CERTIFICATE

This is to certify that the given article is a genuine work of Mr. Amit Pande , student of BBALLB (H), Roll no. 12bll035, Institute of Law, Nirma University. As a part of the Project Work policy for the year 2013- 2014, he has worked to his utmost potential and his work is commendable. His sincere and diligent efforts are appreciated.

DECLARATION

I, Amit Pande, student of BBALLB (H), Roll no. 12bll035, Institute of Law, Nirma University hereby declare that this article is a genuine work of the researcher. For all the material that has been incorporated in the project which is a work of someone apart from the researcher has been acknowledged properly.

TABLE OF CONTENTS
SERIAL NO.

TOPIC

PAGE NO.

1. 2. 3. 4.

ACKNOWLEDGEMENT INTRODUCTION LITERATURE REVIEW SYNOPSIS STATEMENT OF PROBLEM METHODOLOGY OBJECTIVES HYPOTHESIS RESEARCH QUESTIONS

6 7 8 10

5.

CHAPTERISATION CHAPTER 1:DEFINATION OF EUTHANASIA AND ITS TYPES. CHAPTER 2:VOLUNTARY DEATH FROM RELIGIOUS PERSPECTIVE. CHAPTER 3:POSITION OF
EUTHANASIA IN OTHER COUNTRIES.

11-16 11

12 13

 CHAPTER 4:ARGUMENTS IN FAVOUR 14 OF LEGALIZING EUTHANASIA. 15 CHAPTER 5:ARGUMENTS AGAINST LEGALIZING EUTHANASIA. 6. 7. CONCLUSION
BIBLIOGRAPHY

17 18

ACKNOWLEDGEMENT

I would like to begin by thanking the Institute of Law, Nirma University for providing me this golden opportunity to come up with this research paper on the Right to die and Article 21 of Indian Constitution. It helped me gain knowledge and furtherance into the legal field thorugh the study of a very relevant subject in our countrys one of the most important topic.

I would also like to thank our professor, Mr. Yogesh Dharangutti, for providing important insight and assistance with my project. Special thanks to my Advocate Rajpal Kasana, who during the course of my internship, suggested me relevant cases and books regarding the completion of my research.

REGARDS

INTRODUCTION
Part III of Indian Constitution contains a long list of fundamental rights. And one of the major fundamental rights among them is Article 21. This article 21 of our constitution deals with "Protection of Life and Personal Liberty". The Article 21 read as follows: "No person shall be deprived of his life or personal liberty expect according to procedure established by law."1 According to this article right to life means the right to lead meaningful, complete and dignified life. The object of the fundamental right under Article 21 is to prevent any restriction by the State to a person upon his personal liberty and deprivation of life except according to procedure established by law. But can The right to life be interpreted to such an extent which leads to its self destruction(right to die) ? This is the crucial point where the debate arises. When a person ends his life by his own act we call it suicide but to end life of a person by other on the request of the deceased is called mercy killing or euthanasia. It means applying such methods and means which will make the death painless and relieve the person from misery and pain of life. There are various types of euthanasia out of which passive euthanasia is legal in India. Suicide and euthanasia cannot be treated as one and same thing. They are two different acts. But in State of Maharashtra V. Maruty Sripati Dubal2 the Court explained the position of Indian law on euthanasia as under: "Mercy killing is nothing but homicide, whatever the circumstances in which it is affected. Unless it is specifically accepted it cannot but be an offence. Our penal code further punishes not only abetment of homicide but also the abetment of suicide."

1 2

The Constitution of India,1950 AIR 1987 Cr LJ 549

Literature Review
The question whether the right to die is included in Article 21 of the constitution came for consideration for the first time before the Bombay High Court in State of Maharashtra V. Maruty Sripati Dubal.3 The Bombay High Court held that the right of life guaranteed by Art. 21 includes a right to die and consequently the court struck down Section 309, IPC which provide punishment for attempt to commit suicide by a person as constitutional. They held that everyone should have the freedom to dispose of his life as and when he desires. On the other hand, the Andhra Pradesh High Court in Chenna Jagadeshwar V. State of A.P.4 held that the right to die is not a fundamental right within the meaning of Article 21 and hence Section 309, IPC is not unconstitutional. In P. Rathinam V. Union of India5 a division bench of the Supreme Court agreeing with a view of the Bombay High Court in Maruti Sripati Dubal case held that a person has a right to die and declared Section 309 of the Indian Penal Code Unconstitutional which makes Attempt to commit suicide a penal offence. A person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking. Explaining the reason for its decision the Court said that Section 309, IPC deserves to be effaced from the Statute Book to humanise our penal laws. It is a cruel and irrational provision and may result in punishing a person again who has suffered agony and would be undergoing ignominy because of his failure to commit suicide. However , the court rejected the plea that euthanasia should be permitted by law. The judges said that they would not decide this point as firstly it is beyond the scope of the present petition and secondly also because in euthanasia a third person is either actively or passively involved about whom it may be said that he aids or abets the killing of another person. There is a distinction between an attempt of a person to take his life and action of some others to bring to an end the life of a third person. This judgement may have come as a hope of liberation to some who are in a very depressed and irreversible state of mind or body but it failed to take into consideration the its effect on young immature minds which tend to act or react in desperate haste. Also in the dowry death cases the accused takes the plea that the deceased has committed suicide while it is generally otherwise. Again suicide owing to frustration in love, failure in examinations and failure to get a job or even a good job or promotions in service would raise many social problems. Therefore, in Gian Kaur V. State of Punjab6 a five judge Constitutional Bench of the Supreme Court has overruled the P. Rathinam's case and held that "right to life" under Article 21 does not include "right to die". Any aspect of life which makes it dignified may be read into Article 21 of the Constitution but not that which extinguishes it and is, therefore inconsistent with the continued existence of life resulting in effacing the right itself. Right to
3 4

AIR 1987 Cr LJ 549 AIR 1988 Cr LJ 549 5 (1994) 3 SCC 394 6 (1996) 2 SCC 648

life is a natural life embodied in Article 21 but suicide is an unnatural termination or extinction of life and incompatible and inconsistent with the concept of right to life. The court made it clear that right to die with dignity at the end of life is not to be confused with the right to die an unnatural death curtailing the natural span of life. The Court reiterated that the argument to support the views of permitting termination of life in such cases(dying man who is terminally ill or in a vegetative state) by accelerating the process of natural death when it was certain and imminent was not available to interpret Article 21 to include therein the right to curtail the natural span of life. Gain Kaur, however, appears to have approved passive euthanasia by holding that one may, in a given case, have the right to die with dignity as a part of right to live with dignity. A person having death knocking at the door because of his terminal illness or extreme old ages and where death is imminent and the process of death has already commanded, may deny or may be denied any further medical aid so that his suffering may not be prolonged, because these are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced. On the subject of euthanasia in Aruna Ramchandra Shanbaugh V. Union of India7 a writ petition was filed by Ms. Pinki Virani of Mumbai claiming to be next friend of Aruna Shanbaugh with a prayer for direction to the respondent to stop feeding and let Aruna die peacefully. Her parents were dead and her close relatives had no interest in her since she had unfortunate assault on her. Regarding the withdrawal of life support to a person in PVS(Persistent Vegetative State) or who was otherwise incompetent to take a decision in this connection, the Supreme Court in a two Judges Bench decision laid down the law of passive euthanasia8 to continue till the law made by parliament on the subject, as follows: A decision has to be taken to discontinue life support either by parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken by a person or a body of persons acting as next friend. It can also be taken by the doctors attending the patient. However the decision should be taken bona fide in the best interest of the patient. Also the approval of Court is needed for decision to withdraw life support as there is always a risk that the provision may be misused.

Law Commission Report: It must be remembered that the 17th Law Commission of India then headed by Justice M. Jagannadha Rao in its 196th Report submitted in April,2006 titled Medical Treatment to Terminally Ill-patients (Protection of patients and Medical Practitioners) had supported and made recommendations for drafting legislation on the passive euthanasia.

7 8

AIR 2011 SC 1290 passive euthanasia-Hastening the death of a person by altering some form of support and letting nature takes its course.

In order to address the debate revolving around Right to Die, one needs to finally refer to the case of Cruzan v. Director, Missouri Dept. of Health9, commonly known as the Nancy Cruzan Case in which the U.S. Supreme Court held that the parents request to withdraw artificial life saving devices can be complied with only if there is a clear and convincing evidence of the patients wish to die. Since there was enough compliance with the clear and convincing evidence standard in this case, the devices were removed and the patient peacefully died. However, the Supreme Court only conceded a constitutionally protected liberty interest in refusing unwanted medical treatment. The majority was careful not to suggest that competent parties have a fundamental right to refuse treatment, for if they did so, the fundamental right would have to be protected unless the State interest was shown to be compelling.

Statement of Problem:
Though passive euthanasia is legalized in India, there is still need to enact a legislation to protect the rights of terminally illi patients or patients in permanent vegetative stateii. This paper will attempt to find the answer to the same.

Methodology:
A Doctrinal Research method has been adopted.

Objectives:
To analyse the advantages and disadvantages of legalizing euthanasia in India. To analyse the situation of euthanasia in other countries with respect to their laws .

Hypothesis:
Euthanasia: Inconsistent with the concept of Right to Life.

497 U.S. 261 (1990)

Research Questions:
What is euthanasia and its types? What is the legal perspective of other countries on euthanasia?

Whether euthanasia should be legalized in India?

Definition of Euthanasia and its Types.

Definition-Euthanasia is the deliberate production of the death of a human being on the grounds that in his situation it is considered that it is better that he should be dead than that he should continue to live10. Several types of euthanasia can and should recognised. These may be classified on the basis of the presence or absence of the agreement of the subject. Such as-

Voluntary Euthanasia-refers to the action taken by the physician and the patient, who both agree (with informed consent) to end the patient's life. Involuntary Euthanasia-refers to a third party taking a patient's life without the informed consent of the patient. This is commonly practiced in veterinary medicine when animals are "put down" or "put to sleep." In modern medicine, it could conceivably be applied to the act of taking a terminally ill, suffering patient's life who has lost all mental capacity to make his/her own decisions. It is also known as physician-assisted suicide or mercy killing Passive euthanasia-involves withdrawing or withholding life-prolonging medical treatment with the intention to hasten death in the patient's interests because of their expected negative quality of life. Active euthanasia-means a positive merciful act to end useless sufferings and a meaningless existence. It is an act of commission. Non-Voluntary- this is where the person is unable to ask for euthanasia (perhaps they are unconscious or otherwise unable to communicate), or to make a meaningful choice between living and dying and an appropriate person takes the decision on their behalf, perhaps in accordance with their living will, or previously expressed wishes. Situations in which the person cannot make a decision or cannot make their wishes known, includes cases where:
10

The person is in a coma. The person is too young (e.g. a very young baby). The person is senile.

Lewy G. Assisted suicide in US and Europe. New York: Oxford University Press, Inc; 2011.

10

The person is mentally retarded to a very severe extent. The person is severely brain damaged. The person is mentally disturbed in such a way that they should be protected from themselves.

Voluntary death from the historical and philosophical and religious perspective.
Hinduism and Buddhism allow "prayopaveshan" since it is a non violent, calm and much time taking way of ending life and it occurs by starving oneself to death at the right time. Prayopaveshan is for people who are content with their lives. While on the other hand, suicide is a sudden act and associated with the feelings of anger, frustration, depression which is why it is not allowed by any of these religions. Though there is a division of views regarding euthanasia in Buddhism, the most common view is that voluntary euthanasia should not be permitted. Again there are two views of Hinduism regarding euthanasia which are contradictory, one is supporting euthanasia as a moral deed and another is considering euthanasia as a bad deed which disturbs the life and death cycle. Ancient Indian philosophical tradition also justifies the idea of a man willing his own death. As per Hindu mythology Lord Rama and his brothers took jal samadhi in River Saryu near Ayodhya. Ancient Indian history also tells that Lord Buddha and Lord Mahavir attained death by seeking it. Jainism gives full consent to its followers who want to embrace death mostly by fasting, if they believe that moksha can be achieved that way. Muslim, Christian and Jewish laws are all against suicide and even euthanasia. According to these religions , all human life is sacred since it is given by God, and human beings should not interfere in this. The Roman Catholic Church regards euthanasia as morally wrong since it has always taught how important the commandment you shall not kill is. The idea of willful death is traceable to Socrates, Plato, and Stoics in ancient Greek and Roman philosophy as well. In ancient Greece and Rome, helping others to put end to their lives was also permitted in certain situations.

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Position Of Euthanasia in other Countries.

In the case of Euthanasia and Assisted Suicide, the countries that advocate 'mercy killing' are Holland, Northern Provinces of Australia as well as some states in the United States of America. The Netherlands is the first country in the world to legalize euthanasia. The bill allows doctors to kill patients with terminal diseases who are suffering "unbearably," if they request it. In Netherland On 18 April, 2001, the first nation in the world to legalize euthanasia, often called mercy killing. The Dutch decision to allow doctors to kill patients who are undergoing unbearable suffering from terminal illnesses gave rise to angry protests from the pro-life lobby across the world. But the move was also welcomed by several human rights activists and patients organizations who said that a long-accepted practice in the Netherlands had finally been given legal sanction. Doctors in Holland regularly perform mercy killing in consultation with patients and their families. In Australia Assisted suicide was legal in Australia for a period, but now is not. In 1995, the world's first euthanasia legislation, the Rights of the Terminally ill Act 1995, was passed in the Northern Territory of Australia. Four patients died under the Act, using a euthanasia device designed by Dr. Philip Nitschke. The legislation was overturned by Australia's Federal Parliament in 1997. In response to the overturning of the Act, Dr. Nitschke founded Exit Internationaliii. In France The controversy over legalizing euthanasia and physician assisted suicide is not as big as in the United States because of the country's "'well developed hospice care program." However, in 2000 the controversy over the uncontroversial topic was ignited with Vincent Humbert. After a car crash that left him "unable to 'walk, see, speak, smell or taste'", he used the movement of his right thumb to write a book, I Ask the Right to Die in which he voiced his desire to "die legally." After his appeal was denied, his mother assisted in killing him by injecting him with an overdose of barbiturates that put him into a coma, killing him 2 days later. Though his mother was arrested for aiding in her son's death and later acquitted, the case did jumpstart a new legislation which states that "when medicine serves no other purpose than the artificial support of life they can be suspended or not undertaken." In Colombia Despite its strict Roman Catholic history, in May 1997 Colombian courts allowed for the euthanasia of sick patients who requested to end their lives. This ruling came about due to the efforts of a group that strongly opposed euthanasia. When one of their members brought a lawsuit to the Colombian Supreme Court against it, the court issued a 6 to 3 decision that spelled out the rights of a terminally person to engage in voluntary euthanasia.

In USA U.S. laws prohibit active euthanasia. But the courts ruled that passive euthanasia is legalized as it says that doctors should not be punished if they withhold or withdraw a life-sustaining treatment at the request of patient. In 1991 Federal Patient Self-Determination Act, was made effective which required federally certified health-care facilities to notify adult patients of
12

their rights to accept or refuse the medical treatment. The facilities should also inform the patients of their rights under the state laws to formulate advanced directives. In Canada Patients have the similar rights as in case of U.S. to refuse life-sustaining treatment and formulate advanced directives. However, they do not possess right to active euthanasia or assisted suicide.

Arguments in favour of Legalizing Euthanasia.

Euthanasia is a way of ending a persons life who has been suffering from intolerable pain or undignified death. Various countries have legalized it. The debate regarding euthanasia has going on from very long time but only recently euthanasia gained massive importance. After the landmark judgment passed by the Indian Court in Arunas case its clear that passive euthanasia is now allowed in India. But still there is some ambiguity with regard to euthanasia. The various arguments for legalizing euthanasia given by supporters of euthanasia are-

Moral Objectives: It is morally incorrect to keep a person fighting for no cause when all hope is lost. The sufferer and his fraternity go through mental trauma for a long period of time. The society is obligated to acknowledge the rights of patients and to respect the decisions of those who elect euthanasia. Every individuals right to self-determination or his right of privacy needs to be respected. Interference to such rights can be justified if it is to protect values, which is not the case where patients suffering unbearably at the end of their lives request euthanasia leaving them with no alternatives. People cant suffer against their will. It is plain cruelty on them and cessation of their human rights and dignity. Individuals right to exercise his choice: Firstly deciding if one wants to live or die is a personal decision. Every individual has his/her own rights over their body. When the birth of an individual is not questioned by anyone naturally death as well should not be a speculative debate. A painless death is better than a painful life. The increase in patients of Cancer, AIDS and other dreadful and irreparable diseases has sparked a world-wide need of euthanasia or mercy killing. Especially in the final stages of such diseases which are incurable the want of euthanasia is justified. Economic Factor: Economic concern in a country like India is of primary importance. The medical charges are unaffordable for the needed medical care; unsure if the patient is going to improve in any possible way or remain as he is. And every irreparable disease attracts a big amount of risk and money which cant be ignored. Moreover, there is increasing pressure on hospital and medical facilities; it is argued that the same facilities should be used for the benefit of other patients who have a better chance of recovery and to whom these facilities
13

provided by the hospital would be of greater value. Thus, the argument runs, when one has to choose between a patient beyond recovery and one who may be saved, the latter should be preferred as the former will die in any case. Refusing care: Right to refuse medical treatment is well recognised in law, including medical treatment that sustains or prolongs life. For example, a patient suffering from blood cancer can refuse treatment or deny feeds through medical tube. Recognition of right to refuse treatment gives a way for passive euthanasia. Many do argue that allowing medical termination of pregnancy before 16 week is also a form of active involuntary euthanasia. This issue of mercy killing of deformed babies has already been in discussion in Holland.11 Right to die: Many patients in a persistent vegetative state or else in chronic illness, do not want to be a burden on their family members. Euthanasia can be considered as a way to upheld the Right to life by honouring Right to die with dignity. Encouraging the organ transplantation: Euthanasia in terminally ill patients provides an opportunity to advocate for organ donation. This in turn will help many patients with organ failure waiting for transplantation. Not only euthanasia gives Right to die for the terminally ill, but also Right to life for the organ needy patients. It is evident from the courts ruling in the recent case of K. Venkatesh , a twenty-five year old boy suffering from muscular dystrophy, who was aware of his incurable predicament and hence, wanted to donate his organs to someone needy before he could die. The Andhra Pradesh High Court however, turned down the humanitarian appeal of an ailing man on deathbed.

Arguments against Legalizing Euthanasia.

Research has revealed that many terminally ill patients requesting euthanasia, have major depression, and that the desire for death in terminal patients is correlated with the depression12. They need palliative and rehabilitative care. Palliative care actually provides death with dignity and a death considered good by the patient and the care givers. The various arguments given by the people against euthanasia areEliminating the invalid: Euthanasia opposers argue that if we embrace the right to death with dignity, people with incurable and debilitating illnesses will be disposed from our civilised society. The practice of palliative care counters this view, as palliative care would

11

Sheldon T. Dutch legal protection scheme for doctors involved in mercy killing of babies receives first report. BMJ. 12 Chochinov HM, Wilson KG, Enns M. Desire for death in the terminally ill. Am J Psychiatry. 1995

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provide relief from distressing symptoms and pain, and support to the patient as well as the care giver. Palliative care is an active, compassionate and creative care for the dying. Constitution of India: 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. It is the duty of the State to protect life and the physician's duty to provide care and not to harm patients. If euthanasia is legalised, then there is a grave apprehension that the State may refuse to invest in health (working towards Right to life). Legalised euthanasia has led to a severe decline in the quality of care for terminally-ill patients in Holland. Hence, in a welfare state there should not be any role of euthanasia in any form. Symptom of mental illness: Attempts to suicide or completed suicide are commonly seen in patients suffering from depression, schizophrenia and substance users. It is also documented in patients suffering from obsessive compulsive disorder. Hence, it is essential to assess the mental status of the individual seeking for euthanasia. In classical teaching, attempt to suicide is a psychiatric emergency and it is considered as a desperate call for help or assistance. Several guidelines have been formulated for management of suicidal patients in psychiatry. Hence, attempted suicide is considered as a sign of mental illness. Malafide intention: In the era of declining morality and justice, there is a possibility of misusing euthanasia by family members or relatives for inheriting the property of the patient. Hence, to keep control over the medical professionals, the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 discusses euthanasia briefly and it is in accordance with the provisions of the Transplantation of Human Organ Act, 1994. There is an urgent need to protect patients and also medical practitioners caring the terminally ill patients from unnecessary lawsuit. Law commission had submitted a report to the government on this issue. Commercialisation of health care: Passive euthanasia occurs in majority of the hospitals across the county, where poor patients and their family members refuse or withdraw treatment because of the huge cost involved in keeping them alive. If euthanasia is legalised, then commercial health sector will serve death sentence to many disabled and elderly citizens of India for meagre amount of money13.

13

Gursahani R. Life and death after Aruna Shanbaug. Indian J Med Ethics.2011;8:68 9.

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CONCLUSION
Although legalizing euthanasia will end the suffering and pain of patients and their family but termination of life is not an answer to pain so right to die should remain generally illegal but there should be an exception granted to people who are terminally ill and in excruciating pain because of that (like L. Venkatesh). But doctors often disagree on what defines terminal illness. And while there will certainly be some cases where death is inevitable, there will be many cases where death is fairly far off in the future, and there is some hope, however small. As medical experts have acknowledged that it is virtually impossible to predict the life expectancy of a particular individual and the term "terminally ill" has no precise definition though Jack Kervorkian, a famous proponent of euthanasia, defined terminal illness as "any disease that curtails life even for a day". Some laws define terminal as one from which death will occur in a relatively short time or within a span of six months. This is the situation till now and seems to remain the same in near future, and the suffering of people like Venkatesh is unfortunate. On the other hand, if in future It could be convinced that doctors could specify the cases where euthanasia is the best option with upwards of 99% certainty (this would require a classification of terminal illnesses and ascertainment of survivability, then may be legalizing euthanasia would also serve the common good. Though the legalization of euthanasia in India seems to be a distant dream as most of the patients succumb to death without receiving any primary health care. India does not have an appropriate health-care mechanism in place, let alone lay down procedures for euthanasia. If the State takes the responsibility of providing reasonable degree of health care, then majority of the euthanasia supporters will definitely reconsider their argument14.

14

Law Commission report no.196 on medical treatment to terminally ill patients.

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BIBLIOGRAPHY

Books Referred:
A.M. Bhattacharjee, Equality, Liberty and Property under the Indian Constitution (Calcutta: Eastern Law House, 1997) The Constitution Of India, 3rd Edition, Eastern Law Company, Lucknow Dr. J.N. Pandey, The Constitutional Law Of India, 49th Ed., Cental Law Agency, 2012 Black Law Dictionary, 9th Edition

Statutes Referred:
The Indian Penal Code,1860 The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 The Transplantation of Human Organ Act, 1994

Articles Referred:
A.M. Bhattacharjee, Article 21 and the Due Process and the Exclusionary Rule of Evidence (1983) 3 SCC (J). (accessed on October 2, 2013) B.B. Pande, Right to Life or Death ? For Bharat both cannot be Right (1994) 4 SCC (J). (accessed on October 2, 2013) Rajeev Dhavan, The Right to Die, The Hindu ( accessed on October 2, 2013). Sheeraz Latif Ali Khan, Right to Die or not to Die : A Note on the Supreme Court Judgement (1993) 1 SCJ (J.S.). (accessed on October 2, 2013) Law Commission report no.196 on medical treatment to terminally ill patients. (accessed on August 12, 2013). from:http://lawcommissionofindia.nie.in/reports/rep196.pdf .

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Terminal illness is a medical term popularized in the 20th century to describe a disease that cannot be cured or adequately treated and that is reasonably expected to result in the death ofthe patient within a short period of time. This term is more commonly used for progressive diseases such as cancer or advanced heart disease than for trauma. In popular use, it indicates a disease which will eventually end the life of the sufferer. ii A persistent vegetative state is a disorder of consciousness in which patients with severe brain damage are in a state of partial arousal rather than true awareness. It is a diagnosis of some uncertainty in that it deals with a syndrome. After four weeks in a vegetative state (VS), the patient is classified as in a persistent vegetative state.
iii

Exit International, is an international non-profit organization advocating legalization of euthanasia. It was previously known as the Voluntary Euthanasia Research Foundation (VERF Inc.)

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