Does Right to life contain right to die?
The article 21 of the constitution which guaranty right to life read as “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The right to life given by the Indian constitution does not mean just animal existence or a meaningless life. It gives the rights to live with dignity, it also provides right to dignity to a body of the dead, liberty and many more right which are available to a person under our constitution are right to food, shelter, clean air & water and other things of necessity but does the umbrella of article 21 is wide enough to cover the right to die in itself. Before answering this question let’s first have a look on the historical background and cases related to it.
The Indian penal code 1860, states the punishment for attempt to suicide under section 309, it provides punishment for attempt as those who have succeeded in it cannot be punished. For the first time right to die was accepted as a right by Bombay high court in Maruti Shripati Dubal vs. state of Maharashtra (1986 Indlaw MUM 4784). In this case high court held that section 309 of IPC is ultra vires the constitution being volatile of article 14 and 21 and must be stuck down.
The same stand has been taken by supreme court in P. Rathinam v Union of India (AIR 1994 SC 1844). When the constitution provides rights, we read them in positive aspect but they also have a negative aspect. The analogy on which the case rest is that when the constitution provides right to speech and Expression under article 19 (1) (a) it also provides the right to remain silent similarly when constitution provide right to life under article 21 it also provides the right to terminate it.
Gian kaur and her husband were sentenced to 6 years of imprisonment and fine of 2,000 Rs for abetment of suicide by trail court. The case was filed in the supreme court on the ground that if attempt of suicide under section 309 was no longer an offence than how can abetment to suicide can be an offence under section 306 of IPC. In the case of Smt. Gian Kaur v State of Punjab (AIR 1996 SC 1257) supreme court upheld the constitutional validity of section 306 and 309 of IPC and overruled the judgement of P. Rathinam.
In the case of Aruna Ramchandra Shanbaug v Union of India And Others (AIR 2011 SC 1290), a petition was filed by a close friend of a girl who was a nurse at King Edward Memorial Hospital (KEM hospital), was sexually assaulted and choked leaving her blind, deaf, paralysed and in a vegetative state. In his petition he asked for grant of euthanasia (withdrawal of life support system or medicines with will otherwise let you live) to the girl who was in vegetative state for last many years to upheld her right to die with dignity. As the parents of the girl died long ago and the other close relative of the girl have stopped visiting her. The staff of the hospital have been taken the care of the girl from a long time intervened in this as they don’t want the girl to be dead. Although euthanasia was not allowed in this case but this case resulted in legalizing passive euthanasia in India to a person who have been vegetative state or been declared brain dead.
The supreme court moved one step ahead in the case of Common Cause (A Regd. Society) v Union of India and another (2018 Indlaw SC 178) and evolved the concept of living will. By this way an adult in his conscious mind is permitted to refuse medical treatment or voluntarily decide not to take medical treatment to embrace death in a natural way.
The supreme court laid guidelines for the use of passive euthanasia and execution of living will in India as: –
- Living will can only be executed by an adult of sound mind and in a position to communicate, relate and comprehend the purpose and consequence of executing it.
- It must be executed voluntarily.
- Must clearly specify the circumstances in which this have to be executed.
- Should state that he understands the consequences of the document.
- Name of the guardian or close relative who can execute it.
- The document should be signed in presence of two attesting witness and also to be signed by the jurisdictional magistrate of first appointed by the district judge.
- A medical board should be constituted by the hospital which should allow the use of passive euthanasia.
- In case of denial by the medical board the executor of the will can move to high court under article 226 of the constitution.
The arguments in favor of passive euthanasia
- It helps the person to die with least suffering.
- A person has the right to refuse medical treatment.
- It encourages organ donation.
- The family members of the patients will be free from the emotional, mental, economical stress.
- The law commission in its 196th report recommended that there should be a law to protect terminally ill patients who refuses medical treatment, from section 309 of IPC.
Status in the world
Netherlands is the first country in the world to legalise euthanasia. The other country in which it is legal is Belgium, Ireland Colombia and Luxemburg.
Right to die with dignity is a part of Right to life under Article 21 of the Indian constitution. If a person is suffering from an incurable disease then it will be unhuman to compel him to live. In the words of Dr Jack Kevorkian “For those who are facing a terminal illness, who are in irremediable pain and suffering, and wish to exercise their right to die with dignity, a system should be available to them”.
Author: Devanshu Jain,