Right to die in dignity: What the laws in India say about euthanasia

India

oi-Vicky Nanjappa

On March 9, 2018, the Supreme Court of India legalised passive euthanasia by means of withdrawal of life support to patients in a permanent vegetative state.

New Delhi, Aug 13: A woman approached the Delhi High Court seeking to stop her friend from travelling to Switzerland to undergo euthanasia on account of his debilitating inflammatory disease.

In her plea she has sought a directive to the Centre not to grant her friend emigration clearance. She said in her petition that her friend is suffering from Myalgic Encephalomyelitis and he was travelling to Switzerland for the physician assisted suicide.

The origin:

The word ‘Euthanasia’ comes from the Ancient Greek word ‘Eu’ meaning good and ‘thanos’ which means death. Euthanasia means good death and it is an act or practice of ending the life of an individual suffering from a terminal illness or in an incurable condition by injection or by suspending extraordinary medical treatment in order to free the patient of the intolerable pain.

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Types of euthanasia:

The subject has been a complex one and there are different types of euthanasia. Voluntary euthanasia is when the person is killed when he has requested for it. Non-voluntary euthanasia is when the person is killed made no request, made no consent. This is done when the person is unable to communicate his wishes.

Then there is active euthanasia which refers to causing intentional death of a human being by direct intervention. It is also called as positive euthanasia. Here a drug or a lethal dose of injection is given so that the death is quicker.

Passive euthanasia also known as negative euthanasia. It is intentionally causing death by removing the artificial support system. This is usually slow and more uncomfortable than active euthanasia.

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The Aruna Shanbaug case:

India has over the years witnessed long drawn battles in court over cases relating to euthanasia. Pinki Virani a social activist filed a petition in the Supreme Court and argued that the continued existence of Aruna Shanbaug is in violation of her right to live in dignity.

Shanbaug was a nurse working at the King Edward Memorial Hospital in Parel, Mumbai. On November 27, 1973, she was strangled and sodomised by Sohanlal Walmiki a sweeper. She was strangled with a chain and the deprivation of oxygen left her in a vegetative state.

Virani’s plea was rejected on the basis of the fact that the hospital staff who treated her and took care of her did not support euthanising her. On May 18, 2015 after being in a coma for 42 years, she died from pneumonia.

The court said passive euthanasia involves withdrawing of treatment or food that would allow the patient to live. Forms of active euthanasia are allowed in many countries but are illegal in India.

Following this, the then law minister of India, Veerappa Moily called for a debate following which the following guidelines were laid down.

• A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.
• Even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires presence of two witnesses and countersigned by first class judicial magistrate, and should also be approved by a medical board set up by the hospital.

Inconsistencies in Shanbaug verdict:

On February 25, 2014 the Supreme Court while hearing a PIL by NGO Common Cause said that the interpretation of the three judge Bench in the Shanbaug case was based on wrong interpretation of the Constitution Bench in the Gian Kaur vs State of Punjab case.

“In view of the inconsistent opinions rendered in Aruna Shanbaug (supra) and also considering the important question of law involved which needs to be reflected in the light of social, legal, medical and constitutional perspective, it becomes extremely important to have a clear enunciation of law. Thus, in our cogent opinion, the question of law involved requires careful consideration by a Constitution Bench of this Court for the benefit of humanity as a whole,” the court observed.

A five judge Bench of the Supreme Court was constituted to decide whether Article 21 of the Constitution included in its ambit the right to die with dignity.

The verdict of the Constitution Bench:

On March 9, 2018, the Supreme Court of India legalised passive euthanasia by means of withdrawal of life support to patients in a permanent vegetative state. The landmark judgement places the power of an individual over government, medical or religious control which sees all suffering as destiny.

The court also said that if strict guidelines are followed, the government would honour living wills allowing consenting patients to be passively euthanised if the patient suffers from a terminal illness or is in a vegetative state. The two conditions to permit Passive Euthanasia Law were:

• The brain-dead for whom the ventilator can be switched off
• Those in a Persistent Vegetative State (PVS) for whom the feed can be tapered out and pain-managing palliatives be added, according to laid-down international specifications

The stand of the Union Government:

On December 23, 2014 the government endorsed and revalidated the Passive Euthanasia judgement-law in a press release after stating in the Rajya Sabha that The Hon’ble Supreme Court of India in its judgment dated 7.3.2011 [WP (Criminal) No. 115 of 2009]while dismissing the plea for mercy killing in a particular case, laid down comprehensive guidelines to process cases relating to passive euthanasia. Thereafter, the matter of mercy killing was examined in consultation with the Ministry of Law and Justice and it has been decided that since the Hon’ble Supreme Court has already laid down the guidelines, these should be followed and treated as law in such cases. At present, there is no proposal to enact legislation on this subject and the judgement of the Hon’ble Supreme Court is binding on all.