• Lolita Delma Crasta

Assisted Suicide: The Act of Non-Violence

Divyanshu Dubey, Nyayshastram

Introduction

A renowned poet Pamela Bone has very well said that “I am not afraid of being dead, I am just afraid that what I might have to go through to get there”. This quote sounds reasonable while thinking about the people who are terminally ill and going through endless pain. In such situations, the sufferers generally prefer to die peacefully rather than to live with such intractable pain. To help those people, the concept of ‘euthanasia’ came into existence, which has been derived from two words ‘eu’ meaning good and ‘Thanatos’ meaning death[1]. In simple words, it means to intentionally help the terminally ill person to commit suicide with a doctor's assistance. This is also called ‘euthanasia’, ‘mercy killing’ or ‘assisted suicide’. The term ‘euthanasia’ was coined by the Roman historian, Suetonius. He highlighted the historical fact that the great Roman King ‘Augustus’ opted for assisted suicide and quick death in place of painful life.


The practice of euthanasia was prevalent in the ancient and medieval times because, in those times, there was no medical technology to deal with the sufferings of the people, and thereby people preferred to die over the suffering but, as the medical technology grew and treatment developed for even the severe diseases, the people preferred living. Currently, active euthanasia has become a severe offence and can only be performed in its passive form in most countries, including India.


In India, it is a violation of the ‘right to life’ of the individual and allowed only in the passive form in the rare case with the permission of the court. The active euthanasia has been specified as the crime of ‘murder’ which is a cognizable and non-bailable offence and punishable up to life imprisonment or with death[2] and further physician-assisted suicide specified as the crime of ‘abetment to suicide’ punishable under section 306 of IPC[3].


The article will further discuss the legal aspect and the Gandhian perspective of this concept in India.


Legal Implications

Before in-depth legal analysis, the categorization of euthanasia or the assisted suicide is required to be taken into consideration: -

  1. Active: - The direct, intentional act with the consent of the sufferer which takes away the life of the sufferer. In the cases of active euthanasia, the performers are directly involved in the death. Though this form of euthanasia is a criminal offence in most countries, including India but, some countries have legalized this in the form of “assisted suicide”. There is a fragile line difference between “assisted suicide” and “active euthanasia”. In the former, the sufferer himself performs an act in the presence of a doctor with his/her free will whereas; in the latter, it is the doctor who performs the act of euthanizing the sufferer. The countries like the Netherlands, Belgium, and Switzerland has legalized this act and has separate guidelines for performing assisted suicide.

  2. Passive: - This form of euthanasia is the indirect approach of euthanizing the sufferers. It involves withholding of treatment and the life support system, and the death is caused by the omission of treatment rather than commission. The euthanasia is performed with the free will of the sufferer, and if the sufferer is not in a condition to consent then, his legal representative or his family member may grant the consent. Many countries generally accept this form of euthanasia because in this case, death is not caused by unnatural means rather naturally by the omission of treatment. In India, the right of performing euthanasia (passive euthanasia) is granted by the court and only with the free consent of the patient or his family member, or his next best friend.

The evolution of Euthanasia in India

The issue of euthanasia or the right to die has been through much debate in different institutions and the governing bodies including the Judiciary as well the Legislature. The judiciary tried to settle the issue, and as a result, there were a series of cases from the year 1986 up till 2018.


The first case of the series in which the issue of the right to die and right to life raised was Maruti Shripati Duhal v. State of Maharashtra, where the Bombay high court held that Article 21 of the constitution states right to life and if the person commits suicide due to any cause that will not be the violation of this provision and thereon substantiated that the right to life includes right to die[4]. The judgment of this case was upheld in the case of P. Rathinam v. Union of India, in which the court appreciated the judgment of Bombay high court and upheld that the ‘right to life shall include right to die’ and struck down section 309 of IPC[5].


Later in 1996, the same issue was raised before the supreme in the case of Gian Kaur v. the State of Punjab in which the Supreme Court overruled the judgment of P. Rathinam and held that the right to life does not include the right to be killed. The Supreme Court observed that “any aspect of life which makes life dignified may be included but none that extinguishes it.[6]”The Supreme Court criticized the judgment of P. Rathinam case and restored Section 309 of the Indian Penal Code, 1860 which was held unconstitutional in the former case. The same rationale was followed in the case of Naresh Marotrao Shaker v. Union of India, in which the Supreme Court held euthanasia or mercy killing as the crime of homicide irrespective of the situation it, took place[7].


And then the landmark judgment of Aruna Ramachandran Shaunbaug v. Union of India,[8] in which a 24 year- old nurse, was attempted to be raped by the sweeper of the hospital and left strangulated with a dog chain around her neck. The next day, the authorities found her in a permanent vegetative state as enough blood did not reach her brain due to the chain around her neck. She remained in this condition for the next 40 years and then died.


Further, the Supreme Court, in this case, held active euthanasia to be a crime under section 302 and 304 and assisted suicide as a crime under section 306 that is ‘abetment to suicide’ but, the court further laid down some guidelines for the execution of passive euthanasia in the rarest case. The guidelines allowing passive euthanasia were as follows: -


  • The application regarding the right to passive euthanasia shall be filed before the high court and based on the application, CJ will be constituting the bench who will be deciding whether the right shall be granted or not.

  • There shall be a committee constituting of a physician, a psychiatrist, and a neurologist. The court shall take the recommendation of this committee before pronouncing the judgment.

  • The High court shall issue a notice to the state and the close relatives of the patient or the legal representative.

  • Moreover, after hearing both the parties, the court shall pronounce the judgment.


Later, after the verdict of the court, in this case, a bill was proposed in the parliament named ‘The Medical Treatment of the Terminally Ill Patients (Protection of Patients and Medical Practitioners)’. Section 3 of this bill authorized terminally ill persons to withhold the treatment for them and provided that the person shall be of the sound mind and must take an informed decision[9]. This act was challenged in the court on the ground of arbitrariness but, in the case of Common Cause v. Union of India, the court upheld the validity of this bill and further stated that “Right to life also includes right to die with dignity”[10] and observed the right to die with dignity as the fundamental right within the ambit of Article 21.


The right to dignified death shall not be confused with the right to die via unnatural means which curtails the natural span; instead, it is the death via the natural procedure. Similarly, in regulation 6.7 of the Indian Medical council (Profession conduct, etiquette, and ethics)[11], it has been explicitly mentioned that committing euthanasia is unethical but, in the cases like PVC or brain death, the supporting device may withdraw after the consultation with a team of doctor which shall consist of doctor-in-charge of the patient, CMO, and a doctor nominated by CMO[12].


The natural way of death is also part of the right to life; therefore, it shall not be violated by causing death via unnatural means. In India, the active euthanasia and the assisted suicide has been considered as causing the unnatural death and hereby punishable under section 302, 304 and 306 of IPC that punishes the individual for committing murder, causing death by negligence, and abetment to suicide respectively. Since, all the crimes mentioned in these three sections causes unnatural death and thereby, the courts in India have observed that performing assisted suicide or active euthanasia is also the means of causing unnatural death and it shall also be counted as equivalent to these three above mentioned crimes.


Conclusion: The Gandhian Perspective

The issue of euthanasia or the right to die has been one of the most controversial issues in the country, which has been finally resolved with the passage of the landmark judgment of the ‘Common Cause case’. There have been many views regarding this concept of euthanasia and in the same way, the father of the nation M.K.Gandhi used to have his perspective. This might be shocking to the world that Gandhi used to prefer death over a painful life. He was of the view that the act of killing someone who is in extreme pain would be the act of ahimsa but, that the act shall not be in the self-interest of the performer rather, it shall be in the spiritual interest of the sufferer[13].


So, this is how the father of the nation had portrayed his views regarding mercy killing. He supported the mercy killing but, only in the cases where it has been performed for the benefit of the sufferer.


[1] All about euthanasia in India, available at https://www.latestlaws.com/articles/euthanasia-india-team-latest-laws/, last seen on 19/08/2019. [2] S. 302, Indian Penal Code 1860. [3] Aruna Ramachandran Shaunbaug vs Union of India, AIR 2011 SC 1290. [4] Maruti Shripati Duhal vs State of Maharashtra, (1986) 88 BOMLR 589. [5] P. Rathinam vs Union of India, 1994 AIR 1844. [6] Gian Kaur vs State of Punjab, 1996 AIR 946. [7] Naresh Marotrao Shakre vs Union of India, 1995 CriLJ 96. [8] Aruna Shaunbaug v. UOI (2011) 4 SCC 454. [9] S. 3, The Medical Treatment of the Terminally Ill Patients (Protection of Patients and Medical Practitioners) 2016. [10] Common Cause vs Union of India (2011) 4 SCC 454. [11] R. 6.7, Indian Medical council 2002. [12] R. 6.7, Indian Medical council 2002. [13] Joris Gielen, Mahatma Gandhi’s view on euthanasia and assisted suicide, 38 Journal of medical ethics 431, 432 (2012).

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