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Published : December 28, 2011 | Author : akshay.goel10
Category : Constitutional Law | Total Views : 4828 | Rating :

Akshay Goel Practising Advocate in Delhi H.C.,B.A. LL.B. From Bharati Vidyapeeth University, New Law College...

Euthanasia - A Modern Term To Provide Moksha

“Mercy killing is nothing but homicide, whatever the circumstances in which it is affected. Unless it is specifically accepted it cannot be offences. Indian Penal Code further punishes not only abetment of homicide, but also abetment of suicide”-Supreme Court in M.S.Dabal vs. State of Maharashtra

“I will give no deadly medicine if asked, nor suggest any such counsel.” The Hippocratic Oath.

This oath is taken by doctors to serve their profession in a dignified manner and it tells us that they are made to save the life of others, not to take the life of others.

What is Euthanasia?
Euthanasia means mercy killing, it is a modern terminology to the word ‘moksha.’ It is derived from Greek words ‘eu’ meaning good or well and ‘thanatos’ meaning death.

When a person is suffering from an ailment from a very long time which has no cure and that person is given the permission to end his life in order to relieve pain and suffering is called ‘Euthanasia.’

Euthanasia is categorized in different ways, which include voluntary, non-voluntary, or involuntary. Voluntary, non-voluntary and involuntary euthanasia can all be further divided into passive or active variants.

Passive euthanasia entails the withholding of common treatments, such as antibiotics, necessary for the continuance of life while active euthanasia entails the use of lethal substances or forces, such as administering a lethal injection, to kill and is the most controversial means.

Indian Constitution & Euthanasia
From the moment of his birth, a person is clothed with basic human rights. Article-21 of the Indian Constitution provides for Right to life which is one of the basic as well as fundamental right without which all rights cannot be enjoyed. Right to life means a human being has an essential right to live, particularly that such human being has the right not to be killed by another human being. In M.S Dubal vs. State of Maharastra, the Bombay High Court held that right to life under article 21 of the Indian Constitution includes ‘right to die’. On the other hand in Chenna Jagadeeswar vs. State of AP, the AP High Court said that right to die is not a fundamental right under Article 21 of the Constitution. However in P. Rathinam’s case Supreme Court of India observed that the ‘right to live’ includes ‘right not to live’ i.e right to die or to terminate one’s life. But again in Gain Kaur vs State of Punjab, a five member bench overruled the P.Rathainam’s case and held that right to life under Article 21 does not include Right to die or right to be killed.

‘Right to life’ including the right to live with human dignity would mean the existence of such right up to the end of natural life. This may include the right of a dying man to die with dignity. But the ‘right to die with dignity’ is not to be confused with the ‘right to die’ an unnatural death curtailing the natural span of life. Thus the concept of right to life is central to the debate on the issue of Euthanasia. One of the controversial issues in the recent past has been the question of legalizing the right to die or Euthanasia. Euthanasia is controversial since it involves the deliberate termination of human life. Patient suffering from terminal diseases are often faced with great deal of pain as the diseases gradually worsens until it kills them and this may be so frightening for them that they would rather end their life than suffering it. So the question is whether people should be given assistance in killing themselves, or whether they should be left to suffer the pain cause by terminal illness.

Difference Between Euthanasia And Suicide
There is a conceptual distinction between suicide and euthanasia. In a suicide a man voluntarily kills himself by stabbing, poisoning or by any other way. No doubt in suicide one intentionally attempts to take his life. It is an act or instance of intentionally killing oneself mostly due to depression or various reasons such as frustration in love, failure in examinations or in getting a good job etc. on the other hand, in euthanasia there is an action of some other person to bring to an end the life of a third person. In euthanasia, a third person is either actively or passively involved i.e he aids or abets the killing of another person. It is important to mention in this context that there is also a difference between ‘assisted suicide’ and ‘euthanasia’. Assisted suicide is an act which intentionally helps another to commit suicide, for example by providing him with the means to do so. When it is a doctor who helps a patient to kill himself (by providing a prescription for lethal medication) it is a ‘physician assisted suicide’. Thus, in assisted suicide the patient is in complete control of the process that leads to death because he/she is the person who performs the act of suicide. The other person simply helps (for example, providing the means for carrying out the action). On the other hand euthanasia may be active such as when a doctor gives a lethal injection to a patient or passive such as when a doctor removes life support system of the patient.

The difference between euthanasia and suicide is clearly differentiated in the case Naresh Marotrao Sakhre v. Union of India,J. Lodha clearly said in this case. “Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating one’s own act 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 Section 309. The two concepts are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is affected.”

Position of Indian Law on Euthanasia
In case of physicians, there is an intention to cause death of patient, hence he can be charged under clause (1) of section 300 of I.P.C but where there is valid consent of the deceased, exception 5 of section 300 is attracted and thus the act of the physician is considered as culpable homicide not amounting to murder under Part I of section 304. In case of non-voluntary and involuntary euthanasia, the act of physician can be fall under section 88 and 92 of IPC as there is an intention to causing death of a patient for his benefit. And other relatives who are aware of such intention either of the patient or of the physician can be charged under section 202 of IPC.

Global Status of Euthanasia
There had been many debates going on the issue of legalizing euthanasia in all the parts of the world, it is legal in some countries and in some it amounts to murder.

The Northern Territory of Australia became the first country to legalize euthanasia by passing the Rights of the Terminally ILL Act, 1996.

Netherlands is the first country in the world to legalise both euthanasia and assisted suicide in 2002. According to the penal code of the Netherlands killing a person on his request is punishable with twelve years of imprisonment or fine and also a assisting a person to commit suicide is also punishable by imprisonment up to three years or fine. In spite of this provision, the courts of Netherlands have come to interpret the law as providing a defence to charges of voluntary euthanasia and assisted suicide. The defence allowed is that of necessity.

In Canada, patients have the right to refuse life sustaining treatments but they do not have the right to demand for euthanasia or assisted suicide.

In U.S.A., there is a distinction between passive euthanasia and active euthanasia. While active euthanasia is prohibited but physicians are not held liable if they withhold or withdraw the life sustaining treatment of the patient either on his request or at the request of patient’s authorized representative. Euthanasia has been made totally illegal by the United States Supreme Court.

Euthanasia is illegal in United Kingdom but on November 5, 2006 Britain Royal College of obstructions and gynaecologists submitted a proposal to the Nuffield Counsel of Bioethics calling for consideration of permitting the euthanasia of disabled new-born.

According to Article 115 of Swiss Penal Code, suicide is not a crime and assisting suicide is a crime if only if the motive is selfish.

Aruna Shanbaug Case

Aruna Shanbaug, who was working as a nurse at KEM Hospital, was assaulted on the night of November 27, 1973 by a ward boy. He sodomised Aruna after strangling her with a dog chain. The attack left Aruna blind, paralysed and speechless and she went into a coma from which she has never come out. She is cared for by KEM hospital nurses and doctors. The woman does not want to live any more. The doctors have told her that there is no chance of any improvement in her state. Her next friend (a legal term used for a person speaking on behalf of someone who is incapacitated) describes Shanbaug: “her bones are brittle. Her skin is like ‘Paper Mache’ stretched over a skeleton. Her wrists are twisted inwards; her fingers are bent and fisted towards her palms, resulting in growing nails tearing into the flesh very often. Her teeth are decayed and giving her immense pain. Food is completely mashed and given to her in semisolid form. She chokes on liquids and is in a persistent vegetative state.” So, she, through her ‘next friend’ Pinki Virani, decided to move the SC with a plea to direct the KEM Hospital not to force feed her. And on 16th December 2009, the Supreme Court of India admitted the woman’s plea to end her life. The Supreme Court bench compromising Chief Justice K G Balakrishnan and Justices A K Ganguly and B S Chauhan agreed to examine the merits of the petition and sought responses from the Union Government, Commissioner of Mumbai Police and Dean of KEM Hospital.

S.C. pronounced its judgement on 07th March, 2011 on the plea filed by Aruna Shaunbag's friend Pinky Virani for passive euthanasia to Aruna as she had been mentally dead from past 38 yrs.
S.C. rejected the plea and praised K.E.M. hospital for taking care of Aruna for the past 38 yrs. S.C. said that Aruna should live and wait for her natural death to take her life.
S.C. bench presided by Justice Markandey Katju and Justice Gyan Sudha Mishra made passive euthanasia legal in India but said that active euthanasia is still illegal. It is a landmark judgement passed by the S.C. which would leave a great impact on the society.
The bench said that the State H.C. has jurisdiction to try such case and euthanasia can only be performed after the order given by the concerned H.C.
Bench also stated that before coming to the conclusion the H.C. will take advice from a panel of 3 doctors who will tell about the condition of the patient and whether it is so much worse that the best resort is to kill that person.
It also stated that a petition for passive euthanasia can only be filed by a close relative of the patient and not by any other person, it also stated that this judgement would be treated as law till Parliament passes any law on the issue.

The S.C. also showed concern that this law can be misused so laid the guidelines stated above.

Euthanasia is totally different from suicide and homicide. Under the Indian penal code, attempt to commit suicide is punishable under section 309 of IPC and also abetment to suicide is punishable under section 306 of IPC. A person commits suicide for various reasons like marital discord, dejection of love, failure in the examination, unemployment etc. but in euthanasia these reasons are not present. Euthanasia means putting a person to painless death in case of incurable diseases or when life became purposeless or hopeless as a result of mental or physical handicap. It is also differs from homicide. In murder, the murderer has the intention to cause harm or cause death in his mind. But in euthanasia although there is an intention to cause death, such intention is in good faith. A doctor apply euthanasia when the patient, suffering from a terminal disease, is in an irremediable conditions or has no chance to recover or survival as he suffering from a painful life or the patient has been in coma for 20/30 years like Aruna Shanbaug.

Therefore it is suggested that penal provision regarding attempts to commit suicide and abetment to suicide should be preserved in the interests of the society as a general rule but euthanasia (voluntary) should be permitted in certain circumstances as an exception to the general rule. Thus Indian Parliament should enact a law regarding euthanasia which enables a doctor to end the painful life of a patient suffering from an incurable disease with the consent of the patient. Parliament should lay down some circumstances under which euthanasia will be lawful as bellow;

A) consent of the patient must be obtained,
B) Failure of all medical treatments or when the patient, suffering from a terminal disease, is in an irremediable conditions or has no chance to recover or survival as he suffering from a painful life or the patient has been in coma for 20/30 years,
C) The economic or financial condition of the patient or his family is very low,
D) Intention of the doctor must not be to cause harm,
E) Proper safeguard must be taken to avoid abuse of it by doctors,
F) Any other circumstances relevant to the particular case

Thus, Euthanasia could be legalized, but the laws would have to be very stringent. Every case will have to be carefully monitored taking into consideration the point of views of the patient, the relatives and the doctors. But whether Indian society is mature enough to face this, as it is a matter of life and death, is yet to be seen.
# 1987 Cri LJ 743 (Bom.)
# 1987 Cri LJ 743 (Bom.)
# Decided on 16th April 1987 by Bench of K Amareswari, P Rao, Andhra Pradesh High Court
# P.Rathinam vs Union Of India 1994 SCC (3) 394
# 1996 SCC (2) 648
# 1995CrLJ96;1996(1)BomCR92

Authors contact info - articles The  author can be reached at: akshay.goel10688@legalserviceindia.com

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