LEGALITY OF PASSIVE EUTHANASIA IN INDIA

By M. Vanmathi, III year B.A., LL.B., The Central Law College, Salem

Introduction:

The euthanasia is a Greece word which means 'good death'. The euthanasia (mercy killing) has different forms of the premature ending of life. They are active, passive, involuntary, voluntary and assisted suicide. India legalized passive euthanasia with certain guidelines to give a peaceful ending of life, who are fighting with death for a prolonged period. The Supreme Court passed the historical judgement that it allows the 'passive euthanasia' and 'living will'. This judgement was given after the deep analysis and many debatable arguments. It was one of the highly debatable issues across the country. The fundamental rights provide the citizens of India to lead a dignified and fulfilling life. Among the fundamental rights, the most significant and prominent right in Indian constitution is the right to life under Article 21. There is a huge debate across the country regarding the right to die is the fundamental right or not? Moreover, there is a confusion that the right to life includes itself the right to die and also section 309 of the Indian Penal Code is an ultra vires to the constitution or not?.

Euthanasia: Right to life vs. Right to die:

Euthanasia bought a huge debate across dynamic aspects such as legal, moral, health, human rights, religious, spiritual etc. Here we discuss the euthanasia from the different perspective of law. Under IPC, both the abetment of suicide and attempt to suicide is considered as criminal offences. In 1994, the constitutional validity of section 309 of Indian penal code was challenged in the Supreme Court, because a person will attempt to suicide due to his depression, illness etc. Those people who attempted to suicide should need support and care and not the punishment. In P. Rathinam vs. Union of India[i], the Supreme Court declared that section 309 was unconstitutional under Article 21(Right to life) of the Indian constitution.

In Gian Kaur vs. State of Punjab[ii], people who abet suicide are also punishable under section 306 of IPC. The court ensured that Right to die with dignity at the end of a person's life should not be misunderstood with Right to die in an unnatural way of terminating life. The attempt to suicide and abetment of suicide did not violate article 21 of the Indian constitution.

In Aruna Ramachandra Shanbaug vs. Union of India[iii], the Supreme Court held that passive euthanasia is given in case of exceptional circumstances and under strict monitoring of the Supreme Court.

The incident of 1973 and the notable judgement of 2011:

We all know about the judgement that the Supreme Court legalized passive euthanasia. But we don't know who triggered this issue and what is the background of this case? Aruna (25 years) was a nurse working in King Edward Memorial Hospital (KEM), Parel, Mumbai. On the evening of 27th November 1973, she was attacked by the sweeper in the hospital. He wrapped a dog chain around her neck and yanked her back with it.

He tried to rape her, but he finds that she was menstruating, he sodomized her. She had suffered grave spinal injuries. The next day, the cleaner found her in an unconscious state lying on the floor with blood all over. Due to his act, the supply of oxygen to the brain stopped and the brain got damaged. It pushed her to Permanent Vegetative State (PVS). Her relatives abandoned her. She was working in KEM hospital so that the hospital management and her colleagues took care of her till the last breath of her (nearly 42 years). There is no movement in her body.

In 2009, Pinki Virani, a social activist filed a writ petition in the Supreme Court claiming to be Aruna's next friend. She mentioned in the petition, Aruna cannot be said to be a living person and her body lies in the bed like a dead animal. She only intakes mashed food. There is no improvement in her body. Pinki Virani prayed that the KEM hospital should stop feeding and leave her to die peacefully. The Dean of KEM hospital did not accept this. So, the Supreme Court formed a three member committee and directed to analyze the health status of Aruna. The committee submitted a report that she was being a PVS (it means patients have a normal heartbeat and breathing, they cannot produce a voluntary response and they do not require advanced life support to preserve their life, they can sleep and awake, a patient can survive a long time with the expert nursing care). The court said Aruna was not brain dead and has a little possibility of coming out of PVS. The court rejected Pinki Virani's prayer; the life-saving measure taken for her was the mashed food. The removal of the life-saving technique, in this case, would have meant not to feed her. Indian law never allowed this kind of inhumanity and never accepted not giving food to a person, because the removal of ventilator and discontinuation of food is not the same.

The court relied upon Airedale National Health Service Trust vs. Bland[iv], decided by House of Lords in England, where the court allowed passive euthanasia only after the approval of the High Court. Indian Supreme Court has deep analysis regarding that and given the strict guidelines to enforce passive euthanasia. It is because the legality of passive euthanasia is never be misused by relatives or any other person. Anyway, passive euthanasia is allowed but in Aruna's case the decision of allowing passive euthanasia vested in the hands of KEM hospital who are amazingly caring Aruna day and night for so many years. The KEM hospital express it will clearly that Aruna should be allowed to live. Aruna was allowed to live and her death by natural means. This landmark judgement of Aruna Ramachandra Shanbaug vs Union of India & Ors legalized passive euthanasia in India. The public interest litigation filed by NGO common cause, the court was issuing its verdict on legalization of passive euthanasia and living will. It also gave guidelines include who can execute the will and under what condition the medical counsel can endorse passive euthanasia.

Guidelines to be followed in passive euthanasia case:

1) Any petition for passive euthanasia should be filed in relevant High Court. The Chief Justice of the High Court should constitute a bench of at least two judges. They decide to approve or not.

2) Before taking a decision, the bench should seek an opinion from the committee consist of three reputed doctors (one should be neurologist, one should be a psychiatrist and other should be a physician)

3) High Court should issue a notice to the state and close relatives (parents, spouse, brother or sister, otherwise the friends)

4) After hearing all the parties, the High court bench should give its judgement.

Forms of euthanasia and international practices:

There are four types of euthanasia. They are

1) Active euthanasia - the person directly introduce something to causes patient death.

2) Passive euthanasia - They don't take the patient's life directly, simply they just allow them to die (withdraw or withhold the treatment).

3) Voluntary euthanasia - It occurs at the request of the person who dies.

4) Involuntary euthanasia - consent get from the guardian.

In India, active euthanasia is considered as illegal and it allowed passive euthanasia with strict guidelines. In the Netherlands, euthanasia and physician-assisted suicides are legal. Belgium legalized euthanasia in 2002. In Switzerland, physician-assisted suicide is permitted. In the USA, active euthanasia was illegal. In Canada, physician-assisted suicide is not legal.

Conclusion:

The Supreme Court allowed the passive euthanasia and living will with strict guidelines. In passive euthanasia, death is by the omission of an act which means not carrying any medical intervention to safe the patient. A living will is a written document which gives the instructions to the patient in advance regarding medical treatment to be administered when he or she is terminally ill or no longer to express their consent, including withdrawing life support when the medical board declares all the life-saving measures have been exhausted. In India, the government took the necessary steps to protect its public health. But there is a need to develop the health sector.

[i] 1994 AIR 1844 [ii] 1996 AIR 946 [iii] (2011) 4 SCC 454 [iv] [1993] AC 789