Hypotheses:

Right to life doesnot include right to die.

The right to die is enforceable by Law

The right to life (article 21) involves the right to die

There is a constitutional validity of right to die
INTRODUCTION
The right to die is an ethical or institutional entitlement of any individual to commit
suicide or to undergo voluntary euthanasia. Possession of this right is often understood to mean
that a person with a terminal illness should be allowed to commit suicide or assisted suicide or to
decline life-prolonging treatment, where a disease would otherwise prolong their suffering to an
identical result. The question of who, if anyone, should be empowered to make these decisions is
often central to debate1.
Proponents typically associate the right to die with the idea that one's body and one's life are
one's own, to dispose of as one sees fit. However, a legitimate state interest in preventing
irrational suicides is sometimes argued. Pilpel and Amsel write, "Contemporary proponents of
rational suicide or the right to die usually demand by rationality that the decision to kill
oneself be both the autonomous choice of the agent (i.e., not due to the physician or the family
pressuring them to do the right thing and commit suicide) and a best option under the
circumstances choice desired by the stoics or utilitarians, as well as other natural conditions
such as the choice being stable, not an impulsive decision, not due to mental illness, achieved
after due deliberation, etc."
Hinduism accepts the right to die for those who are tormented by terminal diseases or those who
have no desire, ambition or no responsibilities remaining; and allows death through the nonviolent practice of fasting to the point of starvation (Prayopavesa). Jainism has a similar practice
namedSanthara. Other religious views on suicide vary in their tolerance, and include denial of
1

https://indconlawphilp visited at 25/10/2014

the right as well as condemnation of the act. In the Catholic faith, suicide is considered a grave
sin.

Euthanasia- Right to die:

The word euthanasia, originated in Greece means a good death1. Euthanasia encompasses
various dimensions, from active (introducing something to cause death) to passive (withholding
treatment or supportive measures); voluntary (consent) to involuntary (consent from guardian)
and physician assisted (where physician's prescribe the medicine and patient or the third party
administers the medication to cause death). Request for premature ending of life has contributed
to the debate about the role of such practices in contemporary health care. This debate cuts
across complex and dynamic aspects such as, legal, ethical, human rights, health, religious,
economic, spiritual, social and cultural aspects of the civilized society. The objective is to the
subject of euthanasia from the medical and human rights perspective given the background of the
recent Supreme Court judgment in this context.
In India abetment of suicide and attempt to suicide are both criminal offences. In 1994,
constitutional validity of Indian Penal Code Section (IPC Sec) 309 was challenged in the
Supreme Court. The Supreme Court declared that IPC Sec 309 is unconstitutional, under Article
21 (Right to Life) of the constitution in a landmark judgment. In 1996, an interesting case of
abetment of commission of suicide (IPC Sec 306) came to Supreme Court. The accused were
convicted in the trial court and later the conviction was upheld by the High Court. They appealed
to the Supreme Court and contended that right to die be included in Article 21 of the
Constitution and any person abetting the commission of suicide by anyone is merely assisting in
the enforcement of the fundamental right under Article 21; hence their punishment is violation of
Article 21. This made the Supreme Court to rethink and to reconsider the decision of right to die.
Immediately the matter was referred to a Constitution Bench of the Indian Supreme Court. The
Court held that the right to life under Article 21 of the Constitution does not include the right to
die.
Regarding suicide, the Supreme Court reconsidered its decision on suicide. Abetment of suicide
(IPC Sec 306) and attempt to suicide (IPC Sec 309) are two distinct offences, hence Section 306
can survive independent of Section 309. It has also clearly stated that a person attempts suicide
2

in a depression, and hence he needs help, rather than punishment. Therefore, the Supreme Court
has recommended to Parliament to consider the feasibility of deleting Section 309 from the
Indian Penal Code.
Most often, the idea of the right to die is related to a person's wish that caregivers allow death
for example, by not providing life support or vital medicationunder certain conditions when
recovery is highly unlikely or impossible. It may also refer to issues regarding physician-assisted
suicide.
It may be called passive euthanasia in cases where the patient is unable to make decisions
about treatment. Living wills and Do Not Resuscitate orders are legal instruments that make
apatient's treatment decisions known ahead of time; allowing a patient to die based on such
decisions is not considered to be euthanasia. Usually these patients have also made explicit their
wish to receive only palliative care to reduce pain and suffering.
Although specialized legal instruments differ from place to place, there are two more that are
important in this context. TheFive Wishes document allows a person to state in advance the
priorities and values they wish to have honored at the end of life. And the Medical Durable
Power of Attorney (or MDPOA) designates an agent to make decisions in case of incapacity, and
can be used to give written guidance regarding end of life decision making. The MDPOA is
generally considered to be the most powerful of all such instruments. All others may require
interpretation on the part of health care providers or even court-appointed guardians; the
MDPOA takes the job of interpretation out of the hands of strangers and gives it to a person
selected and trusted by the individual; of course it is a personal decision.

Arguments against the euthanasia:

Eliminating the invalid: Euthanasia opposes argue that if we embrace the right to death with
dignity, people with incurable and debilitating illnesses will be disposed from our civilized
society. The practice of palliative care counters this view, as palliative care would 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 dying2.
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 legalized, then there is a grave
apprehension that the State may refuse to invest in health (working towards Right to life).
Legalized 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. The
Supreme Court has also raised this issue in the recent judgement. Mercy killing should not lead
to killing mercy in the hands of the noble medical professionals. Hence, to keep control over
the medical professionals, the Indian Medical Council (Professional Conduct, Etiquette and
Ethics) Regulations, 2002 discusses euthanasia briefly in Chapter 6, Section 6.7 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 (no-196) to the government
on this issue.

Rahulrai, Durga Das (1984),introduction to the constitution of India 10th edition, South Asia
Books publication p.124
2

Emphasis on care: Earlier majority of them died before they reached the hospital but now it is
converse. Now sciences had advanced to the extent, life can be prolonged but not to that extent
of bringing back the dead one. This phenomenon has raised a complex situation. Earlier diseases
outcome was discussed in terms of CURE but in the contemporary world of diseases such as
cancer, Aids, diabetes, hypertension and mental illness are debated in terms best CARE, since
cure is distant. The principle is to add life to years rather than years to life with a good quality
palliative care. The intention is to provide care when cure is not possible by low cost methods.
The expectation of society is, cure from the health professionals, but the role of medical
professionals is to provide care. Hence, euthanasia for no cure illness does not have a logical
argument. Whenever, there is no cure, the society and medical professionals become frustrated
and the fellow citizen take extreme measures such as suicide, euthanasia or substance use. In
such situations, palliative and rehabilitative care comes to the rescue of the patient and the
family. At times, doctors do suggest to the family members to have the patient discharged from
the hospital wait for death to come, if the family or patient so desires. Various reasons are quoted
for such decisions, such as poverty, non-availability of bed, futile intervention, resources can be
utilized for other patients where cure is possible and unfortunately majority of our patient's
family do accordingly. Many of the terminally ill patients prefer to die at home, with or without
any proper terminal health care. The societal perception needs to be altered and also the medical
professionals need to focus on care rather in addition to just cure. The motive for many
euthanasia requests is unawareness of alternatives. Patients hear from their doctors that nothing
can be done anymore. However, when patients hear that a lot can be done through palliative
care, that the symptoms can be controlled, now and in the future, many do not want euthanasia
anymore.
Commercialization 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 legalized, then commercial
health sector will serve death sentence to many disabled and elderly citizens of India for meager
amount of money. This has been highlighted in the Supreme Court Judgment.
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 depression. In
5

Indian setting also, strong desire for death was reported by 3 of the 191 advanced cancer patients,
and these had severe depression. They need palliative and rehabilitative care. They want to be
looked after by enthusiastic, compassionate and humanistic team of health professionals and the
complete expenses need to be borne by the State so that Right to life becomes a reality and
succeeds before Right to death with dignity. Palliative care actually provides death with dignity
and a death considered good by the patient and the care givers.

Counter argument of euthanasia supporters:

Caregivers burden: Right-to-die supporters argue that people who have an incurable,
degenerative, disabling or debilitating condition should be allowed to die in dignity. This
argument is further defended for those, who have chronic debilitating illness even though it is not
terminal such as severe mental illness. Majority of such petitions are filed by the sufferers or
family members or their caretakers. The caregiver's burden is huge and cuts across various
domains such as financial, emotional, time, physical, mental and social. Hence, it is uncommon
to hear requests from the family members of the person with psychiatric illness to give some
poison either to patient or else to them. Coupled with the States inefficiency, apathy and no
investment on health is mockery of the Right to life.
Refusing care: Right to refuse medical treatment is well recognized 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 nasogastric tube. Recognition of right to refuse treatment
gives a way for passive euthanasia. Many do argue that allowing medical termination of
pregnancy before 16 wk is also a form of active involuntary euthanasia. This issue of mercy
killing of deformed babies has already been in discussion in Holland.
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 honoring 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.
Constitution of India reads right to life is in positive direction of protecting life. Hence, there is
an urgent need to fulfill this obligation of Right to life by providing food, safe drinking water
and health care. On the contrary, the state does not own the responsibility of promoting,
protecting and fulfilling the socio-economic rights such as right to food, right to water, right to
education and right to health care, which are basic essential ingredients of right to life. Till date,
most of the States has not done anything to support the terminally ill people by providing for
hospice care3.
If the State takes the responsibility of providing reasonable degree of health care, then majority
of the euthanasia supporters will definitely reconsider their argument. We do endorse the
Supreme Court Judgment that our contemporary society and public health system is not matured
enough to handle this sensitive issue, hence it needs to be withheld. However, this issue needs to
be re-examined again after few years depending upon the evolution of the society with regard to
providing health care to the disabled and public health sector with regard to providing health care
to poor people.
The Supreme Court judgment to withhold decision on this sensitive issue is a first step towards a
new era of health care in terminally ill patients. The Judgment laid down is to preserve harmony
within a society, when faced with a complex medical, social and legal dilemma. There is a need
to enact a legislation to protect terminally ill patients and also medical practitioners caring for
them as per the recommendation of Law Commission Report-196. There is also an urgent need
to invest in our health care system, so that poor people suffering from ill health can access free
health care. Investment in health care is not a charity; Right to Health is bestowed under Right
to Life of our constitution.

www.prsindia.orgVisted at 25/10/2014

Constitutional validity of Right to Die

Now, the question arises whether right to life under Article 21 includes right to die or not. This
question came for consideration for first time before the High Court of Bombay in State of
Maharashtra v. MarutiSripatiDubal. In this case the Bombay High Court held that the right to life
guaranteed under Article 21 includes right to die, and the honble High Court struck down
section 309 IPC which provides punishment for attempt to commit suicide by a person as
unconstitutional. In P Rathinam v. Union of India a Division Bench of the Supreme Court
supporting the decision of the High Court of Bombay in. MarutiSripatiDubal case held that under
Article 21 right to life also include right to die and laid down that section 309 of Indian Penal
Court4 which deals with attempt to commit suicide is a penal offence unconstitutional.
This issue again raised before the court in Gian Kaur v. State of Punjab 5. In this case a five judge
Constitutional Bench of the Supreme Court overruled the P. Ratinams case and held that Right
to Life under Article 21 of the Constitution does not include Right to die or Right to be
killed and there is no ground to hold that the section 309, IPC is constitutionally invalid. To true
meaning of the word life in Article 21 means life with human dignity. Any aspect of life which
makes life dignified may be include in it but not that which extinguishes it. The Right to Die if
any, is inherently inconsistent with the Right to Life as is death with Life
A question may arise, in case of a dying man, who is, seriously ill or has been suffering from
virulent and incurable form of disease he may be permitted to terminate it by a premature
extinction of his life in those circumstances. This category of cases may fall within the ambit of
Right to Die with dignity as a part of life with dignity. According to the court these are not
cases of extinguishing life but only of accelerating the process of natural death which has already
commenced.

K.D. Gaur, The Indian Penal Code. 3rd Edition 2013

Companyp.85
5

Gian Kaur v. State of Punjab (1996) SCC 648

Universal Law publishing

Some issues of right to die in front of supreme court:

Isuses where a patient is in persistent vegetative state, doing so is. The issue of right to die first
came before a two judge bench of the Supreme Court of India in the case ofP.Rathinam v. Union
of India6. In this case, section 309 IPC which penalizes attempt to suicide was held to be
unconstitutional and violative of Article 21. In P.Rathinams case, the scope of life was
broadened. It was held that right to life and liberty under Article 21 also includes right to die.
However, the debates over the issues didnt stop. The question again came up for consideration
before the Supreme Court in the case ofGian Kaur v. State of Punjab.

It is prominent to note here that suicide was regarded as permissible in some circumstances in
ancient India. According to the Hindu Vedantic philosophy, death is not the end of the life. It is
only the sthulasharira (physical body), that dies. It is the Shukshmasarira (the astral body), that
does not perish with the death of the body. The past karmas (thoughts and deeds) remain on the
shukshmasarira or astral body, and are retained even after death and goes to bhuvarloka. The
astral body then disintegrates and the components are merged in the ocean of energy with the
eternal Parma Brahma (the supreme creator). Thereafter, they return by the will of god to another
physical body and the individual is reborn on this earth in accordance with that persons deeds
and karmas births and deaths. We all are droplets or lumps of or only parts of the great ocean of
energy. When the body becomes unfit to live, the droplet of energy leaves the body and enters to
another body. This is called transmigration of the soul. It is a continuous process, the Lord
Krishna says, just as a person casts off worn out garments and put on others that are new, even
so does the embodied soul cast off worn out bodies and take on others that are new

According to Vedantic philosophy, the Parma Brahma created the human being. God is present
in the soul of the human being. God is the material cause and instrumentality of all joys,
happiness, woes, sorrows, deeds and karmas of humanity. Just as he gave life to us, he takes it
away from us as well. He is the creator as well as the doer and the destroyer of this
body.ommitting suicide one never gained anything in life. Committing suicide was an offence as
per Bhagavad Gita. Our soul atman after death of mortal body in present life (resulted from
committing suicide) again manifests a lower life form than present. What of sin incurred by
6

P Rathinam v. Union of India (1994) SCC 394

committing suicide? By committing suicide we again suffered in life as our soul atman would
manifest a lower form of life in next manifestation.

Section 309 of IPC deserves to be effaced from the Statute book to humanize our penal laws. It is
a cruel and irrational provision and it may result in punishing a person again who has suffered
agony and would be undergoing ignominy because of his failure to commit suicide. Honble
Supreme Court has also expressed similar view in ArunaRamchandraShanbaug v. Union of India
&Ors7. An act of suicide cannot be said to be against religion. Morality or public policy, and an
act of attempted suicide have no baneful effect on society. Further, suicide or attempt to commit
suicide causes no harm to others; therefore the states interference with the personal liberty of the
concerned persons is not called for. Thus section 309 violates Article 21, and so void.

If a person has right to live Article 21 of the Constitution, the question is whether he has a right
not to live. Logically, it must follow that the right to live will include the right not to live, say,
the right to die or to terminate ones life, Right to live of which art 21 speaks of can be said to
bring in its trail the right not to live a forced life. If a person, because of family discord,
distraction, loss of a dear relation or other cause of a like nature overcomes the instinct of selfpreservation and decides to take his life, he should not be held for an attempt to suicide. In such
case the unfortunate man deserves indulgence, sympathy and consolation instead of punishment.

Morality has no define boundary and it would be too hazardous to make a bold and bald
statement that commission of suicide is per se an immoral act. If the purpose of the prescribed
punishment is to prevent the prospective suicides by deterrence, it is difficult to understand how
the same can be achieved by punishing those who have made the attempts. Those who make the
suicide attempt on account of mental disorder requires psychiatric treatment and not confinement
in the prison cells where their condition is bound to be worsen leading to further mental
derangement. Those on the other hand, who makes a suicide attempt on account of actual
physical ailments, incurable disease, torture (broken down by illness), and deceit physical state
induced by old age or disablement, need nursing home and not prison to prevent them from
making the attempts again. No deterrence is going to hold back those who want to die for a
7

ArunaRamchandraShanbaug v. Union of India & others 1973

10

special or political cause or to leave the world either because of the loss of interest in life or for
self- deliverance. Thus in no case does the punishment serve the purpose and in some cases it is
bound to prove self-defeating and counterproductive.

The question is whether the scope of Article 21 also includes the right to die? When a man
commits suicide, he has to undertake certain positive overt acts and the genesis of those acts
cannot be traced to or be included within the protection of the right to life under Article 21. The
significant aspect of sanctity of life is also not being overlooked. Article 21 is a provision
guaranteeing protection of life and personal liberty and by no stretch of imagination can
extinction of life be read to be included in the protection of life. Whatever may be the philosophy
of permitting a person to extinguish his life by committing suicide, the court reiterated that it is
difficult to construe Article 21 to include within it the right to die as a part of fundamental right
guaranteed therein. Right to life is a natural right embodied in Part III of constitution, but suicide
is an unnatural termination or extinction of life and therefore, incompatible and inconsistent with
the concept of right to life. Section 306 enacts a distinct offence, which is capable of existence
independent of section 309 IPC. Section 306 prescribes punishment for abetment to suicide,
while section 309 punishes attempt to commit suicide. Abetment of attempt to commit suicide is
outside the preview of section 306 and is punishable only under section 309 read with section
107, IPC., In certain other jurisdictions, even though attempt to commit suicide is not a penal
offence, yet the abettor is made punishable. The provision there provides for the punishment of
abetment of suicide as well as abetment of attempt to commit suicide. Thus, even where the
punishment for attempt to commit suicide is not considered desirable, its abetment is made a
penal offence. In other words, assisted suicide and assisted attempt to commit suicide are made
punishable for cogent reasons in the interest of society.

The Indian constitution under Article 21 confers the right to Life as the fundamental right of
every citizen. The Right to Life enriched in Article 21 have been liberally interpreted so as to
mean something more than mere survival and mere animal existence. The Supreme Court has
asserted that Article 21 is the heart of the fundamental Rights provided under part III of the
constitution. The Supreme Court has clearly stated that in order to treat a right as a fundamental
it is not mandatory that it should be expressly stated as a fundamental right.
11


The right to life under Article 21 of the Constitution has received the widest possible
interpretation under the able hands of the judiciary and rightly so. On the grounds as mentioned,
Article 21 does not have a restrictive meaning and needs to be interpreted broadly. This affirms
that if Article 21 confers on a person the right to live a dignified life, it should bestows the
Right to Die also, but the inclusion of Right to die under Article 21 contradict the provision of
Indian Penal Code under Section 309. As according to Section 309 of the Indian Penal Code
Whoever attempts to commit suicide and does any act toward the commission of such offence,
shall be punished with simple imprisonment for a term which may extend to one year (or with
fine, or with both). This section is based on the principle that lives of men are not only valuable
to them but also to the state which protects them. By considering both the laws the provision of
IPC under section 309 is contradictory to the fundamental right guaranteed under Article 21 of
the Indian Constitution. The states power under section 309, IPC to punish a man for attempt to
commit a suicide is questioned not only on the grounds of morality, but also on the
constitutionality of the said provision. A lot of conflicting opinions have been given on
desirability of retaining or abolishing section 309 of Indian Penal Code because of some
contrasting judgement given by various courts.

A question may arise, in case of a dying man, who is, seriously ill or has been suffering from
virulent and incurable form of disease he may be permitted to terminate it by a premature
extinction of his life in those circumstances. This category of cases may fall within the ambit of
Right to Die with dignity as a part of life with dignity. According to the court these are not
cases of extinguishing life but only of accelerating the process of natural death which has already
commenced. In as much as the Supreme Court in Gian Kaur specifically stated that Euthanasia
and Assisted Suicide are not lawful, it is obvious that so far as Euthanasia and Assisted Suicide
are concerned, they will fall within one or other of penal provisions and continue to be unlawful
thus the court did not proposed going to Euthanasia and Assisted Suicide.

In Gyan Kaur the Supreme Court had declared it to be the duty of the doctor to keep his patient
alive as long as possible even in case of terminal illness (except in case of persistent vegetative
state) even if the patient and/or his family members request him to stop the treatment. Under
12

common law a patient has to give his consent (informed consent) to medical treatment, including
invasive treatment. When the patient is competent and wants withholding or withdrawal of
treatment, that decision is also binding on the doctors provided the doctor is satisfied that the
patient is competent and that this decision of the patient is an informed one then the doctor can
ignore the patients decision and decide what is in the best interests of the patient according to
the view of a body of medical experts. There is, however, too much confusion and uncertainty in
respect of criminal liability of the doctor in cases of passive euthanasia. In this section suicide
has not been separately defined but generally means a deliberate termination of ones own
physical existence.

So for the applicability of Section 309 as this issue is concerned, the Law Commission of India
has given opinion that once a competent patient decides not to take medicines and allows the
nature to take its own course, the doctor has to obey the instructions of the patients, since this
omission of this doctor is based on the patients direction, therefore, it is not an offence under
Section 306 of IPC.

On the basis of above discussion it can be inferred that since the withholding or withdrawal of
life supporting equipment (which amounts to euthanasia) has been permitted by the Court in ca
neither illegal criminal in India.

The right to die is included under right to life under Article 21 of the Indian
Constitution
Meaning of Right to die:
The right to die is the ethical or institutional entitlement of the individual to commit suicide or to
undergo voluntary euthanasia. Possession of this right is often understood to mean that a person
with a terminal illness should be allowed to commit suicide or assisted suicide or to decline lifeprolonging treatment, where a disease would otherwise prolong their suffering to an identical
result.

13

The right to die is sometimes associated with the idea that one's body and one's life are one's
own, to dispose of as one sees fit. Whether a person has a freedom to take his own life whenever
he desires to do so? The question whether the right to die is included in Art. 21 of the
Constitution came for first time before the Bombay High Court in State of Maharashtra v.
MarutySripati Dubal,1987 Cr LJ 743(Bom)8. The Bombay High Court held that the right to life
guaranteed by Art. 21 includes the right to live as well as the right to end ones own life if one so
desires, and consequently the court struck down Section 309, of IPC which says thatWhoever
attempts to commit suicide and does any act towards the commission of such offence, shall be
punished with simple imprisonment for a term which may exceed to one year. The judges felt
that the desire to die is not unnatural but merely abnormal and uncommon.

Similarly, in 1985 Delhi High Court in State v. Sanjaya Kumar ,1985 Cr LJ 931, while acquitting
a young boy who attempted to commit suicide strongly advocated for deletion of section 309,
IPC from the Statute Book and said that the continuance of sec 309 of the Indian Penal Code is
an anachronism unworthy of a human society like ours.

However, in ChennaJagdishwarv.State of A.P.,1988 Cr LJ 549, the Andhra Pradesh High Court

held that the right to die is not a fundamental right within the meaning of Art. 21 and hence,
Section 309 is not unconstitutional.

In 1994 a Division Bench of Supreme Court comprising of Justices R.M. Sahai and B.L.
Hansaria in P.Rathinam v. Union of India (1994)3 SCC 394, while allowing the petitioners
upheld the verdict given by the Bombay and Delhi High Courts and overruled Andhra ruling.
The two petitioners assailed the validity of Sec 309 of the IPC by contending that the same is
violative of Articles 14 and 21 of the Constitution. The right to live in Art.21 of the Constitution
includes the right not to live, i.e., right to die or to terminate ones life.

However, in 1996 a five member Constitutional Bench of the apex Court compromising of
justices J.S. Verma, G.N.Ray, N.P. Singh, Faizauddin and G.T. Nanawati in Gyan Kaur v.
Uninon of India (1996)2 SCC 648, overruled its decision of 1994 in P.Rathinam v. Union of
8

Maharashtra v.MarutySripati Dubal,1987 Cr LJ 743(Bom).

14

India. The Apex Court said that as regards section 309, IPC is concerned the right to life
guaranteed under Art 21 of the Indian Constitution did not include the right to die or right to
be killed and therefore attempt to commit suicide under section 309, IPC is within the
constitutional parameters and are not void or ultra vires. The right to die with human dignity
cannot be construed to include within its ambit the right to terminate natural life, at least before
the natural process of certain death. The right to die, if any, is inherently inconsistent with the
right to life, as is death with life.

In P.Rathinam v. Union of India, it was held by the Supreme Court that a person cannot be
forced to enjoy right to life to his detriment, disadvantage or disliking. The Court argued that the
word life in Article 21 means right to live with human dignity and the same does not merely
connote continued drudgery. Thus, the Court concluded that the right to live of which Article 21
speaks of can be said bring in its trail the right not to live a forced life.

However, the above was a radical view and could not last for long. The Rathinam ruling came to
be reviewed by a full bench of the Court in GianKaurv. State of Punjab. The Court has ruled
in Gian Kaur that Article 21 is a provision guaranteeing protection of life and personal liberty
and by no stretch of imagination can extinction of read to be included in protection of life. The
Court further observed that Right to life is a natural right embodied in Article 21 and an
unnatural termination or extinction of life is incompatible and inconsistent with the concept of
right to life.

15

Right to die: A new dimension (ArunaRamchandraShanbaugs

case):
Facts:
ArunaShanbaug hailing from Haldipur town of Uttar kannadadisrtict in Karnataka, was a junior
nurse, at King Edward Memorial Hospital in Mumbai and was planning to get married to a
medic in the hospital. On the night of 27 November 1973, Shanbaug was sexually assaulted by
SohanlalBharthaWalmiki, a ward boy at the King Edward Memorial Hospital. Walmiki was
motivated partly by resentment for being ordered about and castigated by Shanbaug. Walmiki
attacked her while she was changing clothes in the hospital basement. He choked her with a dog
chain and sodomized her. The asphyxiation cut off oxygen supply to her brain, resulting in brain
stem contusion injury and cervical cord injury apart from leaving her cortically blind. The police
case was registered as a case of robbery and attempted murder on account of the concealment of
anal rape by the doctors under the instructions of the Dean of KEM, Dr. Deshpande, perhaps to
avoid the social rejection of the victim and her impending marriage. Walmiki was caught and
convicted, and served two concurrent seven year sentences for assault and robbery, neither for
rape or sexual molestation, nor for the "unnatural sexual offence"
Aruna was planning to get married to a medic in the hospital9.
On

the

night

of

27

SohanlalBharthaWalmiki,

November
a

sweeper

1973,
on

Shanbaug

contract

at

was
the

sexually
King

assaulted

Edward

by

Memorial

Hospital. Sohanlal attacked her while she was changing clothes in the hospital basement. He
choked her with a dog chain and raped, then sodomized her to her brain, resulting in brain stem
contusion injury and cervical cord injury apart from leaving her cortically blind.
The police case was registered as a case of robbery and attempted murder on account of the
concealment of anal & vaginal rape by the doctors under the instructions of the Dean of KEM,
Dr. Deshpande, perhaps to avoid the social rejection of the victim, and her impending marriage.
Sohanlal was caught and convicted, and served two concurrent seven-year sentences for assault
and robbery, neither for rape or sexual molestation, nor for the "unnatural sexual offence" (which
could have got him a ten-year sentence by itself).

Arunaramchandrashanbaug v. union of India & others 1973

16

Role of Judiciary:
On December 17, 2010, Supreme Court while admitting the plea to end the life made by activistjournalist Pinki Virani, sought a report on Shanbaug's medical condition from the hospital in
Mumbai and the government of Maharashtra. On 24 January 2011, the Supreme Court of India
responded to the plea for euthanasia filed by Aruna's friend journalist Pinki Virani, by setting up
a medical panel to examine her. The three-member medical committee subsequently set up under
the Supreme Court's directive, checked upon Aruna and concluded that she met "most of the
criteria of being in a permanent vegetative state".
However, it turned down the mercy killing petition on 7 March 2011. The court, in its landmark
judgement, however allowedpassive euthanasia in India.
While rejecting Pinki Virani's plea for ArunaShanbaug's10 euthanasia, the court laid out
guidelines for passive euthanasia. According to these guidelines, passive euthanasia involves the
withdrawing of treatment or food that would allow the patient to live

In a path-breaking judgement, the Supreme Court allowed "passive euthanasia" of withdrawing

life support to patients in permanently vegetative state (PVS) but rejected outright active
euthanasia of ending life through administration of lethal substances.

The Supreme Court of India, in its landmark judgment, pronounced passive euthanasia as
permissible under Section 309 of the Indian Penal Code. The main ground for adjudication
before the apex court was whether a person who advertently refuses to accept lifesaving
treatments or food in order to die, commits a crime under IPC section 309 (suicide attempt).This
landmark judgment was pronounced in relation to a journalist-writer, Pinki Viranis plea to allow
passive euthanasia for ArunaShanbhag11.

10

Arunaramchandrashanbaug v. union of India & others 1973

Arunaramchandrashanbaug v. union of India & others 1973

11

17

A petition for euthanasia was first by Pinki Virani, a journalist and her friend who has written a
book on the woman who she is being forced to live her life stripped of basic dignity. The
Supreme Court praised Ms. Viranis concern, but ruled out that her relationship with the patient
does not give her this right to file a petition on behalf of Ms. Shanbaug for mercy killing. The
only party that can appeal for the euthanasia is the staff of KEM hospital where she had served as
a nurse. Refusing mercy killing of ArunaShanbaug, lying in a vegetative state for 37 years in a
Mumbai hospital, a two-judge bench of justices MarkandeyaKatju and GyanSudha Mishra, laid a
set of tough guidelines under which passive euthanasia can be legalised through high court
monitored mechanism.

MsShanbaug has, however, changed forever India's approach to the contentious issue of
euthanasia. The verdict on her case on 7th March, 2011 allowed passive euthanasia contingent
upon circumstances. So other Indians can now argue in court for the right to withhold medical
treatment - take a patient off a ventilator, for example, in the case of an irreversible coma. The
judgement made it clear that passive euthanasia will "only be allowed in cases where the person
is in persistent vegetative state or terminally ill. The apex court while framing the guidelines for
passive euthanasia asserted that it would now become the law of the land until Parliament enacts
a suitable legislation to deal with the issue.

The bench also asked Parliament to delete Section 309 IPC (attempt to suicide) as it has become
"anachronistic though it has become constitutionally valid. "A person attempts suicide in a
depression, and hence he needs help, rather than punishment," Justice Katju writing the
judgement said.

The apex court said though there is no statutory provision for withdrawing life support system
from a person in permanently vegetative state, it was of the view that "passive euthanasia" could
be permissible in certain cases for which it laid down guidelines and cast the responsibility on
high courts to take decisions on pleas for mercy killings. "We agree with senior counsel T R
Andhyarujina (who assisted the court in the matter) that passive euthanasia should be permitted

18

in our country in certain situations, and we disagree with Attorney General (G E Vahanvati) that
it should never be permitted," said the bench.

Thus, in each case, the relevant high court will evaluate the merits of the case, and refer the case
to a medical board before deciding on whether passive euthanasia can apply. And till Parliament
introduces new laws on euthanasia, it is MsShanbaug's case that is to be used as a point of
reference by other courts.

Response of Judiciary:
Following the Supreme Court judgment rejecting the plea, her colleagues, the nursing staff at the
hospital, who had opposed the petition, and who had been looking after her since she had lapsed
into coma, distributed sweets and cut a cake to celebrate what they termed her "rebirth". A senior
nurse at the hospital later said, "We have to tend to her just like a small child at home. She only
keeps aging like any of us, does not create any problems for us 12. We take turns looking after her
and we love to care for her. How can anybody think of taking her life?"
Pinki Viranis lawyer, ShubhangiTulli ruled out filing an appeal stating "the two-judge ruling
was final till the SC decided to constitute a larger bench to re-examine the issue". Pinki Virani
herself stated, "Because of this woman who has never received justice, no other person in a
similar position will have to suffer for more than three and a half-decades."

Supreme Court gives some guidelines about right to die under the Arunas
case:
The Supreme Court of India has, for the first time, laid down guidelines for euthanasia and made
a distinction between active and passive euthanasia. It said that causing the death of a person
who is in a permanent vegetative state, with no chance of recovery, by withdrawing artificial life
support is not a positive act of killing.
Terming this passive euthanasia, a bench of Justices MarkandeyKatju and GyansudhaMisra
held that this could be permitted on a case-by-case basis.
12

Arunaramchandrashanbaug v. union of India & others 1973

19

The withdrawal of life support by the doctors is in law considered as an omission and not a
positive step to terminate life. The latter would be euthanasia, a criminal offence under the
present law in UK, USA and India.
Active euthanasia, on the other hand, which could mean administering the patient a lethal drug
to cause his or her death, was illegal as it is a positive step to terminate a life, the bench ruled.
The court was hearing a plea filed by Pinki Virani representing 60-year-old nurse
ArunaShanbaug13 who has been lying in a vegetative state for 37 years after being attacked by a
sweeper at KEM hospital in 1973. The nurses of the hospital have since been taking care of her.
Virani petitioned the court that Shanbaug be allowed to die by withdrawing food and medicines,
as she has been in a vegetative state for over three decades.
The court clarified that stopping treatment (which it has allowed) and giving a lethal injection
(which is has not allowed) are not both deliberate acts and therefore the same thing. The
difference between active and passive euthanasia is that in active euthanasia something is done to
end the patients life, while in passive euthanasia something is not done that would have
preserved the patients life, the bench observed.
The court also laid down guidelines for passive euthanasia such as that the matter must be
referred to the high court for a decision and that the doctor, or the parents or spouse of the patient
must be the ones to petition for the withdrawal of life-support. In the absence of any of these, a
person or a body of persons acting as next friend can be permitted. Virani, the petitioner in this
case, was not the right person, the hospital was, the judges held.
The judgment allowing passive euthanasia will remain in force until such time as Parliament
enacts a suitable law on euthanasia. Until then, the following process will be followed:
1 A special two-judge bench will be formed in every high court to decide applications seeking
permission for euthanasia.

13

www.servant.unibe.ch/icl/in00000_.htmlvisited at 25/10/2014

20

2 A committee of three reputed doctors from a panel constituted by the high court in consultation
with the state government will examine the patient and submit its report to the high court bench.
3 Notices will be issued to all those concerned with the doctors report attached.
4 After hearing everyone, the bench will give its verdict. The matter must be dealt with speedily
as delays prolong the agony of the patient.
The judges also made a significant recommendation: that the Union government repeal Section
309 of the Indian Penal Code that makes attempt to suicide an offence.
A five-judge Constitution bench will decide whether a "living will" or voluntary euthanasia can
be allowed if a person is terminally ill or may go into a vegetative state with no hope of recovery.
"This is an important question involving legal and medical issues. For the benefit of humanity,
we refer this to a Constitution bench," a bench headed by the Chief Justice of India, P
Sathasivam, said today.
The court acted on a petition filed by the NGO Common Cause, which argued that a person
should be allowed to die with dignity.
"Right to die with dignity is also a part of the right to liberty," said Kamal Jaiswal of Common
Cause, which filed a writ petition asking for a law on the lines of the Patient Autonomy and Selfdetermination Act of the US, which allows living wills.
The Centre had opposed it saying it will have serious repercussions, and a decision on
withdrawing someone's life support system should be by a panel of doctors, not the patient.
"A doctor's duty is to preserve life, not take it," the government had said, adding that such a
policy should be decided by the executive, not the judiciary.

The Non-existentanceof Right to Die in India

Ilike to do with this post is explore the current legal position on the right to die in India and a
little bit about why the issue is so controversial (biased, of course, to reflect personal opinion).
To start out, the right to die as an absolute is not provided for under the Indian legal system. The
right to life under our constitution does not expressly include the right to die, nor has it been
interpreted to include the right to die, although an attempt was made to do so at one point of time
by the Supreme Court in this case the judgment was thereafter overruled in Gian Kaur v. State
21

of Punjab. The judgment in the former argued that a person cannot be forced to enjoy right to
life to his detriment, disadvantage or disliking. In Gian Kaur, on the other hand, the Supreme
Court ruled that suicide, as an unnatural termination of life was incompatible with the basic idea
of the right to life. While the decision does contemplate the possibility of accelerating the
death of a terminally ill patient, no substantial exception was carved out in the judgment to
permit euthanasia under the Indian legal regime. Moreover, an attempt to commit suicide and
abetment of such an attempt are both criminal acts under our penal code.
That being said, a little bit about euthanasia: euthanasia can be either active or passive, it can
also be voluntary, involuntary or mandatory. Active euthanasia is when someone uses a lethal
substance or active use of force to end the life of another or oneself. Passive euthanasia is where
treatment is withheld from a terminally ill patient, thereby leading inevitably to the patients
death. Voluntary euthanasia, as the name would suggest, involves euthanasia of a consenting
person. Involuntary involves terminating the life of a person who is incapable of giving consent.
Mandatory euthanasia involves termination of the life of a person who does not consent or whose
consent has not been sought. Passive euthanasia is completely legal. I have the absolute right to
refuse treatment for any medical condition and refuse to prolong my life if I so desire. Which
takes us to the living wills question, but Ill get to that in a bit.
While a substantial portion of the objections against euthanasia are based on religion, there are
more secular arguments that find their way into the debate. One major argument is that of the
slippery slope: Permitting voluntary and active euthanasia could easily lead us down the slippery
slope of legalising involuntary and mandatory euthanasia as well. There are An oft cited example
in support of this argument is Action T4- the euthanasia programmed that was run in Nazi
Germany under which those judged to be critically sick (this included mental and physical
disabilities) were put to death in the eugenic hope of cleansing the citizenry (and future
generations) of what were considered to be undesirable genetic flaws. Unfortunately for
advocates of euthanasia today, this programmed was based on ideas that slowly gathered
momentum through the first half of the 20th century and eventually led down the slippery slope
of mass killings under the head of euthanasia. Theres a paper dealing with this issuehere for
those who would like to read it. Indeed, these ideas of killing useless eaters are not restricted to
the last century but seem to have been retained in this century as well, with people being
22

comfortable voicing (publicly in newspapers, no less) opinions that disabled children ought to be
euthanized. The reality is that the slippery slope is a very real possibility. That not only holds
true for places where euthanasia is legal, but with other countries as well reports of deaths
caused due to negligence of medical practitioners state that the negligence can be seen to be
directly proportional to the extent of disability in the patient.
Another argument against euthanasia based on similar lines is the fact that most countries that
permit voluntary active require a patient to be suffering from either a terminal illness or an
incurable disability in addition to suffering unbearably and unrelievably for permitting active
euthanasia. It has been argued that the inclusion of incurable disability as a marker devalues the
lives of people living with incurable disabilities by adjudging such lives as being worthy of
termination and therefore, not worthy of being lived. This leads to the idea that disabilities and
the lives of persons with disabilities are intrinsically undesirable, and less valuable than the lives
of able bodied persons.The idea of promoting self-determination in cases of voluntary euthanasia
due to severe disability has also been subject to substantial criticism, primarily from disability
rights groups (further reading here). The social construct model of disability provides the
explanation for this: that ableism (and the detrimental consequences of living in an overtly
ableist world) is the primary reason for any disabled person to believe that life with disability is
not worth living and therefore, determine that euthanasia is the solution. Further, since the
legality of euthanasia (as seen in countries that permit it) is regulated to circumstances beyond
the mere will of the persons seeking to terminate their lives, self determination is hardly an
argument worth making: the regulations clearly indicate that other people ought not consider
such a step, thereby imputing hat their lives are more valuable.
Moving on to the question of living wills: as mentioned earlier, every person has the right to
refuse treatment of any kind. However, in the event of a persons incapacity to communicate this
to the medical care provider, there is no legal provision for a living will in India. Most states in
the US, for instance, have a provision for living wills to be lodged with an online registry that
keeps a database of these wills. Many people also appoint others to make their decisions for them
in case of emergency. Medical practitioners are provided access to the living wills of their
patients lodged in registries and are then legally bound to act in accordance with the patients
express will. While a person is free to provide instructions for such an eventuality, the person
23

will have to depend on the next of kin to uphold the patients wishes. Since there has been no
authoritative legal source in India stating that living wills are binding, a living will may not
actually work on its own. Ideally, the best way to ensure that your wishes are honoured is to let
your next of kin and / or family know what youd like done in such a situation, as long as you
trust them enough to carry it out. When that isnt possible, however, it may be possible to
contract out the decision to a person you trust, an agency of sorts, and keep them as your
emergency contact though its still not certain to be enforceable, given the lack of legal clarity
on the issue. While thats far from being a comfortable solution, until lobbying pays off and a
legislation is enacted on the subject, its the best weve got.

24

Conclusion:
The right to die is the ethical or institutional entitlement of the individual to commit suicide or to
undergo voluntary euthanasia. Possession of this right is often understood to mean that a person
with a terminal illness should be allowed to commit suicide or assisted suicide or to decline lifeprolonging treatment, where a disease would otherwise prolong their suffering to an identical
result.
The Indian government had broached the subject of deleting the provision in the 1970s. In 1987,
the Bombay High Court held that the right to life guaranteed by the Constitution includes the
right to live and the right to end one's life, and struck down Sec 309. The SC upheld the view in
1994. But in 1996 a five-judge
SC bench held that the fundamental right to life did not include the right to die, and that Sec 309
was constitutionally valid. That remains the law today. But a law commission report
recommended the decriminalisation of Sec 309 in 2008. "It is unreasonable to inflict punishment
upon a person who, on account of discord, destitution, loss of a dear relation, or other cause of a
like nature... decides to take his own life. In such a case, the unfortunate person deserves
sympathy, counselling, and treatment, and certainly not prison."

25

Suggestion:
Although the judgment given by SC in Giankaun is followed but according to me this
should be scrapped from the IPC. I think the right to die should not be expressively
included in the right to life, because Life is a gift given by God and He alone can take
it.

Its premature termination cannot be approved by any society. Neither it should be

penalized. Attempt to commit suicide is a manifestation of diseased mind.

What is needed to take care of suicide prone persons are soft words and wise counseling
(of a psychiatrist), and not stony dealing by a jailor following harsh treatment meted out
by a heartless prosecutor. Section 309 of the Penal Code deserves to be effaced from the
statute book to humanize our penal laws.

It is a cruel and irrational provision, and it may result in punishing a person again
(doubly) who has suffered agony and would be undergoing ignominy because of his
failure to commit suicide.

26

References:
Bibliography:

K.D. Gaur, The Indian Penal Code. 3rd Edition 2013

Universal Law publishing

Company

Pandey J.N, Central Law Agency, Constitutional law of India.

Basu, Durga Das (1981), shorter constitution of India
Rahulrai, Durga Das (1984),introduction to the constitution of India 10th edition, South
Asia Books publication

Websites:
www.servant.unibe.ch/icl/in00000_.html
www.ask.com
https://indconlawphilp.
www.prsindia.org

27

List of Cases:

1. State of Maharashtra v. MarutiSripatiDubal AIR 1987 CrLJ 549

2. P Rathinam v. Union of India (1994) SCC 394
3. Gian Kaur v. State of Punjab (1996) SCC 648
4. Aruna shah baug v. union of India

28