By South Asia Monitor

By Preety Sahu*

Most recently, Canada and Switzerland have faced crisis regarding suicide tourism and misuse of domestic laws concerning euthanasia. The rising occurrence of such incidents has once again revived the old debate vis-à-vis ‘right to life’ vs. ‘right to die with dignity’. There are a number of countries like USA, Netherlands, Norway, and Mexico who have legalized passive euthanasia. India joined this club, when in March 2011, the Supreme Court of India passed a historic judgment-law permitting ‘passive euthanasia’ in the country, and thus becoming the first Asian country to legalize it. Before this, euthanasia was a criminal homicide in the country. This indeed was a remarkable event in the history of human rights law in India. However, in the present-day Indian context, this issue is highly debated, ambiguous, convoluted and risky.

Sir Francis Bacon coined the term ‘euthanasia’ in 17th century. ‘Passive euthanasia’, popularly known as ‘mercy killing’ is the withdrawal of medical treatment with the deliberate intention of causing the patient’s death. For example, if a patient requires kidney dialysis to survive and cannot find resources to this effect, or even on the consent of the patient/relatives, the doctors can disconnect the dialysis machine, letting the patient to die soon. This form of euthanasia is different from ‘active euthanasia’ where the death is caused by use of lethal substances instead of taking recourse to the ‘natural’ route.

Literally meaning ‘good death’, euthanasia finds itself among one of the most debated issues in human rights law around the world. In the times of welfare nations where the state regulates every aspect of human life from pre-birth to post-death scenario, laws regarding euthanasia are most susceptible to state intervention. This debate is based primarily on state-jurisdiction over citizen’s life vs. individual’s right to self-determination.

Proponents of euthanasia in India perceive it as an act of humanity toward the terminally-ill patients. They believe that the patient and family should not be forced to suffer through a long and painful death, even if the only way to alleviate the suffering is through suicide or mercy killing. They also criticize the demarcation drawn by the judiciary and the religious organizations between active and passive euthanasia. It is argued that withdrawal of life support or ‘passive’ euthanasia, actually involves taking an active step to hasten the death of a terminally-ill patient and it is the patient’s consent which lends legitimacy to the act. Another argument raised by proponents of legalization is that merely knowing that one can control the timing and manner of death serves as a form of “psychological insurance” for dying patients. In other words, knowing there can be an escape from the suffering of illness may alleviate some of the stress associated with the dying processes. Most importantly, in a country like India where proper medical services are exclusive and costly, mercy killing may actually appear to be the ‘due process’ in some cases.

The Apex court’s legalization of euthanasia was made as part of the verdict in a case involving Aruna Shanbaug, who had been in a Persistent Vegetative State (PVS) until her death in 2015. The Supreme Court specified two irreversible conditions to permit Passive Euthanasia Law in its 2011 Law: (I) the brain-dead for whom the ventilator can be switched off, (II) 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. This law places the power of choice in the hands of the individual, over government, medical or religious control which sees all suffering as ‘destiny’.

Before this momentous verdict, much confrontation was witnessed between human rights activists supporting ‘right to die with dignity’ and the governing law of the land. The constitutional provision on fundamental right to life has also been greatly contested. The question whether Article 21 includes right to die or not first came into consideration in the ‘State of Maharashtra v. Maruti Shripathi Dubal’ case. It was held in this case by the Bombay High Court that ‘right to life’ also includes ‘right to die’ and Section 309 was struck down. The court clearly said in this case that right to die is not unnatural; it is just uncommon. However, in the case Gian Kaur v. State of Punjab it was held by the five judge bench of the Supreme Court that the ‘right to life’ guaranteed by Article 21 of the Constitution does not include the ‘right to die’. The Karnataka high court in September 2010 however, argued that Sections 306 and 309 of the IPC, which relate to suicide, go against Articles 14 and 21 of the Constitution. It pointed out during a case that Article 21 grants the right to life, but that does not imply that one has a right to death. Thus, confusion persisted among top judicial bodies itself while figuring out what stand should be taken in such cases.

It is to be noted that in a country where the basic human rights of individuals are often left unaddressed, inequality and exploitation is omnipresent, illiteracy is rampant and medical assistance and care is inadequate, issues related to euthanasia might appear as irrelevant. Some human rights organizations in India are skeptical about euthanasia due to the ambiguity present in laws can be misused against vulnerable groups in the society, such as poor, child, woman, elderly etc. In a society where ignorance is bliss and social justice is not easily attainable, mercy killing may turn into ‘right to kill’ from ‘right to die’. Sometimes, the patient may not seek to die willingly, but under psycho-social pressure.

Legislative dubiousness mounts a challenge too. The IPC Section 309 under which suicide under any circumstance is a punishable offence is an example of legislative ambiguousness present. Moreover, instances of unethical practices in health care sector are reported regularly. End-of-life issues are major ethical challenges for present-day medical sciences in India. Religious heterogeneity and lack of a common consensus on the issue takes this debate a step further towards complexity. From Christianity and Islam to Jainism and Hinduism, there are differing perspectives on mercy killing which paralyses the enforcement of a common law regarding euthanasia. Pessimism regarding mercy killing in India also prevails by citing the cases of western countries that have lately been facing problems like ‘suicide-tourism’ and flawed ‘assisted suicide’.

The debate over euthanasia is never ending in the Indian context. Though the Supreme Court judgment has provided a major boost to pro-euthanasia activists, it has a long way to go before mercy killing becomes a realizable process. Moreover, concerns for its misuse remain a major issue which ought to be addressed before it becomes a law in our country. Without a proper regulatory body, passive Euthanasia cases will remain under high risk. Therefore, quick and clear legislation is required along with a strict monitoring authority. A separation between voluntary and involuntary Euthanasia must be assured in all circumstances. The duty of the law-making authority would be to make the process of deliberate death free from external psychological pressure and social misnomers. One of the safeguards can be that a proper quasi-judicial authority having a proper knowledge in the medical field can be appointed to look into the request of the patient and the steps taken by the doctor. The financial condition of the patient and/or of those who are bearing the cost of treatment also must be considered.

To sum up euthanasia can put an end to the suffering of long-term ‘no-cure’ illnesses, by death. Passive euthanasia is subtle in nature. Moreover, seeking death plea may be unusual, but not unnatural. Pain, peace and happiness are subjective feelings, so the point at which one experiences intolerable pain to end up life may be different from someone who has more tolerance to pain. This point must be kept in mind during law-making process.

*Preety Sahu is an MPhil. student at the School of International Studies, Jawaharlal Nehru University, New Delhi. She can be reached at: [email protected]