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 God 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. Death 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, euthanasia maybe a means of relief in view of the person who is liberated from the shackles of perpetual sickness, however, it brings great grief to the family of the person as well as the state which Article Original is obligated to protect and preserve life. KEYWORDS: Euthanasia, Suicide & Culpable Homicide 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-murder” (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 right to life 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constitutional validity of Section 309 has been assailed at several instances and it has also been recommended to be repealed 3.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 Belgium 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 Assisted Suicide 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.