“Life and death are inseparable. Every moment our bodies undergo change… life is not disconnected from death. Dying is a part of the process of living.” – DY Chandrachud, J
Right to die with dignity is nowhere mentioned as a fundamental or a constitutional right under our Indian Constitution. However, Right to Life is a fundamental right guaranteed under Article 21 of the Indian Constitution which states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
Right to die is a concept based on the opinion that a human being is entitled to make any decisions about ending his or her life, which also includes undergoing voluntary euthanasia.
Right to Life is guaranteed u/ Art. 21. Right to die is a concept based on the argument that one is entitled to make any decisions about ending one’s life. Passive euthanasia, living wills, the religious practice of Santhara and Decriminalisation of Suicide and Abetment of Suicide are the issues dealt with in this well-researched piece.
The question whether Right to Life under Article 21 includes Right to Die came up before the Bombay High Court in the case of State of Maharashtra v. Maruti Sripati Dubal [1987 (1) Bom CR 499]. The HC held that it does, and struck down section 309 of the IPC which provides punishment for attempt to commit suicide by a person as unconstitutional.
Euthanasia refers to deliberately ending someone's life, usually to relieve extreme suffering. Doctors sometimes are pressured to perform euthanasia when its requested by people who have a terminal illness and are in a lot of pain.
Arguments against Decriminalizing Suicide
∙ No individual has complete autonomy with respect to life. His family does have a claim over him. A person may be the sole bread winner of his family, and if he commits suicide, his family would certainly be driven to destitution. (This was the SC’s observation in the Gian Kaur case, supra).
∙ The counter argument is that decriminalization of suicide (Section 309 of IPC) will also decriminalize abetment to commit suicide (Section 306 of IPC), because abetment of something which is not a crime can scarcely be termed as a crime. This may enhance the abuse of law after deletion of section 309 of IPC, particularly in cases of dowry death, honour death and by child in case of elderly parents. However, this technical issue can be dealt with by proper amendments.
Arguments in favour of Decriminalizing Suicide
∙ Section 309 of IPC provides punishment of maximum of one year in jail or a fine or both, for the criminal offence of attempting suicide. This is the only law which penalises an unsuccessful attempt to commit an offence. If the offence (suicide) is successful, he is beyond the reach of law.
∙ A person of sound mind commits suicide when he is depressed, hopeless or out of an emotional outburst. These conditions may be created because of a combination of various factors. Anyone committing suicide certainly needs soft words and wise counsel, and not stony dealing by a jailor following harsh words of a heartless prosecutor.
∙ Decriminalising attempt to suicide is one thing and conferring a 'right to die is another'. Right to silence, or right not to do business or trade constitutes merely temporary suspension of rights, and on any future date, a person may exercise these rights. But once a life is extinguished, it is lost forever. The ‘right to die’ in Indian law is based on a conservative and individualistic argument whereby suicide is considered a private affair, which in no way can cause damage to others.
∙ Living wills: What about those persons who are terminally ill and want to die with dignity? Indian law is not so clear on this – indeed, it is silent on this. The loss of bodily independence combined with extreme suffering is traumatic for a proud person who has led an upright life. Such persons who wish to end their lives should be allowed to end their pain/ trauma easily and pass away peacefully. Just because we have the technology and knowhow to prolong a life, we should not necessarily use this knowhow. Instead, we must allow our feelings, empathy, ethics and morals to catch up with technology. More importantly, it is time we promulgate clear and unequivocal laws that enable persons requesting to be put to sleep to get what they want done, and those medical personnel who receive such requests, to be able to carry out such requests with due procedural safeguards, and without making them look furtively over their shoulders like they are committing some heinous crime. In a landmark case in this direction, the Supreme Court has allowed passive euthanasia. The order was passed on 9 March 2018 by a 5-judge Constitution Bench comprising of CJI Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, in WP (C) 215/2005. The order came on a plea by the NGO 'Common Cause'. Though the judges delivered four separate orders, all were unanimous that a 'living will' should be allowed, because an individual should not be allowed to continue suffering in a vegetative state when they don't wish to continue living. set in place strict guidelines for carrying out the mandate of a 'living will'. The court did this by specifying who is authorised to give effect to it. The court also talked of involving a medical board to determine whether the patient in a vegetative state could be revived or not. The SC also permitted 'living will' by patients on withdrawing medical support if they slip into irreversible coma.
The SC was cognizant of the pitfalls in giving effect to 'living wills', and the property disputes amongst relatives that it can set off. Therefore, the SC said the relatives of a patient who has not written a 'living will' can approach high courts asking for passive euthanasia.
∙ Jainism is a religion of minimalism. Some Jains follow a religious practice of voluntarily fasting to death by gradually reducing the intake of food and liquids. It is not considered as a suicide by Jain scholars because it is not an act of passion, nor does it deploy poisons or weapons. Instead, it is considered as a route to attaining moksha. It is called Santhara or Sallekhana and is relatively infrequent, but yet we consider this here because this practice has been at the fulcrum of a 10-year legal battle. A PIL was filed in 2006 in which the complainant called the practice as suicide, and sought criminal prosecution of those supporting the practice for abetment to suicide. It argued that religious freedom is subject to public order, morality and health. The Jain community protested silently nation-wide. The practice was banned in 2015 by a Rajasthan High Court judgment which ordered that any case of Santhara be treated as an attempted suicide and all those supporting it should be tried criminally for abetment of suicide. Later, in 2016, the ban was stayed by the apex court in a petition filed by the Akhil Bharat Varshiya Digambar Jain Parishad. It stayed the decision of the High Court and lifted the ban on the practice. The last word has yet to be said on the legal validity of this practice, however.
Rajesh is a qualified CA & CWA. He has served as a Director of PricewaterhouseCoopers, a Director of a large urban co-operative bank and Dean of a B-School over the years. He has taught Finance for over 20 years & trained participants from several Companies and B-Schools. He is an educator and a learner (he believes both are inextricably intertwined), and a knowledge product developer. Law Gyani, which he has founded to help Law Students with their exam preparations, and to understand nuances of the law.
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