Indian Judicial Approach Regarding Right To Die
The right to die is sometimes associated with the idea that one's body and one's life are one's own, to dispose of as one sees fit. However, there is sometimes deemed to be a legitimate state interest in preventing irrational suicides. Pilpel and Amsel write, Contemporary proponents of ‘rational suicide’ or the ‘right to die’ usually demand by ‘rationality’ that the decision to kill oneself be both the autonomous choice of the agent (i.e., not due to the physician or the family pressuring them to ‘do the right thing’ and suicide) desired by liberals, and a ‘best option under the circumstances’ choice desired by the stoics or utilitarians, as well as other natural conditions such as the choice being stable, not an impulsive decision, not due to mental illness, achieved after due deliberation, etc.
· To find out whether judicial intervention is needed to justify right to die.
· To know whether the right to life and personal liberty of Indian Constitution is self –inclusive of Right to die.
· To survey whether desire to die is unnatural or abnormal.
Statement of Problem:
The research is trying to focus on the issue that how the judiciary of India is responding towards the present issue when this right has been approved in many countries of the world.
The research is mainly of doctrinal variety. The researcher has followed secondary data collection. The resources and materials collected for the reason has been derived from books, articles and internet search as well as case laws.
Judicial Approach Regarding Right To Die:
The first case in which the issue of right to die was brought before an Indian Court is State v Sanjay Kumar wherein, Delhi High Court criticized section 309 of the Indian Penal Code, 1860 as ‘an anachronism and a paradox.
This decision was followed by conflicting decisions of two High Courts. The Bombay High Court in Maruti Sripati Dubal v State of Maharshtra, struck down section 309 as violative of right to life enshrined in Article 21 of the Constitution of India. Whereas the Andhra Pradesh High Court in ChhenaJagadesswer v State of Andhra Pradesh held Section 309 as constitutionally valid.
In the case of State of Maharashtra v. Maruti Shripathi Dubal,it was held that ‘right to life’ also includes ‘right to die’ . The court said that right to die is not unnatural; it is just uncommon and abnormal. Also the court mentioned about many instances in which a person may want to end his life. Bombay High Court, took the view and that section 309 of IPC was ultra virus being violative of Article 14 and 21 and was therefore struck down.
In C. Jagadeeswar v. State of Andhra Pradesh the High Court held that section 309 of IPC was valid as it did not offend Articles 14 and 21 of the Constitution . It was stated that, section 309 gives enough discretion to the court in dealing with different situations in which suicide can take place and, whatever differences there may be as to what constitutes suicide, suicide is capable of a broad definition and, there is no doubt that suicide is intentional taking of one's life. In certain cases even Probation of Offenders Act can be pressed into service, whose Section 12 enables the Court to ensure that no stigma or disqualification is attached to such a person. Further, on a prosecution being launched it is always open to an accused to take the plea that his act did not constitute suicide whereupon the Court would decide that aspect also.
In Naresh Marotrao Sakhre v. Union of India, Lodha J. observed that, Euthanasia and suicide are different. 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 effected. (emphasis added)
In P. RathinamVs Union of India and another the court overruled Chenna Jagadeeswar v. State of Andhra Pradesh and held that, Section 309 of the Penal Code deserves to be effaced from the statute book to humanise our panel laws. It is cruel and irrational provision, and it may result in punishing a person again (doubly) was has suffered agony and would be undergoing ignominy because of his failure to commit suicide. Then an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has not baneful effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which State's interference with the personal liberty of the concerned persons is not called for. It was held that Section 309 violates Article 21, and so, it is void.
But soon this case was overruled in Gian KaurVs. State of Punjab and it was held that, A. 21 guaranteeing the right to life did not include a right to die or right to be killed. It was further held that, right to life was a natural right embodied in A 21 , but suicide was an unnatural termination or extinction of life and therefore, ‘incompatible and inconsistent’ with the concept of right to life. . The 'right to life' including the right to live with human dignity would mean the existence of such a right up to the end of natural life. This also includes the right to a dignified life up to the point of death including a dignified procedure of death. However the court appears to have approved passive euthanasia by holding that one may, in a given case, have the right to die with dignity as a part of right to live with dignity. It was observed that, these are not cases of extinguishing life but only of accelerating conclusions of the process of natural death which has already commenced.
One of the points directly raised is the inclusion of the 'right to die' within the ambit of Article 21 of the Constitution, to contend that any person assisting the enforcement of the 'right to die' is merely assisting in the enforcement of the fundamental right under Article 21 which cannot be penal; and Section 306, IPC making that act punishable, therefore, violates Article 21. Shri Sorabjee and Shri F.S. Nariman acting as amicus query submitted that, Sections 306 and 309 constitute independent substantive offences and Section 306 can exist independently of Section 309. It was stated that right to live of which Article 21 speaks of can be said to bring in its trail the right not to live a forced life.
In another case, C.A. Thomas Master v Union of India, the High Court of Kerala dismissed the writ petition filed by a citizen wherein he wanted the government to setup Mahaprasthana Kendra (Voluntary Death Clinic) for the purpose of facilitating voluntary death and donation/transplantation of bodily organs , relying on Gian Kaur’s case.
In 2004 a two-judge bench of the Andhra Pradesh High Court dismissed the writ petition of a 25-year-old terminally ill patient, Venkatesh, who sought permission to donate his organs in a non-heart beating condition. The High Court dismissed the writ petition where Venkatesh had expressed his wish to be put off the life support system.
In ArunaShanbhag’scase , a request is made to the court to stop giving food and water to a 59-year-old coma patient, without relatives to care for her, in a permanent vegetative state for the past 36 years in the hospital. The attorney, ShekharNafde, urged that the request by her friend social activist PinkiVirani should not be construed as a plea for euthanasia. Her life is worse than animal existence. keeping her alive by force feeding her violates her right to die with dignity. This case has once again fostered the debate on legalization of euthanasia in India.
In Naresh Marotrao Sakhre v. Union of India, Lodha J. affirmed that Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is effected.
Thus from the principles laid 'down by the Courts in several countries, it is clear that (i) in the case of a patient who is seriously ill, but competent, his refusal, not to take medical treatment and allow nature, to take its own course, it is lawful and does not amount to 'attempt to commit suicide', (ii) Likewise, (a) where doctors do not start or continue medical treatment in such cases because of such patients' refusal, they are not guilty of abetment of suicide or murder or culpable homicide and (b) if the patient is a minor or is incompetent or is in a permanent vegetative state, or (c) if the patient was competent but his decision was not an informed one and if the doctors consider that there are no chances of recovery and that it was in the best interests of the patient that medical treatment be withheld or discontinued, the doctor's action would be lawful and they will not be guilty of any offence of abetting suicide or murder or culpable homicide. In such case, as the doctor is acting in good faith, his action in withholding or withdrawing medical treatment is protected and he is also not liable in tort for damages.
Conclusion and Suggestions
The above inferences lead to one irresistible conclusion i.e. any form that involves unnatural termination of life, whether an attempt to suicide, abetment to suicide/assisted suicide or euthanasia, is illegal. The fact that even an attempt to suicide is punishable goes to show the extent of credibility accorded to the sanctity of life and the right to life as a whole. This apart, the decriminalization of euthanasia is unworkable in the Indian perspective, even on humanitarian grounds, as it involves a third person.
Though, there has been no legislation pertaining to euthanasia in India, the term keeps on coming back for public approval like a recurring decimal.
Thus, while deciding the debate on right to die, the conflict between the principle of sanctity of life and the rights of self determination and dignity of a human being needs to be resolved. Rather than allowing right to die as a general rule by legalizing euthanasia, it may be allowed as necessary exception only in rarest of rare cases, in passive form in appropriate cases where the individual is dying and gives informed consent or where he or she cannot give consent and as per the genuine medical opinion, the death is near and certain and, to withdraw the life support system is in the best interest of the patient.
The material for this project is taken from:
Ø Gandhi A, Chaturvedi SK, Chandra P. Desire for death in cancer patients - an Indian Study. Presented at the International Congress of the International Psycho OncologySociety, Copenhagen 2004
Ø Suresh Bada Math and Santosh K. Chaturvedi, Euthanasia: Right to life vs right to die Indian Journal of Medical Research.
Ø M.P. Jain, Indian Constitutional Law (5th ed., 2007)
Ø D.D. Basu, Shorter Constitution of India (14th ed., 2009)
Ø DJ De, The Constitution of India (3rd ed., 2008)
Ø Prof. K.D. Gaur, The Indian Penal Code
Ø Ratanlal&Dhirajlal’s Law of Crimes (26th Edn., 2007, pages 1825-1827)
Ø Indian Bar Review.
Ø Pritish Mishra, A Critical Analysis of Right To Die In India A LL.M dissertation submitted to National Law University, Bhopal.
Ø Law Commission report no.196 on medical treatment to terminally ill patients. [accessed on August 19, 2011].
State v. Sanjay Kumar, (1985) Crl. Law Journal, 931,
MarutiSharipatiDubal v. State of Maharashtra, (1987) Crl. L J 743
ChhenaJagadeeswar v. State of Andhra Pradesh, (1983) Crl. L J 549
NareshMarotraoSakhre v. Union of India 1995 Cri L J 96 (Bom)
P. RathinamVs Union of India and another AIR 1994 SC 1844: 1994 Cri. L. J. 1605: (1994) 3 SCC 394,
C.A. Thomas Master v Union of India252000 Cri LJ 3729
SuchitaSrivastava v. Chandigarh Admn. (2009) 9 SCC 1 and Dr Nikhil D Datar V Union Of India 2008 Vol.110 (9) Bom. L. R. 3293
NareshMarotraoSakhre v. Union of India 1995 Cri L J 96 (Bom)
Written by: Dr ShaikhSahanwaz Islam, Assistant Professor, Uttaranchal University, Dehradun, UK