By Deepshi, Gujarat National Law University, Gandhinagar.

“Her death was the best thing that could happen to her,” cried the nation as Aruna Shanbaug finally breathed her last.  It was one rare occasion where death became a reason to rejoice. Such irony described the life of this woman who spent over four decades in vegetative state after being a victim of sexual assault in 1973.

Her death may have brought respite to those millions of hearts which bled as her pleas for death were out rightly rejected and she continued to battle her journey with pain and suffering, but has sparked off the “euthanasia” debate all over again.

Terminology

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The word ‘Euthanasia’ is a derivative from the Greek words ‘eu‘ and ‘thanotos‘, which literally means “good death”. It is otherwise described as mercy killing. The death of a terminally ill patient is accelerated through active or passive means in order to relieve such patient of pain or suffering. The House of Lords Select Committee on ‘Medical Ethics’ in England defined it as “a deliberate intervention undertaken with the express intention of ending a life to relieve intractable suffering”.

Whether right to live includes right to die?

According to article 21 of our constitution, no person shall be deprived of his life or personal liberty except according to procedure established by law.

In A.K Gopalan v State of Madras[1] for the first time a broad interpretation was given to the meaning of the word life and liberty under Article 21 where the Supreme Court held that the expression “due process of law” refers to only statute made laws. This was over-ruled in R.C Cooper v. Union Of India[2] and subsequently other decisions followed.

In another landmark judgment of Maneka Gandhi v Union Of India [3] the apex court held that procedure, which deprives a person of his life or liberty, couldn’t be arbitrary, unfair or unreasonable one. However in judgments that followed, an even broader approach was incorporated where Article 21 also included right to live with dignity, right to privacy etc.

Subsequently, article 21 was also read with Article 14 and Article 19 of the Indian constitution, which further widened this scope..

The question whether right to life also includes right to die came up for consideration for the first time before Bombay HC in the case of State of Maharashtra v. Maruti Sripati Dubal[4] struck down section 309 IPC which provides punishment for attempt to commit suicide by a person as unconstitutional.

Hereafter in P Rathinam v. Union of India [5], a Division Bench of the Supreme Court supported this decision of the High Court.

But this did not end the debate and the question again came up for consideration before the Supreme Court in the case of Gian Kaur v. State of Punjab[6] where it held that Court held that Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of the imagination can extinction of life be read into it.

As regards section 309, I.P.C. is concerned, the court said that the’ right to life’ guaranteed under Article 21 of the Constitution did not include the ‘right to die’ or ‘right to be killed’ and therefore an attempt to commit suicide under section 309, I.P.C. or even abetment of suicide under section 306, I.P.C., are well within the constitutional mandated, and are not void or ultra virus.

Law across the world.

Euthanasia is illegal in Australia and New Zealand, Norway, Philippines, United Kingdom, United States, Germany, Switzerland, France.

 Netherlands became the first country to legalize euthanasia and assisted suicide in April 2002. However this could be done only under a strict set of conditions where the patient must be suffering from an incurable disease and must be under unbearable pain hereby making a demand for the same in “full consciousness”. Belgium was second in line whereby it legalized euthanasia soon after in 2002.

Countries like Germany, Switzerland, Japan, Albania and some states of The US have not expressly prohibited or allowed for euthanasia but assisted suicide is legal in these countries. In Ireland, active euthanasia is illegal. However, it is not illegal to withdraw life support or other treatments if the patient or a next of kin requests for it.

Finland is quite unique in this regard as there is no mention of euthanasia as an offence in any criminal code and so it is tolerated amongst friends when done discreetly although the doctors do not officially perform it. However in countries like Mexico, Thailand and Northern territory of Australia, euthanasia is criminalized.

Law in India

Law forbids active euthanasia, which comprises of taking specific steps such as injecting the patient with a lethal substance such as Sodium Pentothal, which causes the patient to die peacefully in deep sleep. It is a crime under Section 302[7] or 304[8] of the Indian Penal Code. Physician assisted suicide is a crime under section 306[9] of the Indian Penal Code. The other kind of euthanasia is passive euthanasia, which means withdrawal of life support to patients in a permanent vegetative state.

The point of distinction between active and passive euthanasia is that in the former something is done to “end” the person’s life whereas in the later something is “not done” which would “preserve” the person’s life. Passive euthanasia is further defined as voluntary or involuntary depending on the consent given by the patient.

The Law commission on India in its 196th report had made s detailed study on the issue of euthanasia and weighted its pros and cons after which it proposed certain recommendations, which stated that withdrawal of life support to patients is very much different from euthanasia and assisted suicide and such a withdrawal should be considered lawful while dealing with “terminally ill” patients.

Then came the landmark judgment of Aruna Ramchandra Shanbaug v. Union of India[10] where allowed passive euthanasia in India. While rejecting the plea by Aruna’s journalist friend Pinki Virani’s plea for active euthanasia, the court laid out guidelines for passive euthanasia.

Conclusion

Even in spite of her unbearable agony, Aruna gifted the nation with the “legalization of passive euthanasia” in a judgment, which was deemed to be coming off age. However her heart-wrenching, nerve- breaking battle with life as she rotted in painful hell even before she could actually die raises a very important question. Do we need an even more liberal approach? Or do we want more Aruna’s and their struggles to help us take a decision that is not outweighed by the considerations of religion, ethics or morality.

Only time will tell!

[1] AIR 1950 SC 24

[2] 1970 AIR 564

[3] 1978 AIR 597

[4] 1987 (1) Bom CR 499

[5] (1994) 3 SCC 394

[6] 1996(2) SCC 648

[7] Prescribes punishment for the offence of murder

[8] Prescribes punishment for culpable homicide not amounting to murder.

[9] Prescribes punishment for abetment to suicide.

[10] (2014) 5 SCC 338

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