Euthanasia in India

The fundamental rights guaranteed to us by the Constitution of India, are said to have come from the natural law, which are the unwritten laws which ought to have come from the nature of man and often said to be of divine origin. It is based on human morals and though its definition has changed over time, the essence remains the same and that it has universal applicability. One of the most basic fundamental rights is, the Right to Life, without which other rights cannot be enjoyed. The Constitution of US states that “Life is more than mere animal existence.” Therefore, it includes right to live a meaningful, dignified life. But one question that has been raised over the time is, ‘whether right to life, includes right to die?’ In P. Rathiram case, S.C of India observed that, ‘right to live’, includes, ‘right not to live’, that is to terminate one’s life. Then again in Gian Kaur case, in a landmark judgement passed, P. Rathiram case was overruled by a bench of five judges, who said right to die is not a part of Article 21, of Constitution of India, ‘Right to life’.

The Indian Penal Code, 1860, in Section 309, declares Attempt to Suicide as an offence punishable with one year imprisonment, or fine or both. Even though Euthanasia is differentiated from suicide or abetment of suicide, the former is justified on the grounds of sympathy and humanity, and that it would put a person out of his misery and suffering, giving him a dignified death, if not a dignified life.

Causing death of a person, unintentionally or intentionally, or by negligence of any kind, is punishable by law under section 302 and 304, of Indian Penal Code, in some cases punishment can extend to death penalty. Therefore, we see that ending life, willingly, that is in case of suicide, or by committing culpable homicide not amounting to murder, or murder, or death by negligence, is absolutely considered a crime and is severely punished by the law of the nation. Then, in such a country, is there any place for ‘Euthanasia’, or ‘Mercy Killing?’

Euthaniasia and Religion
Euthanasia is a greek word, meaning, ‘Good Death.’ Euthanasia is defined as an intentional killing by an act or omission of person whose life is felt is not to be worth living. It is also known as ‘Mercy Killing’ which is an act where the individual who, is in an irremediable condition or has no chances of survival as he is suffering from painful life, ends his life in a painless manner. It is an easy, gentle death, avoiding painful suffering. There has been an ongoing debate in India and worldwide, regarding legalisation of Euthanasia. Many religions and faiths around the world also do not permit mercy killing, as it is considered as ‘unnatural death’. In Hinduism, any kind of killing, or unnatural termination of life, interferes with the soul’s (atmah) progress towards liberation and rebirth. Roman Catholic Christianity considers mercy killing as a sin. Allah says: “and do not kill yourselves.” , “and give glad tidings to those who are patient.” Therefore, these extracts confirm that Islam too prohibits any kind of killing, which includes euthanasia within its fold as well. Some non religious people also believe that suffering has value to humans and is a part of life. Just like happiness and sadness. They think it provides an opportunity to grow in wisdom, character, and compassion.
To understand the reason why Euthanasia is legal in some countries but illegal in others, one need to understand the different kinds of Euthanasia.

Types of Euthanasia
It can be divided into two by ‘mean of death’, i.e., Active and Passive Euthanasia.

1) Active (or Positive Euthanasia) – It refers to causing intentional death of a human being by ‘direct intervention’. It is a direct action performed to end a meaningless existence. For example, by giving lethal dose of a drug or by giving a lethal injection. Active euthanasia is usually a quicker means of causing death. Most forms of active euthanasia are illegal.

2) Passive (or Negative Euthanasia) – It is intentionally causing death by not providing essential, necessary and ordinary care or food and water. It means discontinuing, withdrawing or removing artificial life support system. Passive euthanasia is usually slower than active. Most forms of voluntary, passive and some instance of non-voluntary, passive euthanasia are legal in some countries.

3) Assisted Suicide – In “assisted suicide”, a doctor provides a patient with the means to end his own life, but the doctor does not administer it himself to the patient.

4) Voluntary euthanasia – When the patient requests that action be taken to end his life, or that life-saving treatment be stopped, with ‘full knowledge’ that this will lead to his death.

5) Involuntary euthanasia – When a patient’s life is ended without the patient’s knowledge and consent. This may mean that the patient is kicking and screaming and begging for life, but in practice today, it usually means that the patient is unconscious, unable to communicate, or is too sick and weak to be aware of what is happening or to take any action on his own behalf or against anyone. The decision here lies with the immediate family and the medical consultants.

Globally, Euthanasia is legal only in the Netherlands (2000), Belgium (2002), Ireland, Colombia and Luxembourg, Australia’s Northern territory (1995) whereas assisted suicide (disabled people, with no hope) is legal in Switzerland, Germany, Japan, Albania and in the US states of Washington, Oregon (1998), Vermont, New Mexico, Montana and California (effective January 1, 2016).

In India, S.C. passed a landmark judgement on the Aruna R. Shanbaug rape case, rejecting Pinki Virani’s plea for Active Euthanasia, instead giving approval of ‘passive euthanasia’ provided that one follows the stringent procedures (withdrawing food or treatment that would allow the patient to continue living), given in the verdict. All types of Active Euthanasia are still illegal in India. The passive Euthanasia is based on the policy of The Council of Ethical and Judicial Affairs of the American Medical Association known as “passive Euthanasia” whereby a physician can withdraw all means of life prolonging medical treatment, including water and food, from a patient in an ‘irreversible coma.’
The Supreme Court explained the position of Indian law on euthanasia in M.S.Dabal vs state of Maharashtra as under:
“Mercy killing is nothing but homicide, whatever the circumstances in which it is affected. Unless it is specifically accepted it cannot be offences. Indian Penal Code further punishes not only abetment of homicide, but also abetment of suicide”.
Arguments for and against Euthanasia

For :-
• Kulse points out cases where the patients could have died less painfully, if lethal injections had been administered to them.

• Arthur Koestler, a staunch supporter of ‘auto euthanaisa’ ended life by in digesting lethal dose of drugs.

• An extract from work of Robbins, in an instance of mercy killing writes, –
“I am not afraid to die but I am afraid of this illness, what it is doing to me. There is never relief from it, nothing but nausea and this pain.”

• There is growing criticism towards the judiciary that it’s ill-equipped and is not competent to decide regarding the treatment of critically ill patients and therefore they cannot impose their decisions on their evaluation of what is best for the patients.

Against :-
• Alternative treatments are available, such as palliative care and hospices. We do not have to kill the patient to kill the symptoms. Nearly all pain can be relieved.

• Euthanasia might not be in a person’s best interest. Voluntary euthanasia is the start of a slippery slope that leads to involuntary euthanasia and the killing of people who are thought undesirable.

• There is no way of properly regulating it. (Example, reports from Netherlands.)

• Euthanasia affects other people’s rights, not just those of the patient.

• It gives a doctor much more power and puts pressure on the vulnerable.

• Financial condition might become one of the reasons for the patient’s approval under all the pressure.

• Almost all of those who attempt suicide do so as a subconscious cry for help, not after a carefully calculated judgment that death would be better than life. Most terminally ill patients are found to be suffering from mental disorder such as clinically diagnosable depression.

Therefore, we can see that the scales are tilted in favour of arguments against Euthanasia. It is believed that if direct killing is legalized on request of a competent person, under court precedents that have already been set, someone who is not competent could be killed at the direction of that person’s guardian even though the incompetent patient had never expressed a desire to be killed. Fearing all this and that it would do more harm than necessary, legal systems all around the world are hesitant to enforce it.

Back in 2010, an old aged couple wrote to the President of India, pleading for mercy killing on account of unbearable suffering and no means of maintenance. In 2014, Patna, the poor parents of a 29 year old, Bihar women who is suffering from debilitating disease have urged President to either pay for their daughter’s medical treatment or permit mercy killing. This brings out a new debate, of euthanasia be allowed to be administered for old, helpless, people. Therefore, there is a need for new laws regarding euthanasia and much thinking is to go into it, the question arises if the current legal thinking is to be changed? And if changes are to come, then what are the parameters or limits to be set.

But, permission to die should always be treated as a ‘last resort’ in very special cases where it is unavoidable. Death is not a right, it is the end of all rights and a fate that none of us can escape. Life is a gift, and suffering is a part of it, exceptions are to be made only for inevitable cases.
Endnotes
1) Sarda, Mukund, Euthanasia: A Look at the Indian Legal System (August 2010). Available at SSRN: http://ssrn.com/abstract=2711597 or http://dx.doi.org/10.2139/ssrn.2711597
2) http://www.bbc.co.uk/ethics/euthanasia/against/against_1.shtml
3) http://www.care.org.uk/our-causes/sanctity-life/arguments-for-and-against-euthanasia
4) What’s wrong with making Assisted Suicide Legal? Jensen & Petty, supra note 4; Rubinstein, supra note 4, at 109; & Stengel, supra note 4, at 73.http://www.pregnantpause.org/euth/why.htm
5) Krishanu Das LL.M (Corporate Law) NALSAR,University of law, “Euthanasia in India” August 09, 2011http://www.legalservicesindia.com/article/article/euthanasia-in-india-787-1.html
6) [Sûrah al-Nisâ’: 29]
7) [Sûrah al-Baqarah: 155]
8) Kavita Iyer, “Legacy of Aruna Shanbaug explained: Debate on right to die, accountability for life lost” Indian Express, May 19, 2015 – See more at: http://indianexpress.com/article/explained/legacy-of-aruna-shanbaug-explained-debate-on-right-to-die-accountability-for-life-lost/
9) IANS, “Allow Mercy Killing for Sick Daughter: Parents to President” Indian Express, September 19, 1014. http://www.newindianexpress.com/nation/Allow-Mercy-Killing-for-Sick-Daughter-Parents-to-President/2014/09/19/article2439178.ece
10) Wikipedia, Euthanasia in India, https://en.wikipedia.org/wiki/Euthanasia_in_India
11) Article 21, Part III, Constitution of India, 1950
12) Section 299, 300, 302, 304, 309, Indian Penal Code, 1860.
13) P.Rathinam vs Union of India, 3 scc 394, AIR 1994

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Natural Law Theory: Evolving over the Centuries

The natural law philosophy, over centuries has been the face of justice and peace for the people. It has been developed against tyranny, absolutism and misrule and over time had a hand in liberating people and bringing about a change in the society.
An ongoing debate is whether it is just a theory or if it actually has any practical basis? Philosophers and thinkers believe that natural law has inspired people over the time. People have fought against the absolutism in France, Germany, Prussia, England, Russia etc. Using the liberal and individualistic laws, derived out of Natural Law. Blackstone observed that “the natural law being co-existent with mankind and emanating from God himself, is superior to all other laws. It is binding over all the globe in all countries…”
Natural Law philosophers go all the way back to 5th century, in Greece, where they believed it is something beyond mankind. In ancient societies it was believed that natural law has divine origin. The Greek philosophers believed it is based on reason and therefore it has a universal force which binds men beyond race or nationality. Cicero supported Natural Law and believed, “It is the creation of reason of intelligent man who stands in the highest creation by virtue of his faculty of reasoning.”
Over the time, many a thinkers have given it different meaning, but it had been distinguished from man-made laws. Natural law is believed to be the guiding principle behind all laws, as it is indispensable in creating rules and laws for human beings. This can be seen from its evolutionary character how it survived with its basic principle intact all those years. The only time it took a dip was in the 19th century where the Positivism theory, rose, but nonetheless it was back in the 20th century, returning to being the core of most of the law of the time.