From the desk of THE group editor-in-chief Indian Journal of Clinical Practice, Vol. 30, No. 6, November 2019

Dr KK Aggarwal Group Editor-in-Chief, IJCP Group

Thalaikoothal or Senicide

ast month, I attended the World Medical materialistic possession. This water mixed with the Association (WMA) General Assembly at Tbilisi, mud is fed to the ailing individual several times LGeorgia. One of the sessions during the meet until the death occurs. discussed mercy killing, a controversial and much ÂÂ Pesticides celphos (aluminum phosphide), sleeping debated issue. This reminded me of the practice of pills (Valium) and lethal injections have become senicide, which is the abandonment to death, or part of it. killing of the elderly (Wikipedia). The term originates ÂÂ The terminally ill person is given an oil bath using from the Latin word “senex”, which means “old” and gingelly oil and cold water several times in a week. “cide”, which means “killing”. ÂÂ Tender coconut water, “Theertham” – holy water, In India, senicide is practiced in some parts of southern from different temples and Kasi temple and the districts of the state of Tamil Nadu as Thalaikoothal, holy water used for bathing the deity in a temple which is the traditional practice of senicide (killing of are all used for such rituals. the elderly) or involuntary , by their own family members. ÂÂ Force feeding cow's milk while plugging the nose, causing breathing difficulties (the "milk therapy") or Thalaikoothal is a Tamil word which means “leisurely use of poisons. oil bath”. The customary rituals are: ÂÂ The pesticide Thimet 10 G, a dark granulated ÂÂ The body is massaged with 100 mL each of coconut, organic solvent, or Kurnamarunthu, as the villagers castor and sesame oils, usually at dawn. After this, call it, is mixed in tea or water and administered. the person is given a cold bath and put to bed resulting severe hypothermia. After 15 minutes, All these rituals hasten death by causing hypothermia, the person is made to drink a few glasses of tender renal failure and aspiration pneumonia, etc. coconut water and a glass of milk. India is a vast country and the cultures, traditions, customs, languages, faiths, etc. vary from one part of ÂÂ The person is given a glass of mud mixed with water or, a piece of murukku, a savoury, would the country to the other. Everyone has the right to freely be forced down the throat, which blocks the food practice their customs, etc., which is protected by the pipe. Water with soil or mud from the land owned Article 25 of the Constitution of India. by the terminally ill person is used with the notion Customs are one of the sources of law. The Hindu that the terminally ill person is attached to his/her Code defines custom and usage as “Any rule which,

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having been continuously and uniformly observed It held that “that Section 309 violates Article 21, and so, for a long time, has obtained the force of law (among it is void”. Hindus) in any local area, tribe, community, group or But in 1996, in Gian Kaur v. State of Punjab (1996)2 SCC family, if it is certain and not unreasonable or opposed 648, a five-judge Constitutional Bench of the Supreme to public policy.”(Section 3(a) of The Hindu Marriage Court overturned the decision in the P Ratinam case and Act, 1955) held that “Article 21 does not include the ” But does a custom that has been practiced by people ipso and “that Section 309 IPC is not violative of either Article 14 facto gain legality? or Article 21 of the Constitution”. Some criteria must be met, before a custom can be “…'Right to life' is a natural right embodied in Article 21 accepted as valid law (European Researcher. 2014;87(11-2): but suicide is an unnatural termination or extinction of life 2005-12). and, therefore, incompatible and inconsistent with the concept

ÂÂ “Custom to become law must be immemorial. 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 ÂÂ It must be reasonable. to freedom of speech, etc. to provide a comparable basis to hold ÂÂ There must be continuous performance of it. that the 'right to life' also includes the 'right to die'… The ÂÂ The enjoyment of custom must be peaceful one. 'right to life' including the right to live with human dignity would mean the existence of such a right up to the end of ÂÂ Custom must be certain and definite. natural life… But the 'right to die' with dignity at the end of ÂÂ A custom will be valid if it is compulsory to perform. life is not to be confused or equated with the right to die an ÂÂ It must be general or universal. unnatural death curtailing the natural span of life...” ÂÂ In addition, it should not be opposed to public policy. In Aruna Ramchandra Shanbaug versus Union of ÂÂ Custom should not be in conflict with the statutory law.” India (2011)4 SCC 454, the Supreme Court recognized the right to die with dignity and allowed a living will; Article 13 of the Constitution also includes customs and at the same time, it set out strict guidelines that will considers “laws inconsistent with or in derogation of the govern when and how it will be permitted. “The 'right fundamental rights” as void or null, if they are in conflict to life' including the right to live with human dignity would with the Constitution of India. mean the existence of such a right upto the end of natural life. Thalaikoothal is not a universal custom in the sense that This also includes the right to a dignified life up to the point it is practiced only in some parts of Tamil Nadu and not of death including a dignified procedure of death”. throughout the country. Hence, it is a local custom and This issue was re-examined in the Common Cause versus not a general custom. Moreover, it is also violative of the Union of India, 2018 (5) SCC 1, where the Hon’ble fundamental right to life as guaranteed under Article 21 4-Judge Constitution Bench of the Supreme Court upheld of the constitution of India, which says, “No person shall the aforementioned judgment in Aruna Shanbaug case be deprived of his life or personal liberty except according to “(vii) We are thus of the opinion that the right not to take a procedure established by law”. Evidently, the Right to life life-saving treatment by a person, who is competent to take an under Article 21 does not include the Right to die. informed decision is not covered by the concept of euthanasia How does the law view the issue of “Right as it is commonly understood but a decision to withdraw life- to die”? saving treatment by a patient who is competent to take decision as well as with regard to a patient who is not competent to The question regarding right to die first time came up take decision can be termed as passive euthanasia, which is before the Bombay High Court in the matter of State lawful and legally permissible in this country.” of Maharashtra v. Maruti Shripati Dubal 1987 Cri LJ The law protects the doctor, if he or she takes a 743. The Bombay High Court ruled that the right to life professional decision to withhold treatment in terminally guaranteed under Article 21 includes right to die, and ill patients or those in a persistently vegetative state, if it thus making Section 309 of Indian Penal Code (IPC), is convinced that the doctor has acted in such a case in 1860 which makes attempt to suicide as punishable the best interest of the patient and in bonafide discharge offence, as unconstitutional. of the duty of care. “A decision not to prolong life beyond The Supreme Court also affirmed that under Article 21, its natural span by withholding or withdrawing artificial life right to life also includes right to die in P Rathinam support or medical intervention cannot be equated with an v. Union of India 1994 AIR 1844, 1994 SCC (3) 394. intent to cause death.”

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Suicide and euthanasia or mercy killing are not the Section 306 “If any person commits suicide, whoever abets same. A suicide is an act done by the person himself the commission of such suicide, shall be punished with (self-decision); while in euthanasia, the act is done by a imprisonment of either description for a term which may third party (decision taken by another person). extend to ten years, and shall also be liable to fine.” Even in State of Maharashtra v. Maruti Shripati Active euthanasia is an offence under Section 302 Dubal, the High Court recognized the difference (punishment for ) or under Section 304 between mercy killing and suicide and considered it as (punishment for culpable not amounting to homicide. “Euthanasia or mercy-killing on the other hand murder). “302. Punishment for murder.—Whoever commits means and implies the intervention of other human agency murder shall be punished with death, or 1[imprisonment for to end the life. Mercy-killing thus is not suicide and an life], and shall also be liable to fine.” attempt at mercy-killing is not covered by the provisions “304. Punishment for culpable homicide not amounting of S. 309. The two concepts are both factually and legally to murder.—Whoever commits culpable homicide not distinct. Euthanasia or mercy-killing is nothing but homicide, amounting to murder shall be punished with 1[imprisonment whatever the circumstances in which it is effected. Unless it for life], or imprisonment of either description for a term is specifically excepted it cannot but be an offence.” which may extend to ten years, and shall also be liable to In Naresh Marotrao Sakhre v. Union of India 1996 fine, if the act by which the death is caused is done with the (1) BomCR 92, 1995 CriLJ 96, 1994 (2) MhLj 1850, intention of causing death, or of causing such bodily injury the Bombay High Court stated that “Euthanasia or as is likely to cause death, or with imprisonment of either mercy killing is nothing but homicide whatever the description for a term which may extend to ten years, or with circumstances in which it is effected. Unless it is fine, or with both, if the act is done with the knowledge that specifically excepted it cannot but be an offence. Our it is likely to cause death, but without any intention to cause Penal Code further punishes not only abetment of homicide death, or to cause such bodily injury as is likely to cause but also abetment of suicide.” death.” Till recently, attempt to suicide was considered a crime In conclusion, right to life is an inalienable right. It does under Section 309 IPC “Attempt to commit suicide.— not include right to die. Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished A reasonable inference can therefore be drawn that any with simple imprisonment for a term which may extend to unnatural termination of life is illegal, be it euthanasia one year.” (or mercy-killing) or any other. And, it is only recently that passive euthanasia (living will), but not active In 2011, the Supreme Court recommended to Parliament euthanasia, has been granted legal sanction under to consider the feasibility of deleting Section 309 from Indian law, but subject to certain conditions. the statute. Even though the section has not been removed, the Mental Healthcare Act, 2017 and the rules Thalaikoothal is illegal and unethical as generally under the act have effectively decriminalized attempted the victims of Thalaikoothal are terminally ill or in a suicide with effect from July 2018. vegetative state, with families taking a decision in most cases. The relevant provision of the Mental Healthcare Act, 2017, which commenced in July 2018 states, “Notwithstanding “(iv) Thus, the law of the land as existing today is that anything contained in Section 309 of the IPC any person no one is permitted to cause death of another person who attempts to commit suicide shall be presumed, including a physician by administering any lethal drug unless proved otherwise, to have severe stress and shall even if the objective is to relieve the patient from not be tried and punished under the said Code.” pain and suffering” (Common Cause versus Union of India has decriminalized attempt to suicide; but, India, 2018) abetment of suicide is still a criminal offence under The jury is still out on this.

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