CHAPTER -1 : INTRODUCTION-

1.1BACKGROUND -

Writers fashioned a multitude of utopias free of strife, ageing , disease, and death.1This medical
intervention of prolonging death has revived the debate of right to die with dignity i.e.,
euthanasia.2 The topic of euthanasia is not a new topic but has been prevailing for generations.
For the past two decades it has gained a lot of limelight and sensitivity. Euthanasia is the topic
which covers a variety of dimensions and those are constitution, morality, religion and medical
science. The debate on this topic has going on everywhere and the major factor is the growth of
medical science, which has risen to such a level that the things that were unimaginable have
happened and to be very precise it has breathed life into a person where there was no hope of
recovery.

Earlier growth of technology was not that high and there was only natural death, but nowadays
medical science has radically changed and life supporting system have increased the chances of,
survival many times more. But every coin has two sides, the advancement in health care
technology is not an exception to it, some patients have benefited from by the modern technology,
whereas, some are forced to live by medical intervention despite under severe pain.3

We know death is certain but suffering in case of incurable disease is pathetic. Suffering with
unbearable pain is the question of discussion. Referring to a mother appealing to the president of
India to grant permission to die is an example. The mother could not withstand the painful
suffering due to a critical disease which is debatable. Can anyone give the assent to die? Even
God perhaps cannot do that. According to “public opinion polls, an overwhelming majority of

1
Allan Bloom, The Republic, New York: Basic Books, 1968; Thomas, More, Utopia, New haven: Yale University
Press, 1965, passim.
2
‘Right to die with dignity’ and the term ‘euthanasia’/’physician assisted suicide’ have been used interchangeably.
3
SHARMILA GHUGE, LEGALIZING EUTHANASIA:A PEDAGOGUE’S PERSPECTIVE1(2015).

1
people believe that doctors should be legally allowed to comply with a patient’s request for
assistance in dying under certain circumstances”4

The topic has created waves of discussions not in the sphere of the court but in the sphere of
public domain and there is some relationship both between court and the public domain. This
topic has nexus with the Art 21of the Indian Constitution that speaks about right to life and
personal liberty. The right to life includes not only a mere existence but guarantees a dignified
life. Living a dignified life does not mean a dignified death. Painful death with a prolonged
suffering is unbearable. A dignified death is only possible under euthanasia. The word euthanasia
should not be confused with suicide. Suicide is unwarranted, where as euthanasia is warranted
under certain circumstances.

1.2 IMPORTANCE OF EUTHANASIA-

The importance of euthanasia in India has kicked up the debate in the aftermath of Aruna’s case.
The concept of Euthanasia in India is always seen from the perspective of passive euthanasia.
There is a need of euthanasia to be law in India as this topic is not arising from the context of
legal paradigm but due to the mixture of morality, societal paradigm and because of the
expenditure to be incurred in the hospital which is more often economic burden on many. It is a
welcome step that has been taken by the Indian judiciary in bringing to limelight and providing a
ray of hope for the patients and family members. Necessity has also been created for this topic to
become a part of right to life in the form of right to die in cases of passive euthanasia.

The patients’ autonomy and right of self -determination can also be considered on equal footing
with respect to the principle of allowing right to die. The concept of euthanasia is also to be seen
from the angle of life and death and an important debate has also been beefed upon this matter
and judiciary felt it of utmost necessity to look in depth into this aspect. It is not the patient but
every stakeholder who is attached to him is tied up by emotions, money and pain.

4
Otlowski, Margaret, Voluntary Euthanasia and the common Law 2, New York: Oxford University Press, 1997.

2
1.3 STATEMENT OF PROBLEMS-

The problem in Indian context is too complex to be dealt when the health of the person is at
stake. The question arises who has the power to give consent, whether the life support should be
continued or not if a person is in coma or in vegetative state. There is no statutory provision in
our country in the context of withdrawing the life support system in cases of permanent
vegetative state or the person is incompetent to take decisions.

The problem has been elaborated in the light of the relatives or doctors or the next friend to
withdraw the life support but it has to be done with the approval of the High Court, which was
laid down in the case of Aruna shanbaug. It is also to be seen that it is done by passing the test of
good faith and is in the interest of the patient. It is not the direct vesting powers of the relatives,
doctors or next friend but it has to be seen whether there is any risk which would impact the
subject of inheritance of property that, would enhance the risk and would directly affect the
interest of the patient and eventually it would go against the law. There can also be a possibility
of misleading the facts by the doctor for the sake of taking over the property of the patient in an
unlawful manner.

This concept has been totally commercialized for the sake of getting property and the ultimate
usufruct is the money, by giving a statement of terminal illness. The question is powers or
consent shall not be vested solely on one person nor there would be outright exercise of those
rights by that particular person or persons as this results in too much distortion of our society.

The doctrine of Parens Patriae originated in British law. The main focus of this doctrine is that
if the patient is in need of someone may be his parents or the state can take decisions on his
behalf. This doctrine is applicable in two cases. One is for the treatment and cure of the patient
and the second one is to determine the person, the authority or medicines determining the
termination of treatment in case of incurable diseases.

The Hippocratic Oath taken by the doctors never advocates to terminate the life of a patient until
and unless it is inevitable. Doctors cannot predict the exact time of death but euthanasia gives
some hope to die in dignified way that is protected under Art.21 of the Constitution. When a
patient goes in a paralysed state, waiting for the death is a time factor and it may prolong for
weeks, months or even years. In such cases perhaps euthanasia is the right prescription. The term
3
brain death or vegetative state may be very much painful for us but they are not subject to precise
meaning, they are being defined as cessation of breathing or cessation of heart beat.

The question is whether the scope is narrow or wide? But the problem is at what time a doctor
can say that there is no chance of survival in any case because the whole bedrock of medical
science is based on one hand in curing the patient and enabling the patient to live as there is
always a hope and on the other hand it is coupled with uncertainty. So if death can be anticipated
then the problem would not have arisen. For example it may be for legal heir acquiring a
property or family dispute and it is sometimes experienced like in accidental death cases there is
close interlink of inheritors, lawyer and insurance authorities. If that is so why not in euthanasia
case also? The hope is a great obstacle in the minds of human beings and they don’t allow
themselves so easily to be carried away.

The problem could be solved if there is some element of proof involved which means the
functioning of human being, but it is quite difficult to find. If that would have been the case then
there would not be any problem in deciding or giving consent for death because in that case there
is no uncertainty.

In both the cases the chances of survivability is bleak. In such cases the argument should be in
favour of euthanasia. Another point is to be highlighted is the consent. In practise a doctor never
gives the consent to die. But the relatives can appeal for euthanasia with the unwritten consent of
the doctor in good understanding but the concerned authority is to decide about the euthanasia
under the prevailing rules and regulations.

In such case vesting authority in absolute terms and giving consent to it are two complicated
things and it depends solely on to what extent the humanism is observed, and it does not mean
that giving consent amounts to no humanism but general understanding is that it should satisfy
the moral propriety inside us. The vesting of power and exercising such power in the form of
consent should be well evaluated as in both the cases duty is being kept at high pedestal and
that is why it is an important subject of discussion as we are acting on behalf of that person, who
is not in the condition to give consent.

The problem is the vesting of the power on the concerned bodies as per the law because that
would question the act or conduct of the person on whom the power has been vested. This is an

4
open ended question and it depends from person to person, because if the power of consent is
vested on anyone the question of reasonability and justifiability would arise. Someway it may be
meeting the terms of law but in other way there is no good cause to that effect and that could be a
problem.

Ultimately law is the protector and in such case the degree of protection is kept on high threshold
so that every health condition would not come under its ambit and in case of extraneous
circumstances the benefit shall be given and termination of life shall be granted. In those cases it
has to pass through many procedures and the very purpose is to relieve the pain by giving the
patient the right to terminate his life. But it would become redundant if such procedures for
allowing euthanasia is being delayed or the matter is under judicial scanner and in meantime the
patient passed away.

The objective is that there should be speedy decision in regards to euthanasia as the pain is also a
factor which can be seen playing important role, had there been no pain then there would not
have been any long discussion or debate going on. The pain is to be get ridden by giving an order
within time bounds.

There is also an argument that if euthanasia is allowed and doctor terminates the patient’s life,
then it would go against the medical ethics. In voluntary euthanasia, the consent of the patient is
taken and it seems less controversial as consent has been is given by the patient. So, in those
cases the main problem to counteract is whether right to life includes right to die. In India it is
not a fundamental right and in fact right to die is not within the ambit of right to life. The reason
being life is something very precious and we have the right to enjoy this right but the right to die
is something which is against the right to life. It may pass all the tests but it is difficult to pass the
test of culture, diversity, attitudes and emotions of people which are deep rooted in our blood and
it can only be changed by changing the mindset of the framers then only right to die can be an
intrinsic part of right to life.

Non voluntary euthanasia is a situation in which consent of the patient cannot be taken but
consent is taken on behalf of the patient, by his parents, next friend or concerned authority. The
problem in such case is that the patient’s condition is so worse and he is unable to give consent.

5
Suppose the power of euthanasia is given either to the doctor or to the parents or relatives of the
patient in both the cases there is a chance of misutilising of such power which may involve legal
implications. But who can appeal for euthanasia- whether the parents or legal heirs, the doctor or
the authorities. It involves the consent of all these three parties in order to make it viable.

This is the main problem which usually occurs when consent is vested on anyone. Involuntary
euthanasia is conducted against the will of the patient and it amounts to losing one’s life as in
any case you cannot go against the patient’s will. But the question is whether his physical and
mental condition allows him to take such decision. There is also further division of euthanasia
and they are passive and active euthanasia. The two terms seems to be very much complicated
and they are taken in the utmost emergencies. Passive euthanasia speaks about the withholding
of common treatments such as antibiotics and it is like an omission but active euthanasia is like
commission and there is direct act such as lethal injection to kill someone.

The most controversial and debatable issue is the active euthanasia because the act is done in
such a way that it is more heinous. It is necessary to combat the pain but when right to life also
comes into the picture allowing for consent to death is getting blurred, keeping the suffering of
the patient in view. Another misleading argument which is getting cropped up is that it is the
case of murder because ultimately you are letting him to die irrespective of pain and consent of
the authority. It is more concerned and sensitive issue because in such cases firstly consent is
difficult to take and secondly pain is also a factor that is to be determined.

The problem is lack of clarity in the terminology used such as terminal illness, life sustaining
treatment, actively dying, withdrawing life support, palliative care, and palliative sedation in the
document have made a troublesome environment on the part of the family members, relatives to
ascertain the situation undergone by the patient and this creates more confusion. In case of more
than one advance directives the recent one would be valid is a problem because in that case there
is a presumption that there is swing of mind of the executor and if there is error there would be
doubt and that is the case here.

So, the main problem at this juncture is that there is no law on euthanasia starting from passive
euthanasia to Living Will; unfortunately it relies only on guidelines. In the case of living will
document as there is specific mention about the process of treatment so it creates more danger in

6
future in relation to the way of treatment you want it to be applied. Living Will is often not
disclosed or if there is problem of non-accessibility by the patient or for the doctors and there
may be situation of it being locked in, so as a result there would be communication gap at the
time when the patient would not have the capability to consent and this will remain merely a
document. There is also a problem that human thoughts may change and the technology is also
changing rapidly so there is no guarantee that the document would come into effect.

1.4 RESEARCH QUESTIONS-

1. What is the significance of ethics and medical dilemma in the context of euthanasia?
2. What are the jurisprudential developments on euthanasia in India before Aruna’s case?
3. How different is the jurisprudential developments on euthanasia after Aruna’s case?
4. How far we can adopt the norms on euthanasia developed in U.S, U.K and Netherlands?

1.5 HYPOTHESIS-

Since euthanasia is closely connected with ethical dimensions, the norms on euthanasia have
varied in different parts of the world. India judiciary, in absence of specific law has always failed
to draw the distinction between euthanasia and suicide for a long period of time. Aruna
Shanbaug case judgement stands as a watershed development in terms of delving into the
euthanasia from the perspective of best interest of the patient. However, several issues relating to
euthanasia are not resolved and a legislative action in this regards is expected. The experiences
of other countries like USA, UK and Netherlands might be useful in developing norms in India.

1.6 OBJECTIVES-

The main object of this research is to throw light on the topic of euthanasia by bringing
legislation. The concept of passive euthanasia should be transformed into law for better
implementation and for better safeguard of the patient. The Living Will that is the means to

7
achieve the desired result of passive euthanasia should take the shape of law to be more definite.
The last and not the least justice should be served to the patient by allowing passive euthanasia
through a meaningful time bindings and should not be elastic.

1.7 SCOPE-

The researcher feels that the extent of application of euthanasia is limited to Art 21 of the India
Constitution and includes right to die with the prospects of passive euthanasia. The scope does
not extend to active euthanasia but it is well circumscribed to have law on passive euthanasia.
The researcher does not want to stress on suicide or physician assisted suicide that is outside the
ambit of euthanasia.

1.8 RESEARCH METHODOLOGY-

The research is primarily doctrinal in nature and the researcher has used primary source and
secondary source of data. The Primary source are Constitution Of India , Indian Penal Code ,
Death With Dignity Act 1997(USA) , Monatanas Rights Of The Terminally Ill Act 2009 (USA) ,
Termination of life on request and assisted Suicide(Review Procedures) Act 2002 (Netherlands).
The secondary sources include books, articles and data available on World Wide Web. The
researcher focused on various tools such as historical, analysis and comparative tools.

1.9 LITERATURE REVIEW-

 Legalizing Euthanasia: A Pedagogue’s Perspective, by Dr. Sharmila Ghuge, Himalaya

Publishing House (2015) - The author in his book has stressed that, it is prominent to
provide death with dignity to terminally ill patients who lack representation in the
society.

8
 Death with Dignity, by Dr. Ravulapati Madhavi, Asia Law House (2014) - The author has
stressed in his book in the favour of passive euthanasia. It has done comparative analysis
on this topic and studied the status of various countries across the globe.
 Crime Law & Advice, by Sudershan Goel & Ravi Sodhi , Universal law Publishing co.
Pvt. Ltd.(2013) – The author has stressed in his book that the legal position differs the
world over. There has been a long debate and also comparative study is done on the
topic of active and passive euthanasia, the terms brain death, PVS. Comparison is done
on country to country basis.
 Euthanasia in the Netherlands : the legal framework , By Ruphel Cohen – Almagor , 10
Mich. St. U. Det. C. L.J. Int'lL. 319 (2001) – The aim of this paper is to outline the legal
framework of euthanasia in Netherlands and to analyze the leading courts involving
adults. The author have explained about the ambiguities that existed in the Netherlands
until the enactment of euthanasia law on April, 10, 2001 and then he has also discussed
how did the courts at that time dealt with the cases of mercy killing.
 Euthanasia: A constitutionally protected peaceful death, Patricia A. Unz, Euthanasia: A
Constitutionally Protected Peaceful Death, 37 N. Y. L. Sch. L. Rev.439 (1992) - The
author in this article has dealt with the rise of technology in medical science. According
to the author the help that medical profession extends to individual in many incurable
diseases is very much limited to keeping the person in a condition were he must endure
the pain and dignity. The author has stressed that people are likely to chose “Die With
Dignity” with help and consultation from a medical practitioner.
 Position of Euthanasia In India – An Analytical Study,By Caesar Roy Assistant Professor
in law Midnapore Law College, West Bengal (2011)- Here in this article the author has
distinguished suicide and mercy killing more elaborately. It has discussed the legality of
euthanasia in India in the light of the constitution of India and Indian Penal Code and
other laws. The author has stressed on legalizing the passive euthanasia in India.
 Decriminalization of Attempt To commit Suicide in India, By Yashveer Singh,
International journal of Research and analysis volume 2 Issue 6 (2015) - The author in
this article has stressed more on the principle of morality where God plays an important
role. The gift of life has been given by the God and no one can take it except the God.
The author has stressed on Art.21 of the India Constitution. According to the author right

9
 to life cannot be taken away by unreasonable manner. So, the author has suggested that
Sec. 309 of Indian Penal Code is constitutional.
 R. Rathinam/N. Patnail v. Union of India CASE COMMENTS, by Lawrence Liang;
Bhavana Thakur , JT 1994 (3) SC 392, 7 Student Advoc. 126 (1995) – In this
commentary the author has stressed on decriminalization of attempt to commit suicide
and it has discussed the scope of Art.21 in relation to P. Rathinam case. The author has
also stressed on jurisprudential problem in relation to right to die and its legal
consequences.
 CASE COMMENTS : GIAN KAUR vs. PUNJAB: A REQUIEM FOR REASON?, by P.
Ramaswamy,9 Student Advoc. 173 (1997) - The author in this commentary has stressed
on the jurisprudential changes and has appreciated the constitution in the light of
criminalizing suicide. The suicide has raised questions on issue of liberty. The author has
focused on the concept of Sec.309 in relation to Art. 14 the India Constitution. It has
deeply focused on the concept of abetment of suicide.
 Euthanasia Regime: A Comparative Analysis of Dutch and Indian Positions, by Dr.
Sandeepa Bhat B. and Shyamala D., NUJS Working Paper Series, NUJS/WP/2011/03 -
The author in this article has focused on the topic on the context of medicine and law.
The ethics on euthanasia has drastic impact on different states in taking a good stand on
legal point. The author has drawn a comparative analysis between India and Dutch. The
main focus is that despite India have no law but it is not dissimilar to the position in
Dutch.
 Arguments in Support and Against Euthanasia ,by Visnja Strinic , Municipal Criminal
Court, University of Split, Dracevac bb, 21000 Split, Croatia -The author in this article
has done arguments in support and against of euthanasia and physician assisted suicide.
The euthanasia debate is on the bedrock of morality and legality. The topic of euthanasia
should be morally permissible.
 A Socio-Legal Impact of “Euthanasia‟ In India-Suggested Reform , by Dr. Sonali
Abhang , IOSR Journal Of Humanities And Social Science (IOSR-JHSS)Volume 22,
Issue 9, Ver. 5 (September. 2017) the author has analyzed in this article the response of
Indian judiciary on euthanasia and it has done comparative analysis with other countries.
The author has done research on the impact of various statutes and has focused on socio-

10
 legal impact of euthanasia in India. Lastly it has focused on the remedial measures and its
problems.
 Legalization of Euthanasia in India with Specific Reference to the Terminally Ill:
Problems and Perspectives, By – Tania Sabastian 2 J. Indian L. & Soc'y 341 (2011) -The
author has stressed in this article on the medical technologies that are used by the doctors
in the hospital. It has stressed on the humanitarian point through analyzing the basic of
euthanasia. It has recommended for bringing a law on euthanasia and it is ultimately the
legislature who will bring law. It has recommended for discarding the ‘slippery slope’
concept and allowing for euthanasia.
 Comparative View of Euthanasia in the United Kingdom,the Republic of Ireland and
Germany, By - A. Akinola; C. Freter; F. Rettkowski; K. Wienrich, A, 1 J. Acad. Legal
Stud. 28 (2005) -The author has discussed in this article the euthanasia on the context of
current situation in the UK. It has also discussed the concept of active euthanasia and
passive euthanasia.
 Euthanasia: the law in the United Kingdom, By - Alexander McCall Smith Faculty of
Law, University of Edinburgh, Edinburgh UK, British Medical Bulletin (1996) -The
author has focused in this article on the criminal law in relation to the euthanasia. The
author has stressed on the concept of passive euthanasia and assisted suicide in the United
Kingdom. The author also discussed many cases and has justified its points.
 Final Exit: Should the Double Effect Rule Regarding the Legality of Euthanasia in the
United Kingdom Be Laid to Rest, By - Brendan A. Thompson 33 Vand. J. Transnat'lL.
1035 (2000) -The author has focused in this article on the double effect rule that has
relation with the concept of physician assisted suicide in UK. The role of society in
accepting the double effect principle is being stressed by the author. The author has also
prayed for balancing the law by giving the guidelines regarding the conduct of the
doctors in the light of patient’s best interest and societal interest.
 United States Legal Aspects of Euthanasia, By – Ronald L Scott-The author has focused
in this article on the patient’s autonomy and privacy on the context of euthanasia. It has
deeply stressed on the patient’s right to refuse the medical treatment. The author has
stressed on the use of advance medical directive and its benefits.

11
 Before the end draws too near, write that living will, by Uma Shashikant, The Times of
India, 26 March, 2018- The author in this newspaper article has written in the favor of
living will. The author has clarified that dignity of life has no value if the purpose of that
life is lost.
 Living will isn’t a document but a process, which can include a conversation about
preferring death at home or hospital, by Roop Gursahani, The Times of India, 13 March,
2018- The author in his newspaper article has named living will as a process and it is not
a document. It has clarified on three points and they are smooth death, public awareness
and legislation for both living will and palliative care.
 Passive euthanasia judgment: laudable in principle but problematic in implementation,
by R.K Mani, The Telegraph, 10 March, 2018- The author in this newspaper article has
stressed on the judgment and expounded that passive euthanasia is a principle but passive
euthanasia lacks implementation. The major drawback of the judgment is in relation to
ambiguous terminologies used in the case.
 Religious orders conflicted, by Anita Joshua, The Telegraph, 10 March, 2018- The author
in his newspaper article has pointed that religious orders are quite conflicting because
they try to reconcile the belief in sanctity of lie with practice of religion of one’s choice.
 Active euthanasia still illegal, by Amit Roy, The Telegraph, 10 March, 2018- The author
in his newspaper article has stressed on the active euthanasia and said it as illegal. The
author felt the best option is going for Assisted Suicide.
 Cooling period vexes doctors, by G.S Mudur, The Telegraph, and 12 March 2018- The
author in this newspaper article has concerned in the light of the cooling period in the
Supreme Court judgment. The problem that the author has stressed is that in cooling
period the time is not only the factor that has impact on the patient but it is also the
expenditure that is incurred on the patient within that period.

12
1.10 CHAPTERIZATION-

For the fulfilment of the research questions the researcher laid downundertakes the following six
chapters for consideration-

Chapter 1 – Introduction- It deals with the importance, problems, research questions,

hypothesis, objectives and methodologies used during the research on euthanasia.

Chapter 2- Deals with ethics, morality and medical dilemma on the context of euthanasia and
what are the different forms of euthanasia.

Chapter 3- Deals with the comparative analysis of USA, UK and Netherlands. Various cases
and doctrines are discussed under this chapter. A conclusion is drawn on euthanasia by
distinguishing it from Indian scenario.

Chapter 4- Deals with the jurisprudential development prior to Aruna’s5 case. It is discussed
broadly how the concept of euthanasia was seen before the aforesaid case. Three landmark cases
are discussed.

Chapter 5- Deals with the jurisprudential change after Aruna’s6 case. The interpretation of the
judiciary and developments of euthanasia after Aruna’s7 case. The loopholes of Medical
Treatment of Terminally Ill Patient’s Bill, 2016 have been discussed. The concept of Living Will
is also discussed in recent Indian scenario.

Chapter 6- Deals with conclusion and suggestion. In concluding remarks the aforesaid chapters
are summed up by suggesting the changes in relation to Medical Treatment of Terminally Ill
Patients Bill, 2016 and in relation to law on Living Will.

5
Aruna Ramchandra Shanbaug v UOI AIR 2011 SC 1290.
6
Ibid5.
7
Ibid6.

13
 CHAPTER-2- EUTHANASIA, ETHICS AND MEDICAL DILEMA-

2.1 INTRODUCTION-

India is a country having a strong and diverse culture, ethics, behaviours and morality deeply
rooted in our traditions. It is also much evident that morality of existing problem is also
important. But unfortunately when it comes to the validity of the human life in euthanasia cases,
the morality values diminishes. In India there are diverse cultures, views, opinions about
euthanasia but the backdrop of legality is ultimate morality despite its enforceability and
existence per se. In India due to diverse culture it becomes difficult to convince the peoples in a
situation when there is no change in assumptions and people adhere to religious views and
culture above everything and don’t allow the right to die in many cases.

The philosophy of Indian culture is adherence to truth and reality and those two are embedded
inside us. Ethics is all about philosophy and it is all about enquiry into the truth and reality and it
becomes difficult to carve out of those problems and bring out solutions to avoid that pain. Pain
is the best test of morality in the concept of euthanasia and has sprung from many concepts.
Ethics is a term which cannot be seen and it is all about morality and studying anything that is
not in existence. Death is the concept which has its starting point from ethics. It is self-evident
from morality that when we talk about death human beings are very conscious and afraid of, the
reason being we are not willing to die. In the current scenario the life is all about visibility and
invisibility, in visibility it is physical existence and in invisibility it is the soul and thus in this
way life and death are the two wheels of a cycle.

There is right to life under Art 21 of the Indian Constitution but life has many connotations like
meaning of life, values of life, quality of life, protection of life, sanctity of life and evaluative
status of life. It is important to know that until and unless we get the meanings of all those then
there is question of doubt on the term ‘life’ whether they are satisfied or fulfilled as a part of Art
21 of the Indian Constitution. Those above connotations of life if begin to diminish due to nexus
with the term ‘pain’ it would have tantamount effect on the touchstone of the topic euthanasia,
meaning good death.

14
The quality of life is the life having subjective element which varies from person to person and it
depends on the person’s environmental and societal set up, but other factors such as happiness,
health etc, are also important for a good quality of life. It is not the determination of quantity but
whether the life has got some quality in it and, it matters a lot.

The concept of ‘Pain and Pleasure’ said by Bentham has some bearings, but this pain has
morality and is an end in itself without having any legality. The quality of life is the relationship
between the medical condition of the patient and the patient’s capability to bear that pain. This
relationship is very complex in nature as it is like arguing without seeing the facts. The quality
referred to is the quality of a relation and not a property or attribute of life1.The satisfaction of
personal desires, freedom of choice, and quality of life for many has become irreducible
entitlements in a democratic society.2

The quality of life is one limb of the Art 21of the Indian Constitution and other limb is the value
of life. The purpose of medicine, in fact, is to improve the quality of life3 and not to stretch the
patient’s life despite the pain. Value of life is in relation to evaluative status of life and what are
its ethical arguments that can be put forth. The value is not considered in terms of quantified or
measurable terms, but to evaluate the status of life. To evaluate means not seeing one or two
factors of life but many other factors are seen to arrive at a point and that is where a positive
status or affirmative view about one’s life exists. There are situations where quality of life
relates to property but in this case the value of life is the property but unfortunately it is not that
but is a mixture of all the factors that are to be seen to evaluate the value of life.

The Protection of life is something concerning security over one’s life. Protection of life flows
from the concept of personal autonomy and right to self-determination. The law must recognize
the principle of personal autonomy and self-determination which is the right of every human
being to make decisions regarding his own body and have those decisions respected.4This
concept is based on moral status and dignity is attached to this status. To deny voluntary
euthanasia is not only a form of tyranny but an attempt to control the life of a person who has his
1
Walter, Jjames,”life quality of “encyclopedia of bioethics, vol. 3, 3rd edn, USA: Macmillan Reference, 2004, p.
1390.
2
Ben, Mitchell, c., et. (ed), Biotechnology and the Human good 122, Washington D.C: Georgetown University
press, 2007.
3
Francis, C.M, Medical Ethics 100, 2nd edn, New Delhi: Jaypee Brothers, 2004.
4
http://www.ag.org/top/belifs/contempissues_18_euthanasia.cfm.

15
or her autonomous view about how it should go, and this constitutes an ultimate denial of respect
for persons.5

In Natanson v Kline6, the Court observed that, the Anglo-American law is based on the principle
of self-determination and relying on this principle it is considered that each man is the master of
his own body, if he is of sound mind.

In Wilson v Pringle7, it was held that common law prohibits intentional acts and doctor who
treats a competent patient without consent commits a civil and criminal battery.

The concept of best interest is the most important component of doctor patient relationship. It is
a standard that is used by the guardian or doctors or courts to act in the best interest of the
patients who lacks capacity to take medical decisions. The physician must always give his advice
on what is best for a particular patient’s health and well-being.8 The ethics or philosophy about
the concept of best interest has been understood in the terms of well- being. The substantive
theory which plays an important role in taking bold decisions about life and death and making
decisions keeping into consideration best interest of the patient.9

The concept of best interest is very difficult to answer as it involves various important facets that
are to be calculated for the patient’s best interest and in fact it is an open ended question that is
ready to be answered in moral terms and it includes such as what type of decisions, degree of
pain, patient’s current status of his/her condition.

In Airedale NHS Trust v Anthony Bland10, it was said that correct framing of questions is
important and is very vital. The question is whether the doctor should or should not continue to
provide his patient with medical treatment which if continued, will only prolong his patient’s
life. In other sense the question is whether it is in the best interest that the patient’s life is

5
Harris, j., “Euthanasia and the value of Life” in Keown j.,(ed), Euthanasia Examined: Ethical, clinical and legal
perspectives 20, UK: Cambridge University Press, 1995.
6
Natanson v Kline 186 Kan. 393 (1960).
7
Wilson v Pringle (1987) QB 237.
8
Walton Douglas, N., Ethics of Withdrawal of Life support Systems 174, Westport: Greenwood Press, 1983.
9
Woien Sandra, L., “The concept of Well Being and its role in Life Sustaining Decisions”, Ariz. State U.,2008, AA
73304904, p. 142. http://www.proquest.umi.com.
10
Airedale National Health Service Trust v Bland (1993) 1 AII ER 821.

16
prolonged or continued in the form of this treatment or medical care. To terminate life-saving
treatment is to mean to be in state interest and seeing the best interest of the patient.

Advocates of euthanasia opine that where both patient and doctor agree that a single lethal
injection would in fact represent the most human course of action, the blanket ban upon
euthanasia obstructs the doctor’s ability to act in the best interest of the patients.11

2.2 EUTHANASIA AND IT’S VARIOUS FORMS-

There are basically various forms of euthanasia and they are voluntary euthanasia, involuntary
euthanasia, passive euthanasia and active euthanasia. Voluntary euthanasia is a direct act done on
the patient but on the request of the patient. This is an intentional act done on the patients
irrespective of any moral considerations. Prescribing lethal drugs by the doctor is taken into
consideration keeping in view the physical health and condition of the patient to sustain the high
dosages of medicine. Doctors always try their level best.

The main contention is that the request from the patient shall be of free consent and not coercive
and compulsive. The debate is on the point of giving a favourable approach and arguing from the
point of self-determination and right to self-autonomy. These two fundamental principles have
some nexus with the medical ethics and have opened the gates for further argumentation. In
most of the cases the patient is not in right mental and physical condition to take a decision about
his death. Hence, the role of family members is vital because they have to take the decision on
behalf of the patient. This requires a judicious thinking. To repudiate an attempt to control the
life of a person, who has his or her own autonomous view about how his life should end,
constitutes an ultimate denial of respect for the persons.12

The concept of legalizing euthanasia is based on the Utilitarian concept of Bentham which
speaks about pleasure and pain. The concept of pain is complex and it is metaphysical in nature
and it has much deeper moral elements involved in it. Proponents argue that the notion of human

11
Emily, Jackson, “whose Death is it anyway? Euthanasia and the Medical Profession” Jane, Holder, et. al.,(ed),
Current Legal problem, vol. 57, 2004. P. 417.
12
Harris, J., “Euthanasia and the value of life” in Keown, j., (ed), Euthanasia Examined 6, U.K: Cambridge University
Press, 1995.

17
dignity demands that individuals have control over significant life decisions, including choice to
die, and that this control is acknowledged and respected by others.13

Involuntary euthanasia is a totally opposite concept that speaks about ending the life of the
patient without his consent. In other sense it means the patient is not in a condition to give
consent to doctor or his near ones. There is common element in both those euthanasia and that is
pain, but the main argument is that whether there can be a plea of right to self-determination and
right to autonomy. This concept involves much diverse opinions and this is a question that is not
close ended but it remains open ended till there is legitimate answer keeping public interest at the
touchstone. This is the case of coma or person suffering from PVS, or brain damage etc.

The best example for active voluntary euthanasia is, Dr. Jack Kevorkian,14 a Michigan physician,
who had personally designed a suicide machine. This machine was equipped to inject a lethal
dose to a person who wanted a quick, painless exist from life. Dr. Kevorkian was found guilty of
causing 1st and 2nd degree murder in 1999.15

Passive euthanasia is a concept that involves alteration of some support that is connected to
patient’s life such as removing the ventilator of the patient or not giving medicines or food etc.
This is an act of omission and it is also an offence under Indian law. “The omission is not a
breach of duty by the doctor, because he is not obliged to continue in a hopeless case”. 16It is
ultimately the duty that is casted on the doctors to allow him to die, but in the counter the patient
does not have the right to die because the very concept where there is right there is duty seems
immaterial in this context.

Active euthanasia is the situation when there is some positive act or some affirmative action
towards the patient and seems to be a direct act and amounts to commission. Active euthanasia is
legally prohibited but in passive euthanasia it depends upon the situation of the case. Euthanasia
means taking one’s life due to some reason but in the case of suicide there is self-infliction and
done with a self-motive. But in both cases death is caused and this is the main difference

13
Otlowski Margaret, Voluntary Euthanasia and the common Law 204, New York: Oxford University press, 1997.
14
People v Kevorkian, 527 N.W 2d 714, 728, 29 (Mich. 1994).
15
Basant, T., “Euthanasia- Why A Taboo?” in Menon, Anila., (ed), Right to Life and Right to Death 108, 1st edn.,
Hyderabad: The Icfai University Press, 2007.
16
Williams, Glanville, Textbook of Criminal Laws 282, 2nd edn., London: Stevns, 1983.

18
between euthanasia and suicide. The doer is thereby open to debate on whether euthanasia in
some forms might be a morally acceptable practise. 17

The concept of physician assisted suicide arises when the doctor assists the patent in doing or
committing the suicide, instead of doing the suicide by self infliction. Physician Assisted Suicide
stands strong in arguing from the moral or ethical standpoint and it depends upon the
permissibility of moral values for legalizing Physician Assisted Suicide. The concept of right to
self-autonomy shall be kept at high pedestal as it is not the patient interest from the legal point of
view but to satisfy the medical ethics there should be autonomy and self-determination in
deciding the health related issues and that shall be settled on different footing.

The right to Physician Assisted Suicide is generally premised on two different constitutional
rights, the first is a privacy right referred to as “decisional privacy”- the right to make decisions
of a highly personal nature without interference from the state.18 The other right is the liberty and
right to self-autonomy that can be other limb of the constitutional right. It is important concept in
the medical science and this is the case in which doctors take the consent of the patient in taking
further action in giving treatment. The consent shall be free from any pressure, in other sense it
shall not be coercive in nature. In this case the patient’s interest and autonomy shall be given due
consideration and it should be safeguarded. The role of competence matters a lot in the cases of
adult because he can take decisions about his life but in the case of incompetency that is not the
case in regards to giving consent.

17
The discussion on the moral status of euthanasia and its legal implications is discussed in Dworkin, R.,Lifes
dominion : An argument about abortion and euthanasia (1993), Finnis.,”A Philosophical case against euthanasia” in
Keown,J.,(ed),euthanasia examined (1995), Otlowski, M., Voluntary euthanasia and common law (1995).
18
Kline, Robert, L., “The Right to assisted suicide in Washington and Ooregon: The Courts won’t allow a Northwest
passage”, 5 B.U. Pub. Int. L. J.214. (1996)
http://www. International.Westlaw.com.

19
2.3 HINDU PHILOSOPHY&THEOLOGICAL PERSPECTIVES-

The Hindu philosophy about life and death is neutral in its approach and as a result it raises more
controversy in the topic of euthanasia. The ethics about this topic is stretching more towards
body and soul, whereas the body is the physical existence that connected to life having soul and
after death it signifies body without soul. Good life is the most vital part of life and is moralistic
in nature. The existence of life is concerned inas a societal context not as an individualistic
approach or personal choice. Legalizing euthanasia some way affects the principle of ‘AHIMSA’
(non-violence).

As India has diverse culture and tradition so, attitudes differ from person to person, some argue
that life should be preserved till natural death and some say when brain ceases to function then
death can be presumed. The human beings are intermingled between two terms life and death.
This concept of life and death is linked with the concept of ‘Reason’. This reason is to be seen in
the form of individual and from societal side and they can be eradicated. This is all about the
spiritual assumptions and there is no such fixed standard and they are like customs. It is like a
belief which has been in existence since long and it can’t be ignored and there is delusion of the
matter from time immemorial.

In regards to Hindu philosophy and theology ethics is all about one’s choice of action and that
has impact on the welfare of the people. The ‘Karma’ and ‘Dharma’ are the two catalysts to the
Hindu on the context of life and death. These two concepts play a pivotal role between life and
death. The concept of euthanasia, suicide is mostly based on the concept of Karma and Dharma
and that is the basic phenomenon that could result in a uniform society.

The concept of Dharma means ‘Maintenance of order’. It is also the means to achieve the ends of
human action or conduct. Buddha has stressed on the concept of ‘Karma’ and pleaded for the
rituals and for compromises. In Hermeneutical perspective the religious doctrines such as Karma
and Dharma are the result of cultural differences.

20
In Hindu philosophy the concept ‘Death’ has been described as an event. But those events are
not the exact chain of circumstances but are part of a process. The ‘Dharma Sutras’ are against
suicide and they regard it as sin. It is said that no water shall be given to the souls those who kill
themselves. The ‘Bhagavad Gita’ also opposes killing of oneself. The Hindu philosophy stresses
much on the aspect of societal interest rather than individual interest.

2.4 INDIAN EMOTIONS ON LIFE AND DEATH & OTHER RELIGIOUS PERSPECTIVE-

‘Bhagavatam’ the science of God, advocates that Karma yoga requires one to work as long as we
have this body, and when our actions are forced into unfair practice, we should try to make them
purified, but we should not take credit for the result of our work, which actually belongs to
God.19It is very difficult to analyze and say that death has occurred, because there is not a single
process to know that death has occurred. It is caused by various methods and there are various
ways to determine it and what is the time of death is also very difficult to say. In other sense
exactly one can’t say so easily what is the exact time of death? Some says if brain stopped
working, death has occurred, some say if hearts stops beating and some even say if nervous
system is not operative then death has been is caused.

So, the setback is which one is right and on which one should rely, it creates more confusion
when all are applied. It is all about dilemma and confusion and is playing a game on the subject
of death and fuelling the debate and making it very difficult to answer. Christian philosophy is
something very surprising as it holds euthanasia on a different pedestal, as written in Bible
“when life becomes unbearable due to acute pain, men resort to extinction of life be its own, or
that of their beloved ones and it considers them sacrifices in the life”.20

But some way or other it can’t be taken as a ground for taking one’s life. So, again there is
confusion whether there is an outright right in case of terminal illness to cause to terminate, in
spite of pain as a factor. And there is no scope for active euthanasia because it is said as a
positive act towards killing irrespective of pain or moral feeling attached to the patient’s.

Under Jewish law there is punishment not only for direct acts but also for indirect acts. The
traditional thinking under Jewish law seems very orthodox and they don’t accept any person to

19
A.C.Bhaktivedanta Swami Prabhupanda, KRSNA, The Reservoiur of pleasure, ISKON publishers, (1999).
20
http://bibleresources. Org/euthanasia/.

21
die or kill someone despite the pain or terminally ill. Man is required to protect its own body at
any cost and no other person has any right to kill someone.

Under Jewish law the state is the ultimate authority or protector of the ill patient. God created
food and water; we are obliged to use them in staving off hunger and thirst. God created drugs
and medicaments and endowed man with the intelligence necessary to discover their medical
properties; we are obliged to use them in warding off illness and disease. Similarly, God
provided the materials and the technology in making possible catheters, intravenous infusions
and respirators; we are likewise obligated to use them in order to prolong life.21

Life is a sacrosanct concept as because it is given by Allah. In the Islamic code of medical ethics
it is stated, “It is futile to diligently keep the patient in a vegetative state by heroic means. It is
the process of life that the doctor aims to maintain and not the process of dying”. This means
doctors can stop trying to prolong life in cases where there is no hope of a cure.22

2.5 CONCEPT OF LIFE AND MORALITY& INTERELATIONSHIP WITH LAW-

Ethics and morality are two important components in one’s life apart from law. It can be said to
be one side of a coin whereas other side indicates life. Ethics is not the only concept that is
studied from the law standpoint but also from the medical point. It is of logical discourse and
analysis of a point that can be coupled with mental elements or some standards of humanity that
should be observed.

The concept is too complex as it involves long standing debate and it is argued basically from the
societal perspective. Morals are the creation of ethics externally applied (logical good or illogical
bad behaviour)23. Ethics is a code of values which guides our choices and actions and determines
the purpose and course of our lives.24 Medico legal issues are moral in nature and they occur in
many conditions and situations of life. There is one situation where the patient’s life is prolonged
irrespective of the quality of life it possesses and, in other sense the quality of life of the patient
is not respected as per the Art 21 of the Indian Constitution. It is more often the technology

21
www.yutorah.org/rabbi_Dr-_j-_David Bleich.
22
http://www.bbc.co.uk/religion/religions/islam/islamethics/euthanasia.shtml.
23
Larry Neal Gowdy, Definition of Ethics, Morals, Virtue and Quality- (http:// www.angelfire.
Com/home/sesquiq/2007sesethics/html).
24
En.Wikipedia.org/wiki/ayn_Rand:_The_Russian_Radical.

22
getting preference over the quality of life and & due to new technologies the life of the patient is
prolonged despite the quality and pain in life.

The main contentious issue is to balance between the concept euthanasia from the standpoint of
the public & right to self-determination. It is the balance between the public and private interest.
Issue of causation can also arise out of the concept of active and passive euthanasia. Causation is
the proximity of the act and consequence to know the casual link between them, to ascertain
whether due to perpetrator act the consequences have followed and to know the close nexus
between them. This situation is similar to case of administering lethal drugs to eliminate pain
permanently that results in death of the patient and is tantamount to commission or omission
anyway. If the death of the patient is a natural consequence or a foreseeable probability of
doctor’s action then he must be said to have caused the death.25

The problem of euthanasia is based on the concept of sanctity of life and this is a traditional
approach and not a new approach. It has two extreme ends on which this principle is based,
firstly ‘Vitalism’ and secondly ‘quality of life’ in the terms of relativity. The concept of
‘theology’ has spelled out the role of the God above human values, as God is the giver and taker
of life. The concept of euthanasia means no authority is given to a man for wilful death and is not
an absolute concept but requires permission from the right authority.

Consent plays a dominant role between the relationship of law and morality. As per the morality
concept it should not be against the society because if consent is given to kill someone despite
the pain or irrespective of any factors it would go goes against the public and diminish the
purpose of law. The propriety of the human life should be protected and safeguarded as because
it is the bedrock of morality. This principle of morality is seen from the prospect of the society
and not seen from the angle of individual.

There is some relationship between law and morality, and it does not mean that there is no
relation between them irrespective of sanction. In any analysis of the role of the law and the

25
And have intended the consequence see R v Moloney(1985) AC 905, and R v Hancock(1986), 1 alt ER 641 cf the
view of beattie J who considered that the problem could be resolved on an absence of mens rea: Beattie, “Right to
life” in NZ Law Society 16th Triennial Conference, papers to be Discussed (1975) 94, 102.

23
relationship between law and morality, one cannot ignore the cause involved in invoking the
criminal law.26

2.6 CULTURAL, HISTORICAL PROSPECTS AND CONTEMPORARY SOCIO-MEDIO

LEGAL PERSPCTS-

The social customs have been there since time immemorial during the ancient and medieval
ages. Custom is that catalyst which plays an important role in the topic of euthanasia and can be
the touchstone of the topic. Sanctity and propriety of life is kept at high pedestal and if there is
any death of patient despite of pain then it is related to an act of sin and that can be against the
custom and morality. In India controversy has fueled up the debate in the aftermath of Venkatesh
in 2004,and in actual and practical scenario it has nexus with medical ethics and social norms.

Euthanasia and Physician Assisted Suicide have become the core point of the debate. Allowing
euthanasia does not appear to be justified from the cultural or historical prospects. There is a
rapid change in the current scenario and mind set of the people on the topic of euthanasia.
Religion and caste still plays a central and keystone roll in this topic and it can’t be ignored in
such rapid changing and dynamic societal setting. Society is not the concept of steadiness but is
like a pyramid and more precisely of social hierarchy. In India there is lot of advancement has
been done in medical science and technology and there is no doubt that life can be prolonged
despite non-functioning of brain and body.

There is a lot of stress and problem not out of the suffering of the patients only but also due to
the physical, mental and financial strain of the family members who are spending their entire day
for a hopeful recovery in spite of less chance of survivability. This compels the patient and
family members to volunteer for a passive or active euthanasia by giving lethal drugs. Medical
situation and scenario in India is much different and it is very difficult to legalize euthanasia.
Rampant corruption and maladministration of the system also does not allow the law makers to
step forward and make a law on this as a result judiciary is also lagging behind and is very
cautious in allowing euthanasia.

26
Margaret Otlowski-Voluntary Euthanasia and the Common Law- Oxford University Press- (2000) (P-56-7).

24
2.7 VALUE OF LIFE VISA-A-VIS QUALITY OF LIFE-

The value in the context of euthanasia is taken from the perspective of people who have link with
the life. The value of life is very important and is not a modern concept but a traditional concept
which has been there since longbefore. It is an important component and life is an inevitable
concept and has no value without the existence of it. Existence of human being is the sole
purpose not only from the ethical prospective but also from the medical standpoint. God is the
sole creator of life and it is only the God who has the right to take any one’s life.

The scholars argued that no methods can be used either to prolong life or shorten it as it would
go against the order of nature. It is sometime argued that when birth is not in our control then
how the topic of death can be decided by us. It is all morality and nothing more than that and
legality is hidden in contrast to ethical norms. Doctors or medical practitioners are obligated and
it is their duty to preserve the sanctity of life. There are some arguments on the part of right to
self-determination and it is not an absolute concept but it has some limitations and it should be
tasted on the basis of social policy.

It is often argued that once euthanasia is legalized in the cases of passive euthanasia there is
more chance of vulnerability and greater risk is involved where the patient is not in a condition
to give the consent or it precludes others from giving consent on his behalf and that is the
common phenomenon usually seen in the cases of euthanasia. The persons who are in favour of
euthanasia see the concept of euthanasia from qualitative prospective or view life is to be
maintained in a dignified manner.

Once there is fall of dignified life or existence of quality life in relation to exercising the right to
autonomy then there comes a sweeping argument that there should be right to die. Quality of life
and value of life seems very similar but the meanings has some connotations that the life shall
have some worth to live and if it is not, then it would become redundant and that would amounts
to life having no value. Pain is also an important factor that is argued and it has been said that
doctors should put an end to life of the patient if there is pain inside the patient. Right to Self-
Determination and Right to Autonomy have been kept at different pedestal to support the
argument from those supporting euthanasia and allowing the person to die due to unbearable pain

25
inside patient that can be felt even by the doctor’s itself. Another argument in support of
euthanasia is that allowing such patients to live the life means wasting the time, money and
medical facilities available.

This medical practice is seen as a nexus with the hope of life, in other words if there is hope for
survival then it’s ok but if there is no hope then there is no question to prolong the life of the
patient through the medical tools or instruments. This jurisprudence in relation to medical
science has radically changed the outline of hope of the patient and terminal illness of the
patient.

2.8 MEDICAL PRACTIONER’S DILEMMA-

Doctor is the other name of God. “Human beings psychologically first look up to God to help
them or the medical practitioners who cures the ailment”. Whatever advancement the medical
science may do but it is the God to whom we pray at the time of distress through the hopeful
recovery treatment by the doctor. The society feels that it is only doctor’s that can bring life and
they don’t want their near ones to lose their life. As it is said that the medical practitioner casted
duty is of treating the patient’s and in no way, they can take the life of patient and that would
affect the propriety and sanctity of the medical profession duty that is well in consonance with
Hippocratic Oath. But this duty of the doctor’s or concept of absolute obligation vested on the
doctor’s to treat the patient despite any abnormal circumstances seems to be changing in today’s
scenario.

The change is in the area of best interest of the patient and it is the sole motto of the medical
practitioners. The concept of best interest shall be respected and adhered despite any
shortcomings. It is ultimately the best interest of the patient that would be respected over the
duty of the doctors to treat the patient in prolong suffering. The best interest is being kept at
different footing and the request of the patient shall be respected so that death with dignity can
be protected. Thus, while an attempt to prolong life violates the promise to relieve pain, by
killing it violates the promise to prolong and protect life.27

27
Sangeetha Mugunthan, A Constitutional Perspective of Euthanasia and Right to Die, Karnataka Law Journal, Part
3, Feb. 2006, p.10.

26
There is dilemma among the doctor’s in the context of right to autonomy of the patient. Only
when patient consents physicians may invade his personal being by providing medical
treatment.28The right to refuse treatment, another expression of the physical notion of autonomy,
is well established in common law, and thus treatment without proper consent would attract
liability.29In the case of passive euthanasia or the withdrawal of treatment from competent adults,
it becomes more complicated due to the incapability of the patient to give consent or to exercise
his common law of right of refusing treatment.30

The physician would be in a fix to draw a delicate line between what amounts to trespass and
what would not, since central thesis of the common law doctrine of trespass to the person is that
the voluntary choices of an adult of sound mind concerning what is or is not to be done to his/
her body must be respected and accepted, irrespective of what others, including doctors, may
think is in the best interest of that person.31

Doctor cannot give consent on behalf of the patient but can only give advice looking at the
critical condition of the patient. There can be a situation where the doctor gave consent without
any influence but there are chances that this could go against the interest of the patient.
Sometimes the relatives of the patient try to pressurize or by lucrative offer try to misuse the
situation. Pace with which the medical science is advancing at present gives an impression that
there is no human condition, which is not curable.32

So, the main problem is that if the patient is diagnosed to be in persistent vegetative state then
also as per the development of medical science there is hope for the recovery through the new
innovations and technologies in the area of medical science. Even though, there is remote chance

28
In Union Pacific R Co. V Botsford (1891)141 US 205 at p. 251, the US Supreme Court held “no right is held more
sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and
control of his own person, free from all restraint or interference of others, unless by clear and unquestionable
authority by law”.
29
In Schloendarff v Society of New York Hospital[1914]211 NY 125, J Cardozo observed that every human being of
adult years and sound mind has right to determine what shall be done with his own body; and a surgeon who
performs an operation without his patient’s consent commits an assault, for which he is liable in damages.
30
Ian Freckelton, Causation in Law and Medicine, (Aldershot: Ashgate, 2002), p. 265.
31
Gerald Dworkin, Euthanasia, Euthanasia and Physician Assisted Suicide, (Cambridge: Cambridge University Press,
1998), p. 110.
32
Suresh Dhanda, Legalization of Euthanasia: A Persisting Dilemma, Journal of Law, Policy and Globalization, vol. 3,
2012, pp. 40-46 at p. 44.

27
of recovery it becomes binding on the part of the medical team to ensure extended longevity by
using modern equipments and surgery.

2.9 STATE INTERFERNCE AND ETHICAL DISCOURSE-

There are two concepts embodying this topic at the tip off and they are rights theory and
utilitarianism. There is strong argument in the support of euthanasia and it is being said all over
the world that state does not have the absolute right to intrude into the right of the individuals
because on the other hand individual interest is also to be protected by the state keeping in view
the right of self-determination and right to privacy. The state interest is utmost necessary and
compelling only when there is threat to society as a whole or the interest of the society is in
danger.

However, there is no compelling state interest when an individual decides to die or wants to
undergo euthanasia and therefore, the state intervention in such cases is unwanted.33In the
welfare state like India it is the utmost duty of the state to preserve the morality of the society by
preventing the unlawful termination of life. The interest of the state has been emancipated from
the power to protect the health and welfare of the citizens. The main concern of the state is to
protect those patients who can be easy prey of the society, it means they can be influenced by the
society in regards to the decision making in health care dilemma. It is very easy to influence
those patients who are much vulnerable and can be easy catch of the society.

The question is whether state has the power to interfere with the rights of the patient or
individual liberty, despite having the right to autonomy and self-determination? This question is
still debatable and it should be answered in the coming days. According to Thomas Jefferson,
who said the concept of rights theory in a different perspective, “The care of human life and
happiness and not their destruction is the first and only legitimate object of good
governance.”34The main contention is that state can interfere but only on seeing the utilitarian
concept or consideration under certain circumstances. There should be a balanced approach
between the right approach and utilitarian approach, then only state can know its power and what

33
Proponents of individual autonomy believe that the moral decision to end life is so intimate and personal that
interference by the state is both unwelcome and unjust. A. Flamm and H. Forster, Legal Limits: When Does
Autonomy in Health Care Prevail? , in Michael Freeman and Andrew Lewis (eds), Law and Medicine, vol. 3, (oxford;
Oxford university Press, 2000), p. 142.
34
Spiti Sarkar, Right to Die- To be or not to be? , available at http://www.legalservicesindia.com/articles/die.htm.

28
power it shall exercise in the context of individual liberty. There are many options like Medical
health insurance and bank insurance, for undertaking such costly treatment without bearing much
cost by the patient or relatives.

The major setback on the part of the state is to draw a distinction from euthanasia, suicide and
assisted suicide. In India the concept of euthanasia is new and very few people are aware in this
regard. Think of an illiterate man for whom euthanasia is something very new and without any
knowledge about its implications. Sometimes it is misinterpreted with suicide and assisted
suicide. But in reality they are two different concepts and differ in the terms of meaning. But the
fact is that they are different concepts and it was more cogent and clear in the case of Aruna
Shanbaug35 judgment but the Supreme Court Of India verdicts in the case of Maruti Shripati
Dubal v State of Maharashtra36, P. Rathiram Patnaik v Union of India37 and Smt. Gian Kaur v
State of Punjab38, these are all cases that are dealt in relation to suicide or assisted suicide. This
shows a glaring example how state is confused to draw distinction between the concepts of
suicide, assisted suicide and euthanasia. The matter is not so ambiguous because in the cases of
euthanasia there is third party interference but in the case of suicide there is an act done by the
person and it can be said as self-infliction and there is no influence of third party involvement.

In Naresh Marotrao Sakhre v Union of India39 there are instances where there is misconception
of the concepts in regards to suicide and mercy killing. Suicide by its very nature is an act of
terminating one’s own life and without the aid or assistance of any other human agency.
Euthanasia or mercy-killing on the other hand means and implies the intervention of other human
agency to end the life. Mercy-killing thus is not suicide and an attempt at mercy-killing is not
covered by the provisions of Sec. 309.

The two concepts are both factually and legally distinct. Euthanasia and assisted suicide also
differ from the terminology and meaning, as in former third party is involved in termination of
life and in latter third party assists in self-determination of life. In case of euthanasia there is an
act or omission but in the cases of assisted suicide there is no act or omission but it involves

35
Aruna Ramchandra Shanbaug v UOI, AIR 2011 SC 1290
36
Maruti Shripati Dubal v State of Maharashtra 1987 (1) BomCR 499, 1986 88 BOMLR 589.
37
P. Rathinam v UOI 1994 AIR 1844, 1994 SCC (3) 394.
38
Gian Kaur v State of Punjab 1996 AIR 946, 1996 SCC (2) 648.
39
Naresh Marotrao Sakhre v UOI, 1996 (1) Bom CR 92, 1995 criLJ 96, 1994 (2) MhLj 1850.

29
assistance and it is confined and limited to assistance only and not beyond that. There is a logical
argument that is placed and said that in the cases of euthanasia there is medical ground involved
but in the case of suicide or assisted suicide the reason can be of many types, like it may be of
financial, family or medical. Therefore, the applicability of euthanasia is confined to very limited
number of cases wherein a person is suffering from incurable disease or when his life becomes
purposeless due to mental or physical handicap.40

This is to conclude that there is still doubt because in the euthanasia argument suicide and
assisted suicide is taken into consideration and it remains a flaw in the society. Euthanasia
concept is always seen from the angle of suicide and assisted suicide before Aruna’s case. It is
argued that if euthanasia is allowed in certain circumstances, it would ultimately end up in
allowing it in almost all cases.41

There are also some major drawbacks that are well present inside the euthanasia debate and those
are questions of genuineness of request, whether consent is free or not and wrong diagnosis of
patients. An argument, which is difficult to counter, would be that if death is beneficial for
competent patients suffering from a certain condition why should it be denied to incompetent
patients suffering from the same condition?42It is also feared that the acceptance of euthanasia
may contribute to increasingly casual attitude towards private killing in society.43Therefore, this
kind of slippery slope forces the states to think carefully about the extent of harm, which is likely
to result from allowing euthanasia.44

40
C.K. Parikh, Text Book of Medical Jurisprudence, Forensic Medicine and Toxicology, 6 th Ed., (New Delhi: CBS
publishers, 1999), p. 155.
41
See generally Stephen W. Smith, Evidence for the Protection Slippery Slope in the Debate of PAS and Euthanasia,
Medical Law Review, Vol. 13, Spring 2005. <www. Westlaw.com>.
42
According to the Canadian Medical Association “Euthanasia and assisted suicide are opposed by almost every
national medical association and prohibited by the law codes of almost all countries… If euthanasia or assisted
suicide or both are permitted for competent, suffering, terminally ill patients, there may be legal challenges… to
extend these practices to others who are not competent, suffering or terminally ill. Such extension is the “slippery
Slope” that many fear.” (Statement issued in 1998). See Margaret P. Battin et al., Legal Physician-Assisted Dying in
Oregon and the Netherlands: Evidence Concerning the Impact on Patients in “Vulnerable” Groups, Journal of
Medical Ethics, Vol. 33, No. 10, 2007, pp. 591-597 at p. 592.
43
Afzal Qadri, Euthanasia and Law, Criminal Law Journal, vol. 4, 2000, pp. 161-164 at p. 161.
44
Tom L. Beauchamp and James F. Childress, principles of Bio Medical Ethics, 5 th Ed., (Oxford: Oxford University
Press, 2001), p. 145.

30
2.10 SOCIAL MORALITY, MEDICAL ETHICALITY AND STATE INTEREST-

In Common causes v UOI45 Supreme Court has observed that three factors influence the concept
of euthanasia and they are social morality, medical ethicality and state interest. Since people are
mostly ignorant about euthanasia in India and it requires social awareness in which the NGO’S,
the civic bodies and other volunteer agencies will be very helpful. This concept has been
described and conceptualized on the basis of constitutional framework. The concept has been
extended from two sides one from the societal angel and other from the Hippocratic Oath. There
is reasonable apprehension on the part of the family members that they would get claim of
inheritance, social stigma and the individual guilt.

Doctors sometimes feel guilty on human obligation aspects while handling such delicate issues.
Any negligence on their part can also have legal implications or sanctions which could attract
negligence or criminal culpability. Two conditions that keep coming to mind and they are first,
withdrawal of treatment in an irreversible situation is different from not treating the patient or
attending the patient and second, once passive euthanasia is recognized in law being the right to
die with dignity when life is ebbing out and when the prolongation is done sans purpose, neither
the social morality nor the doctor’s dilemma or fear will have any place. This is so because the
dignity and self-respect of an individual is inside the person and it is well within the Art 21 of
Indian Constitution.

Doctors giving permission for euthanasia appeal has complex procedures which doctors try to
avoid at first instance. It is clear in the passive euthanasia that there is no element of overt act by
the patients, doctors or family members. The essence is that smooth exist from the life and right
to life includes dignified process of dying. The legal essence of Art 21 of Indian Constitution is
to be understood carefully. If a man is forced to undergo pain, suffering and state of indignity
due to unwarranted medical support, the meaning of dignity is lost and the search for meaning of
life is in vain.

45
Common Cause v UOI WPC NO.215 of 2005.

31
2.11 SUPREME COURT VIEW AFTERMATH OF RECENT JUDGEMENT IN THE
CONTEXT OF UTILITARIAN PRINCIPLE-

Supreme Court in its recent judgment has clarified on the point of applying utilitarian principle
only in limited sense. In linking the two concepts between right to life and right to die the
Supreme Court has clarified that where extending the life of the patient with no hope of recovery
is something illogical and there is no reason to prolong where the majority is not able to afford
health services. Another factor is the incurring expenditure by the ailing party is hand pressing
due to lack of recovery. The biggest constraint is in terms of limited medical facilities that are
available and despite this major part of money is spent on the expenditure by the hospital, where
there is no chance of recovery.

In the terms of economic principles there are two appalling justifications firstly the issue of
poverty that is the main concern in relation to the expenses of the hospitals and secondly, major
part is being spent at the point when there are limited medical facilities available. Were non-
availability or limited facility for a particular ailment forces the rural or illiterate people to
undertake such by going outside. The application of cost benefit test in relation to constitutional
principles has also been spelled out and observed that it is an important component and also the
main reason for the application of economic principle by the philosophers of law to analyze the
concept of efficiency or Pareto optimality. It is the principle of right conduct and in terms of
evaluation one has to compare the norm of utility with that of another. The main point is
applying the concept of economic principles in a limited sense in order to promote efficiency.

2.12 ACTIVE EUTHANASIA- MORAL JUSTIFICATIONS-

Life is precious to all and under no circumstances it is acceptable to the family members for
giving consent to a wilful death. Generally people rely on God for getting cured. The act of
commission is something that cannot be justified due to moral values and social norms attached
to it and it would be illegal and per se an offence.

32
Killing someone and letting someone die is still a core debate at this juncture. It is not from the
theoretical standpoint but from the practical standpoint also, it is at the forefront. If we would
presume that both killing and letting the person to die are same despite any circumstances then
there would not be any debate going on down the line and it would be irrelevant to discuss or
canvass. Passive euthanasia from the moral standpoint seems to be in safe harbour and most
appropriate in comparison to active euthanasia.

33
34
 CHAPTER-3- DEVLOPMENTS IN USA, UK AND NEATHERLANDS-

3.1 INTRODUCTION-

In USA all states have not legalized the concept of euthanasia but only some states like, state of
Oregon, Washington and Montana legalized Physician Assisted Suicide but not active euthanasia
as it is illegal in the eyes of law. In Oregon the Death with Dignity Act 1997, prescribes the
amount of lethal drugs to be given. The Death with Dignity Act got approved in November 1994
and has gained lot of hopes for patients of euthanasia. The object of allowing Physician Assisted
Suicide is to relieve the pain of the patient and allowing him an easy and peaceful death. The act
allows terminally ill Oregon residents to obtain and use prescriptions from their physicians for
self-administered, lethal medications.1The essential requirement is that he must be an Oregon
resident, major, possess decision making capacity and should be capable of communicating
decisions regarding his health issues. If these requirements are met only then patient is eligible
to take prescription from the licensed physician of Oregon for administration of lethal
medication.

The patient must make two oral requests and also make two written requests to the physician in
the presence of two witnesses. The prescribing physician and a consulting physician must
confirm the diagnosis and prognosis.2 Both prescribing and consulting physicians should confirm
that the patient is capable of giving consent. Counselling is provided to the patient if he is
suffering from mental trauma or depression and that could affect its decision. There is 15 days
waiting period provided so as to inform close groups and this information can be notified and
state authorities are also informed.

The patient has the right to cancel its decision at any time and there is no restriction to it. DWDA
(Death with Dignity Act) permits the patients to obtain a prescription for medication so as to
enable them to end their lives humanely and with dignity as, the Act does not allow the third
party to administer the medication; patients are required to take the lethal dosage
themselves.3There is participation by the Department of Human Service and it is a mandatory

1
127.805, 2.01, sub-cl. (1), Oregon’s Death with Dignity Act and Oregon Revised Statute, 2007.
2
127. 815, 3. 01, sub-cl. (1), Oregon’s Death with Dignity Act, 1997 and Oregon Revised Statute, 2007.
3
Graham, Kathy, T., “Last Rights: Oregon’s New Death with Dignity Act”, 31Willamette L. Rev. 601. (1995).
http://www.international.westlaw.com.

35
requirement as per the Act to follow the report system as prescribed. In the case where death is
being granted by the physician then the next step is to submit the information to the DHS and
with regards to this information death certificate is given. In Washington the State’s Death with
Dignity Act became law on March 5, 2009. The requirements to be satisfied are he must be a
major, a resident of Washington, the patient must have the capability to make decision regarding
the health issues and the patient has been diagnosed with terminal illness and he is going to die
within a period of 6 months. Montana’s Rights of the Terminally Ill Act, 2009 permits about the
withdrawal of the life support for terminally ill patients only when there is free consent of the
party and he is competent to give his decision.

In Baxter,et. al. v Montana4, on December 31, 2009, the Montana Supreme Court ruled that
“terminally ill patients in Montana have the right to choose aid in dying under state law”.5 A
judicial decision is normally based not only on reasons which are legal, but is also concerned
with the application of general rules of logic, arguments, common sense, framework of culture,
experience , values, and recourse to probability.6 Montana has become the 3rd state in USA that
has framed physician assisted suicide as a medical treatment for the medically terminal ill
patients.

The judicial response with regards to the state of Oregon and Washington has legalized physician
assisted suicide but unfortunately active euthanasia has still no role to play in USA. However,
passive euthanasia in USA has given the right to refuse or withdraw medical treatment. The two
landmark judgments in USA on euthanasia are Washington v Glucksberg7& Vacco v Quill8. In
Glucksberg9 case it was observed that the decision to commit suicide with the assistance of
another may be just as personal and profound as the decision to refuse unwanted medical
treatment, but it has never enjoyed similar legal protection. Indeed the two acts are widely and
reasonably regarded as quite distinct and the court also observed that Americans are engaged in

4
Baxter, et al v Montana, MT DA 09-0051, 2009 MT 449.
5
“Rights of terminally ill in Montana” http://www.compassionandchoices.
6
Viola, Francesco, “The Judicial Truth: The Conception of Truth in Judicial Decision”, ISLJ. vol XIX, No. 2, 1993,
Jaipur, p. 11-12.
7
Washington v Glucksberg, 521 U.S 702 (1997).
8
Vacco v Quill, 521 U.S 793 (1997).
9
Washington v Glucksberg, 521 U.S 702 (1997)

36
an earnest and profound debate about the morality, legality and practicality of Physician Assisted
Suicide.

In Vaccos10 case the USA Supreme Court recognized the difference between refusing the life
saving treatment and administering lethal drugs. The court held that letting the patient die and
making that patient die is logical, rational and well established in this case. Supreme Court relied
on the standard of intent in relation to doctor who withdraws the life support system at the
request of the patient, intends only to fulfil the wishes of his patient at that time. In state of New
York allowing or forbidding assisted suicide or refusing for life support is nothing but a
protection of common law right and that has surfaced on the concept of integrity and right to
self-autonomy.

It was also recognized that it was a matter of compelling interest in disallowing assisted suicide,
in contrast to allowing a patient to refuse life support system is only in the form of preserving
and protecting the common law right. To preserve the sanctity that is attached to individual
autonomy and the reason for the justification is in the form of unwanted touching that was very
much legitimate and valid ground for protection of individual right.

In the case of Cruzan v Director11 it was observed that even touching one’s body amounts to
battery and it is illegal. It is also observed that every human being of adult years and sound mind
has a right to determine what shall be done with his own body, and a surgeon who performs an
operation without his patient’s consent commits an assault, for which he is liable to damages .In
this case the USA Supreme Court has recognized that there is distinction between letting a
patient die and making the patient die. Right to refuse treatment is not based on the assumption
that patients have overall rights to hasten death. In this case the contention was also for advance
directives and these directives are the living will that should be made by the patients. It is just an
addition or alternative to the living will. So, after the decision of this case advance directive
cropped up as a topic to be discussed. The court also recognized the constitutionality protected
right to refuse life saving hydration and nutrition which was an issue in this case.

10
Supra60 at 35
11
Cruzan v Director, Missouri Department of Health, 497 U.S. 261 (1990).

37
3.2 NATURAL DEATH ACT, OREGON DEATH WITH DIGNITY ACT &CONCEPT OF
AUTONOMY AND PRIVACY-

Many states in America have opted for Natural Death Act and this is the Act framed for the
protection of the doctors. It is the written directive written by the patient to defy the artificial
instruments used for prolonging life if he is terminal illness and unable to give his consent. This
also can be revoked by the patient at any time. This Act is meant for the protection of the doctors
and medical staffs from civil or criminal liabilities that arise out of the refusal to or continuing
the treatment. Right to autonomy and privacy are two different terms, as autonomy means the
right to self-determination but right to privacy is to exercise one’s own privacy by non-
interference of public.

It is the concept in which right to privacy is correlated with the concept of right to Autonomy.
The autonomy of one’s body is relevant in medical context and the consent of the patient is the
foremost requirement of right to autonomy apart from legal paradigm. Again it will take a
different turn if the consent is taken against the will of the patient and that goes go against the
patient interest and right to self-determination. In Kelley v Johnson12it has been said by the judge
that the value of privacy, self-identity, autonomy and personal integrity are meant and designed
to be protected by the constitution.

In Wons v Public Health Trust13 question was raised before the Florida Supreme Court is that
whether the competent adult has the right to refuse a lifesaving blood transfusion? It has been
clarified that informed consent and right to privacy are the foundation to right to bodily integrity
and it shall be protected and superiority shall be given to respect the concerns of maintaining the
ethical standards of medical profession.

In Compassion in Dying v State of Washington14 it was the first case that addressed the
constitutionality of the statute prohibiting assisted suicide. In Washington v Glucksburg15 the
USA Supreme Court has reversed the decision of Compassion in Dying and held that asserted
right to assistance in committing suicide was not a fundamental liberty interest protected by due

12
Kelley v Johnson, 425 U.S. 238 (1976).
13
Wons v Public Health Trust 500 So 2d 679 (1987).
14
Compassion in Dying v State of Washington 850 F. supp. 1454 (1994).
15
Washington v Glucksberg, 521 U.S 702 (1997)

38
process clause and assisted suicide is related to legitimate government interest. Although court
rejected assisted suicide but it believed that state is in better position to pass a law on it. Oregon
was the first state in 1997 that allowed the physician assisted suicide in USA.

A patient having the competency and a resident of Oregon can express his willingness to die.
The foremost requirement is that the patient is terminally ill and it has to be determined by the
physician concerned. The written request made by the patient to end his life should also be
accompanied with the above conditions to allow for a dignified death in consonance with the
procedure given under Death and Dignity Act that is prevailing in Oregon. The written request
shall consist of signature, shall be witnessed by at least two individuals in the presence of the
patient, must be acting in good knowledge and consent should be free from any duress.

3.3THE LEGAL POSITION IN UNITED STATES AND CONCEPT OF ADVANCE

DIRECTIVE-

In the United States of America, active euthanasia is illegal but physician assisted death is legal
in the states of Oregon, Washington and Montana. In the states of Oregon and Washington self
assisted dying is legal and valid but doctor administered assisted dying is illegal and criminal
offence. In the case of Cruzan it was observed that there should be clinching and convincing
evidence to satisfy the patient’s willingness in relation to assistance by the physician to respect
such willingness. In this case there was no such evidence that could prove convincing and make
the decision in allowing for termination. The patient is also not willing to have hydration and
nutrition as per evidence on the face of records. The question that cropped up was whether New
York prohibition on assisted suicide violates equal protection clause of 14th amendment?

It is being vehemently clarified by the USA Supreme Court that there is distinction between
letting a patient die and making that patient die. It is said that right to refuse treatment is not
based on same assumption that it means for hastening death. The Supreme Court also relied on
the views of American Medical Association and clarified the difference of refusing life
sustaining treatment and demanding a life ending treatment. The concept of right to refuse
treatment is based on two valid propositions and they are the ground of traditional rights to

39
bodily integrity in the form of exercising right to self-determination and freedom from unwanted
touching.

In USA it is mandatory for the doctors to take the patient’s wish beforehand to make it effective
when the patient is not in a position to communicate his decision in regards to medical treatment.
California is the first state in the USA that has allowed the concept of living will to be effective.
The Patient Self- Determination Act has conceded patient’s right to accept or refuse the
treatment and is based on the principle of right to self-determination and self-autonomy. In all
other states of USA health care proxy has been given approval so that patient can be permitted to
appoint health care proxy when patient is not in a condition to make decisions in regards to
medical treatment. The form of living will in USA aims at continuing treatment and not to
terminate the life of the patient. The form of advance directive that has gained the momentum is
the Living will Registry. In Florida there is a new form of advance directive that has been
introduced and named as “Do Not Resuscitate” (DNR) that means it is a patient identification
device that has been created by health department who are willing to resuscitate during the time
of respiratory or cardiac arrest.

3.4 THE LEGAL POSITION IN NETHERLANDS-

Netherlands is the first state to legalize euthanasia and Physician Assisted Suicide is allowed in
Netherlands but with certain qualifications that need to be fulfilled. But active euthanasia is
being prohibited. Euthanasia was legalized in the year 2001. The ministry of public health, well
human being and sports claim that this practice allows a person to end his/her life in dignity after
receiving every type of palliative care.16 The socio economic system of the country has its
foundation in the Catholic social philosophy of corporatism that abandons the capitalist idea of

16
http://www.findarticles.com/p/articles.

40
competitive individualism in favour of an ideology of common responsibility for the common
good.17

Before legalization of physician assisted suicide, as per the Dutch penal code it was an offence.
In Netherland the issue of euthanasia fuelled up in the aftermath of Postma18 in 1973. Taking an
e.g. to relive the suffering and pain of the ailing mother the daughter administered morphine
injection with the intention of killing. At that time the concept and the application of euthanasia
was not much in use. She was convicted with charges of killing and was sent to jail.

In the year 1991, Remmelink Commission report was the first report by the commission in the
area of euthanasia and Physician Assisted Suicide. The present status on euthanasia that allows
euthanasia for termination of life and the legal terminology which was used is known as the life
ending on request by physician assisted suicide. The Dutch law also protects and preserves the
rights of the doctors in the context of euthanasia and prevents the doctors from any criminal
prosecution for giving assistance to die, but there are some conditions and qualifications that
shall be adhered to before it is allowed to terminate life and these conditions are of necessary
guidelines and are as follows:

1. Patient has to make voluntary request to die but the patient is well competent to know the
full information about his health condition in all prospects.
2. Patient must be in such a condition that the pain is extremely high or unbearable and
there is no hope to recover and there is no other solution or way in which the patient can
be saved.
3. Doing euthanasia or physician assisted suicide must be with prior consultation of two
physicians and that shall be done with utmost due care.
4. It must be done only by the physician not by any other person.
5. There must be consultation with other independent doctor.
6. The patient is at least 12 years old and if the age of the patient is between 12 to 16 years
then consent of the parents is required.

17
Griffiths, John, et. al., Euthanasia and Law in the Netherlands 11, Amsterdam: Amsterdam University press, 1998
http://prouest.umi.com.
18
Postma N.J.1973, NO-183.

41
 7. The death must be carried as per the medical procedures and the presence of doctor is
utmost at that time.
The cause of the death shall also be intimated to the municipal coroner in compiling with
the Burial and Cremation Act. The duty of the regional review committee is to assess
whether it is a perfect case of euthanasia or Physician Assisted Suicide, if yes then it shall
be allowed taking the due care criteria and if not, it shall be brought to the notice of
public prosecutor. Then a written declaration of will shall be made on the context of
euthanasia and that is known as euthanasia directive. This declaration is made at the time
when the patient is not in a condition to say anything or he/she can be said to be in
unconscious state of mind. The conditions shall be met out rightly and if there is any
deficiency in fulfilling any condition then it would amount to criminal offence.

Dutch physicians do not advocate physician assisted suicide as a treatment option but is
considered only when all other alternatives for the terminally ill patient have been
exhausted.19 In Netherland physician assisted suicide is given because not for the reason of
pain or right to self-determination but in the light of assessment of quality of life that has
equal parlance with a dignified life.

In another case known as Schoonheim case the Supreme Court decided the case on the
context of conflict of duties. In this case on one hand the doctors had to alleviate patients
suffering and on the other hand from the standpoint of law they had to protect the patient’s
life. So there was conflict of interest between the two duties but Supreme Court said that the
doctors will not be prosecuted if utmost care has been taken in balancing the conflicting
duties and that should be objectively justified and it shall be taken only in exceptional
circumstances. It is not the case of right to autonomy or self-determination but it is the case
of necessity that sprung up from the concept of conflicting duties.

There was compelling reasons to allow euthanasia in this case because the patient’s decision
was voluntarily given without any duress. The defence that was taken by the doctor is the
defence of responsibility. This means it is the conflict of duty in respect of preserving the life
on one hand and alleviating the pain in other hand.

19
Hall, Alisom, C., “To Die with Dignity: Comparing Physician Assisted suicide in the US, Japan, & the Netherlands”,
74 Wash. U. L. Q. 803. (1996). http://www.International.Westlaw.com.

42
 In Chabot20 case the concept of Physician Assisted Suicide has been expanded and has
broadened the scope by allowing euthanasia on the grounds of necessity despite the pain or
terminal illness and is based on psychological element. The suffering of the patient is the
utmost necessity to invoke euthanasia. This case is the landmark judgement in non-somatic
suffering and court held that wish to die of a person whose suffering is psychic can be based
on autonomous judgement and it relied on the principle of autonomy.

So, 2001 Bill was approved by the Dutch parliament that permitted Physician Assisted
Suicide. Euthanasia in Netherlands is operated under the Act called as Termination of Life on
Request and Assisted suicide (Review Procedures) Act, 2002. It is stated that act of
euthanasia and Physician Assisted Suicide is not punishable if it is done with due care and
caution and if it is based on consent of the patient. The entire procedure is to be complied by
the physician and it is the duty of the doctors to intimate the matter to the review committee.
The conditions that are there in the Act shall be met otherwise the case of euthanasia or
Physician Assisted Suicide can be rejected. But there are situations where it is not subjected
to restriction by law and they are-

1. Not starting the medical treatment due to bare treatment.

2. Not starting the treatment without the consent of the patient.
3. Enhancing the level of death to alleviate the pain and suffering
This is done because there are valid grounds for it under Dutch law and it is permissible
due to normal medical practice and standards.
In Postma21 case the court ruling was that lethal injection was not a reasonable means to
put end to her mother’s life. Court also observed that doctors are not obliged to prolong
the life at any cost and under certain conditions it is necessary to use medications to
shorten the life of the patient.

In Dr K22 case there are five preconditions that need to be satisfied before allowing for
euthanasia-

20
Office of Public Prosecutions v Chabot nr 96. 972 (1994).
21
Supra73 at 41
22
Dr. K. Malathi v Dr. S. Rajasekaran AIR2003 Mad322.

43
1. By a physician after consultation with another physician, who has personally seen the
patient;
2. On a patient whose suffering is unbearable and irreversible;
3. When the explicit and earnest request can be considered lasting and is based on
proper valuation by his patient of his or her condition and available alternatives;
4. When the patient does not think that there is any reasonable alternative;
5. When all other requirements of prudence are fulfilled.

In Wertheim case that created an informal legalization of euthanasia and assisted

suicide by the means of prosecutorial policy.
In Admiraal Case the report made by the executive boards for the doctors to follow
requirements of careful practice and these can be said as preconditions that shall be
satisfied and they are-
1. The request for euthanasia shall be voluntary.
2. The request must be well considered.
3. The patient desire to die must be lasting one.
4. The patient suffering must be unacceptable for him.
5. The doctor must consult a colleague.

In Dr Henkn Prins and Dr Gerard Kadijk case the court favoured the killing on the
ground of moral equilibrium between inevitable death and the taking of patient’s life
under distress condition. In Van Oijen case the question that was raised was what is
the boundary line between the euthanasia and palliative care?

Apart from the legislation in Dutch in regards to the Termination of life on request
and assisted suicide (Review Procedures) Act, there were amendments in relation to
criminal code spelled out euthanasia and assisted suicide under Article 293 and 294.
These amendments have made a radical change in the law and have protected the
physicians from criminal sanction if they acted in taking due care and reported the
death in proper manner. The regional review committee is acting like a means to
achieve the desired result of euthanasia or assisted suicide.

44
The burden is on the Review Committee that would make the review of the reports
made by the physician and municipal coroner. The main requirement is the condition
of due care and if it has been violated then it shall be intimated to the procurators
general and regional health care inspector. For these cases a Regional Review
Committee is constituted that consists of one specialist, one chairman, one physician,
one expert on philosophical or ethical issues and deputy members.

3.5 REQURIMENTS OF DUE CARE & JURISPRUDENTIAL CHANGES-

The requirement of due care provided under Article 2 of Section 1 means that

1. Requirements of due care under Art. 293 of penal code are for the physician.
a) Request by the patient was voluntary and well considered.
b) The patient’s sufferings were lasting and unbearable.
c) Has informed the patient about his condition he was in and about his prospects.
d) There was also no other solution for that situation.
e) Has consulted at least one independent physician who has seen the patient
condition and has given written opinion on the requirements of due care
referred in clause a), d) and f), has assisted in allowing suicide or terminated a
life with due care.

Article 2 depicts about the consent in the cases of minors or incapacity of the
patient. The patient must be at least 16 years of age while making the directive
and minority is not the ground for rejection but it shall be done with utmost care.
Section 3 and 4 of Article 2 relates to minors and parental rights. This has been
divided into two categories firstly patients between the age group of sixteen and
eighteen and secondly the age between twelve and sixteen, in former case the
patient request for euthanasia after the parents or guardians have been involved in
the process but in the latter case the parents or guardian have the absolute right. In
ancient times the person found to be guilty under Art. 293 or 294 court was little

45
 bit lenient in imposing sentence and it was basically penalty that was imposed and
it was compensatory in nature. The requirement of due care is changing which
was not there earlier and has developed by the involvement and active
participation of medical community. Non-somatic pain was also included under
the term suffering. Defence of necessity is also been included within the ambit
and has been invoked in the special circumstances.

3.6 LEGAL POSITION IN UNITED KINGDOM-

In UK there was lot of struggle and tension for passing the Bill on euthanasia. In
many occasions effort seemed to be going in vain and it has been a struggle since
long. The first Bill of 1936 was the Voluntary Euthanasia Legalization Bill. The
Bill had many conditions that were to be satisfied before allowing for euthanasia,
but unfortunately the Bill didn’t get through due to difficulty in tailoring of
cumbersome safeguard mechanism. Again in the year 1950 an attempt was made
but it also went in vain. Voluntary Euthanasia society fought for the Bill to be
passed, but it also could not fulfil all requirements. As a matter of principle, right
to die with dignity reinforces current trends towards greater respect for personal
autonomy.23
However, creating rights or allowing extravagance of personal choices is open to
challenge if it produces a corresponding risk to society as a whole or to some
specific and possibly vulnerable section within it.24 The euthanasia concept has
been widely debated in UK due to reasons of public importance and that have
fuelled up the topic.

In the famous case Airedale National Health Service Trust v Bland25 the debate
turned rampant in UK. In UK the validity of euthanasia is not legalized and
consent to death is irrelevant despite the pain and terminal illness. In a number of

23
Kravitz. R. L., & Melnikow J., “Engaging patients in medical decision- making”, BMJ, vol.323. No.5, 2001, pp.84-5.
24
Branthwaite M.A “Time for change”, BMJ, vol. 331:645-704, No.7518, 24 sep 2005, p.681.
25
Airedale N.H.S. Trust v Bland (1993) A.C. 789.

46
 cases the courts have respected the right to self-determination and autonomy.26 In
fact the euthanasia or Physician Assisted Suicide is illegal in UK till date.

In this case it has been explained that inPersistent Vegetative State the brain stem
remains alive but the cortex has lost its function and activity. His digestion is
functioning but unfortunately his eyes are open but cannot see, nor can hear, nor
could feel the pain, nor can he taste or smell and in fact there is cognitive failure
in his body functioning. Similarly when a patient is of sound mind and mentally
conscious, there is no requirement of giving or administering lethal drugs without
his consent. If done so it is a culpable offence and attracting legal implications.

3.7 DOCTRINE OF DOUBLE EFFECT, PARENS PATRIAE & ADVANCE

DIRECTIVE-

The doctrine of double affect depicts about giving high amount of therapeutic
drugs so that patient can die. This doctrine has been aroused from the case of R v
Adams27 . The doctor can administer palliative drugs which can hasten the patient
to die to relieve the inside pain. In this case the main contention was whether
there was intention to kill the patient and if that is the case then the doctor is liable
for criminal offence. The question of foreseeing is also another factor that is
determined in this case and if it is foreseen then it would be presumed that there is
intention behind it. It is the well accepted principle in England after the case of
Adams.

In this case the jury also examined the subjective intent of the Dr Adams to see
whether it is done to relieve the pain or to put an end to his life. The main
problem that arises out of the concept of double effect is the presence of
subjective element of intention, it means there is no accuracy and it keeps on
changing and it can’t be relied on the integrity or honesty of the doctors. The

26
Wilson v Pringle (1986) 2 All ER 440, st. Georges Healthcare NHS Trust v S (1999) Fam 26 Airedale NHS Trust v.
Bland (1993) 1 All ER 321 (HL) at 860.
27
R v Dr Bodkins Adams (1957) Crim LR 365.

47
problem of unforeseen is criticized because it is said that it would have bad effect
irrespective of unforeseen nature. It means if doctor foresees something maybe it
is of good effect that doesn’t amount to bad intention. The concept of intention
and foresight seems to be very much inconsistent and they overlap each other.

There was another case that has fueled up the debate and that is Dr. Nigel Cox
case where the doctor was convicted for attempted euthanasia and was given 12
months sentence.

But the UK has not legalized euthanasia and Physician Assisted Suicide due to
public agitation. In the concept of double effect the doctors may engage in both
positive and negative act without prosecution if such act is for good act such as to
relieve the pain and must not have any bad effect of killing the patient. The
concept of Double Effect has two sides one is the good and other is the bad. The
main point is that intention should not be bad or immoral to achieve the desired
result that is the ‘pain’. The intention also should not be bad although act may be
unforeseeable.

In Irwin case there was confession in relation to double effect doctrine and he also
stated doctors in many cases also do such things and as a result of this case it has
fuelled the debate on euthanasia and adequacy of double effect principle. The
main contention was to provide relief to the patient and relieve him of pain and
kill him that was clear intention of the Dr Irwin but he was not prosecuted under
1961 suicide Act.

In Moor case first murder charge against the doctor was levelled in the case of
double effect, but due to lack of evidence the conviction charge could not be
sustained and Moor was acquitted of the murder charge. So, it is an example that
doctor’s intention can be of any nature and there is no such objective assessment
of the intention. The doctor said using drugs that hasten death is legal but not the
intention to end the life. This case also shows the trust on the doctors by the court

48
 and relying only on doctor’s contention of reliving pain and giving the doctor
acquittal.

The concept of Parens Patriae has originated from the British law. It is implied
that if the king is the father of the country then he has to look into the interest of
persons who are unable to look after themselves and it ultimately means that state
is the Parens Patriae of the person who is unable to look after himself and state is
the ultimate guardian of the patient and the best protector at this moment.

In Heller v DOE28 the USA Supreme Court observed that “the state has a
legitimate interest under its Parens Patriae powers in providing care to its citizens
who are unable to care for themselves”. In case of the incompetent person who is
unable to take informed decision or to give informed consent to withdraw life
support or not, it is the court who is the Parens Patriae apart from the near
relatives, friends or parents of the respective patient.

The Living will or Advance Directive in UK is governed by the Mental Capacity

Act. The necessary conditions that should be met before giving effect to living
will are the verification of decision maker in the matter of refusal of life
sustaining treatment irrespective of any risk attached to the body. It should be in
written form, shall be signed and witnessed. Refusing or not allowing food and
water is outside the purview of the Act. The patient has the right to appoint health
care proxy and that is known as lasting power of Attorney that has the power to
refuse the life sustaining treatment of the patient.

28
Heller v Doe, 509 U.S. 312 (1993).

49
 3.8 CURRENT STATUS OF UK-

In UK assisted suicide is prohibited by Sec.2 (1) of the Suicide Act, 1961 and
voluntary euthanasia is considered as murder. Pretty v Director of Prosecutions
and secretary of state for Home Department29 case showed that active euthanasia
and physician assisted suicide is not permitted in law. In Nicklinson and Lamb v
the United Kingdom30 case there was ban on euthanasia and assisted suicide. In
the case of Attorney General v Able31it was observed that the provision of such
advice amounts to aiding and abetting suicide if it is closely linked to the act of
self-destruction. The difficult situation is when there is dependency of the patient
on the artificial nutrition. But the situation of PVS (Persistent Vegetative State)
cases is somewhat different as they require artificial means to survive and they are
unconscious and it creates the problem. They are exactly not designated as brain
death because it is mere functioning of brain stem as a result there is operation of
both breathing and circulation.

In Airedale case the court observed that artificial feeding is an important

component of the medical treatment rather than a distinct duty. Best interest
doctrine can be invoked and it is for the best interest of the patient. In other sense
patient was allowed to die but it was never authorized and it was observed by the
court that human life need not be maintained at all costs when there is no possible
conscious enjoyment or value that would result from those efforts. It is for the
parents and doctors to consult each other and keeping due consideration of the
interest of the patient. The court also affirmed that the patient should be made
comfortable and allowed to die with peace and dignity.

The judge in this case also told that the court never sanctioned steps to terminate
life and it would be unlawful. There was no question of approval even in the cases

29
Pretty v The United Kingdom ECHR (2346/02, (2002) 35 EHRR 1.
30
Nicklinson & Lamb v U.K, 2478/15, 1787/15 (2015) ECHR 783.
31
Attorney General v Able & others, (1983) 3 WLR 845, (1984) 1 QB 795, (1984) 1 All ER 277.

50
of worst situation in terminating life or allowing death. The court was concerned
with the circumstances in which the steps that were being taken should not
prolong life. It was also observed that it was not lawful for a medical practitioner
who assumed responsibility for the care of an unconscious patient simply to stop
giving treatment in circumstances where continuance of it would confer some
benefit to the patient.

A medical practitioner is under no obligation to continue the treatment when it is

a known fact under the medical opinion and information has been revealed that no
benefit would be achieved in continuance of treatment. Persistent Vegetative State
means that there is no chance of recovery but despite this fact the life is continued
then it is not proper decision to continue the treatment and care.

If Persistent Vegetative State is not supporting the patient and not benefitting him
then it is obvious that the principle of sanctity of life is no longer an absolute one.
There is no need to compel the patient to live the life if he is not willing to live as
it would go against the wishes of the patient. It is also against the measures which
are taken to make a bypass road or to cut short the life of a terminally ill patient.
If the patient is in such a condition and on the bed for more than 3 years and is in
Persistent Vegetative State then it would not go against the sanctity of life if
medical treatment and care is withdrawn by the medical practitioner. The decision
whether continued treatment and care is necessary for the Persistent Vegetative
State patient is a casted duty of the practitioners in charge.

It has been further observed that there is no such absolute rule to prolong life by
such treatment or care under any circumstances. Doctor’s conduct to discontinue
the life of the patient does amount to omission as it ultimately means not initiating
the treatment or it somehow amounts to same thing like simply allowing the
patient to die. The main thing in this case is that it does not become unlawful on
the part of the doctors as it is ultimately the breach of duty which constitutes main
component until then it is all good.

51
 An example of omission can be if there is an active involvement of an interloper,
who intentionally removes the ventilator, then it would be a different case and it
would attract the concept of omission. It has been further observed that
discontinuance of life support to be consistent with the doctor’s duty to care for
his patient, if it is inconsistent then it is clear that an unlawful act has been
committed.

In F v West Berkshire Health Authority32 case best interest concept has been
observed and it stresses upon the legal principles underlining the treatment of the
patient in the cases of unsound mind, incompetent patient, accidental illness,
incapable of consenting to treatment of care. In this case it was been observed that
a doctor may lawfully treat such patient if he acts in his best interest, and indeed,
if the patient is already in his care, he is under a duty so to treat him.

The doctor’s decision to take the step ahead or not is the decision of the doctor
and he is the best judge of the patient’s best interest subject to patient’s ability to
give or withhold his consent. It is not in best interest of the patient to die but the
best interest of the patient is to continue living or prolong the life. The question
arises that there is neither hope for the survival nor any therapeutic purpose is
there and the treatment is futile then it is tantamount intrusion into the character of
the treatment and it is indignity on the patient to prolong life by artificial means
which causes distress and stress to the family members.

It was also observed that in English law the straight forward test was the best
interest of the patient. It has also been said that this test is suitable and applicable
only to Persistent Vegetative State patient where the question is whether life
prolonging treatment should be continued or withheld. Apart from the best
interest concept if any other principle that comes at par then it can be taken. It is

32
F v West Berkshire Health Authority, (1990) 2 AC 1, (1991) UKHL 1.

52
relevant to take into account personality of the patient to assess the applicability
of the test.

The question was raised whether life support should be withheld from a Persistent
vegetative State patient, then the problem was how the personality of the patient is
to be judged. The doctor should rely and consult the court as a declaratory relief
before withholding life prolonging treatment from a Persistent Vegetative State
patient. It is said that opinion of the court should be taken in all cases.

It has also been argued that there should be flexibility and relaxation in the
present requirement so as to limit the number of applications for declarations only
in cases of special circumstances. The importance should be given to the informed
medical opinion both on the canvass of whether to continue the artificial feeding
regime of the patient in Persistent Vegetative State cases and in the question of
best interest of the patient. It is only the parliament and not the court who would
determine such wide canvass of issues.

The recent dynamic change in the medical science has changed the meaning of
death. In medicine, cessation of breathing or heart beat is no longer considered as
death, because of new technology, ventilator has replaced this concept. It is vital
that moral, social and legal issues that are raised in such cases should be
considered by the parliament, and if parliament fails to act on this, then only court
should make law in other sense judges should make laws that would bring answer
to the new emerging issues and questions.

The court does not have the power to make new law but it has to make decisions
within that given law. The parliament has the ultimate power to deal with such
wide issues and lay down principles regarding withdrawal of life support system.

53
Administering invasive medical care is another question and that is dependent on
the care that is in the best interest principle. There can be a stage where further
continuance of an intruded life support system can be against the best interest of
the patient, then at that stage doctor has no right to continue that life support
system otherwise it would attract battery and tort of trespass.

The correct question that has been processed is that whether the doctor dealing
with the patient has come to a conclusion that the treatment being given to the
patient is not in the best interest of the patient and this decision has been arrived
through reasonable and bona fide belief.

It has been analysed that if the patient is in such a miserable condition and he is
unable to communicate his wishes then it is best to be relied on the basis of case
of Airedale. It well settled and it is lawful on the part of the doctors to discontinue
the treatment if the patient is not willing or refusing such treatment. The other
point is that if the patient is not in the situation to communicate his wishes then it
is the responsibility of the doctor to act in the best interest of the patient.

54
55
 CHAPTER-4-INDIAN POSITION: JURISPUDENTIAL DEVLOPMENTS BEFORE
ARUNA’S CASE-

4.1 LEGAL POSITION IN INDIA

The Indian legal system is against the validity of active euthanasia and in fact it has not given
any affirmative views in favour of allowing euthanasia. But the core point is always on the topic
of passive euthanasia in the Indian context. The question that has raised the debate in the case of
passive euthanasia is in the area of authenticity and genuineness of the consent. The question is
who is having the power to give consent on behalf of the patient. The question of good faith is
the touch stone of the topic at this juncture. Again the question that beefed up is who will be
exercising such good faith on behalf of the patient. The situation would rather become more
complicated where there are no family members.

Before Aruna’s1 case the discussion about euthanasia was in grey area on the part of the
judiciary. It is also very difficult to locate the difference between suicide and assisted suicide. In
India most of the decisions on the point of euthanasia are seen from the prospects of suicide and
assisted suicide and is the major setback in giving adverse decision or going against allowing
euthanasia as it is never seen from the angle of euthanasia. Till the Aruna Shanbaug 2case
euthanasia was seen or it has been debated on the dictums of Maruti Shripati Dubal v State of
Maharashtra3, P. Rathinam Patnaik v Union of India4 and Smt. Gian Kaur v State of Punjab5.
Analyzing the case of Rathinam6 where the first question about right to die fuelled up the debate.
In this case decriminalization of attempt to commit suicide was pleaded for and in this light the
judges deeply relied on the cases of Sanjay Kumar7 and Yogesh Sharma. In the case of State v
Sanjay Kumar8the court examined the rationale of Sec. 309 of IPC. In Rathinam case it was
justified that most suicide occurred due to the reason of environmental or personal reasons so,
that cannot be the sole ground of considering this as a crime. In this case the court strongly gave

1
Aruna Ramchandra Shanbaug v UOI AIR 2011 SC 1290
2
Aruna Ramchandra Shanbaug v UOI AIR 2011 SC 1290
3
Maruti Shripati Dubal v State of Maharashtra, 1987 (1) BomCR 499, (1986) 88 BOMLR 589.
4
P. Rathinam v UOI, (1994) 3 SCC 394: AIR 1994 SC 1844: 1994 Cr LJ 1605.
5
Gian Kaur v State of Punjab, (1996) 2 SCC 648: AIR 1996 Cr LJ 1660.
6
P. Rathinam v UOI, 1994:AIR 1844, 1994 SCC (3) 394
7
State v Sanjay Kumar Bhatia, 1985 Crl. L.J. 931.
8
State v Sanjay Kumar Bhatia, 1985 Crl. 322 L.J 931

56
its decision basing it on the humanitarian ground. Second issue was to recognize the concept of
right to die and it is questioned whether Art. 21 of the Indian Constitution has only positive
content or it also contains negative in its reach? In this case the court observed that right to life
embraces not only from physical existence but also from the prospects of quality of life that is
the essence. If the person is not satisfied or not getting the type of quality life that he should get
then he has the right to terminate the life.

The logic of negative aspect of right to life in this case is not so clearly articulated but the
judgment has been given in favour of decriminalization of Sec.309 of IPC. The question that has
been raised in this judgment is whether right to die will supersede over other rights? The court
observed that if the basic necessities such as food, water, shelter are not fulfilled then right to die
can be pleaded. The jurisprudential standpoint in combating the problem of right to die is being
seen in this case in respect of obligation on the part of the state to allow for right to die. The
second issue from the side of jurisprudence is the significance of the state control over the
individual liberty, it means whether the state has any control or brakes on the liberty of the
individuals? It is often argued that the power can be exercised by the state on the individual if
anything is done by a particular individual and that is against the will of state.

The matter has been raised because the state intervention is essential where the suicide is
attempted and it affects the rights of others. The judgment is much clear and stateS that right to
die is an individual matter and has no impact on anyone but on the individual. These issues also
can have nexus with the judgment of right to privacy and there should be some space given to
particular individual and it should be free from societal concern and scrutiny. The nexus is drawn
as the touch stone of giving privacy to individual in the form of exercising right to autonomy and
right to self-determination in making an a appropriate choice, whether to live or die.

This right is seen both from the concept of public policy and morality. The implications of the
judgment can be seen from both arrays and they are from the prospects of legal or from the social
settings. The other question is that whether Sec. 306 is dependent upon Sec. 309? If there is an
abettor and he needs someone’s assistance in perpetrating suicide and while that person attempts
to do an act and the act fails then abettor is liable but not the person who has attempted the act, it
seems illogical.

57
The central topic that has stirred the debate is whether the judgment legalizes euthanasia. The
court stated that the concept of euthanasia is beyond the boundary of the judgment and there
exist a difference between both suicide and euthanasia and they cannot be same to decide the
issue. The main contention is that taking drugs for the sake of exercising right to die is something
that is extreme end of the situation and in this case the public importance shall be kept at high
pedestal despite any other factor and if the state would allow the act like a passer-by then it is
obvious that state is an abettor to the act of suicide and it is not permissible in the eyes of law.
Hence, the power of the state for the sake of plea cannot be done away to reduce down the power
of the state. The social question is the amount of responsibility and duty that is incumbent on the
part of the citizens as there is no punishment for this act under Sec.309.

The authenticity and the genuine ground of attempting suicide will lose its value due to
immaturity of committing the suicide. In Maruti Sripati Dubal v State of Maharashtra9in which
the decision of right to die first cropped up before the judiciary. The issue raised in this case was
the validity of Sec.309 and whether it is devoid of infraction of Art 14, 19 and 21 of the
Constitution? It was contended that fundamental rights have their positive as well as negative
aspects. For e.g., the freedom of speech and expression includes freedom of silence,10 freedom of
association includes freedom not to join association.11 Likewise, freedom of trade and occupation
includes freedom not to trade.12 The court has held that in a compelling situation right to life
includes right not to live and it may be logical to say it so. The court also observed that in the
cases of unbearable physical ailments, loss of senses, cruel condition and it is very painful to live
then there should be right to die. The court held that Sec.309 is void and it violates Art. 14 and
21 of the India Constitution and it must be struck down. In Chenna Jagdeeswar v State of

9
Maruti Shripati Dubal v State of Maharashtra 1987 (1) BOMCR 499, 1986 88 BOMLR 589
10
Art 19 (1) (a) of the constitution guarantees to the citizen a fundamental freedom of speech and expression.
Freedom of speech and expression includes freedom of silence which has been established by the Supreme Court
in Bijoe Emmanuel v State of Kerala, (1986) 3 SCC 615.
11
Article 19 (1) (c) of the constitution guarantees to the citizens a fundamental freedom to form association. The
freedom to form association implies also the freedom not to form, or not to join association has been established
by the Supreme Court in Sarya Pal Singh v State of Uttar Pradesh, AIR 1951 All. 674. See, V.G. Row v State of
Madras, AIR 1951 Mad. 147.
12
Article 19 (1) (g) of the constitution guarantees that all citizens shall have “the right to practice any profession, or
to carry on any occupation, trade or business.” The right to carry on a business includes right to close it. The state
cannot compel a citizen to carry on business against his will. Hathising Mfg. Co. v Union of India, AIR 1960, SC 923.
See, Excel Wear v Union of India, AIR 1979 SC 25.

58
Andhra Pradesh13 Andhra Pradesh High Court held that right to die is not a fundamental right
encompassed within right to life under Art. 21 of the Constitution and hence Sec. 309 of the IPC
is not unconstitutional. In Gian Kaur v State of Punjab14 a five judge constitution bench of the
Supreme Court has overruled the judgment of P. Rathinam.

The issue that was raised before the court was that whether right to life includes right to die
under Art.21 of the India Constitution. The court held that any aspect of life that makes it
dignified is included within the ambit of Art.21 of the India Constitution but not which
extinguishes life. There is a sweeping difference drawn between right to life and right to die and
it is said that right to life is a natural right but suicide is an unnatural termination of life which
can be inconsistent to be within the ambit of Art.21 of the India Constitution and outside the
scope of purview.

The right to dignified life means existence of such right up to the end of the natural life and not
till the end of unnatural termination of life. The court also discussed the matter of terminal illness
or the person who is in Persistent Vegetative State. The court permitted that there can be
premature termination of life in the cases of terminal illness or Persistent Vegetative State, that
situation would be scrutinized and looked into deeply but not at the outset. Factors for allowing
euthanasia can be part of right to die with dignity which is part of right to live with dignity. But
court unfortunately rejected the contention of Physician Assisted Suicide and unnatural
termination of life.

The court held that Sec.309 is constitutional and it is not a violation of Art.21 of the India
Constitution. It ultimately overruled the aforesaid cases on merit and approved the validity and
constitutionality of Sec. 309 of IPC. In all such cases though court discussed the matter
thoroughly but it did not delve deep into the matter of death with dignity for terminally ill
patients. The request to die by the patients should be seen from the humanity angle. The concept
of right to die in cases of euthanasia does not permit in the present societal circumstances. The
concept of unnatural death has been equated with the concept of death penalty. It was pleaded
that in cases of death penalty the unnatural death is done through the procedure established by

13
Chenna Jagadeeswar & another v State of Andhra Pradesh C.A No. 165 of 1987.
14
Gian Kaur v State of Punjab 1996 AIR 946, 1996 SCC (2) 648

59
law under compelling situations and it was not violation of Art.21 of the Indian Constitution. So,
if in death penalty such unnatural death is being allowed then why not in euthanasia.

The discussion on euthanasia is being kept at par with the concept of suicide and is the biggest
flaw in understanding the dynamism of the terms which carry different meanings in cases
without having any infirmities. Another question that sprung from the topic of death penalty is
that when inexplicable delay can be a ground for commutation of death sentence into life
imprisonment, why in the cases of euthanasia the patients are not given the right to die despite
the pain. In fact in both the cases there is compelling circumstances.

As per the judicial precedents there are three possible areas that are being dealt with and those
are situation before Rathinam15, situation after Rathinam case and lastly in Gian Kaur16 case
where it was held that right to life exists to uphold the dignity and sanctity of human life.
Therefore, it has been declared by the Supreme Court that Sec. 309 does not violate Art.21 of the
India Constitution. Suicide is not an offence in India but attempt to suicide is an offence. Law
commission in its 42nd report has pleaded for repealing of Sec. 309 on the ground of harness and
unbearable pain by the patient. The very fact that a Bill was introduced in the Rajya Sabha,
seeking to delete Sec. 309 from the IPC, on the recommendation of the law commission was not
revived after its lapse with the dissolution of the Lok Sabha is an indicator of public opposition.17

So, in the year of 1979 there was different environment and scenario as compared to present
social setting, as there are changes in the mindset of the society and new technologies have also
changed the spectrum of medical science. It is ultimately for the welfare of the peoples and as
per the society the law is meant and given shape until then the topic would be in discussion only
and nothing beyond that. It has been held that suicide must be based on evidence and the
deceased intends to destroy his or her own life.18The court has given opinion on various
instances and affirmed permission for a terminally ill patient to request for extinction of his life
as early as possible there is urgent need and reason to do so. There is no sense to prolong the life
of a patient because it indirectly means stretching the natural death of the patient that has already
being commenced.

15
P. Rathinam v UOI 1994: AIR 1844, 1994 SCC (3), 394
16
Gian Kaur v State of Punjab 1996 AIR 946, 1996 SCC (2) 648
17
Alice, Jacob, (ed), Annual Survey of the Indian Law, ILI, New Delhi: XXIII, 1987, p- 266.
18
Thomas Master CA v Union of India, 2000 Cri L J 3729 (Ker).

60
In Gian Kaur19 case it was held that the power and responsibility is casted on the legislature to
revise the criminal law so as to permit physicians to do more in legitimately alleviating the
suffering of their patients. The main reason to argue for the physicians is that they should not be
blamed for their act in the later stage. In fact the physicians should be given more protection in
cases of euthanasia in the form of defence. The debate has been going on since decades but
legislature has not taken any further steps to decriminalize Physician Assisted Suicide in India.
Law is a continuing phenomenon and this is based on demand of society and it takes it shape as
per the social settings and norms and that is the essence cum necessity in the cases of euthanasia.
20

Main objective of this to protect and preserve the life of every individual and that is the reason
the state is not willing to decriminalize Sec. 306, as it would affect the spirit of the Art 21 of
Indian Constitution. Every law has its positive and negative aspects, in certain cases where the
positive aspects overshadow or outweigh the negative consequences; it would be beneficial for
the act to be allowed, as was allowed in the case of abortion.21 Suicide is an offence in India
because of many reasons therefore India’s suicide law is based on the principle that state is the
protector of the citizens and in no way it seems to be justified on the part of the state to allow
suicide despite any reason. The protection provided by the state is always seen or compared to as
no one has the right to kill anyone that is why no one has the right to take his own life by
committing suicide. There are also strong adverse remarks against suicide due to strong intense
cultural and social attachment towards the life of a person.

The concept of suicide has been seen by the Supreme Court from the array of humanitarian
prospects. It is often argued by the scholars that when anyone attempts to commit suicide and the
attempt fails and when the court imposes punishment on that person it seems so much unfair as
the court is imposing additional punishment on a person in addition to mental agony and mental
pressure which could be the reason of the person committing suicide. This is where humanity
should be adhered and respected despite any reason for which suicide is being committed. The

19
Supra 100 at 57
20
Mathew, K.K., Three Lectures 12, Lucknow: Eastern Book Company, 1983.
21
Basant, T., “Euthanasia- Why A Taboo?” in Menon, Anita, V., (ed), Right to life and Right to Death 127, 1st edn.,
Hyderabad: The icfai University Press, 2007.

61
constitutionality of Sec. 309 is not only raised in Supreme Court but has also been raised in High
Courts.

In State v Sanjay Kumar Bhatia22 the Delhi High Court has observed that a young man has
allegedly tried to commit suicide presumably due to over emotionalism. The continuance of Sec.
309 IPC is an anachronism unworthy of human society like ours. Need is for humane, civilized,
and socially oriented outlook and of penology. No wonder so long as society refuses to face this
reality its coercive machinery will invoke the provision like Sec. 309 which has no justifiable
right to continue to remain on the statute book.

In Maruti Shripati Dubal23 case it has been observed by Bombay High Court that there is
nothing unusual or anything new about desire to die. The means applied to perform this act are
unnatural varying from circumstances to circumstances but the desire to achieve that mean is
natural but not unnatural. Suicide or attempt to suicide are not common situations that occurs in
life but it is a mixture of abnormality and exceptional situation and although there are exceptions
that does not mean that they are unnatural but these are natural phenomenon that occurs and in
fact part of human life due to the indifferent situation.

It is also a concept that is not new to the civilization but it has been there for long even before in
many religions such as Hinduism and Jainism. However, Christianity and Islam are against this
system and they condemn attitudes towards suicide and they feel suicide is something parallel to
the concept of murder and in Islam it is something worse than an act that is beyond the crime of
homicide. The main reason of suicide is due to the abnormality and mental illness of that person
to commit such an act.

The court also in many instances feel that psychiatric treatment is the option to eradicate the
crime of suicide but the solution of giving punishment and confining the culprit inside prison is
to make him more miserable. The parameter under which suicide is being tested is based on
whether the act being is committed is an intentional act or not?

The court also affirmed that despite any reason or irrespective of any fact if Sec. 309 has been
applied, then circumstances surrounding Sec.309 shall be immaterial for the validity of Sec. 309.

22
State v Sanjay Kumar Bhatia, 1985 Crl. 322. L.J. 931
23
Supra93 at 55

62
The Court is also not willing to consider the intent factor in regards to Sec. 309. Hence, this
section has not violated Art. 14 of the Constitution and the court is much sure in its approach that
once attempt has been made and it has failed then it would attract Sec. 309 and no one can evade
it under any circumstances.

The nature and the gravity of the offence shall be judged as per the facts and circumstances of
the case so as to shape the quantum of sentence accordingly. The court is also very much
concerned despite giving sentence and has reserved the protection under probation of offenders
act if situation demands. This makes it very clear and cogent that this section is also seen at par
with other sections of IPC without any inconsistency but, sentence should be given seeing the
condition of the patient and other antecedent requirements.

The Supreme Court also observed that suicide is such an act and there is intention behind it and
in fact intention is very much present but there are many social forces that acts like a catalyst to
provoke the person from inside to attempt suicide and this is not due to a single factor. Suicide is
also not a criminal instinct that urges the person to attempt it but is the mental element which
plays a dominant role to drive that person to such a desperate situation. Scholars and judges also
argue that in suicide the punishment given actually piles up the situation that was there earlier
and it would become worse.

The crime is seen under IPC as an act that is against the society but under suicide the act is self-
inflicted and there is no nexus or anything done against the society. So, there is no essence in
giving punishment under Sec. 309 because in no way does suicide that is ‘Self-infliction’ is
related to crime as ‘against the society’.

The concept of humanity has been given prime importance in delivering the judgment in the case
of Maruti Shripati24 and P. Rathinam25 and that is the reason why Sec. 309 has been
unconstitutional. The twist came into context in the aftermath of Gian Kaur26 case that overruled
the earlier cases and held Sec 309 as valid and constitutional. The question is why the Supreme
Court in this case changed the dictum and findings of the case that resulted in overruling the
earlier decisions? Whether the judgment given under those two cases lacks humanity, despite

24
Supra107 at 59
25
Supra99 at 57
26
Gian Kaur v State of Punjab 1996 AIR 946, 1996 SCC (2) 648

63
state is the protector of citizen’s? These questions can be answered by further discussions in this
area. Supreme Court held Sec.309 does not violate Art.21 of Indian Constitution. The court
observed that in the case of suicide there is overt act and that it could not be included within the
ambit of Art.21 of the Constitution. This affirms that once there is overt act done then there is no
chance of escaping or bypassing way for it.

The relation is drawn between right to life and suicide and it is found that life is a natural right
and suicide it is not a natural right but in fact an unnatural termination. This seems very much
inconsistent with the Art 21 of the Constitution and that is the sole reason for this steps that being
taken by the Supreme Court. But the question is why it is being taken; it should have been taken
long before in earlier cases?

If life is natural then death should also be natural to come within the ambit of Art 21 of the
Constitution, then only there is consistency between right to life and suicide. In other sense
Supreme Court out rightly concede the point that it is not a natural extinction of life but
unnatural extinction of life. Concept of life under Art 21 of the Constitution is seen from the
angle of dignified life and not mere existence of life. Any segment of life to be dignified can be
included within the ambit of Art 21, but extinction of life lacks dignity and that can affect the
right itself.

Hence, this is the reason Supreme Court has drawn such a delicate line between dignified life
and suicide. But as per the analysis there would be inconsistency between life with dignity and
extinction of life, because sanctity would not be maintained if it is included under right to life.
The very spirit of Art 21 of the Constitution becomes redundant. The court deeply focused on the
validity of Sec. 309 and it questions himself whether to retain the provision or not. Once it is
constitutional then ipso facto there is no doubt about the existence of Sec. 309.

In C.A Thomas Master v Union of India27 Kerala High Court held that there can be no
distinction made between suicide and right to voluntarily put an end to one’s life. Voluntary
termination of one’s life for any reason would amount to suicide under Sec.306 and Sec. 309 of
IPC. There is no question of distinction on the ground of frustration or is committed impulsively
or committed after prolonged deliberation.

27
C. A. Thomas Master & Etc v UOI & Ors, (2000) CriLJ 3729.

64
There is also much debate in the aftermath of Gian Kaur28 case in which it has been
recommended that to legalize euthanasia in India there should be an exception to Physician
Assisted Suicide from criminal liability under the heads of assisting or abetting suicide. The
entire discussion is much appalling and it would be safe in arguing on the humanitarian grounds
as prospects of survival are bleak and there is certainty of the death as the patient is suffering
from terminal illness.

Prolonging the life of the patient for the sake of Art 21of the Constitution seems illogical and
undignified as patient is not fighting for the mere physical existence but fighting against living a
undignified life and dignity has many aspects such as intellectual, emotional and psychological
all these are present in the case of terminal illness patients. The main reason for the physician not
attempting to terminate the life of the patient is only because of criminal liability under IPC. The
argument in favour of euthanasia is losing its value because at any situation it is ultimately the
judiciary and legislators who should be willing to go for law but unfortunately they are taking
sidestep.

Intention also plays a decisive factor in case of Physician Assisted Suicide as the intention
cannot be known so easily and the doctors may take the defence that to relieve the pain of the
patient drugs was administered with the consent of the patient. The concept of euthanasia has
been equated with the concept of abortion and it is pleaded for the protection of terminally ill
patient because in cases of abortion protection is given to the women despite the pain but that is
not the case in euthanasia.

According to Mr. Justice Donovan, “The intention with which a man did something can usually
be determined by a jury only by inference from the surrounding circumstances including the
presumption of law that a man intends the natural and probable consequences of his act”. 29In
Sanjay Kumar case30 one of the first cases in light of euthanasia where it was ruled by two judge
bench of Delhi High Court that need is for human, civilized and socially oriented outlook and
penology, no wonder as long as society refuses to face this reality its coercive machinery will
invoke the provision like Sec.309 IPC which has no justification in continuing to remain on the

28
Supra 110 at 60
29
Fenton, Bresler, Lord Goddard 304, London: Harrap, 1977. See, Horrigan, Bryan, Law and Justice 128, New Delhi:
Universal Publication Co. Pvt. Ltd., 2005.
30
Supra 106 at 59

65
statute book.31Every person has a life to live with at least minimum dignity and when the state of
existence falls below even the minimum level that, person must be allowed to end such tortuous
existence.32

The reason of applicability of Sec. 309 as an offence is based on two premises. First, nobody is
aware what element should constitute as an attempt to suicide. It is very vexed question to know
which act would constitute attempt to suicide. There is no basic reasonable classification to
distinguish between the different circumstances of the case in relation to Art.14 of the
Constitution. There is also no such distinction being made between less serious and more serious
attempt. The circumstances under which attempt is being made is also not taken into
consideration. The distinction between suicide and Physician Assisted Suicide is that in former
there is self-destruction and in later there is interference of third party to terminate the life of the
patient.

According to Supreme Court the subjective element of suicide is being assessed in the context of
intention in relation to attempt to suicide. It is conceded by the Supreme Court that there is
already presence of intention to take one’s life. The accused can take the plea after the act that it
did not amount to suicide so there is no reason to say that there is intention behind taking his life.
There is no yardstick to measure what kind of act constitutes as an attempt to suicide so
appropriate question is whether the act is falling within the regime of attempt to suicide. In case
of attempt to suicide court will design the appropriate sentence depending upon the nature,
circumstances and extent of attempt to suicide.

The Supreme Court has deeply focussed on the Art.21 of the Constitution and said it includes
both positive and negative aspects. However Supreme Court again made a distinction between
suicide and euthanasia by stating that the justifications for allowing persons to commit suicide is
not applicable in the cases of mercy killing and the person abetting euthanasia commits an

31
(1985) Crl. Law Journal, 931, in which the court was seized with the question as to whether the invest taxation of
the case under Sec.309 should be allowed to continue beyond the period by Sec.368 Crpc. Some in depth
consideration was conducted by the bench on the rationale of Sec.309 IPC, per Sanchar, J.
32
Reference is also made to Manu’s code, which permits suicide in certain circumstances. When the person
completes all its duties towards the world, he is advised to work in the north-eastern direction, subsisting only on
water and air, until his body sinks to rest. A Brahman, having got rid of his body by this way, is exalted in the world
of Brahmana. George Buhler (Translation), Laws of Manu, MAX MULLER (ed), SACRED BOOKS OF EAST 204 (Vol. 25,
1967).

66
offence. 33. This approach seems to originate from the view as the destruction of property is not
an offence; sacrificing one’s body is also not an offence.34 The court heavily relied on the global
view in both United States and United Kingdom and found that attempt to suicide is not an
offence in both these countries. This is the main reason that Bombay High Court and Supreme
Court are willing to decriminalize attempt to suicide in the case of Rathinam.

In deciding the constitutionality of Sec.306 the court found that once Sec.309 becomes valid
there is no point in questioning the validity of Sec.306. Sec.309 and sec.306 dealt with different
offences one deals with an attempt which has failed and another is abetment under Sec.306 but
abetment to attempt to commit suicide is not within the regime of sec.306. So, Sec.306 can
standalone with respect to Sec.309.The court while dealing with the abetment to suicide has
relied on Tony Bland case35 while determining the position of abetment to suicide but not on the
position of suicide.

The constitutional validity of Sec.306 and Sec.309 doesn’t seem much relevant on the touchstone
of euthanasia. As per Sec.309 if it is being restricted in its application in relation to attempt to
commit suicide, then it would be inconsistent with Art.21 of the Constitution. If a person is not
having any duty to perform and is willing to terminate his life due to the pain then, conviction
under Sec.309 is untenable in eyes of law.

4.2 DEFENCES AVAILABLE TO DOCTORS-

33
This position was again reiterated in Naresh Marotrao Sakhre v UOI 1995 Cri. LJ 96. Lodha J. observed that
“Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is affected.”
34
Khushal I. Vibhute. The Right to die and chanc to live “A fundamental right in India”: Some critical reflections,
XXIV INDIAN BAR REV. 78(1997).
35
Airedale NHS Trust Case v Bland (1993) 1 All ER 821

67
Sec. 76, 81 and 88 of IPC are provided for the defence of the doctors for their actions. Sec.76
depicts about the defence of mistaken fact which can be invoked at the time of passive
euthanasia. The doctor has to prove his case by pressing compelling medical reasons for such act
committed by him. At subsequent stage such act can also be rebutted against him if he is proved
to be wrong. Doctor’s could be exempted from the liability if they could prove the case on the
basis of mistake of fact and not of law and such act must be done in good faith.

Sec.81 depicts about the decision in relation to termination of one’s life. This part has been
contested for both passive and active euthanasia as the sole reason is that harm being done is
with an intention to suppress the greater harm. The decisions to end life of terminally ill patients
are not seen only from the light of the patient but also from the perspective of the family
members. The more it is delayed the more it becomes burdensome on the family members
because of financial pressure in incurring the expenditure and also in terms of pain to both
relatives and the patient in Persistent Vegetative State. In this context the intention should not be
only for the purpose of consent but, it should be for the interest of patient concerned also.

At this juncture the most vital aspect is the consent that has to be taken at that moment as he is
the best person to judge what is and what is not greater harm. There should be corroborated
written medical reasons to stipulate that harm that is being avoided are carrying much more
weight than the decisions taken for harm that would be caused to terminate the life of the patient.
Sec.88 is also an important part of the defence as at this point the decisions in regard to
withholding of treatment and it can’t be presumed that there is intention on the part of the
doctors to cause the death.

Administering palliative drugs by the doctors could result in death of the patient because it has
many side effects such as sleep- inducing effect. This is said because doctors often for the sake
of relieving pain of patients give such drugs and that may cause death of the patient. The concept
of double effect is also based on this fundamental principle where to relieve the pain of the
patient drugs were given. This is the reason why defences are given for the protection of the
doctors by substantiating that there was no intention to cause the death of the patient.

4.3 ROLE OF SUICIDE AFTERMATH OF RECENT SC JUDEGEMENT-

68
The debate on suicide or physician assisted suicide is vividly discussed in aforesaid three
landmark cases. The court in its recent judgment in Common cause36 has affirmed that right to
life does not include right to die in the context of suicide and court seems that it is not the point
of discussion at this juncture and it would be addressing such matter in landscape of domestic
and international developments to decriminalize suicide. In this path-breaking judgment court
takes the forward approach towards taking off the suicide to decriminalize it. The judgment in
one aspect has given assistance in such wide proposition and conceded that it was inhuman to
punish a distressed person who has failed in ending his life in an attempt to suicide.

In Parliament there is already an Act passed in respect of Mental Health Care Act, 2017 that
provides for an exception under Sec.115 (1) and it is being articulated that despite anything
contained in Sec.309 the person who attempts to commit suicide shall be presumed to be
exonerated from liability unless it is proved contrary to it for the purpose of severe stress and
shall not be tried nor be punished under this Act. The loophole is that this proviso is applicable
only to the cases under aforesaid Act and not outside such regime. In this watershed judgment
the court has relied on Mental Healthcare Act, and stresses on the point that government has the
mandate to provide rehabilitation, care and proper treatment to the person having stress who has
attempted to commit suicide and it has said that it would remove the culpability of the act as
there is protection under Sec115 (2) to exonerate liability from Sec.309.

In this case attempt to commit suicide is seen as victim of the circumstances and situation and in
no situation it can be attributed the person who attempted as an offender and it is better argued in
this direction if there is no proof to the contrary. The burden lies on the prosecution to prove its
case beyond reasonable doubt and shift the burden on the defendant. Sec.115 shall be looked into
because court has reiterated that this section has made a remarkable change of momentum in our
law and it has casted burden on the society as to what reaction it makes while the person attempts
to suicide. In arguing in the prospects of philosophical standpoint it is said that right to life and
right to die are not two separate rights, but they are the two sides of the same coin. It is being
observed that right to life means right to decide to live or not to live. If right to life connotes only
right to decide to live and not on not to live then it would be duty to live and not right to life.

36
Common Cause v UOI, WPC No. 215 of 2005.

69
4.4 CONCLUDING REMARKS-

In India the topic of euthanasia has been much in the cloud and too skeptic in differentiating
euthanasia and suicide in the spectrum of theoretical and practical terms. In Gian Kaur the core
essence is on recognizing passive euthanasia but it has stressed so much on the suicide and
abatement to suicide and not on euthanasia. This shows there was not much clarity before the
court on the topic of euthanasia before Arunas case. There was neither such law nor any
guidelines with regards to euthanasia until Arunas case. The debate was going on in a flow
despite the lack of understanding on the part of the judiciary and also the legislators who
followed the same path and have not researched the topic in such wide contours. The most
complex state of affair is that the judiciary was too perplexed while differentiating the two terms
suicide and euthanasia. In the counterpart the stress is on the doctors as they would be prone to
legal sanctions.

So, this is the reason doctors refuse to treat some patients where there is ample possibility that
death may occur due to administration of drugs. The legislators should step in to make such a
law to balance the weight between the interest of the patients and doctors. In Maruti Shripati
Dubal and Rathinam cases, court held that suicide is permissible but euthanasia is not allowed
and this would amount to homicide. There is doubt and unclear remarks that if the doctor assists
in suicide by prescribing high dosage, he is not liable,37In Gian Kaur there is recognition of
passive euthanasia but unfortunately there is no such acceptance of active euthanasia. All these
discussions are on suicide and abetment to suicide but there is no in depth analysis of euthanasia
that could be seen in those cases except the affirmation that euthanasia can be a part of right to
life.

38
In Naresh Marotrao Sakhre case in which Bombay High Court held that euthanasia or mercy
killing and suicide are two different concepts. The two concepts differs both from factual and
legal paradigm. Suicide is an act of self-infliction, but in the case of euthanasia or mercy killing
there is third party intervention. Euthanasia or mercy killing is nothing but homicidal act

37
Since suicide is not an offence. Assistance to suicide cannot be an offence. There is no separate provision in IPC
to punish the abetment of suicide.
38
Naresh Marotrao Sakhre v UOI 1996 (1) BomCR 92, 1995 CriLJ 96, 1994 (2) MhLj 1850.

70
irrespective of circumstances that have effect on it. In C.A Thomas Master case39in which Kerala
High Court affirmed the judgment of Gian Kaur in which ‘Right to life did not include right to
die’. In Chenna Jagadesswar case40 Andhra Pradesh High Court held that Sec.309 is
constitutionally valid and it is not inconsistent with Art.21 of the constitution. Thus, apart from
Apex court, High Court of aforesaid states has also delivered dictums on suicide or euthanasia.

39
Thomas Master CA v UOI, 2000 cri LJ 3729n(Ker)
40
Chenna Jagadeeswar & another v State of A.P, C.A No, 165 of 1987

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 CHAPTER-5-JURISPRUDENTIAL CHANGES AFTER ARUNAS CASE-

5.1 THE LEGAL CHANGES AFTER ARUNA’S CASE-

The turn back came on the touchstone of euthanasia in the aftermath of Aruna Shanbaug’s1. In
Indian legal system there is nothing accepted in terms of active euthanasia but the question
always debated was in the context of passive euthanasia, where the patient is not in a condition to
give consent. The question that is cropped up in the mind of the people and judiciary is that who
is entitled to give consent on behalf of the patient and the question of genuineness in regards to
consent. So, credibility of the consent is the in depth question that shall be looked into and is
linked with the term good faith. Those afore said questions will be raised in relation to good faith
such as who is competent to give and what are the factors that are to be assessed before allowing
for passive euthanasia?

Aruna’s case is the case of involuntary passive euthanasia and court looked into the aspects of
next friend and it means determination of next friend of the patient, who can give consent. The
Supreme Court found that the next friend would be KEM hospital staff and not the plaintiff who
visited the patient rarely. The complicacy in this case was not so much in the area of determining
next friend but, it was found in the question whether vesting of such power shall solve the
concerns with respect to constitutionality and best interest of the patient.

The only legal instrument which spoke about withdrawal of life support system in India was the
India Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.2 It is said
under regulation 6.7 that practicing active euthanasia is unethical. It is said that withdrawing life
support system after brain death is permissible but under two guiding procedures. One of the
procedures involves the declaration of withdrawal of support system by a team of doctors
consisting of doctor in charge of the patient, chief Medical Officer or Medical Officer in charge
of the hospital and a doctor appointed by in charge of the hospital from the medical staff. The
other procedure is by the provisions of Transplantation of Human Organs and Tissues Act 1994.

The point is that the above thing is just a regulation by the Medical Council and it is not a legal
basis for euthanasia. This proposition has been well established in the Aruna Shanbaug case,

1
Aruna Ramchandra Shanbaug v UOI AIR 2011 SC 1290
2
Herein after referred to as “2002 Regulation”.

72
wherein the judgment mentions that “there is no statutory provision in our country as to legal
procedure for withdrawing life support to a person in the PVS (Persistent Vegetative State) or
who is otherwise incompetent to take a decision in this connection.”3The Supreme Court has
given permission on passive euthanasia in certain circumstances until there is law on this subject.

1. The decision to discontinue the life of the patient has to be done in the best interest of the
patient by the parents, spouse or relatives. If there is no other person then it can be taken
by the next friend or attending doctor.
2. All decisions in regards to withdrawal of life support system shall be subjected to the
approval of High Court, to avoid misuse by the relatives. The High Court should act as
parens patriae to protect the best interest of the patient, but more stress has been laid on
the near relatives, next friend and doctors in the decision making.
3. The concerned HC has been vested with power under Art 226 of the Constitution not
only on writ jurisdiction but casted with power of issuing directions and order, to make a
decision of withdrawing life support system of an incompetent patient.

In case of the application for withdrawing life support, Chief Justice of the concerned
High Court should immediately constitute bench of at least two judges to hear the matter.
Before making decision regarding this, foremost thing is that opinion has to be taken
from 3 reputed doctors consisting of one neurologist, one psychiatrist and one physician.
These doctors form a committee and it is their duty that they should carefully examine
the patient, consult the patient’s records and should take the views of the hospital staff
before submitting their report to the bench. The bench shall then intimate the close
relatives, next friend in the form of notice accompanying the doctor’s committee report.

The jurisprudential changes that have been made in this case are remarkable in the area of
passive euthanasia and justifying those points why Supreme Court has made such
guidelines on the context of passive euthanasia, thou it is just a temporary regulations
until parliament makes any law on this subject and is a great job on the part of the
judiciary to frame such a path in this area. Although the decision is taken by the near

3
(2011)4 SCC 454, Para 126.

73
relatives or doctor or next friend, the approval of the concerned High Court is a
mandatory requirement. If the court relies on the person from whom consent can be taken
then again there would be a problem of misuse. But interference of the High Court has
made the matter crystal clear and that would solve the purpose of best interest of the
patient and it would reduce the chance of mischief. It is ultimately the Court who is the
Parens Patriae for the safeguard of the patient.

The Supreme Court also relied on the Airedale case to figure out appropriate decision and
opinion in this regard to arrive at the best conclusion. So, whether it is near ones or
doctors it has been strictly denied and sole relying would damage the sanctity of the case,
as it would become more scrupulous and can result in more misuse of power. Supreme
Court was also relying on the low ethical values in the society that can influence the mind
of the judges and not to go against absolute authority of the near ones or doctors on the
touchstone of giving consent. This interest is not circumscribed within the boundary of
near ones, courts or doctors but it is also for the public to see how the decision like this is
given.

The Supreme Court has taken much balanced approach and not given power absolutely
but has given due weight to both High Court on one side and relatives, doctors or next
friend on the other hand. The wide power that has been given to High Court seems to be
justified looking at the concept of the justice as the bedrock of law. The power has also
been broadened up not only through writs but also through giving directions and orders.
The main point is that in unforeseen circumstances the High Court can unfold the relief
granted by the court to serve the purpose of justice. The procedure being followed by the
court is to constitute two judge bench to decide the matter and constitute 3 expert doctors
to deal such cases and give report on the status of the patient seems logical and legal.

The judiciary without the consultation of the doctors would make no sense because as it
is a decision on life and death but not of law and order. The biggest question at this
juncture until there is a law is in deciding the matter by the High Court as it does not
prescribe any limitation or time frame as to when the matter shall be disposed off. In

74
other sense the discretion is solely with the High Court and it may be at the whims and
fancies of the court as it deems appropriate.
The question of brain death has been discussed properly in this case through the contours
of legal realms. The concept of brain death with regards to euthanasia and as a discourse
in legal regime on the question of determining when to disallow resuscitation, when the
patient is not in a condition to give consent to terminate his life depends on two
situations. Firstly, when the person is under the stage of mechanical process, it means
only body is functioning mechanically through instruments. Secondly, the situation in
which the condition of patient is very difficult to judge and in rare cases likely to come
back from that stage or recoup from it.
The problem in this context is that the concept of death has been discussed under various
Acts of medical science and sometimes the definition differs from going by the preamble
of the act or gravity of the situation. Hence, to confirm the death of the patient many
procedures are followed but there is no such fixed standard to ascertain that it is a clear
cut case of death. In Aruna’s case the issues that have been raised in SC are:
1. The person, who is in PVS, should withholding or withdrawing life support sustaining
therapies be permissible or not is unlawful?
2. If the patient has previously expressed a wish not to live on life- sustaining treatments
or in the case of futile care or PVS, should his wishes be respected when the situation
arises?
3. In case a person has not previously expressed such a wish, if his family or next of kin
makes a request to withhold or withdraw futile life- sustaining treatments, should
their wishes be respected?
4. Aruna Shanbaug has been abandoned by her family and was being looked after for
last 37 years by the staff of KEM hospital. Who should take decisions on her behalf?

Those issues sparked the topic on euthanasia and that can be answered not only from
the legal standpoint but also from the ethical and social perspectives. Two emerging
principles of medical ethics are patient autonomy and beneficence. The concept of
autonomy is based on the concept of right of self determination which depicts that
autonomy of making informed decision and choices about his treatment. Suppose the

75
patient is not in a condition to give consent as in the case of Aruna’s then two
alternative arises and those are cases of ‘living will’ or decision to ‘surrogate’
(substituted judgment). In the case of living will the wish of the patient is taken in
advance but in the case of surrogate someone has to give consent on behalf of the
patient.
In this case there was no such sign regarding Aruna’s wish which could have been
taken into consideration and apart from this as she has been abandoned by her family
so the ultimate next kin is the hospital staff of the KEM hospital to surrogate on
behalf of Aruna. The question in this case is that the hospital staffs were never willing
to surrogate for her and they fortunately wanted such practice should be avoided. If
the hospital staff would have said yes then it is obvious that Supreme Court would
have given green signal for that, but unfortunately hospital staff denied to allow
euthanasia and also there was no option left on the part of the court because
ultimately the hospital staff is in better position than the petitioner in context of
relationship and going by legal standpoint.
The patient who is in terminal illness or is in Persistent Vegetative State, should he be
allowed to terminate his life. The answer for this question is within the bounds of Art
21of the Constitution, where the right to die with dignity is being equated with right
to life with dignity. There is no use of accelerating the death where death is certain
and natural death has already commenced. The logic is if such process is allowed then
it would go against Art. 21 of the Constitution or indirectly affecting the
interpretation and spirit of right to life and it would tantamount to restricting natural
span of life.
It is also argued by the Attorney General that withdrawing life support system would
attract criminal sanction and that is contrary to law. The argument on the part of the
state is that emotions and attachment are essential elements and that are inhibited
within us and that can’t be ignored in the cases of euthanasia. So, anything done
without the patient’s consent would raise questions as that would also attract assault
or battery. The contention is that every step that is taken to protect the interest of the
patient is onerous as it may impose any sanctions because indirectly it would go
against the patient as he is incompetent.

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Exercising the right not to consent or refuse the treatment by the patient can be taken
under two circumstances and that is right to self determination and right to privacy. In
case of former the patient should be of sound mind and latter is applicable in cases of
Living Will. The question arises where neither the patient is of sound mind nor he has
opted for living will. So, the only option at this point is to go for surrogating and to
what extent it is wise or not depends upon the basis of facts and relies strictly on the
best interest of the patient. In this case going by surrounding circumstances it is well
presumed that the patient is not in the condition to give consent.

This question is seen not only from the best interest of the patient that he should die,
but it is coupled with the best interest of the patient whether his life should be
prolonged through the mechanical devices. So, that is the sole reason behind vesting
the power to consent on the family members, relatives or near friends or doctors as
the case may be. There can be a situation when both the interest of the doctors and
family members coincide. The court has repeatedly told that right to die is not a part
of right to life but in case of a dying person who is terminally ill or in Persistent
Vegetative State he may be permitted to terminate his life by premature extinction of
life and it is not a crime as per the decision given in case of Gian Kaur.

After discussing the matter at the touchstone of best interest of patient a question
cropped up was that who is competent to judge the best interest of the patient and it
has changed the flow of the topic towards a new version. The concept of best interest
of the patient in this case has been well balanced and nobody has been given absolute
power over the interest of the patient.

In this case as per my understanding it considered KEM hospital staff as the near ones
than the petitioner because of such strong relation of 37 years cannot be denied on the
face of record. From the side of the doctors it has also recommended a three member
committee which is seen as a regulation until there is law made by the Parliament.
Lastly power has been vested on the High Court as a Parens Patriae to see those

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 reports submitted by the committee and intimate the relatives. Absolute interest or
rights over the patient are not given to the family members, court and doctors but
rather all are equal stakeholders at this point and no one’s consent can be ignored at
this juncture as the issues we are stepping into or dealing with are not the questions of
legality but covering the fields of medical science and social interest.

5.2 COMMON CAUSE V UNION OF INDIA-

The recent Supreme Court judgment passed in the case of Common cause v Union of
India4 after Aruna’s case has made a remarkable change at the touchstone of allowing
‘Living Will’ in the context of passive euthanasia which was not there earlier. In this
case the prayer has been made by the society for the right to die with dignity for
allowing for a procedure for living will for the patient who is suffering from
irreversible permanent progressive state. The main aspect stressed in this case is the
concept of social morality, medical ethicality and state interest which has surfaced on
the bedrock of right to self determination.

Arguing from the side of doctors it is the Hippocratic Oath which means providing
treatment and save life of the patient. The concept of Hippocratic Oath is the main
point to be addressed here because if they are not doing their service of treating the
patient then they would feel guilty for their act or sometimes annoyed on themselves.
This is based on two contours as has been said that the situation of irreversible
condition is something different from that of not treating a patient and other one is
that once passive euthanasia is conceded as law with regards to right to die with
dignity as part of right to life and delaying is done sans purpose then there would be
no morality, medical dilemma or fear that could exist and there can be smooth
termination of life of the patient.

4
Common Cause v UOI WPC No 215 of 2005

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The right has been considered in this case on two parameters, primary right and
secondary rights. Once right to self- respect is within Art. 21 of the Constitution,
protection is to be done despite the social factors, doctor’s dilemma or apprehension
and everything should be considered secondary rights. Hence, right and dignity of the
patient are considered primary rights and should supersede over secondary rights.

5.3 THE CONCEPT OF LIVING WILL-

The concept of living will has made a remarkable jurisprudential development

aftermath of Common cause case. The concept of living will is based on the concept
of advance exercise of autonomy for the way of treatment in future course. It is done
because in future date there would be no problem regarding the consent and the extent
of medical intervention necessary for his body is well specified beforehand. This
results in smooth termination of life of the patient.

The question is not only in living will but the time or stage where medical support
shall be removed from his body. This instrument will be effective after incompetency
of the patient in giving consent. The concept of living will acts as a last resort of
patients wish in regards to the way of treatment that should be given over the
patient’s body.

The living will is originated due to the rampant growth of medical instruments, which
can result in prolonging because despite pain and that can be harmful to patients. This
development has made the terminally ill patients life more miserable because despite
failure of mental and physical capabilities the patient’s life is prolonged due to
invention of new medical technologies. The medical technologies have made the
concept of death as worthless because they keep the patients under the ventilator. So,
secondary factors such as pain, money started to diminish as compared to primary
factor that is keeping the patient alive.

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The development in the area of living will is seen from the three stakeholders and
they are patient, doctors and family members. In this case the judiciary has perfectly
balanced those three stakeholders giving equal powers in regards to the question of
consent. Going by the patient side he is exercising his autonomy over his own body,
from the doctor side the way of treatment that shall be given to the patient is already
specified in the living will as a result there is no fear on the part of the doctors in
regards to civil or criminal sanctions and lastly on the part of relatives it is dependent
on the standard of intervention necessary that is specified in the living will.

The living will is correlated with the concept of right to life that has power to decide
over his way of life. The existence of his life should not be dependent upon
unnecessary prolongation that is beyond the control of the patient because exercise of
one’s right to life shall be free from interference and should exist in standalone. This
is the crux that gave opportunity to the patient to specify the way of treatment he
wanted to opt for in regards to the terminal illness.

The development of living will acts as an instrument for exercising patient’s

autonomy and best interest of the patient, which brings the concept of living will in
the line of medical ethics. The concept of ‘beneficence’ in the Common Cause case
has broadened up the area of best interest of the patient. The Supreme Court has
judged the best interest of the patient from the perspective of patient’s autonomy over
his body and not vested the autonomy over the doctors in exercising the best interest
of the patient because that can result in bad implications.

The judgement has made a remarkable change in the interpretation of the Art.21 of
the Constitution in the light of living will. It has brought both mental and physical
health under the ambit of Art.21 of the Constitution. In exercising the right to
autonomy at the time of making living will, the right to privacy has been respected
and has been kept at high pedestal for protecting the best interest of the patient.

5.4 DEVELOPMENT RELATING TO SEC.309 OF IPC-

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The ‘right to die’ has paved the way to decriminalize Sec.309 that depicts about
attempt to suicide. It is being observed that it is inhuman to punish a distressed person
who has failed in ending his life in an attempt to suicide. In the case of Common
Cause attempt to suicide is seen as a victim of circumstances having no limbs. It is
observed by the court that right to life means right to decide to live or not to live, if it
only means right to live then it is not right to life but it should be named as ‘duty to
live’.

The court held that right to life does not include right to die in the context of
euthanasia but only in the context of passive euthanasia. It has stressed on the future
cases that would come and court has affirmed that it will intervene into the matter of
suicide in the light of domestic and international developments in decriminalising
Sec.309 of IPC. In regards to this case the court is hesitating to intervene into the
matter of Sec.309 because both euthanasia and suicide have different canvass. In
euthanasia there was compelling necessity to allow for right to die but that is not the
case in suicide.

The researcher feels that the developments in the area of suicide in this case is not
reflected nor dealt so deeply because this case has nexus with the concept of
euthanasia and not suicide. In no way suicide can be related to euthanasia even
though in both the situation death and pain occurs. It is also not safe to argue that
right to life means right to die in all context. If this is the case then suicide could be
taken as an excuse for pain and suffering.

Hence, this is the matter that is touched upon in this case because whether the
question of right to die comes within the ambit of right to life in the prospects of
suicide is still in doubt. But the court is still not ready to deliver the judgement in the
area of suicide as it has affirmed that it will rely on international developments for
decriminalizing Sec.309 of IPC. The other reason is that no party has sought for the
prayer of decriminalizing it; this means that society is not ready at this juncture to put

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prayer for right to die on the context of suicide except the compelling necessity and
societal circumstances present in the case of passive euthanasia.

The only exception to right to die in the context of suicide is the Sec.115 (2) of
Mental Health Care Act, 2017. In this section the main point that is stressed is the
‘severe stress’ which can be the ground of suicide under this Act. Government is
given the duty to provide rehabilitation, care and treatment to the patient under severe
stress.

5.5 IMPACT OF COMMON CAUSE CASE-

It has opened the gates for right to die in cases of terminal illness or Persistent
Vegetative state patients, but only in the cases of passive euthanasia. The question of
consent, autonomy and best interest which was much in debate has started to reduce
down due to this judgement. Before this judgement there was no such instrument that
was prevailing for the way of treatment the patient is willing to opt for as a result ‘ill
motive’ could be the factor behind patient’s death, but that is not the case now.

As in the case of passive euthanasia the patient is not in a condition to give consent
and going by medical ethics two things should be satisfied, one is patient’s autonomy
and another one is the beneficence which is the best interest of the patient. Passive
euthanasia was already approved but the doubt was in the area of respecting the best
interest and autonomy of the patient. The question of treatment shall be best judged
by the patient himself and no one can give consent on behalf of the patient because
that would not satisfy the criteria of medical ethics.

So, the only option that has left with the petitioner was for availing the instrument of
living will. This is the instrument that acts as a medium beforehand to record the way
of treatment the patient is willing for and that can smoothly run in the line of right to
self-determination and autonomy on the bedrock of best interest of the patient and
without intervening in the question of competency and authenticity of the consent.

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Hence, the ‘means’ that is the living will which can be said as a process easily fits
into the concept of euthanasia.

In living will the court has stressed in the light of economic principles and cost
benefit analysis that has resulted to reduction in expenditure that is incurred in the
hospitals. The judgement has impact on net benefit to the individual from the ethical
consideration, in relation to the pain and best interest that cannot be assessed.

In regards to the Hippocratic Oath that is made by the doctors to preserve the life of
the patient is not to be questioned because once there is dignity then ‘self- respect’ is
also inhibited in it. It means that self respect is the primary rights and all other rights
such as Hippocratic Oath or medical dilemma are secondary rights and if that is so
then primary right should supersede secondary rights. This resulted to eroding the
guiltiness of the doctor because once it is the case of euthanasia and all conditions of
living will are satisfied then there is no guiltiness on the part of the doctors in
terminating the life of patient. It means judgement has amplified the concept of
Hippocratic Oath and much protection has been given to the patients in terminal
illness over the doctors taking the Oath.

This judgement has also impact on the Medical Treatment of Terminally Ill Patients
Bill, 2016 where Clause 11 of the bill considers advance directive or living will as
void. So, this results in inconsistency between the Bill that is pending in the
Parliament and the guidelines on living will in this case.

5.6 BACKGROUND OF THE BILL-

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 The Bill was initiated in the year 2005 where the common cause filed a writ
petition in Supreme Court for the recognition of validity of advance directive for
medical treatment for the patients who will in future undergo serious medical
issues and would be in Persistent Vegetative State or in coma. The five judge
bench refused to entertain the mater and it has forwarded the matter to the
Government for debate in the Parliament. In this regard the ministry of health and
family welfare drafted a Bill in May, 2016.

The Bill is just a replica of the first draft of the bill by the Law Commission in
2006 and that has been revised in the year 2012. The withdrawing of medical
treatment from a terminally ill person is a complicated topic and is based on
ethical regime. There are certain principles that should be adhered to and should
be respected, like every person has a fundamental right to life, which includes the
right to die with dignity.5 Patient autonomy is vital in decision making phase. A
necessary component of right to dignity includes right to make decisions about
one’s body, including right to refuse treatment.6

5.7 DEFECTS IN THE BILL-

5
In Gian Kaur v State of Punjab (1996) 2 SCC 648.
6
In Aruna Ramchandra Shanbaug v Union of India (2011) 4 SCC 454.

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5.7.1 GIVING EFFECT IN RELATION TO ADVANCE MEDICAL
DIRECTIVE-
Clause 2(a) - ‘advance medical directive (called living will) means a directive
given by a person that he or she, as the case may be, shall not be given medical
treatment in future when he or she becomes terminally ill and (h) – ‘medical
power of attorney’ means a document of decisions in future as to medical
treatment which has to be given or not to be given to him or her if he or she
becomes terminally ill and becomes an incompetent patient. The Bill defines
advance medical directive and medical power of attorney under Sub clause (a)
and (h) of clause 2, but in clause 11 – it states that such instruments shall be void
with no results and it is not binding on the medical practitioner. Thus, there is
contradictions between these clauses.

Hence, in declaring the instruments void it shall tantamount to effect on the

substantive provisions of the Bill if it becomes law because it would result in
nullifying the right to die with dignity that has been recognized as a part of Art.21
of Constitution in Aruna’s and Gian Kaur case.

5.7.2 THE DEFINATION OF THE TERM ‘TERMINAL ILLNESS’-

The definition of term ‘terminal illness’ under clause 2 (m) of sub clause (i) such
illness, injury or degeneration of physical or mental condition which is causing
extreme pain and suffering to the patients and which, according to reasonable
medical opinion, will inevitably cause the untimely death of the patient concerned
of the Bill seems very ambiguous and lax in interpreting the term. The term
‘meaningful existence’ in the Bill is not being objectively defined but there can be
variation in the meaning from person to person and it results in inconsistency
between meaningful existence and right to die with dignity. The term ‘meaningful
existence’ defined in the Bill has serious consequences in measuring the value of
lives as the definition cannot draw any analogy in giving meaning to the term
mentioned in the Bill.

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In defining the term there is also inconsistency in relation to defining the term
used in the Act with that of ‘terminal illness’ in medical science. There is problem
in the term ‘terminal illness’ that is being used in the Bill in relation to the
wording of the Bill that contains ‘mental condition’ to cause death. The term
‘mental condition’ has been defined in the Act in the light of dictionary meaning
and this has no connection with medical science.

It is also impossible in a situation of ‘mental condition’ to cause death as it is

medically impossible and it is something that is very much sceptical, how death
would occur due to this. Mental condition can only be related to suicide and in no
way we can draw a relation between mental condition and terminal illness to
succeed in arguing in favour of the term used in the Bill. This means how a
patient of ‘mental illness’ would be suffering from ‘terminal illness’ under the
Bill because it would attract unnecessary consequences. If it could be the case of
suicide then ‘mental condition’ can be a reason for cause of death.

The term used is ‘untimely’ and is also not appropriate in this context as it means
the death happening too early or at premature stage or unexpected death. The
death occurred too early or unexpectedly does not mean that death is untimely per
se and it also has negative implication on saying that death is premature because
at the time of terminal illness there is more presumption of certainty and no hope
for recovery. So how could the death be ‘untimely’ if it is certain and there is no
hope of recovery? Then what is ‘timely death’ for the patient in terminal illness.

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5.7.3 NEED TO EXTEND IMMUNITY FROM PROSECUTION TO
PALLIATIVE CARE PRACTITIONERS-
The withholding or withdrawal of medical treatment should be extended to
palliative care in relation to giving wider interpretation in terms of exemption to
medical practitioners. Under clause 6 – Palliative care for competent and
incompetent patients of the Bill spells out that even though medical treatment is
withdrawn by the medical practitioner he is not debarred from administering
palliative care.

The fact is that when palliative care is given the object is to relieve the pain of the
patient. The main factor is to alleviate the pain and suffering caused due to
terminal illness and that should be eradicated through the mechanism of palliative
care. May be it is given to relieve the pain but that could cause death of the patient
without any intention to cause death. So, exemption that is granted to the medical
practitioners under clause 8 –Protection of medical practitioners and other acting
under their direction, in relation to competent and incompetent patients of the Bill
for withholding or withdrawing medical treatment, shall be extended towards the
administration of palliative care.

The scope of clause shall be given wider amplification so that there is no fear in
giving palliative care and no fear of conviction. Clause 8 – Protection of medical
practitioners and other acting under their direction, in relation to competent and
incompetent patients of the Bill states two conditions under which a medical
practitioner act can be lawful in doing the act of withdrawing or withholding the
medical treatment and that is mentioned under clause 3 – Refusal of medical
treatment by a competent patient and it’s binding nature on medical practitioners
and clause 5 – requires the practitioner to maintain a record with the personal
details of the patient, the nature of her illness, the treatment being given and the
names of her family, any requests or decisions communicated by her and the
practitioner’s opinion whether the withholding or withdrawal of medical

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treatment would be in the patient’s best interests The question is can this
exemption be a lawful ground and can it be applicable to palliative care.
Under clause 3 of the Bill – Refusal of medical treatment by a competent patient
and it’s binding nature on medical practitioners, it has mentioned two components
that should be satisfied by the medical practitioner and they are informed consent
of the patient and communication of this decision to the family members and
friend, free from any duress and allowing three days to run after communication
has been made but before the decision has come into effect.

Under clause 5 of the Bill that depicts about the maintenance of record with
regards to the nature of illness, personal details of the patient, treatment given,
name of the family members, request communicated by him and the opinion of
the doctor in relation to withholding or withdrawing of medical treatment seeing
the best interest of the patient. So, the point is allowing 3 days to elapse under
clause 3 before giving the palliative care but after communication is not justified
as ultimately under clause 5 there is strict interpretation done in maintaining the
records by the doctors in doing the palliative care and also it is not only recording
details of palliative care but it should satisfy the test of ‘reasonable requirements’
for other medical treatments.

So, there is no logic of giving 3 days time though, if it has been provided to give
opportunity to the family members to take time and give the opinion, it would be
illogical because if the patient is competent then it is a mandate on his part that
consent is to be given by him in regards to the decision about the treatment.

5.7.4 UNDERSTANDING THE TERM ‘COMPETENCE’-

Under clause 9 of the Bill in regards to the Permission to be obtained from the
High Court and its procedural requirements, a competent patient who has not
taken an informed decision is under doubt because the term ‘informed’ means
intimating the competent patient about the nature of illness or alternative
treatment available or consequences of the treatment or consequence of not

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treating the individual. There is no question of informed decision by the
competent patient because ‘informed’ means competency to give consent. If it is
strictly not taken as per the clause then it would go against right to autonomy. In
other words for the sake of arguing suppose the patient has not taken an informed
decision means the patient has not exercised his right to autonomy.
Under clause 2 sub clause (b) of the Bill – ‘Best interest’ includes the best
interests of a patient (i) – who is an incompetent patient, or (ii) – who is a
competent patient but who has not taken an informed decision, and are not limited
to medical interest of the patient but include ethical, social, moral, emotional and
other welfare considerations. Again there is a problem because informed decision
means competency to give decision. So, how could ‘best interest’ include
competency but not informed decision. If you are competent then ipso facto it
deems you are giving informed decision.

5.7.5 CONCEPT OF BEST INTEREST-

The term ‘best interest’ has been mentioned under clause 5 and clause 8 of the
Bill. Clause 9 sub clause (5) of the Bill – The High Court shall, have due regards
to the report of panel experts and the wishes of close relations, namely, spouse,
parents, major children or in their absence such other persons whom the High
Court deems fit to put on notice and on consideration of the best interests of the
patient, pass orders granting or refusing permission or granting permission subject
to any conditions. The relation between clause 5 and clause 8 of the Bill, where
under clause 5 the medical practitioner has to maintain the record of the patient
and give his opinion whether withdrawing is in the best interest of the patient or
not? Then under clause 8 assessment of a medical practitioner is in or not in best
interest is done.

So, the controversial and paradoxical question is that the concept of best interest
is not seen from medical science only but it also includes all segments such as
moral, ethical and social and that cannot be linked to the assessment done by the
medical practitioner that could be tested in the light of legal requirements. The

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problem in clause 8 is that it exempts the medical practitioners from legal liability
for withholding medical treatment if the withdrawal is in patient’s best interest;
this is an extra requirement supplementing the desire expressed by the competent
patient.

The problem is that if the patient is competent and the withdrawal is in pari matria
with the desire expressed by the competent patient then what is the logic of
inserting withdrawal is in the ‘patient’s best interest’ where patient is competent
and also desired so is it not sufficient to determine the patient’s best interest? So,
again it goes against the patient’s right to autonomy despite being competent and
given the desire to withdraw treatment. Again clause 8 contradicts clause 3(2) in
the form of inconsistency in interpreting the meaning between two clauses and
holds on one hand that best interest of the patient is to be assessed by the medical
practitioner and on other hand in clause 3(2) it holds that informed decision made
by the medical practitioner in withdrawing medical treatment by a competent
patient in exercising his free will is binding on the ‘medical practitioner’. It means
inconsistency lies between two sides of interpretation, one assessing the ‘best
interest’ by the medical practitioner under Clause 8 and second ‘competent
patient’ under impression of ‘free will’ in consenting to withdraw medical
treatment. In both ways it binds the ‘medical practitioner’ and it brings no
meaning under clause 8 to assess the best interest of the patient by the medical
practitioner as it becomes stale.

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5.8 CONCLUDING REMARKS-

After Aruna’s case the topic of euthanasia came into limelight as a plea for right
to die in cases of passive euthanasia. The euthanasia topic in the case of Aruna
was a milestone for the patients in terminal illness, relatives because there was no
such case in the area of right to die in relation to passive euthanasia. In this case
questions were raised from wide contours basically from the area of ‘consent’ and
guidelines have been passed regarding passive euthanasia. But at the time of
delivering judgement by the court the question of consent was still in doubt in the
terms of authenticity, competency and whether it is in line with ‘best interest’ of
the patient. The court was also hesitating to vest power of consent on anyone due
to multiple societal, religious and ethical reasons.

The crux was that although the patient died but court has taken the opportunity
regarding appropriate person on whom consent can be vested upon. This was a
failure on the part of the judiciary to counter all issues due to mixture of all
factors, but it crafted a landscape of passive euthanasia for future dispute. This
area of euthanasia again arose in the case of Common cause by a different
petitioner and for a different claim that is ‘Living Will.’ This case is seen as an
expectation for better result from that of previous case and removes those
ambiguities in earlier case and allows for smooth termination of life.
In this case the question of consent is tackled through the instrument of living
will and Art.21 of Constitution is given wider amplitude in terms of inserting
physical and mental illness. Hippocratic Oath has been perfectly balanced by
negating the pleas of doctor’s for their guiltiness and Patient’s best interest is kept
at high pedestal by giving the autonomy over his own body. Hence, the option
was not of vesting but the ‘means’ through which autonomy and best interest is
safeguarded. This means is the ‘Living Will’ that is centripetal to all legal, ethical,
social and medico issues.

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Lastly, background and defects of Medical Treatment of Terminally- Ill Patients
Bill, 2016 have been discussed. The defects of the Bill were highlighted and they
are in relation to advance medical directive, defining the term ‘terminal illness’,
immunity from prosecution of palliative care practitioners, in understanding the
term ‘competence’ and concept of best interest.

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 CHAPTER – 6 CONCLUSION AND SUGGESTIONS-

6.1 FINDINGS AND ANALYSIS-

The first chapter deals with introduction on euthanasia. Euthanasia is a very old
and very sensitive topic to deal with. With the passage of time the essence and the
scope started to grow. The main catalyst for the growth of euthanasia is the free
flow of medical science and rapid development of medical instruments that has
prolonged the life of the patient despite the pain. The concept of euthanasia was
always seen from the area of suicide because in both the cases death is the result.
The euthanasia is always pleaded for dignified death that is ‘right to die’. The
growing importance of euthanasia in India is always seen from the context of
passive euthanasia and not in active euthanasia.
The problem of euthanasia is seen from the perspective of right to die. The topic
is discussed with the question of ‘consent’ due to incompetency of the terminally
ill patient to communicate his decision regarding his health or way of treatment.
The problem of Hippocratic Oath lies between two areas; first serving the patient
that is the duty of the doctor and second unbearable pain that is the outcome of the
prolonged suffering. So, the tension is between the Oath taken by the doctors on
one hand and on other hand pleading for right to die keeping pain as a factor.

The second chapter depicts about euthanasia, ethics and medical dilemma. There
are various forms of euthanasia but in India the passive euthanasia is valid but
there is no scope for active euthanasia. In Hindu philosophy Karma and Dharma
are the two important components in the concept of life and death. Societal
interest is kept at high pedestal in the Hindu philosophy and they regard ‘Killing’
as an immoral act.

The concept of death has also not been vividly defined anywhere. It is very
difficult to assess that it is the case of death because before confirming death
various procedures are followed by the doctors. The traditional thinking is based

93
on the philosophy and it also doesn’t allow right to die without the consent of the
patient because it would go against patient’s autonomy and basic norms of
morality and ethnicity.

The interrelationship between law and morality is also based on our values that
guide our choice and action. The self-determination, autonomy and best interest
of the patient that is mentioned in the medical ethics play a dominant role in
interplay between law and morality. These three are the important components for
choosing appropriate course of treatment that is for the benefit of the patient and it
can serve the purpose of the patient.

Social, medical and legal aspects depict that depicts the relationship between
patients best interest and doctors medical dilemma. It is not the pain to the patient
but also pain to the other stakeholders that are morally attached to the patient. In
regards to the state interference there is a doctrine called ‘doctrine of
proportionality’. This means to balance the two interests that are patient’s best
interest and doctor’s duty to serve the patient. The interest of the state to preserve
the life of the patient on one hand is in conflict with the individual exercise of
interest or security over his own body through the platform of ‘right to privacy.’

But the recent scenario after the common cause case shows that expenditure, pain,
cost and benefit aspects are thoroughly taken into consideration in making a
decision. As a result those elements play equal role as that of patient’s best
interest. It is not the discussion of not allowing for right to die but money and pain
without due result nullifies the existence of life and diminishes the quality and
value of the life of the patient. This is the crux of the discussion because these are
the limbs that are attached to one’s life.

In chapter three developments in USA, UK and Netherlands are discussed clearly.

In USA active euthanasia is illegal but Physician Assisted Suicide is legal in the
states of Oregon, Washington and Montana. The doctor assisted suicide is illegal

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but self-assisted dying is legal in Oregon and Washington. The position in USA is
much strict in context of taking patient’s consent in regards to the choice of
medical treatment. Health care Proxy can also be appointed who can give consent
on the behalf of the patient in regards to the medical treatment.

The concept of living will acts as ‘continuing the treatment of the patient’ but not
‘terminating’ the life of the patient. There is a delicate distinction made between
‘letting the patient die’ and ‘making the patient die’. Letting means allowing the
patient to die but in latter there is a direct act of killing. In USA the patient’s
autonomy is kept at different footing and it is much respected in the light of
exercising his liberty over his body and state can’t interfere.

Netherlands is the first state to legalize euthanasia and Physician Assisted Suicide
is allowed with certain conditions, but active euthanasia is prohibited. In the case
of Physician Assisted Suicide the pain or right to self-determination is not the
only factor that is looked upon but also quality of life that is given much
credibility, in the light of maintaining the dignity of the patient. There is also
much debate in assessing the delicate balance between two conflicting duties and
that are patient’s suffering and protecting the patient’s life. The concept of
euthanasia comes under the ambit of Termination of Life on Request and Assisted
Suicide (Review Procedure) Act, 2002. The law making body has also made
amendments in the criminal law for the protection of the doctor’s. So, there is
better safeguard for the doctor who has acted in due care and for them Review
Committee has been constituted.

In UK euthanasia is illegal and it is not valid in the eyes of law. Active euthanasia
and Physician Assisted Suicide are not permitted in English law. It is well settled
that if the patient is not willing to take the treatment then it is up to the choice of
the patient, but if the patient is incompetent then best interest is to be adhered.
The living will in UK is governed by Mental Capacity Act and lasting power of
Attorney can also be appointed on the behalf of incompetent patient. In the cases

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of administering palliative drugs for relieving the pain of the patient doctrine of
double effect has been precisely explained. This doctrine was much in
controversy in UK because it involves both positive and negative acts. So, to
assess the presence of intention in cases of administering palliative drugs for
relieving the pain is very difficult to judge because doctor may conceal his ill
intention.

In chapter four, jurisprudential developments in India before Aruna’s case are

discussed. In India the discussion on euthanasia was wrongly interpreted in the
light of suicide. Before Aruna’s case the matter was blurred in relation to
distinguishing suicide and euthanasia and was in grey areas.

Discussions on suicide has been dealt in cases of Maruti Shripati Dubal , P.

Rathinam and Gian Kaur. The crux of the question was always raised in the light
of decriminalization of Sec.309 of IPC and not on euthanasia. The discussion of
decriminalizing Sec.309 of IPC is based on the line of pleading for ‘right to die’.
So, court always discussed the matter on the basis of constitutionality of Sec.309.

Relationship in most of the cases is drawn between suicide and death penalty
because it is taken as a situation in comparison to death penalty. So, that suicide
can be pleaded as a ground of compelling necessity. Discussions are not before
the judiciary only but before the Law Commissions, Government and other
stakeholders. But the pressing point is that due to rampant discussions on suicide
in the light of right to die, the euthanasia topic came into limelight. In fact it is
recognized by the court and it is discussed for the further debate in the area of
euthanasia.

The fifth chapter, conclusion is based on two cases and that are Aruna’s and
Common Cause. The former is the hallmark of euthanasia and latter creates the
medium for living will to achieve the goal of passive euthanasia. These two cases
may be dealing with same areas but the developments that took place are quite

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different in time and circumstances. The discussion that was started in Aruna’s
case was in relation to passive euthanasia. The whole judgement was skeptical in
regards to the question of ‘consent’. This case has drawn a detailed analysis on
determination of question of consent. Guidelines on passive euthanasia have been
looked from various perspectives such as legal, ethical and social issues.

But the big question mark was on the light of questioning the right to self
determination and best interest of the patient. These two aspects are like a
platform for exercising ‘right to privacy’ which is a fundamental right. Hence, this
question posed a great difficulty on the judiciary to counteract such problem at
that particular point because the prayer was for allowing passive euthanasia. The
thing is claiming for living will was not opted for by the petitioner. So, judiciary
was left with no choice except going against allowing for passive euthanasia
because questioning of consent is entangled with other aspects of life such as
privacy. As a Parens Patriae the court couldn’t go against the liberty of the patient
that tantamount to violation over the patient’s body which is against the spirit of
the constitution.

To combat such situations that was there as a loophole in the Aruna’s case, a
society called Common Cause came as a hope and filed a case in Supreme Court
pleading for living will. So, that the living will can act as a ‘means’ to achieve the
object of passive euthanasia.

In this case the Supreme Court has elaborated and widened the aspects of every
connotation that was felt confusing in Aruna’s case. Those are the aspects of
Art.21 that includes physical and mental illness, Hippocratic Oath- in the form of
pleading in the favour of doctors for not being guilty despite medical dilemma
and taking the cost and utility as a factor in relation to the patient and family
members.

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Hence, giving this three components wider scope and respecting the autonomy
and best interest of the patient in the platform of right to privacy, it is best adapted
to the circumstances and that would benefit much in giving living will as per the
socio –legal condition. Thus, the researcher concludes allowing for passive
euthanasia alone would not withstand in such complicated issues and could not
reach to a conclusion. There shall be some instrument that is ‘living will’ that is
given recognition in Common Cause case to reach the destination for allowing
passive euthanasia.

Therefore, the researcher feels that the ‘means’ that is the living will is subsumed
in the concept of euthanasia because both living will and allowing for euthanasia
are the part and parcel of achieving the common object that is right to die. The
researcher feels that they being on the same path to achieve death where living
will acts as an instrument and passive euthanasia is the third party intervention to
terminate the life of the patient. Hence, living will is a supporter for the
application of passive euthanasia, in fulfilling the requirement of peaceful death.

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6.2 SUGGESTIONS-

1. There should be clarity in the terms of ‘permissibility’- Permissibility on

the area of active and passive euthanasia should be more clear and cogent. The
researcher feels that there are cases in which involuntary passive euthanasia is
accepted because the doctor feels that duty not to treat the patient is justified
because medical practitioners feel that it is inappropriate to do so. In the
context of active euthanasia the definition should be more precise which could
starkly distinguish the two terms active and passive euthanasia. In other sense
the meanings should clarify the concept and it should draw proper
understanding from the term active euthanasia.

2. Looking into the aspects of ‘consent’- In determining the question of

consent the Medical Treatment of Terminally Ill Patients Bill, 2016 should
specify the sequence in which the power of consent should vest. The proper
order is necessary to prevent future conflict between the heirs.

3. Bringing law on euthanasia- In bringing law on euthanasia would be a

welcome step on the part of the state and judiciary. The researcher feels that
guidelines, suggestions, opinions given by the judges in the cases are not
sufficient at this juncture. It is known fact that guidelines cannot become law
until it is passed by parliament. So, as per the situation in India temporary
guideline having an object is of no use until there is specific law and it should
bind the parties.

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4. The ‘Living Will’ shall be operative- The living will shall be operative and
laws should be passed regarding this. The guidelines can just act as temporary
requirements until there is law. So, for more precise and accuracy there should
be law regarding this for better utilisation from the perspective of all the
members of the society starting from a lawyer to a normal human being.

5. The term ‘mental condition’ shall be replaced by ‘terminal illness’-

Researcher felt that mental condition shall be replaced by mental illness. As
the researcher has already discussed on the defects of the Bill but the reason of
such change that is suggested is due to the ambiguity in the term mental
condition. The mental condition cannot be a reason for the cause of terminal
illness but can be a reason for attempting suicide. So, terminal illness can be a
better term to replace for mental condition because it indicates to an incurable
disease and there is no certainty in regards to the survival of the patient. There
is more probability of the death in the case of terminal illness patient and that
is the crux in the case of euthanasia.

6. Immunity from prosecution shall be given to doctors- The researcher feels

that immunity shall be given to medical practitioners in regards to the
palliative care. It is felt that this drugs that are given to the patients to relieve
the pain by the doctors are also an important aspect that is to be dealt with.
Such immunity is pleaded for because basically for relieving the pain of the
patient doctor may in good faith cause death of the patient. These drugs are
given to the cancer patients during the time of chemotherapy so that pain shall
be relieved. So, protection to the doctors shall be extended to the palliative
care.

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7. There is a need to relook on ‘untimely death’- The ‘untimely’ shall be
removed from the Medical Treatment of Terminally Ill Patients Bill, 2016 and
only ‘death’ should be there. The death that is untimely that is given in the
Bill is a flaw in interpreting the term. It is pleaded for removal because in
cases of euthanasia the death is certain because the patient’s condition is in
irreversible stage, but untimely means death is uncertain or unexpected. So, it
is raises further question from that which is ‘timely death’. The ‘untimely’
possesses vagueness while explaining ‘death as untimely’ and becomes
meaningless and redundant.

8. In relation to administering palliative care- The palliative care that is

given to the patients by the doctors should carry less autonomy in giving the
drugs and more access to the patient for taking the drugs to alleviate the pain.
The other aspect is the framing of guidelines in the line of right to die with
dignity. The Medical Council of India shall frame guidelines regarding
palliative drugs. The medical students and nurses shall be given training in
giving palliative drugs and it is to be done in compliance with the consent of
the patient. It is to be seen by the authority that there is no duress applied
while giving the drugs and it results to violation of patient’s autonomy.

9. Need to relook on the concept of ‘best interest’-‘ To respect the principle

of best interest the utmost duty on the part of the state and judiciary is that
procedure for intimating the High Court shall be done within the given time
frame along with proper implementation. The researcher feels that if the time
is not been properly looked upon then it could result in high expenditure in the
hospitals and that could be onerous on family members of the patient.

10. The liability of the medical practitioner shall not be dependent on the best
interest of the patient-The researcher feels that the liability of the medical

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 practitioner should standalone and should be independent. The dependency of
liability on the best interest of the patient has gone against the doctors. It is so
because informed decision taken by the patient is enough to exempt the
liability of the medical practitioners and there is no requirement of strict
interpretation.

11. Awareness on ‘Living Will’- Living will is a new concept and everybody
does not have the understanding about this will. There should be awareness of
living will through conducting seminars, workshops etc. In remote areas the
awareness is to be done through the hospitals because mostly in remote areas
there are illiterate people and this living will concept is to be communicated
by the doctors, nurses to those people so that they can know the pros and cons
of the will.

12. Problem in the area of implementation- The judgement has laid down
difficult and complicated procedure for implementation. The complicacy lies
at the context of mandatory requirement of court for validating the will and
for registration and execution of the decision that shall be made by the JMFC
(Judicial Magistrate First Class) that is designated by district judge on the
basis of jurisdictional point.

13. Speedy disposal of cases of living will- The main requirement is that there
should be fixed time frame within which the living will shall be executed. In
India the main problem is delay and as a result the purpose is not solved.
Hence, keeping in view the interest of justice the implementation shall be
done within the reasonable time to protect the sanctity of justice.

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 BIBLIOGRAPHY

PRIMARY SOURCES-

Municipal Laws-

 Death with Dignity Act, 1997

 Monatonas Rights of the Termianally Ill Act, 2009
 Termination of life on request and assisted suicide (Review Procedure) Act,
2002
 Constitution of India, 1950
 Indian Penal Code, 1860

Domestic Cases-

 Aruna Ramchandra Shanbaug v UOI AIR 2011 SC 1290

 Bijoe Emmanuel v State of kerela, (1986) 3 SCC 615
 Common Cause v UOI WPC NO 215 OF 2005
 Chenna Jagadeeswar & another v State of Andhra Pradesh C.A No 165 of
1987
 Dr K Malathi v Dr S. Rajasekharan AIR 2003, Mad, 322
 Excel Wear v UOI, AIR, 1979 SC 25
 Gian Kaur v State of Punjab, 1996 AIR 946, 1996 SCC (2) 648
 Hathising mfg. Co. V UOI, AIR 1960, SC 923
 Maruti Shripati Dubal v State of Maharashtra 1987 (1) BOMC CR 92 499,
1986 88 BOMLR 589
 Naresh Marotrao Sakhre Vuoi, 1996 (1) BOM CR 92, 1995 CriLJ 96, 1994
(2) MHLJ 1850
 P. Rathinam v UOI, 1994 AIR 1844, 1994 SCC (3), 394

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  Sarya Pal Singh v State of UP, AIR 1951 All.674
 State v Sanjay Kumar Bhatia, 1985 Crl L.J.931
 Thomas Master CA v UOI, 2000 Cri LJ 3729 (Ker)
 V.G Row v State of Madras, AIR 1951Mad. 147

International Cases-

 Airedale National Health Service Trust v Bland (1993) All ER 821

 Attorney General v Able & others, 1983 3 WLR 845, (1984) 1 QB 795,
(1984)1 All ER 277
 Baxter, et al v Montana, MT DA 09-0051, 2009 MT 449
 Compassion in Dying v State of Washington 850 F. Supp. 1454 (1994)
 Cruzan v Director, 497 U.S. 261 (1990)
 F v West Berkshire Health Authority, (1990) 2 AC 1, (1991) UKHL1
 Georges Healthcare NHS Trust V S (1999)
 Heller V Doe , U.S. 312 (1993)
 Kelly VJohnson, 425 U.S. 238(1976).
 Natanson V Kline 186 Kan.393 (1960)
 Nicklinson & lamb V U.K , 2487/15, 1787/15(2015) ECHR 783
 Office of Public Prosecutions V Chanot nr 96.972(1994)
 People V Kevorkian , 527 N.W 2d 714, 728, 29 (Mich. 1994).
 Pretty V The United Kingdom ECHIR (2346/02, (2002) 35 EHRR 1
 Postma N.J. 1973, NO – 183.
 R V Dr Bodkins Adams (1957) Crim LR 365
 Schloendarff V Society of New York (1914)211 NY 125
 Union Pacific R Co. V Botsford(1891) 141 US 205 at p. 251
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  Wilson V Pringle (1986) 2ALL ER 440, st.
 Wons V Public Health Trust 500 So 2d 679 (1987).

SECONDARY SOURCES-

Books-
 Dr. Sharmila Ghuge, Legalizing Euthanasia: A pedagogue’s
perspective, Himalaya Publishing House , 2015
 Dr. Ravulapati Madhavi, Death with Dignity, Asia Law House,
2014
 Sudershan Goel & Ravi Sodhi, Crime Law & Advice, Universal
Law Publishing Co. Pvt Ltd. , 2013

Journal Article-

 Ruphel Cohen- Almagor, Euthanasia in the Netherlands: the

legal framework, Mich.St. U. Det. C. L.J. Int’IL. 319 (2001)
 Patrica A. Unz, Euthanasia: A Constitutionally protected
peaceful death, 37 N. Y. L. Sch. L. Rev. 439 (1992)
 Caesar Roy, Position of Euthanasia In India- An Analytical
Study, 2011
 Yashveer Singh, Decriminalization of Attempt To Commit
Suicide in India, International Journal of Research and Analysis
Vol 2 Issue 6, 2015
 Lawrence Liang, Bhavana Thakur, R. Rathinam/ N. Patnail,
Case Comments, JT 1994 (3) SC 392, 7 Student Advoc. 126
(1995)

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  P. Ramaswamy, Case Comments: Gian Kaur v Punjab: A
Requiem Foe Reason? , 9 Student Advoc. 173, 1997
 Dr. Sandeepa Bhat B. And Shyamala D, Euthanasia Regime: A
Comparative Analysis of Dutch and India Positions, NUJS
working paper series, NUJS/WP/2011/03
 Visnja Strinic, Arguments in Support and Against Euthanasia ,
Dracevac bb, 21000 Split, Crotia
 Dr. Sonali Abhang, A Socio- Legal Impact of “Euthanasia” In
India – Suggested Reform, IOSR Journal of Humanities and
Social Science, Vol-22, Issue 9, Ver. 5, 2017
 Tania Sabastian, Legalization of Euthanasia in India with
Specific Reference to the Terminally Ill: Problems and
Perspective, 2J. Indian L. & Soc’y 341, 2011
 A Akinola, C. Freter; F. Rettkowski; K. Wienrich, Comparative
View of Euthanasia in the United Kingdom, the Republic of
Ireland and Germany, A, I J. Acad. Legal
 Alexander Mcall Smith, Euthanasia: The Law In The United
Kingdom, British Medical bulletin, Vol. 52, Issue 2, 1, 1996
 Brendan A. Thompson, Final Exist: Should the Double Effect
Rule Regarding the Legality of Euthanasia in the United
Kingdom Be Laid to Rest, 33 Vand. J. Transnat’ IL 1035, 2000
 Ronald L Scott, United States Legal Aspects of Euthanasia

Newspaper Article-

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  Uma Shashikant, Before the end draws too near, Write that
Living Will, The Times Of India, Mar 26, 2018
 Roop Gursahani, Living Will Isn’t a Document but a
process, Which can include a conversation about preferring
death at home or hospital, The Times Of India, March 13,
2018
 Anita Joshua, Religious Orders Conflicted, The Telegraph,
10, March, 2018
 R.K Mani, Passive Euthanasia Judgement Laudable in
principle but problematic in implementation, The Telegraph,
10, March, 2018
 Amit Roy, Active euthanasia still illegal, The Telegraph, 10,
March, 2018
 G.S Mudur, Cooling period vexes doctors, The Telegraph,
12, March, 2018

Web Resources-

 http://www. Cambridge.org
 Law Commission of India, 156th Report on Medical
Treatment of Terminally Ill Patient’s (Protection of
Patients and Medical Practitioners),
http://www.lawcommissioninindia.nic.in/report/rep196.pdf

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