Legal loopholes in Death with dignity

In this blog the author has discussed whether legal framework of passive euthanasia with many loopholes should be prioritized over the ethical, moral, social, and religious point of view. Read on to know more.


As incorporated in the magna carta of the Indian Constitution every person is entitled with the right to live. However, in certain circumstances, death is preferable over living a miserable life. In the cases where living corresponds to agony, emotional distress, physical pain, unbearable and incurable sufferings, vegetative state, etc. death is the last resort. This death is made less severe through a physician assisted mercy killing termed as ‘euthanasia’. Etymologically derived, Eu means ‘good or well’ and Thanatos means ‘death’. It was argued that bodily integrity and self-decisions are an individual’s right and should not be governed by any legislation. The article promotes a debate contending how the legal loopholes and interpretations aroused while decriminalizing Euthanasia. In short, the article provides a bird eye view of the legal sphere of Euthanasia. When the question ‘whether decriminalization of mercy killing is desirable or not?’ aroused in the court, many provisions in the constitution of India and IPC came into the limelight.


Euthanasia was advocated on the grounds that it is a fundamental right of every person which he is entitled to. The term life in Article 21[1] of the Indian Constitution is not limited to mere animal existence. It has a wider connotation implying the right to live with dignity, livelihood, privacy, choice, privileges, etc. In short, the interpretation extends to the conditions essential to pursuit of happiness which every person is entitled to have. The term ‘liberty’ denotes not only freedom against bodily restrictions but also freedom to self-determination and decisions regarding one’s bodily integrity. The question arises that a person who is in a permanently vegetative state which is incurable and unbearable is deprived of all the clauses determining Article 21. Is that person deprived of his livelihood (a pre-requisite of right to live) entitled ‘extinction of life’? Secondlyy, does right to die with dignity fall under the domain of right to life? Or does the decision to die instead of living a life in agony and pain a part of right to liberty?


The other fundamental rights encapsulated in the constitution had both negative as well as positive actions. For instance, the right to freedom of speech and expression also involves right to restrain from speaking and expressing. In the same manner, right to movement throughout the country extends up to right not to move. Hence, does right to live include the negative side of right not to live? The Bombay high court declared the right to live equates right to die in the case State of Maharashtra vs. Maruti Shripati Daubal. [2]But the person who is already suffering from distress, pain and agony was to be put behind the bars in accordance with the section 309 of IPC. The court declared section 309 of IPC ultra vires of Article 14 and Article 21 of the Indian Constitution. Section 309, [3]which criminalized suicide, disregarded the right to die. The judgement of P. Rathinam v Union of India[4] advocated the case mentioned above declaring section 309 as unconstitutional. The court declared the judgment on the grounds that right to live with dignity contemplates right not to live a forced life. The court claimed it unethical and harsh to prosecute them because they have the personal liberty to make their own decisions.


Suicide when derived from root words includes, sui meaning ‘self’ and cide which means to ‘kill’. Hence, voluntarily euthanasia is equivalent to suicide. Further, the repealing of section 309 and existence of section 306 of IPC is self-contradictory. The contention was in the case of Euthanasia where killing oneself was assisted by a physician. The bone of contention was validity of section 306.[5] In case of euthanasia, death is not possible without the assistance of a physician which further implies abetment to suicide. The landmark judgment of Gian Kaur v. State of Punjab [6]overruled the decision upholding the validity of section 306 and 309. The verdict implied that right to die is not embodied into right to life. The court drew a distinction between suicide and euthanasia. Suicide is an unnatural way of dying. No one has the right to extinguish one’s life abruptly and by unnatural means. Man cannot escape of his obligations and responsibilities through suicide. It does not fall under the domain of death with dignity. On the other hand, euthanasia is given to the person whose death is soon commencing. The process is just fastening the process of natural death so that the person can minimize the suffering and pain. And hence approval was given to the premature extinction of life by passively taking away the life sustaining device.


Many critics severely argue that the right to die with dignity is devoid of autonomy because of lack of rational mindset and soundness of mind. Another contradiction is the ethical and religious perspective which fosters sacredness of life and the misuses involved. The counter argument to this is that the quality of life is anyways degraded and there is no right to live when it is devoid of ‘livelihood’. Such bedridden and dependent life aggravates the quality of life dampening self-esteem, confidence, independence, etc. Another contradiction is the ethical perspective which fosters ‘sacredness of life’ pinpointing the misuses involved due to vulnerability. The crux of the matter is the legal perspective having many loopholes which have its own grey area. The distinction here is voluntary and involuntary euthanasia. Since, euthanasia is a physician assisted suicide, he will be exempted under section 300 (5)[7] of IPC if the euthanasia is voluntarily done. The doctor when assisting the patient with the consent of that person (who is 18 years or above) then the doctor will be exempted under 300(5) of IPC. However, he will be liable under 304 [8] because he had the knowledge without intention of causing death which is culpable homicide not amounting to murder which is a bailable offence. The law anyhow contravenes the legalization of euthanasia.


Even though legally it amounted to culpable homicide not amounting to murder, yet the question of fact is ‘whether death assisted by the professional physician of the patient who is suffering from pain not a part of good faith?’The division here is between voluntary and involuntary euthanasia. If the euthanasia was conducted as according to the consent of the patient and the intention was bona fide the doctor will not be held liable according to section 88 of IPC[9]. And if the consent was absent but the act was in good faith then the physician will not be held liable according to the section 92 of IPC. The prime pre-requisite here is ‘good faith’ but the proviso here is that the intention should not be causing death. Passive euthanasia which states that there is no commission of any act to kill the patient but there is an omission to save the life, falls under the grey area now. Initially it was held that euthanasia is not expressly prohibited in IPC. The question here is only actus rues and mens rea forms a crime. The omission is a tricky question here. While legalizing passive euthanasia this question was completely ignored. Omission of an act also constitutes a crime as according to section 32 [10]of the IPC. The legal loophole here is if we apply legal rules we see that passive euthanasia is also illegal. Even though the act is done in good faith the physician will be held liable because section 88 and 92 clearly excludes death. Moreover, passive euthanasia is also illegal if we apply section 32 where omission to a necessary act also constitutes actus reus. (omission by the physician to save the life).


The prominent question here is, whether legal framework with many loopholes should be prioritized over the ethical, moral, social, and religious point of view. The law is framed for individual well-being and societal order. The primary motive of law to safeguard the interest of its citizens is indirectly defied because of the technicalities involved. In the case of Aruna Shanbaugh[11] passive euthanasia was permitted but with adherence to stringent guidelines. The question arose because the case was directly based on the precedent of Gian Kaur v. state of Punjab. It was claimed to have an erroneous interpretation of law because the pre-existing legal loopholes were not taken into consideration. Finally, the NGO named common cause [12]filed a PIL in the Supreme Court under Article 32 of the Indian Constitution. The interpretation of Article 21 of the constitution was reversed on the grounds that right to die with dignity should be included in the domain of right to live. Thus, passive euthanasia was finally legalized. The person suffering from such deadly vegetative state loses livelihood leading to violation of right to live with dignity. The individual should have the claim to determine since it is his natural right. Denying individuals to die in a dignified manner will only prolong life with pain, anguish, and incurable sufferings.

Footnotes

[1] Article 21 states ,‘No person shall be deprived of his life or personal liberty except according to procedure established by law’. [2] 1986 MH LJ 913. [3]Section 309 reads, ‘Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both.’ [4] 1994 SCC (3) 394 [5] Section 306 states, ‘Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both.’ [6] 1996 SCC (2) 648. [7] Section 300 (5) implies culpable homicide is not murder is when the person whose death is caused is more than eighteen years old and he suffers death or takes the risk of death with his own consent. [8] Section 304 implies that If the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. [9] Section 88 implies, ‘Act not intended to cause death, done by consent in good faith for person’s benefit.—Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm. ‘ [10]According to section 32, ‘Words referring to acts include illegal omissions. —In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done extend also to ille­gal omissions.’ [11] Writ Petition (Criminal) No. 115 Of 2009. [12]Common Cause (A Regd. Society) vs Union of India. WRIT PETITION (CIVIL) NO. 215 OF 2005.

References

1) Gorsuch, Neil M. The Future of Assisted Suicide and Euthanasia. Princeton University Press, 2006.

2) Singh, Subhash Chandra. “EUTHANASIA AND ASSISTED SUICIDE: REVISITING THE SANCTITY OF LIFE PRINCIPLE.” Journal of the Indian Law Institute, vol. 54, no. 2, 2012, pp. 196–231.

3) “Euthanasia.” Ethics for A-Level, by Mark Dimmock and Andrew Fisher, 1st ed., Open Book Publishers, Cambridge, UK, 2017, pp. 123–141.

4) Gandhi, Kusum. (2017) Euthanasia: A brief history and Perspective in India. International journal in research and education in health science.


Submitted by,

Dhanashree Balasaheb Kolte,

Maharashtra National Law University, Mumbai.


(Image ised for representational purpose

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