment in case the executor is unable to do so.

- How should the living be recorded and preserved? The document should be signed by the executor in presence of two attesting witnesses and countersigned by judicial magistrate first class. The witnesses and JMFC will also ensure that the will was signed voluntarily. One copy of the document will be with the JMFC and the other copy would be sent to district court.

- When and Who can give effect to the will? In case the executor becomes terminally ill and there is no scope for his treatment then the physician might ask for the authenticity of the will from the JMFC and if the physician is satisfied then he might inform the guardian or relative of the patient about the illness, the available treatment of the said illness and about the consequences of denying the treatment. The hospital will then constitute a medical board comprising of three expert doctors with at least 20 years of experience and the head of treating department. The medical board will visit the patient and then will give the final say about withdrawal of treatment.

In case the medical board refuses the withdrawal, it will be upon the patient himself or his guardian to approach the High Court.

- Revocation of the will

11 www.whiteblacklegal.co.in ISSN: 2581-8503 The will can be withdrawn at any time, but the revocation must be in writing. In case of lack of any clarity it might be rejected by the medical board.

- Absence of will In case there is no will then same procedure will be followed by the hospital and the guardian or relative of the patient must certify the hospital in writing if they certify the course of action to be taken.

Though the court has issues guidelines for the process to be followed to allow voluntary passive euthanasia to patient, but it still lacks a formal legislation, an enactment by the government to protect the interest of the patients. There are various bills that have been issued in the parliament from time to time but none of them has been approved by the houses to be enacted as a formal legislation in the country. The last bill issued in Lok Sabha was in 2019 and is called as “The Euthanasia (regulation) Bill, 2019”. This bill allows both active and passive euthanasia in the country and provides for Evaluation and Review board for the patients. The bill also estimates per annum cost from consolidated Fund of India and empowers central government to make rules for further easement of Euthanasia.

A bill must go through various stages before it becomes a law, till now the bill has just been introduced in the lower house of the parliament therefore, until then, the guidelines issued by Supreme Court need to be followed wherever the need arises but, the need for codified law is inevitable for further clarifications and modification.

SHOULD VOLUNTARY ACTIVE EUTHANASIA AND ASSISTED SUICIDE ALSO BE MADE LEGAL IN INDIA?  Many countries have legalized passive euthanasia but not the active, as in the passive form, an omission is performed to relieve the person off his pain, after addressing all aspects of a person’s suffering. Passive euthanasia means that the patient was given an opportunity of treatment and care. Doctor concluded that the person is incompetent of healing by first giving a chance to the patient. The ongoing treatment or life-support system would have only prolonged the patient’s and family’s suffering, especially when the patient is alive as a vegetable. But if active euthanasia is made legal, then death would be cheaper than care and treatment, and it is possible that patient or his family will consent to euthanasia without first reaching out to all forms of treatments available, or a chance to survive out the disease. Advocates of active euthanasia argue that it saves the family from the financial burden caused from resorting to

12 www.whiteblacklegal.co.in ISSN: 2581-8503 unproductive treatments that are often unnecessarily prolonged. But can we really determine the value of a human life in terms of money?  Legalizing active euthanasia would send a message that some people’s lives are not worth living and will steer such people towards a premature death. India has high records of elderly abuse and abandonment. According to a recent study conducted by HelpAge India (a non-profit organization), every fourth elder citizen (aged 60 or above) has faced abuse, regardless of their gender. However, currently society accepts the notion that people who are sick, elderly, or disabled need to be cared for until their natural death. If euthanasia were to be legalised, staying alive to be cared for would become optional instead of the default. Vulnerable groups like- the elderly may have to justify to themselves and to others because they are choosing to stay alive. The abuse rates of elderly will naturally increase. Coercion to die would become a new form of abuse.  It is important to acknowledge the distinction between taking of life by injecting a lethal dose or giving life-threatening prescription to a person; and the withdrawal of a life-sustaining treatment to allow life to take on its natural course to bring upon the death that person. Many professionals find it difficult to assist their patients to death, and one study even showed that 24% of the medical professionals or doctors who have been involved in assisted regretted their decisions.9 Such contributions must have left these doctors with many questions about their own actions, as it’s not a part of any training or Hippocratic oath. Just giving a deadly prescription rather than injecting a toxic substance must also feel as something so direct when it comes to contributing to one’s death. Thus, it leaves us with two major questions – Are Medical Professionals in India upon legalization of either, ready carry out Assisted Suicides and Voluntary Active Euthanasia? Will the Medical Professionals who have been trained save lives of the patients, be willing to carry out assisted suicides and voluntary active euthanasia?  Moreover, legalizing Physician Assisted Suicides (PAS) will affect the trust in the relationship between a doctor and patient, as there will be a high risk of undermining the care and treatment of dying patients.  It is highly important to understand the reason behind why people ask for their lives to be ended prematurely. One study suggested that in 80% of the cases, the reason is fear

9 Vol. no.22(2), Brock & Dan W., Voluntary Active Euthanasia 10-22 (1992).

13 www.whiteblacklegal.co.in ISSN: 2581-8503 of future10. This fear of future usually includes the fear of a distressing death (acutely painful death caused due to the medical conditions of that patient) or rather fear of being kept alive in pain for long. Depression maybe responsible for 14% of cases. These issues become very prominent and needs to be discussed, especially regarding people suffering with Motor Neuron Diseases (MND). MNDs affect the nerves that enable movement, causing the muscles in the body to deteriorate. This often leads to paralysis of certain body parts but most importantly, MNDs makes it very difficult or even impossible for the patient to perform basic day-to-day activities, or in other words, to live a normal life. The life expectancy of an MND patient upon being diagnosed varies from 2-3 years. There is no treatment but only therapies for the patients suffering with MNDs to help them live a more normal and independent life. These patients read the possibility of distressing death caused to respiratory problems, pneumonia, or swallowing problems. Now clearly, in such situations, not every patient can opt for passive euthanasia. Diane Pretty, an English woman, was left paralysed from her neck down as her motor neuron disease worsened the muscles in her body. She had to live a life totally dependent on her husband and nurses who took care of her round the clock, she would have committed a suicide but was not physically capable to do so. She stated a wish that her husband should be able to assist her in ending her life, but this is classed as assisted suicide, which is a criminal offence in England and Wales under the Suicide Act 1961. She ardently fought to reform the laws in England and voiced her opinions through a voice simulator. However, she had been denied her right to die as the judgement said, “The court could not but be sympathetic to the applicant's apprehension that without the possibility of ending her life she faced the prospect of a distressing death”. But is death the only way to bring dignity to a patient? The assumption that certain patients who want to die shall be allowed to die for the sake of their dignity is morally wrong, dangerous, and likely to add to the emotional suffering of a patient who is already in a vulnerable state. Patients need “Medical Help” and care of loved ones to live with dignity until they die naturally. This sense of dignity does not come from death but from the environment a patient is living in. Diane Pretty was surrounded by people who approved that she had a right to feel undignified and shall fight for her premature death. But on contrary, assisted suicide is always a difficult topic to discuss, especially for the families of such patients as they make their efforts for the patient to

10 Jackie Fisher et al., “Legalizing Active Euthanasia And Physician Assisted Suicide”, 324 B.M.J., 846-848 (2002).

14 www.whiteblacklegal.co.in ISSN: 2581-8503 re-establish his own worth and sense of dignity which he needs to live their remaining life. A patient might settle for his wish to die but end up changing his perception after certain period. Maybe after months or even years. But if the legal means were available to him at that time then those overwhelming feelings would lead him to surrender without a fight, regardless of all the efforts by the people who cared about him. Why is it so difficult to consider the assumption that the will and perceptions a patient suffering from a terminal illness like MNDs can ultimately be changed? By legalising voluntary active euthanasia, aren’t we worsening the situation of a patient who is already stuck in a vulnerable spot?  When we say, “patients need medical help to live with dignity”, by medical help, in this context, it could mean the therapies that help these patients in living a better life. Many complementary therapies alongside the conventional treatment of MND patients have proven to be effective in reducing stress, making patients feel more comfortable with their condition and improving the overall quality of life. In India, alternative therapies like, Stem Cell therapy is becoming more prevalent in treating MND patients. If voluntary active euthanasia and PAS is made legal, it can be assumed that the medical science might grow more reluctant to progress and research on such therapies.  Lastly, observations made from other countries’ experience indicate that “legalisation leads to normalisation”, death figures will eventually see a prompt rise due to these new legalized modes of death. Moreover, legalizing either, the active euthanasia or PAS would mean that our socialist state is licensing a citizen’s death in advance; amounting to state-sanctioned suicide.

15 www.whiteblacklegal.co.in ISSN: 2581-8503 CONCLUSION Euthanasia has always attracted controversy on religious, moral, legal, and ethical grounds. In Indian context, it was in P. Rathinam v. Union of India that court first recognized negative aspect of Right to life guaranteed under Article 21 of Indian. Though, Aruna Shanbaug case garnered most media attention and raised various ethical questions, the judgement had arrears and was internally inconsistent. Eventually, in 2018, the Common cause judgement paved the way for the terminally ill patients or those in incurable comas to seek death through a voluntary passive euthanasia under a "living will". The Bench emphasized upon the need for a living will and laid down detailed guidelines for executing the same. The Euthanasia (regulation) Bill, 2019 is currently under review in Lok Sabha. Voluntary passive euthanasia is soon to be a reality in India.

A close perusal of the arguments presented against legal sanction of either, active euthanasia or PAS in India, indicates that it will create a social paradox in the society, corresponding to existing ethical dilemmas. It will worsen social problems such as – neglect and abuse of the elderly. Further it will act as a deterrent to the ongoing efforts of medical science community, to help terminally ill patients live a life of dignity. Such patients require care and love to help them gain their lost dignity in life. But an easy way-out will simply discourage the people around, to help them earn a second chance at life. Moreover, with excess power being given to doctors, it will create legal complexities. As observed from experiences of other nations, it will be very difficult for Courts of law to distinguish between and assisted suicide and active euthanasia. Thus, Active euthanasia and PAS must not be made a reality in India. If made legally valid, without adequate legal safeguards, with the current vulnerable state owing to the existing social problems, any other form of euthanasia can only be a bitter reality for our nation.

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