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EUTHANASIA IN INDIA

The term Euthanasia has been derived from two Ancient Greek words: ‘eu’ meaning ‘good’, and ‘thanatos’ meaning ‘death’, which combined means “well-death” or “dying well”. It is also known as ‘mercy killing’ which is an act or practice of ending the life of an individual suffering from a terminal illness by giving an injection or by suspending extraordinary medical treatment to free the patient of intolerable pain. It is a gentle, easy and painless method of death.


Types of Euthanasia


Until 2011, all forms of euthanasia were illegal in India, irrespective of manner, purpose and motive. Even so, euthanasia had and still has many ‘silent supporters’ in the medical profession. Euthanasia is practiced in several different forms, each of which brings a different set of rights and wrongs.


1. Active Euthanasia


Active euthanasia (also known as ‘positive or aggressive euthanasia’) refers to causing intentional death of a human being by direct intervention.[1] It is when death is brought about by an act, for example when a person is killed by being given an overdose of painkillers.[2] Active euthanasia is usually a quicker means of causing death and all forms of active euthanasia are illegal.[3]


2. Passive Euthanasia


In passive euthanasia (also known as negative or non-aggressive euthanasia)[4], doctors do not directly take the patient's life, they allow them to die. It is when death is by an omission, i.e., when the doctors let the person die. This can be done either by withdrawing or withholding the treatment.


Withdrawing Treatment: For example, switching off a machine that is keeping a person alive, so that they die of their disease.


Withholding Treatment: For example, not carrying out surgery that will extend life for a short time.[5]


3. Voluntary Euthanasia


When a person makes a mindful decision to die and asks for help from doctor or relative to do this or when a person's life is ended at their request to relieve them of suffering.


4. Non-Voluntary Euthanasia


Non-voluntary euthanasia occurs when the person is unconscious or otherwise unable to make a meaningful choice between survival and death, therefore an appropriate person takes the decision on their behalf.


Non-voluntary euthanasia also includes cases where the person is a child who is mentally and emotionally able to take the decision but is not regarded in law as old enough to take such a decision, so guardian or relative must take it on their behalf.[6]


5. Involuntary Euthanasia


Involuntary euthanasia occurs when the person who dies chooses life and is killed anyway. This is usually called murder, but it applies to cases where the killing would count as an act for the benefit of the person who dies.[7]


For example, a soldier has their stomach blown open by a shell burst. They are in great pain and screaming in agony. They beg the army doctor to save their life. The doctor knows that they will die in ten minutes anyway. As the doctor has no painkilling drugs with him, he decides to spare the soldier further pain and shoots them dead.[8]


6. Indirect Euthanasia


This type of euthanasia provides treatment (usually to reduce pain) that has an effect of accelerating the patient's death. Since the primary intention is not to kill, this is seen by some people (but not all) as morally acceptable. A justification along these lines is formally called “the doctrine of double effect”.[9]


For example, Morphine may have the secondary effect of shortening life.


7. Assisted Suicide


This type of euthanasia usually refers to cases where the person who is going to die needs help to kill themselves. It may be something as simple as getting drugs for the person and putting those drugs within their reach.[10]


For example, if a doctor deliberately gave a patient with a terminal illness a drug they do not otherwise need, such as an overdose of sedatives or muscle relaxant, with the sole aim of ending their life.[11]


Suicide Law and the ‘Right to Die’


Euthanasia and suicide are the two concepts that are closely interlinked and has a thin line of difference between them. It is hard to imagine a legal system where the guardian or relatives of a patient in a vegetative state can decide to end their life while a fully competent adult is not allowed to end their own.


An attempt to commit suicide is a criminal offence in India, punishable with imprisonment of up to one year or with fine, or with both.[12] It is a unique offence, if you fail, you are punished, but if you succeed, you are not, since a ‘successful’ suicide means that there is no one to be punished. Those who abet suicide can be imprisoned for a term which may extend to ten years, and shall also be liable to fine.[13]


In Maruti Dubal v. State of Maharashtra[14], a police constable, despondent with the inaction of government authorities that he tried to immolate himself outside the office of Bombay’s municipal commissioner. When criminal charges were pressed against him, he challenged Section 309 of the IPC in the Bombay High Court, saying that it violates Articles 14[15] and 21[16] of the Constitution. The court accepted the challenge and agreed that there was nothing unnatural about the desire to die.


However, a question which arose in the Supreme Court in P. Rathinam v. Union of India[17] was whether it is constitutionally permissible to penalize suicide. Hearing the writ petition challenging the constitutional validity of Section 309 of IPC, the court held that an attempt to commit suicide indicated a psychological problem rather than any criminal instinct. After weighing possible legal and moral implications of treating a suicide attempt as a criminal offence, the court struck down Section 309 of the IPC as being void and ineffectual. The court held that Section 309 contravened the right to life under Article 21. The Supreme Court’s judgment in Rathinam did not hold for long.


In Gian Kaur v. State of Punjab[18], a married couple appealed against their conviction for abetting suicide under Section 306 of IPC. They argued that since the ‘right to die’ fell within the ambit of the right to life under Article 21, a person who helped another commit suicide would merely be facilitating the enforcement of a fundamental right, implying that Section 306 of the IPC which penalized abetment of suicide, was also unconstitutional.


This logic was clearly flawed and the Supreme Court rejected the argument. However, it also overruled its earlier judgement in Rathinam[19] and ruled afresh that the constitutional right to life did not include the right to die. So, Section 309 was once again held to be constitutionally valid and effective. The court asserted: We find it difficult to construe Article 21 to include within the “right to die” as a part of the fundamental right guaranteed therein. “Right to life” is a natural right embodied in Article 21, but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of “right to life”.[20]


The court highlighted the difference between the desirability and the constitutionality of a law. Although a law may not be desirable, it could be struck down as unconstitutional if it infringed upon provisions of the constitution. Since Section 309 did not contravene any constitutional provision, it would stay valid. After the two-year window during which a suicide attempt was not illegal (from Rathinam to Gian Kaur), the Supreme Court restored the position that committing and abetting suicide were both punishable crimes.


The Landmark Case of ‘Aruna Shanbaug’


In Aruna Ramachandra Shanbaug v. Union of India[21], Aruna was a nurse at KEM Hospital, Mumbai. On 27thNovember 1973, Aruna (25 years) was changing her clothes in a room meant for experimental surgeries on dogs, when a hospital sweeper assaulted her. Intending to rape her, he immobilized Aruna by twisting a dog chain around her neck, but when he discovered that she was menstruating, he sodomized her instead. She was found nearly twelve hours later, unconscious.


Aruna suffered acute brain damage because the oxygen supply to her brain had been blocked for a long time. She never recovered from the attack and was relegated to the status of a helpless patient for the rest of her life. Thirty-seven years later, Aruna is still in a vegetative state, a lifelong patient. In 2009, journalist Pinki Virani, who had followed Aruna’s life closely and also written a book on her life, Aruna’s Story[22], moved the Supreme Court, seeking a direction for KEM Hospital to stop feeding Aruna Shanbaug so that she may exercise her right to die in peace and dignity.


Virani alleged that Aruna was a featherweight; her bones were brittle; her skin was like papier maché, her teeth were decayed. She had lost the ability to see and hear, as well as her complete awareness. She was fed a diet of mashed food that she could not consciously swallow. The ‘quality of life’ element and the ‘best interests of the patient’ test tried to play a much larger role in the court’s judgement. Can the fact that Aruna can partially lick off sugar smeared on her lips or that she does not have bed sores justify the quality of her existence?


The Mumbai Municipal Corporation and the dean of KEM Hospital filed a counter-affidavit stating that Aruna accepted food normally and responded via facial expressions or intermittent sounds. The Supreme Court set up a team of three doctors to objectively report Aruna’s physical and mental state. The court also allowed a video recording of Aruna’s condition to be screened in the courtroom. The court ruled that Aruna was still ‘alive’ and that hers was not a case fit for euthanasia, the bench itself treated her as an inanimate object of examination. Essentially, the Supreme Court overlooked Aruna’s right to privacy.


The doctors’ report stated that Aruna seemed to be in a permanent vegetative state in many aspects, but she was neither brain-dead nor comatose. She possessed some reflexes, could make symmetric facial movements, articulated some vocal sounds (though she could not respond to simple commands) and partially licked sugar smeared on her lips. The team concluded that since Aruna was not in a position to make a decision, the appropriate person to do so would be the dean of KEM Hospital since it was the hospital staff that had tended to her for thirty-seven years.


In his affidavit, the dean Dr. Sanjay Oak said that Aruna should not be subjected to passive euthanasia. He asserted that India was not ready to allow the legalization of euthanasia. ‘I feel that the entire society has not matured enough to accept the execution of an Act of Euthanasia or Mercy Killing. I fear that this may get misused and our monitoring and deterring mechanisms may fail to prevent those unfortunate incidences.’[23]


In its judgement, the Supreme Court endorsed the recommendation of the team of doctors that the dean was best placed to decide on the euthanasia plea as Aruna’s ‘next friend’[24] since the KEM Hospital staff had taken care of her for three decades when her family abandoned her. The court believed that Pinki Virani could not claim the level of attachment or bonding with Aruna that the hospital authorities could and did. Also, based on reasons similar to those in the doctors’ report, the court asserted that though Aruna had ‘very little’ brain activity, she was not brain-dead.


The Supreme Court outlined a rather tenuous distinction between an ‘act’ and an ‘omission’ to legalize passive euthanasia while reiterating the illegality of active euthanasia. It declared passive euthanasia as permissible (or, at least, not illegal), using the rationale that ‘failing to save a person’ could never constitute a crime. On the other hand, it confirmed active euthanasia because it involves a deliberate act by a third party, usually, a doctor would be tantamount to murder since death is caused by a positive ‘action’ rather than a mere ‘omission to act’.


What the court essentially did in Aruna Shanbaug was to follow a method it thought most appropriate and establish that method as a benchmark for all high courts to deal with cases seeking approval for passive euthanasia. The model includes appointing a team of doctors (comprising a neurologist, psychiatrist and physician) to report to the court, issue notices to the state and close relatives of the patient. It would ultimately be up to the court to determine if the case were fit for permitting passive euthanasia, after considering the doctors’ report and the next friend’s opinion. This mechanism was to operate until Parliament passed legislation on the subject, a practice that has been employed by the Supreme Court on a few occasions, notably in Vishaka v. State of Rajasthan[25].


The court also noted that if the representatives of KEM Hospital changed their decision at any

stage, they would be free to move to the Bombay High Court (according to the method above) with a euthanasia plea on behalf of Aruna.


In other words, suicide is illegal and punishable, but passive euthanasia is legal under certain circumstances. However, the court did recommend the deletion of Section 309 of the IPC, finding it ‘anachronistic’ and underscoring that a person who attempts suicide ‘needs help rather than punishment’. Thus, the window of opportunity left open by the Supreme Court in Gian Kaur was taken up in the Aruna Shanbaug case. In the latter, while the court reiterated that suicide is a criminal offence, it nevertheless permitted passive euthanasia in certain situations. In legal terms, the court held that while the ‘right to life’ under Article 21 includes the ‘right to die with dignity’, it does not include the ‘right to die’ per se.


However, there is also a positive aspect of the Aruna Shanbaug judgement. In Pinki Virani’s words, ‘Aruna’s other gift through this same landmark judgement is that there could be a boost in organ donations, once again positively helping millions of Indians. The judgement provides clarity on the definition of brain death. Healthy vital organs are wasted while arguments rage over medico-legal definition of brain death.’


Position in India

After Aruna Shanbaug, the position on euthanasia in India today is that while the law recognizes euthanasia in cases of physical suffering, no amount of mental suffering would justify a claim to end a person’s life. The law will penalize a suicide attempt in the latter scenario. Therefore, while relatives of a patient in a permanently vegetative state can consent to the use of a passive euthanasia procedure, a healthy adult who voluntarily attempts suicide risks being punished if their attempt fails. This is inconsistent. Lawmakers would succeed to have a profound debate on the Supreme Court’s recommendation to delete Section 309 of the IPC.


Another disquieting aspect of the judgement is its inherent potential to deepen the rich–poor divide. If a person from the lower middle class wishes to keep their relative (who is in a vegetative state) alive, will the state bear the monetary costs, not to mention the opportunity costs of the hospital bed dedicated to this purpose? If not, doesn’t this judgement seal the fate of those who cannot afford medical care for a long period?


Doctors have documented that passive euthanasia is already practiced in India today. The difference that the judgement makes is a disagreement among the patient’s relatives or between the relatives and the physicians over employing a euthanasia procedure. However, the relatives or the physicians can move to the high court for deciding the final route to be taken.


The Supreme Court’s decision is added to the guidelines that are meant to operate ‘until the legislature enacts a suitable law on the issue’. There is an urgent need to comprehensively review the law on euthanasia and suicide in India. A Supreme Court judgement being used as a substitute for an enacted law should not be allowed to hold the field for too long. Many factors, including the commercialization of healthcare, the allocation/scarcity of medical resources, the development of sound mechanisms to prevent abuse of euthanasia (if permitted), and a thorough understanding of the ‘active-passive distinction’ should be taken into account to frame policy on the subject. One can only hope that this will not be another area of law in which the Supreme Court’s decision is conveniently left by the legislature to hold the field.


Conclusion

The Aruna Shanbaug judgement has been criticized on account of the fact that the very subject of passive euthanasia hinges on a moral question. Apart from legal, there are moral arguments for and against passive euthanasia. The moral justification for allowing passive euthanasia against active euthanasia is not convincing. After all, depriving a patient of food (thus causing death by starvation) or antibiotics (thus causing a painful death) seems far more merciless than administering an instant and painless dose of death.


The difference between the two forms of euthanasia hinges on a questionable dichotomy: ‘killing’ is not the same as ‘allowing to die’. All that it means is that in a case of passive euthanasia, the doctor can say, ‘I did not kill the patient. Their death was only expedited by an omission to administer medical treatment.’ Well, if an act comprising active euthanasia is murder, passive euthanasia would not be very far from it. The only practical difference is that active euthanasia can be abused more than passive euthanasia, since even a healthy patient could die via an active euthanasia procedure.


On the other hand, there is also significant concern over the Supreme Court’s decision that Aruna Shanbaug should not be subjected to passive euthanasia. The Court may have been carried away by the pleas of the dean and nurses of KEM Hospital but no one can question the dedication with which Aruna has been taken care of for close to four decades, but is it in her best interests to stay ‘alive’ or the pleas of dean and nurses? Aruna had no quality of life; she expressed no human emotions and there was little hope of her recovering in the future.


There are still arguments revolving around the subject of Euthanasia. While some are in favour, others are against euthanasia. As an end note, in my view, all countries must consider legalizing euthanasia as it shall save millions of patients from suffering instead of peaceful death.


One should die proudly, when it’s no longer possible to live proudly.”

– Friedrich Nietzsche

[1] Krishanu Das, ‘Euthanasia in India’ (Legal Services India)<http://www.legalservicesindia.com/article/787/Euthanasia-in-India.html>. [2] ‘Forms of Euthanasia’ (BBC 2014) <https://www.bbc.co.uk/ethics/euthanasia/overview/forms.shtml>. [3] Das (n 1). [4] Ibid. [5] Forms of Euthanasia (n 2). [6] Ibid. [7] Ibid. [8] ‘Voluntary and Involuntary Euthanasia’ (BBC 2014) <https://www.bbc.co.uk/ethics/euthanasia/overview/volinvol.shtml>. [9] Forms of Euthanasia (n 2). [10] Ibid. [11] 'Euthanasia and Assisted Suicide' (NHS July 2020) <https://www.nhs.uk/conditions/euthanasia-and-assisted-suicide/>. [12] The Indian Penal Code, 1860 (Act No. 45 of 1860), Section 309. [13] The Indian Penal Code, 1860 (Act No. 45 of 1860), Section 306. [14] (1986) MhLJ 913 (Bombay High Court). [15] The Constitution of India, Article 14 (The right to equality). [16] The Constitution of India, Article 21 (The right to life and personal liberty). [17] AIR (1994) SC 1844. [18] AIR (1996) SC 1257. [19] The decision in Rathinam was pronounced by a bench of two Supreme Court judges whereas the decision in Gian Kaur was pronounced by a bench of five Supreme Court judges. [20] Gian Kaur (n 5), [22]. [21] AIR (2011) SC 1290. [22] Pinki Virani, Aruna’s Story: The True Account of a Rape and Its Aftermath (India Penguin, 1998). [23] Affidavit filed by the dean of K.E.M. Hospital in Aruna Shanbaug at paragraph 11. [24] ‘Next friend’ refers to ‘a person acting for the legal benefit of someone not legally competent to act for himself or herself’. [25] AIR (1997) SC 3011.

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