Constitutionality of the right to die - a brief analysis

Right to life is a basic natural right of the human beings. It is a fundamental right guaranteed under Part-III (Article 21) of the Indian Constitution. Article 21 of the Indian Constitution states that – ‘no person shall be deprived of his life or personal liberty except according to procedure established by law’. The phraseology may be negative, but it has conferred an obligation on the state to ensure good quality of life and a dignified life to the people, which is the positive aspect of the article. The foreigners are also as much entitled to the right as the citizens.

Now this right to life has been interpreted by the Indian judiciary in various ways so as to include within its purview several new rights such as the right to live with human dignity, right to livelihood, right to shelter, right to privacy, right to food, right to education, right to get pollution free air and water and some other rights which are quite essential to improve the condition of the life of the people, i.e. - for the true enjoyment of the right to life.

But can this right to life be interpreted to such an extent which leads to its self destruction or self opposition? That is, can it include within its ambit the right not to live or the right to die? This is the crucial point where the debate arises involving moral, legal, medical and even political issues.

Death can be defined as the termination of life. Death can be categorized basically into two kinds – (i) natural and (ii) unnatural death. It can be caused by the action as well as the inaction of a person. Causing the extinction of a life unnaturally by the action of oneself over his own self or over someone else is morally bad as well as legally punishable. But there are exceptions too. In certain circumstances death is allowed when it is with the full and real consent of the person who is going to die. It is a very true fact that we fear death, atleast a premature death. Every living being in this world wants to live a long life and by every possible means wants to increase the longevity of their lives. Even recent advancements in medical technology can help prolong death which is done by providing artificial respiration and nutrition to the patient who is terminally ill or in a vegetative state for years together. So why is there a need felt for the right to die???

For a common man, when life becomes far more painful and unbearable than death, then it is very normal for him to desire death. This voluntary embracing of death is known as euthanasia or mercy killing. Euthanasia is also termed as ‘dayamaran’. Some people as the great saints or heroic persons embrace ‘echchamaran’ or willful death, when they feel that they have achieved the purpose of their lives. There are different types of voluntary deaths in our country like the ‘sati’, ‘johars’, ‘samadhi’, ‘prayopaveshan’ (starving to death) etc.

Voluntary death from the historical and philosophical perspective
Hinduism and Buddhism allow prayopaveshan since it is a non violent, calm and much time taking way of ending life and it occurs by starving oneself to death at the right time, i.e. - when the person has achieved his aims in life and finished performing all the duties and responsibilities that were assigned to him and his body becomes a burden. Prayopaveshan is for people who are content with their lives. While on the other hand, suicide is a sudden act and associated with the feelings of anger, frustration, depression, i.e. - people who are not content with their lives have a tendency to commit suicide which is why it is not allowed by any of these religions. Though there is a division of views regarding euthanasia in Buddhism, the most common view is that voluntary euthanasia should not be permitted. Again there are two views of Hinduism regarding euthanasia which are contradictory, one is supporting euthanasia as a moral deed and another is considering euthanasia as a bad deed which disturbs the life and death cycle.

Ancient Indian philosophical tradition also justifies the idea of a man willing his own death. As per Hindu mythology Lord Rama and his brothers took ‘jal samadhi’ in River Saryu near Ayodhya. Ancient Indian history also tells that Lord Buddha and Lord Mahavir attained death by seeking it.

Jainism gives full consent to its followers who want to embrace death mostly by fasting, if they believe that ‘moksha’ can be achieved that way.

Muslim, Christian and Jewish laws are all against suicide and even euthanasia. According to these religions , all human life is sacred since it is given by God, and human beings should not interfere in this.

The Roman Catholic Church regards euthanasia as morally wrong since it has always taught how important the commandment ‘you shall not kill’ is.

The idea of willful death is traceable to Socrates, Plato, and Stoics in ancient Greek and Roman philosophy as well. In ancient Greece and Rome, helping others to put end to their lives was also permitted in certain situations.

Suicide, assisted suicide and euthanasia
Suicide: Suicide is one way to exercise the right to die. Generally when people are not content with their lives they choose to commit suicide. This discontentment can arise due to various factors such as mental disease, unbearable physical ailments, affliction by socially dreaded diseases, depression or losing all kinds of interests to live or a sense of shame or disgrace, physical disability and many other such factors.

Assisted suicide: Assisted suicide happens when another person assists the person who is willing to commit suicide, with all the guidance and tools to take his own life, with the intention that whatever he is providing the person with, will be used for fulfilling this purpose only.

Physicians can also assist a person in committing suicide which is called ‘physician assisted suicide’.

In India, under sections 305 and 306 of the I.P.C., 1860, abetment of suicide is expressly punishable.

Euthanasia: It can be defined as the intentional killing by act or omission of a dependent human being for his or her alleged benefit. The term was derived from the Greek words ‘eu’ and ‘thanatos’ which means ‘good or easy death’. There are 5 types of euthanasia, namely – (i) Active, (ii) passive, (iii) voluntary, (iv) involuntary, (v) non voluntary. Active euthanasia means a positive merciful act to end useless sufferings and a meaningless existence. It is an act of commission. Passive euthanasia means to let die. It implies discontinuing life sustaining measures that will prolong life. It can also include an act of omission such as failure to resuscitate a terminally ill patient or not carrying out a life extending operation, etc. Voluntary euthanasia happens when the person concerned gives his consent for it. Involuntary euthanasia is practising euthanasia against the will of the person. Again, non voluntary euthanasia happens when the person is in such a condition that he can not possibly give his consent. His relatives may consent for his death at that time.

Both euthanasia and assisted suicide are considered illegal in many countries since they can amount to murder in disguise. In India, euthanasia is punishable under clause 1 of section 300 of I.P.C. Non voluntary and involuntary euthanasia is struck down by proviso 1 to section 92 of the I.P.C. Regulation 6.7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 also declares euthanasia as an unethical act.

In modern parlance, the ‘freedom to die’ seems to have emerged from the rights of privacy, autonomy and self-determination. But the real issue today is of three types:

(i) The people who want to commit suicide themselves. The act of suicide is an offence but it is not possible to punish the individual who is successful in committing it. The attempt to commit suicide is however punishable under section 309 of I.P.C. Though in some countries, this is not punishable.

(ii) The people who are able to express their desire to commit suicide but are infirm due to some reason and need assistance from others.

(iii) The people who are not capable enough to consent to their death because of physical or mental disability.

Arguments for legalizing euthanasia
(i) The major argument in favour of this is that, it is a way to end an extremely miserable and painful life. Insistence to postpone the death against patient’s wishes are against law, unwise, inhuman and not medically sound.

(ii) The family members of the dying patient are relieved of the physical, emotional, economical and mental stress upon them. It also provides comfort to the patient and causes relief of his pain.

(iii) The patients also have a right to refuse medical treatment. If a doctor treats a patient against his express wishes, he can be charged with assault.

(iv) Performance of euthanasia will free up the medical funds of the state to help other poor and needy people.

(v) An individual has the freedom to exercise his right to die. Constitution guarantees the fundamental rights and freedoms where a positive right includes a negative right. For instance, freedom of speech includes within it freedom not to speak, etc.

Arguments against legalizing euthanasia
(i) Indian society, driven by religion, will not accept the concept of euthanasia as the religious scriptures defy it.

(ii) Commercialization of euthanasia can take place.

(iii) The poor people could resort to this in order to avoid the pecuniary difficulties of medication.

(iv) Old and destitute are sometimes considered as burden and people can make use of this to shove off their responsibilities.

(v) Allowing euthanasia will devalue human dignity and will offend the principle of sanctity of life. It will leave sick, disabled people more vulnerable than the rest of the population and can also provide a ‘cloak for murder’.

Judicial decisions in India
The first case which brought the issue of right to die before the courts is State v. Sanjay Kumar {(1985) Cr. L.J., 935} wherein the Delhi High Court criticized the section 309 and considered it to be ‘an anachronism and a paradox’. This decision was followed by two conflicting decisions of the Bombay High Court and the Andhra Pradesh High Court in the cases of Maruti Sripati Dubal v. State of Maharashtra {(1987) Cr. L.J., 743} and Chenna Jagadeeswar v. State of Andhra Pradesh {(1983) Cr. L.J., 549} respectively. In the first case, section 309 was considered violative of Article 21 and in the second case it was held constitutionally valid. In P. Rathinam v. State of U.O.I. and another {AIR 1994 SC 1844}, again section 309 was considered unconstitutional and it was concluded that the penal laws need to be more humane. But soon this decision was overruled in Smt. Gian Kaur v. State of Punjab {AIR 1996 SC 1257} and it was held that Article 21 does not include a right to die. It was further held that right to life is a natural right but suicide being unnatural termination of life is incompatible with it. However the court appears to have permitted passive euthanasia. The latest decision passed by the Apex Court is – ‘Active euthanasia is illegal. Passive euthanasia is permissible, but it should be done under the supervision of the High Court.’ This decision was passed in the famous Aruna Shaunbag case and the Supreme Court rejected the plea or petition to allow her mercy killing.

Remarks in conclusion
In conclusion, it can be said that to resolve this debate, the conflict between the principle of sanctity of life and the rights of self determination and dignity of an individual is to be resolved first and right to die should not be generalized but should be exercised as an exception in the rarest of rare cases.

The  author can be reached at: sudakshina@legalserviceindia.com