passive euthanasia: an analysis of supreme court...

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32 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW (JCIL)

Vol. 4 Issue 10

PASSIVE EUTHANASIA: AN ANALYSIS OF SUPREME COURT

JUDGMENTS

Authored by: Zainab Tarannum

* 3rd Year B.SW L.LB Student, Gujarat National Law University

______________________________________________________________________________

ABSTRACT

Recently the Indian Court has legalized the passive euthanasia. Which has been in debates since

very long time this paper is an attempt to understand Supreme Court judgment and concept of

euthanasia and the importance of passive euthanasia in the cases like Aruna Shanbhagh. The

underlining idea of this article is to understand a different aspect which is related to euthanasia.

Since, India is known for its unity and diversity this paper will also examine the different

religion and its teaching on euthanasia and body autonomy. The debates of passive euthanasia

has created a very big question mark on the medical ethics since medicine is seen to be the Nobel

profession this paper is an attempt to understand the relation of medical ethics and passive

euthanasia

Key-words- Dignity, Right to life, passive euthanasia, Role of courts.

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INTRODUCTION

Protection of life and Personal liberty though couched in negative language it is given paramount

position by court of law in India1. The right to life and personal liberty is a universal right in

India which means foreigners and Indian citizen both can claim their right to life from stat2e.

Their can be no discrimination on the basis of citizenship. With changing dimension of the

society it is very difficult to define article 21 i.e. Protection of life and personal liberty. Justice

Field spoke on the right to life in following words-

“By the term “life” as here used something more than animal existence. The inhibition against

its deprivation to all those limbs and faculties by which life enjoyed. The provision prohibits the

mutilation of the body by the amputation of an arm or leg, or putting out an eye, or the

destruction of any other organ of the body through which the soul communicate with other

world3.”

This stamen has been further extended by Indian Supreme Court, which include right to life with

dignity. Indian law refuses to look mere life in isolation it consider life should be look in its

whole context where a person has right to express himself have basic necessity like food, shelter

and cloth, Right to life include right to dignity also4. Marking the importance of right to life with

full dignity the Indian courts mention that Article 21 derives its breath from the Directive

Principles of State Policy particularly clues (e) and (f) of Article 39 and Article 415. The

magnitude and component of this right is dependent upon social and economic status of the

country6.

In the view of global development in the sphere of human rights these judicial decision are

strong pointer towards the recognition of affirmative rights to basic necessity of life under article

2017.

1 Kehar Singh v. Union of India, (1989) 1 SCC 204: AIR 1989 SC 653

2 NHRC V. State of Arunachal Pradesh (1996) 1 SCC 204: AIR 1989 SC 653

3 Munn v. Illionois 94 U.S. 113.

4 Frincis Coralie v. Union Territory of Delhi (1981) 1 SCC 608: AIR 1981 SC 746, at 753

5 Badhua Mukti Morcha v. Union of India (1984) 3 SCC 161: AIR 1984 SC 802.

6 Ibid.

7 Sodan Singh v. NDMC 1989 4 SCC 155.

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The expression liberty in Article 21 have narrower application as compare to other constitution.

But there was no definite pronouncement made this point8. Personnel Liberty was confined to

freedom from detention or physical restrain9. Personnel liberty is used in the Article as a

compendious term to include within itself all verities of rights which go to clause of Article 19(1)

deals with particular comprise the residue10

. The expression liberty in the 5th

and 14th

amendment

to U.S. constitution has been given wider meaning. It takes all kind of freedom11

. The

expression is not confined to mere freedom from bodily restrain but extend to all kind of liberty.

Euthanasia keeps on drawing much consideration and level-headed discussion. Be that as it may,

over the most recent two decades the focal point of the talk has moved from the political to the

legitimate and legal field, especially in nations with a customary law lawful convention where

the issue has been taken up by cause lawyers‟. Through various prominent court cases which

will be talked about in the forthcoming pages of this part, „right to die‟ defenders have tested

laws forbidding killing and have requested that the courts characterize the conditions in which a

patient may get help to pass on. The endeavors of these advocates couldn't be made vast progress

however such exercises on their part have acquired the idea of Passive Euthanasia to spotlight

and now it has turned out to be most fervently theme far and wide. Such activities at a universal

level have brought about authorization of Passive Euthanasia in the Netherlands, Belgium,

Australia’s Northern Territory and so on. In spite of these improvements at the worldwide level,

the debate identifying with the idea has not been settled till today and it appears that it would

proceed in future additionally12

.

It is contended that any law that permits Euthanasia and helped suicide constitutes a genuine

infringement of a government’s obligation to ensure the lives of every one of its natives,

regardless. The law is infringing upon the United Nations Universal Declaration of Human

Rights, where the most central Human Right is proclaimed to be the privilege of each blameless

individual to the uprightness of his/her life, a correct that ought to be secured by law. That

privilege is proclaimed to be equivalent, natural, sacred and unavoidable. Its honesty isn't to be

8 A.K. Gopalan v. State of Madras AIR 1951 SC 27

9 Meneka Gandhi v. Union of India, 1978 1 SCC 248: AIR 1978 SC 597, 620

10 Kharak Singh v. State of U.P. AIR 1963 SC 1295

11 Manna v. People of Illiones, 94 US 113

12 Subhash Chandra Singh “Euthanasia and Assisted suicide: Revisiting the sanctity of life principle”, Journal of the

Indian law institute, vol. 54, 2012 , p-211.

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made subject to its quality at a specific time, and the privilege should nor be taken away nor

given away13

.

The issue in the present case was whether the right to die with dignity is included in fundamental

right to life. The issue was whether the living will be legally valid and passive euthanasia legally

valid in India.

ANALYSIS OF CONCEPT OF EUTHANASIA

The Oxford English Dictionary characterizes 'euthanasia' as 'the effortless murdering of a patient

experiencing a serious and difficult ailment or in an irreversible trance state'. The word seems to

have come into utilization in the mid-seventeenth century and was utilized as a part of the feeling

of 'simple passing'. The term is gotten from the Greek 'euthanatos', with 'eu' which means well,

and 'thanatos' which means passing. In antiquated Greece and Rome, subjects were qualified for

a great passing to end the misery of a terminal ailment. Keeping that in mind, the City

Magistrates of Athens kept a supply of toxin to help the passing on 'drink the hemlock'14

.

The issue of euthanasia was first describe by an English thinker Thomas More in his work

“Utopia” he mention that euthanasia is necessary in cases of incurable disease and with only

permission of patient and in the presence of magistrate15

. In the year 1605, another English

philosopher, Francis Bacon, in his essay “Progress of Knowledge introduce the concept of

euthanasia to the western culture16

.

The above Greek meaning of euthanasia separated, it is a stacked term. Individuals have been

thinking about it for a very long time. Conceived for the benefit in a talk of influence, the term

'euthanasia' has no for the most part acknowledged and insightfully justified center importance. It

is additionally characterized as executing at the demand of the individual killed. That is the

means by which the Dutch medicinal faculty and common experts characterize killing. In Nazi

13

Rajesh Kumar Pathak, “Right to die: International perspective”, Criminal law journal, vol.2, 2009, p-9 14

Michael Manning, Euthanasia And Physician-Assisted Suicide (1998), Manuscript. 15

Ignazio Vecchio and Others, 'Brief History Of Euthanasia And The Contribution Of Medical And Surgical Ethics

to The Cultural Debate' [2012] Acta Medica Mediterranea. 16

The Vegetative State: Guidance on Diagnosis and Management. A Report of a Working Party of the Royal

College of Psysicians. Clinical Medicine, 2003; 3 (3), 249-254.

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idea, euthanasia was any executing done by restorative means or therapeutically qualified

faculty, regardless of whether proposed for the end of torment as well as of the weight or insult

of an existence not worth living or for some more obviously open advantage, for example,

genetic counseling (racial immaculateness and cleanliness), Lebensraum (living space for

Germans), or potentially limiting the misuse of assets on 'futile mouths'. Justifiably, in the

present current majority rules systems these Nazi thoughts and practices can't be countenanced.

Supremacist genetic counseling are censured, however one goes over attentive inferences to the

weight and worthlessness of managing the seriously rationally crippled. The mainstream

origination which is generally acknowledged is that a few sorts of life are not worth living; life in

such a state disparages the patient's poise, what's more, looking after it (generally than at the

patient's express ask for) affronts that poise; legitimate regard for the patient and the patient's

best advantages requires that that life be conveyed to an end. In this manner of thinking, the

essential Greek belief system that it connotes 'a simple and delicate demise' still stays legitimate.

Acknowledgment is to the Human Rights rule that 'right to life' includes 'right to bite the dust

with respect'17

.

In 1992 the British Medical Association communicated its help for the Living Will18

. The call to

authorize killing, advanced by numerous affiliations, has driven the legislatures and parliaments

of numerous nations to plan draft enactment on the privileges of the critically ill. The defenders

of Passive Euthanasia contend that drawing out life in instances of hopeless infection includes

proceeded and outlandish languishing over patients and their families. Those, be that as it may,

who censure Passive Euthanasia quote moral and religious reasons and the current criminal code

on killing. In the debate19

17

The Humanist. A Plea for Beneficent Euthanasia. July August 1974. 18

A proposito di living will e di advance directives. Note per un dibattito, Politica del diritto, n. 2, June 1990, 477-

487. 19

Post-Coma Unresponsiveness (Vegetative State): A Clinical Framework for Diagnosis. An Information Paper of

the National Health and Medical Research Council of the Australian Government. Endorsed 18 December 2003.

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RELIGION AND EUTHANASIA

ISLAM: According to Islam Allah is said to be creator of life and he has full authority to take it.

Allah has decided termination date and time for every existing life and no one except Allah is

allowed to take life. Allah has sole control over death. This means that Islamic law prescribes

death penalty for accused who commit offences like murder20

. On the other hand Islam believes

that society should be in such a way where every individual is morally physically and mentally

supportive. Islamic guidance on medical treatment depends on the fundamental wellsprings of

Islam; that is the Qur'an and Sunnah. In addition, adages of Islamic law (al-qawā'id al-fiqhiyyah)

which are drawn on these sources have more extensive pertinence on the issues which go under

uninvolved Passive euthanasia.

The Qur'an gives orders and precepts which restrict slaughtering; though Sunnah – as a gathering

of conventions of Prophet Muhammad – is genuinely thorough in giving an Islamic way to deal

with prescription. The Sunnah incorporates different conventions which are useful in defining an

Islamic way to deal with medical when all is said in done and to debilitate restorative treatment

especially21

.

Taking a far reaching perspective of the conventions of Prophet Muhammad and the sentiments

of legal advisers in light of such customs, it appears that Islam energizes drug. Be that as it may,

when solution is apparently futile, won't, withholding, pulling back and ending such

pharmaceutical is permitted. In addition, as indicated by Motlani22

, a few researchers contend

that pulling back or withholding treatment require not constitute a type of Passive Euthanasia.

While a few researchers consider pulling back uncommon treatment as 'detached Passive

Euthanasia', others think of it as a standard or expectedly acknowledged practice from a

medicinal, otherworldly and financial perspective. Be that as it may, researchers, for example,

Warnock, Macdonald and Rachels trust that there is no ethical contrast amongst 'dynamic' and

'uninvolved' Passive Euthanasia since the aim and result might be the same in the two cases,

while researchers like Craig and Putilo trust that absence of clear goal may likewise make it hard

to ethically recognize 'dynamic' killing from 'latent' killing. Then again, Muslim researchers, for

20

'Euthanasia: Islamic Perspective'. 21

Majama‘ Fiqhul Islami, “Life Supportive System” Majallat Majma Al-Fiqh 2 3:807. 22

Motlani, Islam, Euthanasia and Western Christianity, 6.

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example, Tantawi, Uthaymin and Al-Qaradawi share the view that there is a contrast between the

two ('dynamic' and 'uninvolved' euthanasia)23

.For example, Yusuf al-Qaradawi, while dissecting

conclusions of Islamic researchers taking drugs plans the accompanying position with respect to

the issue of killing: "This demonstration (dynamic Passive Euthanasia) is Islamically illegal for it

incorporates a positive part with respect to the doctor to end the life of the patient and hurry his

demise through deadly infusion, electric stun, a sharp weapon or some other way. This is a

demonstration of slaughtering and murdering is a noteworthy sin and accordingly prohibited in

Islam24

.

In Islam, the custom of human rights ended up clear in the medieval ages. Being propelled by the

principles of the Holy Koran, it lectures the general fellowship, correspondence, equity and

empathy. Islam trusts that man has exceptional status previously God. Since man is a production

of God, he ought not be hurt. Mischief to a person is damage to a God. God, as an demonstration

of adoration, made man and he wishes to give him acknowledgment, poise and specialist. Along

these lines, in Islam, human poise comes from the conviction that man is a production of God –

the creation that God adores more than some other25

.

HINDUISM: Hinduism doesn't perceive individuals as insignificant material creatures. Its

comprehension of human personality is more moral otherworldly than material. That is the

reason a feeling of everlasting status and godliness is credited to every person in Hindu

established writing.

The Bhakti and Sufi conventions too in their own special ways promoted the possibility of all

inclusive fellowship. It restored and recovered the treasured Indian estimations of truth, honesty,

equity and ethical quality26

.

Christianity

23

Ibid 24

Mahmud Adesina Ayuba, 'EUTHANASIA: A MUSLIM’S PERSPECTIVE'

(http://scriptura.journals.ac.za/pub/article/view/1175) <http://scriptura.journals.ac.za/pub/article/view/1175>

accessed 25 May 2018. 25

Common Cause (A Regd Society) v Union of India [2005] Supream Court, Writ Petition (civil) No 215 of 2005

(Supream Court). 26

Prof. S.D. Sharma : “Administration of Justice in Ancient Bharat”, (1988).

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Christianity trusts that the picture of God is uncovered in Jesus also, through him to mankind.

God is balanced and decides his objectives for himself. Man was made in the picture of God, and

he too is balanced and decides his own objectives, subject to the God as a balanced creation27

.

Man has opportunity of will. This is his respect. He is allowed to pick his objectives, and he

himself is an objective. His preeminent objective is to know God. Accordingly he is separate

from a slave and from every one of the manifestations under him. At the point when a man sins,

he loses his human respect. He turns into a protest28

.

MEDICAL ETHICS AND EUTHANASIA

It was also noted in Gyan Kaur29

case that active euthanasia is impermissible. Medical science is

advancing very fast, in this condition it is part of the doctor that he should not declare patient

hapless if there exist small chance of improvement in the condition of the patient. The passive

euthanasia is only permissible when the person is dead in clinical sense. The adopted standard

for declaring a person clinically dead is brain dead i.e. where a person is irreversible cessation of

all function of entire brain including brain, including the brain steam30

. The human brain is said

to be dead if it is not able to perform basic or fundamental human work of an organism31

. The

President Committee on bioethics United States America has given three characteristics when the

person can be a brain-dead.

Openness to the world, that is stimuli and signals from surroundings

The ability to act on their needs.

The felt of need and drives is lost.

Lord Keith observed that in general, it would not be lawful for a medical practitioner to give up

his responsibility on the patient where continuance can benefit the patient. On the other hand lord

noted that medical practitioner is under no duty to continue to trat such patient where a large

27

Toman E. Hill, 'Humanity as an End in itself' (1980) 91 Ethics 84. 28

Thomas Aquinas (1225-1274) in his work Summa Theologia. 29

Smt. Gian Kaur vs The State Of Punjab on 21 March [1996]SCC 2 (Supreme Court), p.648 30

Goodman, Kenneth. (2009). The Case of Terri Schiavo : Ethics, Politics, and Death in the 21st Century. Oxford:

OUP. 31

President Committee on bioethics United States America [2008]

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body of informed and responsible medical opinion is to the effect that no benefit at all would

confers by continuance of treatment32

. The term biomedical ethics is additionally regularly

known as bioethics.

The judgment of the life of therapeutic specialists is likewise connected with the judgment of the

term goodness. The integrity of the life of restorative experts relies upon the individual

fulfillment and the ethical legitimacy they have and this of course is useful for the individuals

who look for their treatment33

.

"Medicinal innovation has turned out to be further developed, it has accomplished the capacity

both to drag out human life past its common endpoint and to better characterize at the point when

that endpoint will occur". Medical science has contributed in a critical approach to improving the

anticipation of life. Infections once viewed as lethal have presently end up treatable. Therapeutic

research has reclassified our insight into diseases – normal and phenomenal; of their connections

with substantial capacities and the complex connection between mental procedures and physical

prosperity. Science which influences the length of life likewise affects the nature of the long time

in our lives. Delaying life should, however does not really bring about, a lessening of anguish.

Enduring has a course on the personal satisfaction. The quality of life relies on the life in our

years34

. Adding to the length of life must bear a utilitarian nexus with the personal satisfaction.

Human enduring must have criticalness not just as far as to what extent we live yet additionally

as far as how well we live. Modern drug has propelled human information about the body and

the brain. Furnished with the devices of information, science has demonstrated the capacity to

decrease human enduring. Science has additionally demonstrated a capacity to delay life.

However in its capacity to expand life, therapeutic science affects the personal satisfaction, as on

the nature and degree of human enduring. Therapeutic intercessions accompany costs, both

enthusiastic and budgetary. The capacity of science drag out life must face a similarly vital worry

over its capacity to effect on the personal satisfaction. While therapeutic science has broadened

life span, it has come with related expenses of therapeutic care and the distress which goes with a

32

Airedale NHS Trust v Bland [1993] House of Lords, AC (House of Lords). 33

Biomedical Ethics - A Comparative Study Of Traditional And Modern Medical Systems, Jose K M, Kannur

University 34

Wicks E, 'The Right To Life And Conflicting Interests' (2010) Oxford University Press.

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falsely supported life. Therapeutic morals must ponder the need to bring about a harmony

between the capacities of science to broaden existence with the requirement for science to

perceive that all learning must upgrade an important presence. There is "no accord with regards

to the rights and wrongs of helping somebody to die", as the legitimate status of killing has been

subjected to social, moral furthermore, moral standards that have been passed on to us. Choices

with respect to the end of life can be morally more hazardous when the individual is not any

more rationally skillful to make his or her own decisions. The existential and magical issues

engaged with this verbal confrontation, incorporate the dread of the obscure, the vulnerability of

when passing will happen, the shortage of human services, opportunity or on the other hand

intimidation in getting or not to get medicinal treatment, the poise and debasement of maturing

and having the capacity to tend to oneself freely35

.

DIGNITY AND EUTHANASIA

Protection of life is most important and is held at paramount by the Indian Constitution36

. The

Supreme Court held that the Protection of life is most important because once a life is lost its

status quente cannot be achieved. The right to life and liberty is inalienable and trancidantel

rights37

. Since the Menka Gandhi case right to life is has expended in many new dimension.

Traditionally right to life is said to be natural right of the person38

.

After Second World War International community, a group focused on Human rights as a center

component for insurance of individuals. The calculated measurements of human pride were set

up in 1948 as the foundational idea of the UDHR. The prelude of UDHR says, 'where as

acknowledgment of the natural dignity and of the equivalent and basic dignity of all individuals

from the human family is the establishment of opportunity, equity and peace in the world'.

Human pride specified at the start of the Article 1 of the General Declaration of Human Rights

1948, which is the most vital archive on the planet. The Universal Declaration of Human Rights

35

Elizabeth M and Andal Sorrentino, 'The Right To Die?' (1986) 8 Journal of Health and Human Resources

Administration,(Spring,1986). 36

Available at http://shodhganga.inflibnet.ac.in/bitstream/10603/89946/10/10_chapter%20-ii.pdf> accessed 28 May

2018. 37

Paramanda Katara v. Union of India, (1989), AIR 1989 SC 2039. 38

AIR 1978 S.C. 597

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gives the preparatory work out to ensuring and advancement of ideal to existence with human

dignity in the different protected laws of different nations on the planet. Each individual has

natural appropriate to live with stately existence without separation. They are qualified for

guarantee break even with regard from the state and in addition from different people. It is one of

essential obligations of each state to secure basic rights to the human poise and actualize welfare

plots keeping in mind the end goal to enhance the honorable existence of the residents. Indian

constitution guarantees numerous rights to the subjects and also outsiders. It isn't just an

authoritative report, yet additionally a social record. The preface of Indian Constitution

guarantees social, financial and political equity in a way the Constitution which makes it

remarkable Constitution on the planet.

Now, the question is the thing that dignity to life is something which is in excess of a creature.

Article 21 of Constitution of India manages as it was appropriate to life and freedom

incorporates that no individual might be denied life and freedom with the exception of as

indicated by technique built up by law. Article 21 is worried with appropriate to life and freedom

in strict sense, yet because of liberal understanding of same Article the court has extended its

extension. Under ideal to life numerous more rights are there. It included in light of the fact that

of Supreme Court understanding. It reveals that, the elucidation made by the Supreme Court for

enlarging the degree and ambit of Article 21 has come about a statute of human right. It isn't out

place to specify that this statute is presently an integral part of human dignity. All This happened

in view of liberal state of mind and approach of Supreme Court.

The court has deciphered in such way a that, the privilege to life incorporates a stately life on

account of Oliga Tellis v. Bombay Municipal Corporation and others39

and Corlie Mullin v.

Administrator and Union Territory of Delhi40

. It incorporates numerous more things about

stately life. So as it were extent of ideal to life which has been extended and given enlarge

undertone to it inside its amplitudes the courts has secured some more rights. Thus, appropriate

to life incorporates anything which is basic to live with dignity.

39

AIR 1986 SC 180 8. 40

AIR 1981 SC 746

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In the present case the court settled the two major arguments with respect to right to life with

dignity and euthanasia.

The right of the individual to die with dignity takes precedence over the interest of the

State in preserving the sanctity of life.

To live with dignity also includes a right to die with dignity41

.

The court noted that Eurocentric view on the dignity here is to be treated as empowerment which

makes triple demands in name of respect for human dignity namely:

1. The freedom of choice, availability of choice and respecting the capacity of

choice.

2. Respect the choice so made.

3. Respect for one’s need to have a context and condition in which one can operate

as source of free and informed choice42

.

SANITY OF LIFE V/S COST OF TREATMENT

The Economic Survey 2017–18 shows that the government spends only 1.4% of its gross

domestic product (GDP) on health. The 2017 National Health Policy, which otherwise exudes

piety in its abstractions, aims to increase government expenditure to 2.5% of GDP by 2025. By

all accounts, this is too little too late43

. India is the worst to die with patient with terminal illness.

The economics and euthanasia has its concentrates on the whole society and cost concerned and

it will look at the benefit which can be offered by euthanasia to society44

. The Constitution joins

arrangements ensuring everybody's entitlement to the most noteworthy achievable standard of

physical and emotional wellness. Article 21 of the Constitution ensures assurance of life and

41

Chitranshul Sinha, 'To Live With Dignity Also Includes A Right To Die With Dignity, Says Indian Supreme

Court' <https://www.huffingtonpost.in/2018/03/09/to-live-with-dignity-also-includes-a-right-to-die-with-dignity-

says-indian-supreme-court_a_23382053/> accessed 28 May 2018. 42

Justice H.R. Khanna Memorial Lecture, on the topic Protection of Dignity of Individual under the Constitution of

India, Delivered on 25th February, 2010 at Indian Institute of Public Administration, New Delhi. 43

Healthcare rationing: can we afford to ignore euthanasia? Health Services Management Research 1997; 10; 32-41 44

K Mathiharan, 'The Fundamental Right To Health Care | Indian Journal Of Medical Ethics' (Ijme.in, 2018)

<http://ijme.in/articles/the-fundamental-right-to-health-care/?galley=html> accessed 29 May 2018.

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individual freedom to each subject. The Supreme Court has held that the privilege to live with

human dignity, revered in Article 21, gets from the order standards of state strategy and in this

way incorporates assurance of health45

. Further, it has likewise been held that the privilege to

health is basic to one side to life and the administration has a protected commitment to give

health offices46

. Disappointment of an administration healing center to give a patient auspicious

medicinal treatment brings about infringement of the patient's entitlement to life47

. So also, the

Court has maintained the state's commitment to keep up health administrations48

. Open intrigue

petitions have been documented under Article 21 in light of infringement of the privilege to

health. They have been documented to give uncommon treatment to kids in prison49

; on

contamination dangers 50

; against unsafe medications51

; against barbaric conditions in care

homes52

; on the health privileges of rationally sick patients 53

; on the privileges of patients in

waterfall medical procedure camps54

for quick therapeutic guide to harmed people55

; on

conditions in tuberculosis clinics56

on word related health risks57

on the direction of blood

donation centers and accessibility of blood items58

on inactive smoking in broad daylight

places59

and in an interest recorded by a man with HIV on the privileges of HIV/AIDS patients60

.

With right to medical aid falls into two categories first right to receive the treatment as a need or

desire not experimentation which irrespective of any benefit which the subject may derive are

intended to advance scientific knowledge and benefit people other than the subject in the long

term.

45

Bandhua Mukti Morcha v. Union of India (AIR 1984 SC 802). 46

State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83. 47

Paschim Banga Khet Mazdoor Samity v. State of West Bengal (AIR 1996 SC 2426 at 2429 para 9). 48

State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117. 49

Sheela Barse v. Union of India (1986) 3 SCC 596. 50

Mehta v. Union of India (1987) 4 SCC 463; MC Mehta v. Union of India (regarding emission standards for

vehicles) (1999) 6 SCC 12. 51

Vincent v. Union of India (AIR 1987 SC 990). 52

Vikram v. State of Bihar (AIR 1988 SC 1782). 53

Asylum Fire in TN In re v. Union of India (2002) 3 SCC 31. 54

S. Mittal v. State of UP (AIR 1989 SC 1570). 55

Parmanand Kataria v. Union of India (1989) 4 SCC 286; AIR 1989 SC 2039. 56

S. Lal v. State of Bihar (1994 SCC [Cri] 506). 57

Consumer Education and Research Centre v. Union of India (1995) 3 SCC 42. 58

Common Cause v. Union of India and Others (AIR 1996 SC 929). 59

Murli S Deora v. Union of India (2001) 8 SCC 765.

60 Mr. X v. Hospital Z 1998 (6) SCALE 230; 1998 (8) SCC 296; JT 1998 (7) SC. 626).

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The second point which need to be consider is the incidentally with provision of medical services

such a right to be told the truth by ones doctor. The court pointed out that that body autonomy is

major point in this context every person has right to accept as well as reject the treatment61

. In

the cases where the because of lower economical background and family is not willing to

continue the medical treatment and the patient is PVS and there is no improvement in the

condition their passive euthanasia can be a conclusive argument. Economic principle is

appointed in the limited context and supporting is with aim of promoting efficiency.

DEVELOPMENT OF THE LAW ON EUTHANASIA

For understanding the present law on passive euthanasia it is very necessary to look at the

background of petition. The first development takes place when the court settled the position on

the section 309 of IPC in the case of P. Rathinam v. Union of India62

. The issue in the present

case was constitutional validity of section of 309 of IPC. It was contended that section 309 of

Indian penal code violates Article 21 and Article 14 of Indian Constitution. The court in this case

formed 16 issues but in the present case court has considered only relevant issues from the

previous case which is given below.

Has Article 21 has any positive content or only negative in reach?

Has person residing in India has right to die?

With present law is Suicide is against social and public policy of India?

Does the commission of suicide damages state monopolistic power to take life?

Is apprehension of constitutional cannibalism justified?

Global View on the legal recognition of taking life by individual.

The court in this case with reference to first issue held that right to life does not merely physical

existence but also quality of life which should be enjoyed in its full context63

. With reference to

the whether a fundamental can have a negative effect the court consider the views by the

61

Reeves Commissioner of police of Metropolis. 62 (2000 )360, 379 62

(1994) 3 SCC 394. 63

State of Himachal Pradesh and another v. Umeed Ram Sharma and others (1986) 2 SCC 68:AIR 1986 SC 847

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Bombay High Court in which the honorable Bombay high64

court observed the true fundamental

of another fundamental right65

. Citing an example the court mention that a freedom of speech

includes not to talk in seditious manner. The court observed that the view of Bombay court is

partially correct. Negative aspect may be inferable on the analogy of right confer by different

clauses of Article 19 and many refuses to live if his life according to person concerned is not

worth of living. The court in this cases case concluded right to live of which Article 21speacks of

said to bring the trail right not live a forced life.

The next case in the tracing the law on passive euthanasia in India is Gian Kaur Case66

Where

the constructional bench the court settled the dispute regarding the section 306 of Indian Penal

Code. The facts of the case is as follows-

The petitioners were convicted under section 306 of Indian Penal Code (IPC). It was contended

that if the section 309 is held to be unconstitutional on the ground that it violates Article 21 then

abetment of suicide is also unconstitutional as any person abating the commission of suicide by

another is merely assisting in enforcing the fundamental right under Article 21 and therefore

section 306 of IPC penalizing abetment suicide equally violate of Article 21. In the case of Gian

kaur amicus curie Mr. F.S. Nariman has given their opinion and suggested that right to life be

construed to include within so called right to die since Article 21 guarantee protection of life and

liberty not its extinction.

In the Gian Kaur case the court observed that in P.Rathinam case wrongly, it held in the

P.Rathinam decision which relates to other fundamental rights dealing with different situation

and those decision merely holds that right to do something also include not do something in that

manner The negative aspect of the right that was involved for positive or overt act to be done.

The constitutional bench held that if man commits suicide then he takes a positive overt act such

act cannot be able to be covered under the ambit of Article 21 right to life. Pointing out the

euthanasia the court observed that persistent vegetative state (PVS) isn't an advantage to the

patient of terminal ailment being random to the guideline of sanctity of life‖ or the right to live

64

Maruti Shripati Dubal v. State of Maharastra (1987) Cr LJ 473 :88 Bom LR 589. 65

Rustam Cooperation Cooper v. Union of India (1970) 2 SCC: AIR 1970 SC 1318. 66

Smt. Gian Kaur vs The State of Punjab on 21 March (1996) SCC 2 p.648.

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with dignity is of no help to decide the extent of Article 21 for choosing regardless of whether

the certification of right to life‖ in that incorporates the right to die. The right to life including the

privilege to live with human poise would mean the presence of such a right up to the finish of

normal life. The Constitution Bench further clarified that the said origination likewise

incorporates the privilege to a stately life up to the point of death including a noble technique of

death or, at the end of the day, it might incorporate the privilege of a diminishing man to likewise

bite the dust with dignity when his life is ebbing out. It has been cleared up that the privilege to

pass on with respect at the finish of life isn't to be mistaken or compared for the right to die an

unnatural demise reducing the regular traverse of life.

The court held that right to live with human dignity cannot be construed to include within its

ambit the right to terminal natural life at least commencement to natural death. The court in this

case observed that the issue of euthanasia was not called upon.

The next case which the court consider for development of law was Airedale 67

case. This case

was regarding the withdraw of Artificial measures to continue life. The patient in this case was in

persistent vegetative state With regards to the presence in the persistent vegetative condition of

no advantage to the patient, the standard of the sacredness of life, which is the worry of the State,

was expressed to be not an outright one. To bring home the refinement amongst dynamic and

uninvolved Passive Euthanasia, a representation was noted with regards to managing deadly

medication effectively to convey the patient's life to an end. Passive Euthanasia isn't legal at

precedent-based law. In the light of the request of mindful individuals from the general public

who trust that Passive Euthanasia ought to be made legitimate, it has been seen in that choice that

the same can be accomplished by enactment.

In the case of F v. West Berkshire Heath Authority68

wherein the House of Lords expressed the

lawful standards administering the treatment of a patient who, for the reason that he was of

unsound personality or that he had been rendered oblivious unintentionally or by ailment was

unequipped for expressing regardless of whether he assented to the treatment or care. In such

conditions, a specialist may legally treat such a patient on the off chance that he acts to his

67

Airedale N.H.S. Trust v. Bland (1993) 2 WLR 316 : (1993) 1 All ER 821, HL 68

(1989) 2 All ER : (1990) 2 AC 1

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greatest advantage, and for sure, if the patient is as of now in his care, he is under an obligation

so to treat him.

Drawing a similarity, Lord Goff opined that a choice by a specialist regardless of whether to start

or to keep on providing treatment or care which could or may have the impact of drawing out

such a patient's life ought to likewise be represented by the same central guideline of the patient's

best advantage. The learned Law Lord additionally expressed that the specialist who is minding

for such a patient can't be put under a flat out commitment to draw out his life by any methods

accessible to the specialist, notwithstanding the nature of the patient's life.

That it is great practice for the specialist to counsel relatives. Lord Goff watched that the

Committee was immovable of the conclusion that the relatives' perspectives would not be

determinative of the treatment in light of the fact that if that would have been the situation, the

relatives would have the capacity to direct to the specialists what is in the best advantages of the

patient which can't be correct. All things being equal, a the choice to withhold life-drawing out

treatment, for example, counterfeit bolstering must require close participation with those near the

patient and it is perceived that practically speaking, there sees and the suppositions of specialists

will concur by and large.

The court discussed the standards which has which has to be maintained whole removing the life

supports. The court supported the authority Bolam case69

Ruler Goff opined that this rule should similarly be appropriate to choices to start or to suspend

life bolster as it is to different types of treatment. He likewise alluded to a Discussion Paper on

Treatment of Patients in Persistent Vegetative State issued in September 1992 by the Medical

Ethics Committee of the British Medical Association relating to four defends in specific which,

in the Committee's conclusion, ought to be seen before ceasing life bolster for such patients,

which were:

(1) Each exertion ought to be made at restoration for no less than a half year after the

damage;

69

Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582 : [1957] 2 All ER 118

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(2) The finding of irreversible PVS ought not be viewed as affirmed until at slightest a year

after the damage with the impact that any the choice to withhold life-dragging out treatment

will be deferred for that period;

(3) The conclusion ought to be concurred by two other autonomous specialists; and

(4) For the most part, the desires of the patient's close family will be given extraordinary

weight.

The committee was of the opinion that relatives' perspectives would not be determinative of the

treatment in light of the fact that if that would have been the situation, the relatives would have

the capacity to direct to the specialists what is in the best advantages of the patient which can't be

correct. All things being equal, a choice to withhold life-drawing out treatment, for example,

manufactured bolstering must require close participation with those near the patient and it is

perceived that, by and by, their sees and the assessments of specialists will harmonize much of

the time70

.

In this case the court developed the doctrine of necessity. Usually in the normal cases the

medical practitioner act according to the best interest of the patient. But doctrine of necessity is

applied in mainly two type of cases-

There must be necessity of the act, and there should exist the circumstances in which

it is impracticable to communicate to the patient.

The act done should be the act of ordinary prudent man. The act of medical

practitioner should be same as if the act done by ordinary prudent man in normal

facts and circumstances.

The doctrine of necessity is not applicable where the act done is contrary to the will of assisted

person.

Lord Lowery noted that large resources and labor in terms of skill and money had been invested

to take care of the patient in vegetative state who are showing no improvement, such labour if

invested in other patient can improve their condition and live a healthy life.

70

Ibid at foot note 71

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Lord Lowry additionally opined that there is no proposed Guilty act in ceasing the counterfeit

nourishing administration in light of the fact that in the event that it isn't in light of a legitimate

concern for an insentient patient to proceed the life-supporting consideration and treatment, the

specialist would be acting unlawfully on the off chance that he proceeded with the care and

treatment and would play out no liable demonstration by ceasing it. There is a hole between the

old law from one viewpoint and new medication and new morals on the other.

It is vital, especially in the territory of criminal law which administers direct, that the general

public's thoughts of what the law is and what is correct ought to correspond. One part of the

administrator, according to Lord Lowry, is to recognize any uniqueness between these thoughts

and to make fitting move to close the hole. In the sentiment of the educated Law Lord, there

exists almost certainly that it is for the Parliament and not the courts to choose the more

extensive issues raised by instances of such nature. He watched that ongoing advancements in

restorative science have on a very basic level changed the significance of death. In drug, the end

of breathing or of the pulse is never again passing in light of the fact that by the utilization of a

ventilator, lungs which in the unaided course of nature quit breathing can be made to inhale

misleadingly in this manner managing the pulse.

In this way, individuals like Anthony Bland, who might have beforehand passed on through

powerlessness to swallow sustenance, can be kept alive by fake encouraging. This has driven the

medicinal calling, in Lord Browne Wilkinson's view, to reclassify demise as far as the cerebrum

stem passing, i.e., the demise of that piece of the mind without which the body can't work at all

without help. He further said that if the judges look to build up another law to manage the new

conditions, the law so set down will mirror the judges' perspectives on the fundamental moral

inquiries, questions on which there is a true blue division of assessment.

He continued to express that where a case raises completely new good furthermore, social issues,

it is neither for the judges to grow new standards of law nor would it be authentic for the Judges

to touch base at a conclusion concerning what is for the advantage of one person whose life is an

issue. For the said reasons, the educated Law Lord watched that it is basic that the ethical, social

and lawful issues raised by the current case ought to be considered by the Parliament what's

more, just if the Parliament neglects to act, the judge-made law will, by need, give a lawful

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response to each new inquiry as and when it emerges. The capacity of the court, in Lord Browne-

Wilkinson's see, in such conditions is to decide a specific case as per the current law and not to

grow new law setting out another regimen. He held that it is for the Parliament to address the

more extensive issues which such a case raises and set down standards of law for the most part

material to the withdrawal of life emotionally supportive networks. He clarified why the

evacuation of the nasogastric tube in the present case couldn't be viewed as a positive

demonstration causing passing since the tube itself, without the sustenance being provided

through it, does nothing. The evacuation of the tube without anyone else does not cause demise

since it doesn't manage life independent from anyone else. In this way, the evacuation of the tube

would not constitute the actus reus of murder since such positive act would not be the reason for

death.

COURT ANALYSIS OF ARUNA SHANBAUG

Although the suicide controversy are put to rest the issue of passive euthanasia was put forth

before court in the case of Aruna Shanbaug71

where the petition was filed before the Indian

courts by the friend of Aruna who had prayer for letting Aruna die in peace. The facts of the

case is as follow-

Aruna Rama Chandra Shanbaug was a staff nurse working at King Edward Memorial in the

Hospital, Mumbai (the Hospital). On 27 November 1973, she was sexually attacked. Her

aggressor at the same time strangulated her with a dog chain, because of which the supply of

oxygen to her brain was disturbed. She additionally supported a brain stem wound damage with

related cervical rope damage. It was claimed by the Petitioner that 38 years subsequently, Aruna

was around 60 years old, and in a Persistent Vegetative State (PVS) with no condition of

mindfulness, and a for all intents and purposes dead cerebrum. The Writ Petition as needs are

looked for a course from the Supreme Court such that the Respondent (the Dean of the Hospital)

be coordinated to quit nourishing Aruna, keeping in mind the end goal to empower her to slang

to die calmly. Consequently, this case raised for the first time in the Indian Supreme Court a

71

Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454

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similar inquiry that English courts pondered in the choice: in what conditions, assuming any, can

a specialist legitimately end life-managing treatment.

On 24 January 2011 the supreme court order the team of doctor was examine the condition of

victim the doctor concluded that Aruna is suffering from a condition where her brain is not dead

nor her she is in coma she is suffering from Persistent Vegetative State where she only shows the

cycle of closing and opening of eyes which resembles sleeping and waking up. The Supreme

Court, in this case, made the observation that petitioner does not have right to die as the

fundamental case this case was the landmark for passive euthanasia.

Aruna shanbaug case deals with passive euthanasia and lays down the detail about the procedure

for carrying out the same. While managing dynamic Passive Euthanasia, moreover known as

positive euthanasia‖ or aggressive euthanasia, it has been expressed that the said sort of Passive

Euthanasia involves a positive act or governmental policy regarding minorities in society or

demonstration of commission involving the utilization of deadly substances or powers to cause

the purposeful demise of a man by coordinate intercession, e.g., a deadly infusion given to a man

with terminal disease who is in unpleasant anguish. Latent Passive Euthanasia, then again,

additionally called negative killing or non-forceful euthanasia‖, involves pulling back of life

bolster measures or withholding of therapeutic treatment for continuation of life, e.g.,

withholding of anti-toxins if there should arise an occurrence of a patient where demise is

probably going to happen as an aftereffect of not giving the said anti-infection agents or

expulsion of the heart lung machine from a patient in trance like state.

After the judgment of Aruna was deliverd. The Law Commission of India has deliverd the report

on passive euthanasia titled as Passive Euthanasia – A Relook.The report has detail analysis of

euthanasia and its history and medical ethics dilemma in carrying out passive euthanasia. The

report provides Humanitarian prospective to the problem of passive euthanasia. The report

recognizes that the doctor’s act should follow the doctrine of patient best interest, whatever the

doctor do should be the best for patient. The report recognizes Patients Autonomy72

according to

which the patient has full right to refuse the treatment and also the patient has right to refuse the

treatment which results in the temporary prolongation of life. The report also recognizes the self-

72

Malette v. Shulman 3 67 DLR (4th) 321 (1990) : 72 OR (2d) 417

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determination73

according to which patient is not liable for suicide nor the doctor is liable for

abetting for suicide if patient has decline the treatment it just because of self-determination74

and

patient has right to decline the treatment75

.

REASONING/ JUDGMENT OF THE COURT

Facts of the case: The common cause society is registered society which is engage in addressing

the common problem of the people. The present case file before the court is brings a serious

problem of violation of fundamental right of life, liberty and privacy. It was brought before the

notice of the court that citizen who are suffering for terminal illness, chronic illness and who

have entered into vegetative state are forced to take the treatment in spite of knowing that there is

no scope of improvement in their condition. This treatment includes cruel technique like artificial

life support system, feeding through hydration tubes. It was contended before the court that as

civilize society it should right for every citizen to decline the treatment if it painful or is not

useful formed choice and a personal decision about withholding or withdrawing

life sustaining medical treatment.

The present case deals with passive euthanasia and the court has answered the

(a) proclaim 'right to die with dignity' as a major appropriate inside the overlay of Right

to Live with pride ensured under Article 21 of the Constitution of India;

(b) issue heading to the Respondent, to receive reasonable methods, in conference with

State Governments where fundamental, to guarantee that people of crumbled health or

at death's door ought to have the capacity to execute a record titled "MY LIVING WILL

and ATTORNEY AUTHORISATION" which can be introduced to healing facility for

suitable activity in occasion of the executant being admitted to the doctor's facility with

genuine sickness which may debilitate end of life of the executant or in the option, issue

proper rules to this impact;".

73

Schloendorff v. Society of New York Hospital (1914) 105 NE 92 : (1914) 211 NY 125 74

F v. R (1983) 33 SASR 189 at 193 75

Rogers v. Whitaker (1983) 33 SASR 189 at 193

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Contention of petitioners: The petitioners put forward the concept of body autonomy and right

to privacy. They urged that the as civilized society every individual should have right to reject

the treatment as result petitioners ask for legalizing living will It is attested that each individual is

qualified for take his/her choice about the duration or discontinuance of life when the procedure

of death has just started and he/she has achieved an irreversible changeless dynamic state where

demise isn't far away. It is battled that each the individual has an inalienable appropriate to pass

on with respect which is an inseparable aspect of Article 21 of the Constitution. That separated, it

is put forward that privilege to pass on sans agony and enduring is essential to one's real self-

sufficiency and such honesty does not remotely acknowledge any exertion that puts the person

on life bolster with no beam of expectation and despite what might be expected, the entire

administration of treatment proceeds notwithstanding all staying alert that it is a Sisyphean

undertaking, a push to light a knob without the fiber or to anticipate that a circumstance will be

in an apple pie arrange when it is entirely a condition of bedlam.

Contention of sate: Sate has contended that what are the major issues will arise if passive

euthanasia is allowed. The all-out affirmation that protection of human life is fundamental and it

is required in the interest of the States to give treatment and to see that nobody dies the dust as a

result of the absence of treatment and to understand the standards revered in Chapter IV of the

Constitution. Accentuation has been laid on the State intrigue and the procedure of mishandling

that can occur in regarding latent passive euthanasia as allowable in law. To dispense with the

likelihood of mishandling, shields can be taken and rules can be surrounded. However, on the

supplication of the likelihood of manhandling, the dignity during the time spent biting the dust is

a feature of Article 21 ought not to be checked.

DECISION REGARDING WITHDRAWAL OF LIFE SUPPORT SYSTEM

The debate of euthanasia has been started more than 100 years ago. The withdrawal of life

support is different from euthanasia as recommended by the law commission of India. Patients

who are unsound to choose because of their psychological state or because of the way that they

are in changeless constant vegetative state or because of some different reasons unfit to impart

their longing. At the point when the privilege of a grown-up individual who communicates his

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view with respect to medicinal treatment can be viewed as right spilling out of Article 21 of the

Constitution of India, the privilege of a patient who is clumsy to express his view can't be outside

the crease of Article 21 of the Constitution of India.

The privileges of substantial trustworthiness and self-assurance are the rights which have a place

with each person. At the point when a grown-up individual having the psychological ability to

take a choice can practice his privilege not to take treatment or pull back from treatment, the

above right can't be invalidated for a man who’s not ready to take an educated choice because of

terminal sickness or being a Persistent Vegetative State (PVS). The inquiry is who is able to take

a choice if there should be an occurrence of critically ill or PVS tolerant, who can't take a choice.

The American Courts offer acknowledgment to the conclusion of "surrogate" where a man is

awkward to take a choice. No individual can make a choice in regards to the life of another

unless he is qualified for taking such choice approved under any law. When the patient is of

unsound mind it is of the best interest of the patient that opinion of medical practitioners.

THE CONCEPT OF LIVING WILL

The Black's Law Dictionary defines a living will order as "an authoritative archive clarifying

one's desires about therapeutic treatment in the event that of incompetency or unfit to

communicate. The Advance Directive or living will can be executed by adult of sound mind it

must be voluntary in nature. It should not be influenced by the Coercion, fraud, or undue

influence. The contains of advance directive can stated as follow -

It ought to obviously demonstrate the choice identifying with the conditions in which

withholding or withdrawal of therapeutic treatment can be turned to.

It ought to be in particular terms and the directions must be totally clear and

unambiguous.

It should specify that the agent may renounce the directions/expert whenever.

It ought to unveil that the agent has comprehended the outcomes of executing such a

report.

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It ought to indicate the name of a gatekeeper or close a relative who, in case of the agent

getting to be unequipped for taking a choice at the important time will be approved to

give assent to decline or pull back restorative treatment in a way steady with the Advance

Directive.

if there is in excess of one legitimate Propel Directive, none of which have been

repudiated, the most as of late marked Advance Order will be considered as the last

articulation of the patient's desires and will be.

The living will can come into force as soon as the patient is incapable of communicating or have

entered into vegetative state. It should be noted that the living will will only come into the force

when the patient is terminal illness and there is no scope of improvement in the patient condition.

jurisdictional Judicial Magistrate of First Class (JMFC) will be under the jurisdiction of the

living will till it is executed. The living will has to be sing by two witness. Before the execution

of procedure for removal of life support the Medical Board Medical Board consisting of the

Head of the treating Department and at least three experts from the fields of general medicine,

cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and

with overall standing in the medical profession of at least twenty years who, in turn, shall visit

the patient in the presence of his guardian/close relative and form an opinion whether to certify

or not to certify carrying out the instructions of withdrawal or refusal of further medical

treatment. This decision shall be regarded as a preliminary opinion. If however the decision of

medical board is in affirmative then the effected party can approach to the High Court under

Article 226.

CONCLUSION

From Gian Kaur case the court has concluded the nature of Fundamental right. The right to life

guaranteed by the Article 21 also guarantees right to dignity to every person as a result it not

only cruel but also illegal to carry out the cruel treatment techniques like life support systems.

The courts recognizes give very much importance to body autonomy and freedom of choice. The

patient is entitle to reject the treatment if he feels it is much tortures and non-beneficial for

patient. With growing arguments on euthanasia the court in present case has also given up the

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detail about the medical ethics and euthanasia it was held by the court that in every case the

doctors have to follow the doctrine of patient best interest. The court have looked in the concept

of euthanasia and noted that active euthanasia is against the principles of common law and only

passive euthanasia is permissible. The religion like Islam also recognizes individual autonomy.

In the light of this facts and circumstances the court held living will is legally valid in India. The

court has issued the guidelines for advance directives.

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