Exploring The Intricacies of Euthanasia: A Comprehensive Constitutional and Judicial Review
Updated: Nov 10
Authored by Prachi Bohare & Tanishka Jain, 3rd-year Law Students at the Prestige Institute of Management Department of Law, Indore
Why do we discuss the right to die when everyone wants to live a long and fulfilling life? What, then, is the need for everyone to have the right to die while also having the right to life and personal freedom?
Article 21 of The Indian Constitution with a Broader Application
Every person is born with some basic rights, including the right to life. India is a democratic as well as a Republic state, which gives some fundamental rights to the citizens and non-citizens, and the Right to life is one of them, defined under Article 21 of the Indian Constitution. Here, the right to life refers to living a life with personal freedom and a high standard of living rather than living like an animal. The Supreme Court added the Right to Privacy in the case of Kesavananda Bharati & others Versus State of Kerala  AIR 461(SC), expanding the scope of the Right to Life. Article 21 of the Indian Constitution, made way back in 1950, is all about giving people the freedom to live their lives as they want. It covers personal space and the ability to make choices, all under the big idea of personal freedom.
In light of this, the court has the authority to interpret or add rights to the Constitution's list of fundamental rights. This was shown in numerous cases, including AK Gopalan vs the State of Madras. Union of India [ 1950 ] AIR 27(SC), the court discussed "due process of law". Prior to that, we followed the idea of "procedure established by law", which was incorporated into the British concept of personal liberty.
In Maneka Gandhi vs Union of India AIR 597 (SC), the court gave the golden triangle, incorporating Articles 14, 19, and 21 because they are connected and make sense when read together. The court also said that personal liberty is not constructed in a strict or narrow sense but in a liberal and broad sense. Similarly, in Unni Krishnan vs State of Andhra Pradesh  AIR 217 (SC), the court upheld the interpretation of the Right to life.
The Link between Article 21 of the Constitution of India & Sections 306 and 309 IPC, 1860
However, the question here is whether the Indian Constitution also recognises the right to death. There is a considerable debate in India about whether the right to die should be part of this whole "right to life". This debate stems from two old laws, Section 306 and Section 309 of the Indian Penal Code (IPC), established in 1860, which pertain to aiding someone in committing suicide and attempting suicide oneself. Numerous cases were used to interpret it by the court.
In the case of P. Rathinam V. UOI  AIR 1844 (SC), the Supreme Court grappled with the fundamental question of whether Article 21 includes the right to choose not to continue living. The court declared Section 309 of the IPC to be void, as it was seen as violating the principles of Article 21. The court emphasised that the act of suicide should not concern the state unless it poses a threat to public order or religion.
In another case of Maruti Sripati Dubai vs State of Maharashtra  (1) BomCR(Cri) 499, the petitioner was arrested on the basis of committing suicide under Section 309 of IPC but was released on bail. The question that arose before the court in this particular case was about the constitutionality of Section 309 and whether the penalty under this section was inhuman, harsh, and unreasonable. The Bombay High Court said that the section was inserted to stop any potential suicides. Nevertheless, penalising them is an absurd way to do this. They need mental assistance and special care. Hence, the rule was made absolute and declared Section 309 ultra-vires.
Similarly, in the case of Gian Kaur V. State of Punjab  AIR 946 (SC), the Supreme Court differentiated between natural and unnatural deaths. It upheld the constitutionality of Sections 306 and 309 of the IPC, asserting that the right to die naturally (as in the case of terminally ill patients) differs from prematurely ending one's life through suicide.
Euthanasia with Reference to Right to Die
When discussing the right to die, the initial consideration often revolves around the fundamental reason prompting this question: Why would an individual seek to terminate their own life? The concept of "Right to Die" is important because it touches on deeply personal and challenging situations where individuals may consider ending their own lives. This often arises when people are overwhelmed by issues such as depression, stress, or anxiety, which can lead them to contemplate suicide, a distressing and tragic outcome.
In addition to suicide, another concept is "euthanasia," which offers a different perspective. Euthanasia is derived from Greek words that mean "good death". In straightforward terms, it refers to deliberately ending the life of someone who is suffering immensely due to a painful, incurable, and uncontrollable illness or condition. This decision is made when the person believes their life has become unbearable. Euthanasia is also referred to by various terms like "assisted dying," "death with dignity," or "mercy killing." It is an exceptional and infrequent practice, typically reserved for cases where a person is terminally ill, vegetative, enduring severe pain, or has lost their mental faculties.
A "living will" or "Advance Directive" is a document where a person states their medical treatment preferences for times when they cannot communicate their wishes. It is crucial for healthcare decisions. Euthanasia means helping someone with a severe illness to die, and it has various forms with different ethical and legal aspects. This blog focuses on "Active" and "Passive" euthanasia. Active euthanasia actively ends a patient's life, often by giving a lethal injection. In contrast, Passive euthanasia indirectly ends a patient's life by stopping life-support treatments like ventilators or feeding tubes.
The Global Legal Landscape of Euthanasia
Euthanasia's legality varies worldwide. The Netherlands became the first country to legalize it in 2002. They have a legal framework called the "Termination of Life on Request and Assisted Suicide Act." Regional committees review cases to ensure they meet specific criteria, ensuring a regulated and transparent approach to end-of-life decisions. This system helps balance the sensitive issue of euthanasia.
Similarly, in other countries, such as the United States, the state of Oregon has enacted the Death with Dignity Act, allowing terminally ill adults to request and receive a prescription for medication to hasten their death. In the landmark Carter v. Canada  SCC 4 (CanLll) case, the Supreme Court of Canada struck down the prohibition against physician-assisted dying, recognising that the right to life, liberty, and security of the person under the Canadian Charter of Rights and Freedoms includes the right to control one's end-of-life decisions.
The Legal Status of Euthanasia in India
According to the Indian perspective, whether suicide is a punishable offence under IPC or not was decided by the court in different cases. In the Gian Kaur V. State of Punjab  AIR 946 (SC) Case, Aruna Shanbaug v. Union of India  4 SCC 454 (SC) case, and Common Cause a registered society v. Union of India  AIR 1665 (SC) case, the main focus area was the distinction between the passive and active euthanasia.
India's legal stance on euthanasia has transformed in recent years. A noteworthy change is the acceptance of passive euthanasia, marking a significant departure from the past when all forms of euthanasia were illegal and banned in India. Previously, if a patient wished to end their life with consent, doctors or individuals assisting them could face potential charges under Section 304 of the Indian Penal Code for culpable homicide not amounting to murder. However, this permission for voluntary euthanasia is conditional upon the patient being of sound mind and above 18 years old. The legal framework does not explicitly address non-voluntary and involuntary euthanasia, subjecting them to different legal provisions found in Section 92 of the Penal Code. These changes reflect an evolving understanding of end-of-life choices in India's legal system.
In 2006, the Law Commission suggested legalising passive euthanasia while keeping active euthanasia illegal. It laid out strict conditions, including the High Court’s approval and the patient’s consent. Active euthanasia remained prohibited until a dedicated law was passed.
The case of Aruna Shanbaug v. Union of India  4 SCC 454 (SC) recognised passive euthanasia without specific legislation, providing decision-making guidelines. In this case, a nurse had been in a persistent vegetative state for years. The court did not permit active euthanasia but allowed withholding life-sustaining treatment with legal safeguards. When individuals cannot decide about withdrawing life support, the court can step in as parents patriae to make decisions on their behalf.
In 2012, influenced by global trends, the Law Commission recommended repealing Section 309 and supported legalising passive euthanasia. Furthermore, the Law Commission of India suggested legalising euthanasia in its 241st Report. (Ministry Of Health & Family Welfare).
The status of euthanasia in India emerged from the Common Cause, a registered society v. Union of India  AIR 1665 (SC), where the right to die with dignity was asserted as a fundamental right under Article 21. The court stressed the need to consider legal, medical, and constitutional aspects when dealing with this delicate issue. It granted adults with mental capacity the right to refuse medical treatment or the withdrawal of life support systems. For those who could not decide, the 'best interest principle' was applied, guided by competent medical experts. In this case, passive euthanasia was officially legalised, recognising the "right to die with dignity" as a fundamental right.
The Current Position of Euthanasia in India
In a recent development on January 24, 2023, the Supreme Court's Constitutional bench made revisions to its 2018 decision in Common Cause, a registered society v. Union of India  AIR 1665 (SC), which had established the legality of passive euthanasia. These modifications aimed to simplify the process of discontinuing life support for terminally ill patients, with a focus on benefiting patients, their families, and medical practitioners. The key changes included:
Shifting the responsibility of forming both the primary and review medical boards from government officials to hospitals. The district collector's role in establishing a review board was eliminated, and only one district medical officer nominee would be part of the review board. The medical boards were mandated to make decisions on such cases within 48 hours.
In the past, obtaining a judicial magistrate's consent was a requirement for passive euthanasia. However, the new order specified that the magistrate only needed to be informed.
These changes were instituted in response to the recognition that the previous procedures needed to be more complex and practical.
Controversies on the Legality of Euthanasia
Despite the Supreme Court's guidelines and the legalisation of euthanasia, the debate remains divided, with contrasting arguments.
Arguments in favour
Supporters of euthanasia advocate for several reasons. They view it as a compassionate solution for severely ill individuals enduring excruciating suffering, especially when all available medical treatments have been exhausted. They emphasise personal freedom, asserting that everyone should possess the right to determine the circumstances and manner of their peaceful end. Supporters see euthanasia as a means of preserving individual dignity while upholding this fundamental right.
Euthanasia is also seen as a potential relief for families caring for seriously ill loved ones. These circumstances not only inflict physical pain but also impose emotional and financial burdens on families. Furthermore, proponents argue that permitting euthanasia can allocate limited healthcare resources more effectively by refraining from futile treatments when recovery is implausible. This reallocation can benefit others in need.
Lastly, to ensure safety and ethical standards, supporters advocate for the legalization of euthanasia with stringent regulations to safeguard against misuse and coercion.
There are some Arguments against it, and one of the main arguments against it is related to the sanctity of human life, which should be preserved under all circumstances. It is argued that intentionally ending a life, even with the individual's consent, goes against the fundamental moral principle of valuing life above all else. Critics worry about a potential "slippery slope" if euthanasia is legalised, where eligibility criteria could gradually expand, potentially leading to involuntary euthanasia or misuse of the practice, as seen in some places. Sometimes, the consent is not free and voluntary due to factors like depression, coercion, or insufficient knowledge about available treatment options.
The most important concern is about the legal framework of euthanasia, which could lead to cost-saving measures in healthcare, pressuring vulnerable individuals, especially those with limited financial resources, to choose euthanasia over potentially expensive medical treatments.
Even though the Supreme Court accepted all these arguments, active euthanasia remains unlawful and inapplicable in India. Active euthanasia is just as vital as passive euthanasia, if not more so because it is the most compassionate course of action for terminally ill patients. Arguments against the consent's legality are more compelling when it is voluntary. Additionally, it serves no purpose to treat the person's suffering longer.
However, the main reason why the government and the court are not permitting this is because it is being misused and because people are using it without thinking it through. However, to put things plainly, there is now no legal structure pertaining to passive euthanasia as well. The same holds true for active euthanasia if we want to prevent misuse. Appropriate laws, rules, and regulations must be developed and effectively implemented.
Euthanasia in India is becoming more complicated as it involves ethics, laws, and society's views. The Supreme Court revised and modified the guidelines made in Common Cause, a registered society v. Union of India  AIR 1665 (SC), in January 2023 to make the process better for patients, considering their choices and practical challenges.
The debate about euthanasia in India highlights a tricky balance. On one hand, it is essential to let people have a dignified choice about their death. On the other hand, we must protect those who might be pressured or taken advantage of. We need strict rules, close monitoring, and a commitment to ethical care to strike this balance. As India continues to figure out euthanasia, it is crucial for policymakers, doctors, and the public to talk openly and with compassion. These conversations should focus on the well-being of those suffering at the end of life while respecting their right to choose and maintaining their dignity.