Author: Saima Hasan, pursuing B.B.A.,LL.B.(Hons.) from The NorthCap University, Gurgaon.
Co-author: Mohammad Azhad Hasan, pursuing B.B.A.,LL.B.(Hons.) from The NorthCap University, Gurgaon.
INTRODUCTION
The concept of euthanasia is a practice that aims to relieve suffering and pain by intentionally ending one's life. Different countries have their own euthanasia laws. In the UK, euthanasia is defined as a deliberate intervention that's carried out with the intention of ending one's life. In Belgium and the Netherlands, euthanasia is also referred to as the termination of one's life by a doctor at the patient's request. The Dutch law, however, doesn't use the term euthanasia. Instead, it refers to the practice of euthanasia as the end of life on request.
There are various ways to describe euthanasia. It can be categorized as voluntary, involuntary, or non-voluntary. Voluntary euthanasia is carried out when a patient desires to end their life. Non-voluntary euthanasia is when a patient's consent is not available and is permitted in certain countries. Involuntary euthanasia is considered murder in most countries.
The field of bioethics[1] has become more active due to the increasing number of studies on the subject. In some countries, the debate over euthanasia has sparked public controversy. In some cases, passive euthanasia is allowed under certain conditions.
Although active[2] euthanasia is legal in certain countries, such as Switzerland, Canada, and Belgium, it's not widely supported in other countries, such as Pakistan, Saudi Arabia, and Nigeria. For instance, in these countries, it's not allowed to practice euthanasia without the approval of a doctor or other health professionals.
UNDERSTANDING SECTIONS 306 AND 309 IPC, 1860 IN REGARDS WITH ARTICLE 21 OF THE CONSITUTION
In 1950, the constitution of India provided that citizens have the right to enjoy life. However, it also stated that the right to die should be accompanied by other rights such as autonomy and self-determination. However, there are various legal obstacles that prevent the right to die with dignity from being fully implemented in the country.
Over the years, the Supreme Court has also been asked to review the various provisions of the Indian Penal Code (IPC) related to euthanasia. The case of P. Rathinam V. UOI was referred to the Supreme Court for its consideration. The court was asked to decide if Article 21 of the constitution provides the right to live with dignity. It also wanted to know if the right to life includes the option to not live forcefully.
The court ruled that Section 309 of the IPC was unconstitutional. It said that the provision violated the rights of individuals to choose their own course of action. The court based its decision on the principle that the right to life should not be restricted by animal existence.
The court stated that Section 309 was irrational and violated the fundamental rights of individuals. It was therefore necessary to remove this section to make room for the rationalization of penal provisions.
In the case of Gian Kaur, her husband and her daughter were charged under Section 306 of the IPC for committing suicide by killing their daughter-in-law. They were convicted by the trial court and the High court. They approached the Supreme Court through a special leave petition to challenge the constitutionality of Section 306.
The court ruled that the right to die at the end of one's natural life does not have to be confused with the right to live in an unnatural manner. This principle should not be used to justify the unnatural negative act of euthanasia.
The court ruled that Section 306 and 309 of the IPC were constitutional. It allowed people who are in a state of terminal illness and are in a natural manner to end their lives with dignity. In the case of suicide, the life span of the individual gets unnaturally terminated, which then initiates the process of death at an early stage.
CLASSIFICATION
Different forms of euthanasia can be classified depending on the patient's informed consent[3]. These include voluntary, involuntary, and non-voluntary euthanasia.
Due to the varying definitions of euthanasia, it's not always clear if the actions of non-voluntary euthanasia are considered murder. In some bioethics studies, the authors of the definitions stated that the patient's consent was not considered a criterion for determining euthanasia's legality. However, other researchers believe that the patient's consent is essential.
VOLUNTARY EUTHANASIA
The person wants to die and says so. This includes cases of: (BBC, 2022)
asking for help with dying
refusing burdensome medical treatment
asking for medical treatment to be stopped, or life support machines to be switched off
refusing to eat
simply deciding to die[4]
INVOLUNTARY EUTHANASIA
Non-voluntary euthanasia is carried out when the patient's consent is unavailable. Some examples of this type of euthanasia include the practice of child euthanasia, which is illegal in the Netherlands but decriminalized under the country's Groningen Protocol.
VOLUNTARY EUTHANASIA
The person wants to live but is killed anyway. This is usually murder but not always. Consider the following examples: (BBC, 2022)
A soldier has their stomach blown open by a shell burst. They are in great pain and screaming in agony. They beg the army doctor to save their life. The doctor knows that they will die in ten minutes whatever happens. As he has no painkilling drugs with him he decides to spare the soldier further pain and shoots them dead.
A person is seen at a 10th floor window of a burning building. Their clothes are on fire and fire brigade has not yet arrived. The person is screaming for help. A passer by nearby realizes that within seconds the person will suffer an agonising death from burns. He has a rifle with him and shoots the screaming person dead.
A man and a woman are fleeing from a horde of alien monsters notorious for torturing human beings that they capture. They fall into a pit dug to catch them. As the monsters lower their tentacles into the pit to drag the man out he begs the woman to do something to save him. She shoots him, and then kills herself.[5]
PASSIVE EUTHANASIA[6]
In active euthanasia, the medical profession or another individual intentionally causes a patient's death.
ACTIVE EUTHANASIA
When a patient dies, passive euthanasia occurs when the medical professionals do not perform the necessary actions to keep the patient alive.
switch off life-support machines
disconnect a feeding tube
don't carry out a life-extending operation
don't give life-extending drugs[7].
HISTORY OF EUTHANASIA
In ancient Greece and Rome, the practice of euthanasia was commonly practiced. For instance, in the island of Kea, a method known as hemlock was used to hasten the patient's death.
In the ancient world, Socrates, Seneca the Elder, and Plato supported the practice of euthanasia. However, Hippocrates criticized the practice, stating that he would not give advice or drugs that could cause a patient's death. There has been some debate about whether or not this was the intended practice.
Karl Marx, a medical historian, came up with the concept of euthanasia after he was influenced by the ideas of philosopher Francis Bacon. He said that a doctor has a moral obligation to help alleviate the suffering of a dying patient by providing medication.
The concept of an afterlife was also reflected in the contemporary zeitgeist[8]. However, it was the first time that euthanasia was included in the medical canon of responsibility, which is a set of ethical standards for medical practitioners.
EUTHANASIA IN INDIA
In India, passive euthanasia is allowed under strict guidelines. In order to be considered for this type of euthanasia, a patient must be in a state of terminal illness and in a coma.
SUPREME COURT VERDICT ON EUTHANASIA
On March 9, 2018, India's Supreme Court allowed the practice of passive euthanasia by ruling that the withdrawal of life support can be carried out in the case of patients in a persistent vegetative state. The court made this decision following a case involving a patient named ArunaShanbaug[9].
In a historic judgment[10], the Supreme Court of India allowed the practice of passive euthanasia in the country. This decision was made following a case filed by lawyer Pinki Virani in December 2009. The court's decision was based on the provision of the Next Friend[11], which gives the individual the power to make their own decisions regarding their health.
In its 2011 Law, the Supreme Court had stated that the patient's brain-dead condition can be changed, and that the patient's feeding tube can be disconnected. For those in a persistent vegetative state, the feeding tube can be removed and the patient's pain-management medication added.
In 2014, the government of India announced that it would decriminalize suicide attempts. This code[12], which was enacted in response to the case of Shanbaug, penalizes those who attempt to kill themselves.
On February 25, 2014, a three-judge panel of the Supreme Court criticized the judgment in the Shanbaug case. It referred the matter to a five-judge Constitution bench for further proceedings.
In response, the government of India issued a press release on December 23, 2014. It stated that the Supreme Court's judgment regarding passive euthanasia had been re-validated. The court had also laid down comprehensive guidelines for handling cases related to this type of euthanasia.
Following a review of the matter, the Ministry of Law and Justice decided that the guidelines issued by the Supreme Court should be followed in all cases involving the practice of mercy killing. At present, no legislation has been formulated to address the issue of euthanasia in India.
In response to the Supreme Court's ruling, the Delhi High Court stated that it would not allow the use of lethal injection as an alternative to euthanasia. Since the country does not have a law regulating the issue, the court's decision became the law of the land. In other countries, including India, active euthanasia is still illegal.
In 2018, the Supreme Court of India ruled that the government would honor living wills that allow patients to be euthanized if they are in a state of terminal illness or are in a coma or a state of a persistent vegetative state. Before euthanasia can be carried out in India, a patient must first sign a leave against medical advice (LAMA). This will allow the patient to have the authority to withdraw their living therapies.
SUPREME COURT DESCION
While rejecting the plea of advocate Pinki Virani[13] for Shanbaug's euthanasia, the court also established guidelines for passive euthanasia. This type of euthanasia involves withdrawing the patient's food and treatment. It is not allowed in other countries, such as the Netherlands and Belgium, where lethal compounds are legal. In the US, it is still illegal to perform euthanasia.
In other countries, active euthanasia is still illegal. However, passive euthanasia, which involves the patient withdrawing their nutrients and water, is allowed. As India has no law on euthanasia, the guidelines issued by the Supreme Court are still in force. VeerappaMoily, the country's minister of law and justice, has called for a serious debate on the issue.
The guidelines are as follows:
1. A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.
2. Even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires presence of two witness and countersigned by first class judicial magistrate, and should also be approved by a medical board set up by the hospital[14].
CONSTITUTION BENCH DECISION
After hearing a public interest litigation (PIL) filed by an NGO, the Supreme Court criticized the judgment in the Shanbaug case. It said that the court's decision was based on an erroneous interpretation of a 2004 constitution bench judgment. The court also noted that the court still goes on to issue guidelines on the issue. The court then referred the matter to a constitution bench, which has a strength of five judges.
The court observed that, Due to the conflicting views expressed by both the Shanbaug and the other judges, it is important that the constitution bench of the Supreme Court has a clear and unbiased opinion on the issue. This court should take into account the various aspects of the law and human nature when it comes to this question.
The court decided that Article 21 should include the right to die with dignity, as provided in the constitution. It should also consider the various living wills and advance instructions that people have given themselves.
CHALLENGES FOR EUTHANASIA
Despite the various laws and regulations in place, corruption still persists in India. It is easy for the staff members of an iniquitous hospital to take bribes from the relatives of patients in exchange for providing them with treatment. In order to facilitate the killing of a patient, the hospital authorities would also give them false reports about the quality of their care.
In most cases, this practice occurs in hospitals where there is no value to human life. The only concern of the staff members is the monetary value that they will receive for their immoral acts.
In India, organ selling is also a common practice. It can be carried out following the death of a patient due to non-voluntary euthanasia. The insatiate doctors may be waiting for the patient to die so they can make a quick profit.
Sometimes, parents of children with special needs, who do not want to look after their offspring, may seek euthanasia due to their condition. This practice undermines the provisions of the law that were made for the protection of human life.
In most cases, people are also blinded by the false beliefs of certain tantrikbabas[15]. They can end the life of their loved one without their consent and offer him as a sacrifice.
Today, there are also people who are against the birth of a female child. They believe that she will be a burden or a curse at some point in her life. By intentionally causing an accident or a major misfortune, which could lead to her death, they can end her life by performing non-voluntary euthanasia.
In India, euthanasia can also be used to commit heinous crimes such as dowry death. In this case, the family members of the victim are the ones who can make the final decision regarding the death of the patient.
CONCLUSION
Although some countries have already recognized the practice of euthanasia, it is not yet legal in India. The courts have taken a long time to resolve these cases.
The Supreme Court of India has allowed the practice of euthanasia in the country. It is the highest court of judicature in the country, and its decisions are widely acknowledged by the citizens. The court's decisions are regarded as wise and experienced.
The court's decision to allow the practice of passive euthanasia has been welcomed by the people. However, it is important to note that active euthanasia is still not allowed in the country. This will only serve to confuse the people and create more confusion regarding the issue.
[1]It is the study of ethical issues emerging from advance in biology, medicine and technology. [2] A type of euthanasia [3]One of the essential element while studying euthanasia. [4] BBC, UK DATED 9/5/2022. https://www.bbc.co.uk/ethics/euthanasia/overview/volinvol.shtml [5]BBC, UK DATED 9/5/2022. https://www.bbc.co.uk/ethics/euthanasia/overview/volinvol.shtml [6] Discussed in detail with regards to India. [7] This how active euthanasia can be carried out. [8]The set of time representing particular space or space. [9]Shanbaug, who was a nurse, was at the center of a court case regarding the practice of euthanasia in India. She spent over 40 years in a persistent vegetative state due to sexual assault. [10]Aruna Ramchandra Shanbaug vs Union Of India &Ors on 7 March, 2011. [11] Amicus Curie. [12] Section 309, which penalize the victims of suicide. [13]Friend of Shanbaug. [14]Wikipedia, 9/05/22, https://en.wikipedia.org/wiki/Euthanasia_in_India#:~:text=Court%20verdicts%20on%20Euthanasia,-On%209%20March&text=On%209%20March%202018%2C%20the,provision%20of%20%E2%80%9CNext%20Friend%E2%80%9D. [15]A superstitious believe.