Written By : Spiti Sarkar Symbiosis Law College (IIIrd Yr Of 5yr B.A.L.L.B)
In the advent of delving into what has unfurled into one of the most controversial issues that could have tremendous ramifications on basic ethical concepts and most importantly, the sanctity of life…. The precious words of Thomas Jefferson strike a chord.
"The care of human life and happiness and not their destruction is the first and only legitimate object of good governance."
In juxtaposition, the words "Right to Die" evoke an exactly opposite sentiment. How can it be a right if you are using it to give up your rights? The above right has been used as a guise or a camouflage to include various concepts that are opposed to preservation of life. Euthanasia, Physician Assisted Suicide (PAS), Suicide, though conceptually different, are species of the same genre.
The Indian Perspective:
In India, the sanctity of life has been placed on the highest pedestal. " The right to life" under Article 21 of the Constitution has received the widest possible interpretation under the able hands of the judiciary and rightly so. This right is inalienable and is inherent in us. It cannot and is not conferred upon us. This vital point seems to elude all those who keep on clamoring for the "Right to Die".
The stance taken by the judiciary in this regard is unquestionable.
In Gian Kaur vs. State of Punjab, a five judge Constitutional Bench held that the "right to life" is inherently inconsistent with the "right to die" as is "death" with "life". In furtherance, the right to life, which includes right to live with human dignity, would mean the existence of such a right up to the natural end of life. It may further include "death with dignity" but such existence should not be confused with unnatural extinction of life curtailing natural span of life. In progression of the above, the constitutionality of Section 309 of the I.P.C, which makes "attempt to suicide" an offence, was upheld, overruling the judgment in P. Rathinam's case.
The factor of immense significance to be noted here is that suicide, euthanasia, mercy killing and the like amount to unnatural ebbing of life. This decision thereby overruling P.Rathinam's case establishes that the "Right to life" not only precludes the "right to die" but also the right to kill."
Interestingly in P.Rathinam's case, even when a Division bench affirmed the view in M.S Dubal v. State of Maharashtra that the "right to life" provided by the Constitution may be said to bring into its purview, the right not to live a forced life, the plea that euthanasia be legalized was discarded. It was held that as euthanasia involves the intervention of a third person, it would indirectly amount to a person aiding or abetting the killing of another, which would be inviting Section 306 of the I.P.C.
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."(Emphasis added).
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.
An impracticable solution:
The implication of the term "euthanasia" is itself shrouded in ambiguity. Derived from the Greek word "euthanatos" meaning "good death". To reiterate the judicial pronouncements in the Indian context, good or happy death would imply the ebbing of life the natural way.
In its earlier form, it was used as an omnibus term to signify a painless death. In its modern context, the term is used a deliberate euphemism to reduce the culpability of an act". an act which is a subset of murder, by injecting the term "mercy". The fact remains" Euthanasia/ Mercy killing is about giving license for the right to kill.
Euthanasia is defined as an "intentional killing by an act/ omission of person whose life is felt is not to be worth living." The above attribution consequentially includes just about any one who has a suicidal impulse. Moreover the term "person" is inclusive of any and everybody and is not solely restricted to "patients." The legalization of the above would result in nothing but pandemonium.
There have been views propagating the practice of passive euthanasia (letting some one die) to be morally permissible and active euthanasia (killing someone), morally impermissible. It is submitted that these distinctions are irrelevant and unnecessary as t of both acts inevitably center around a single element- an intention to kill.
The above premise has been aptly summed up by Professor James Rachels5 who believes…. The active and passive dichotomy is a distinction without a difference.
Proponents and "Right to die" groups argue that, a patient in unbearable agony and excruciating pain or "terminally ill", the saving- grace is euthanasia on compassionate grounds.
It is submitted that the problem here is" the term "terminally ill" has no precise definition. For instance, Jack Kervorkian, a famous proponent of euthanasia, defined "terminal illness" as "any disease that curtails life even for a day". Some laws define "terminal" as one from which death will occur in a "relatively short time" or "within a span of six months".
The nub of the point is that all these definitions scream ambiguity and medical experts have acknowledged that it is virtually impossible to predict the life expectancy of a particular individual.
Interestingly, euthanasia activists have dropped references to terminal illness, replacing them with such phrases as "gentle landing", "hopelessly ill"' desperately ill" and "meaningless life."
It is reinforced that this issue hovers around an invaluable asset called "life". Just as a mistaken diagnosis is possible, so is a mistaken prognosis. It must be remembered that death is final and a chance of error too great to approve the practice of euthanasia.
Technology has come of age:
On the flip side of the coin, an undeniable transition is evidenced in the augmentation of medicine and technology. What was excessive in medicine fifty years ago may be ordinary and routine today. The idea here is that what is excessively burdensome and offers little hope for one may be less burdensome and more hopeful for a second patient in a different state of health.
A startling revelation...... Research has shown that ninety-percent of the pain can be alleviated by proper pain control methods. Appropriate care can make a huge difference. This goes to show that medicine and technological breakthroughs have a fitting reply to almost every problem and the extent of medical commitment is unassailable.
In contradistinction, if every terminal patient were prodded to a "gentle landing", impetus to research, which is the answer to curative medicine, would be foiled. If legalized, doctors would be forced to perform such acts against their consent that would amount to a violation of the Hippocratic Oath. Incidentally, it was as early as 400 B.C., when the renowned Greek physician stipulated in his Oath ........" I will give no deadly medicine to anyone if asked, nor suggest any such course."
The fact remains that the practice of euthanasia has been ostracized since time immemorial and Oregon, Belgium and The Netherlands are the only jurisdictions in the world where laws specifically permit euthanasia or assisted suicide.
It may be pertinent to mention that the most vital point is the repercussions that could take place once something as controversial is legalized. The matter is not an issue of force but an issue of the way laws can be expanded once something is declared legal. In India, where abuse of the law is the rule rather than the exception and where conniving relatives clamor to lap up an heirloom, the abovementioned argument holds great weight age.
To elucidate, in England, the House of Lords in Airedale NHS Trust v. Bland permitted non-voluntary euthanasia in case of patients in a persistent vegetative state. Subsequently, the Supreme Court of Ireland in Re A Ward of Court expanded the persistent vegetative state to include cases where the patient possessed limited cognitive faculties.
In Netherlands, the Supreme Court in a 1984 ruling held that euthanasia could be lawful only in cases of physical illness. However, a decade down the line, the Supreme Court in Chabot's case held that it could even extend to cases of mental illness.
Thus, there is evidenced a conceptual degradation of the right to live with dignity.
The sole qualitative argument in favor of euthanasia, is the fact that if procedures are stringent and foolproof and with proper mechanisms in place, then the legalization of the same could be effected in India. For instance, in The Netherlands the request for euthanasia should come only from the patient and be free, voluntary, and persistent; it should be the last resort and should be performed by a physician in consultation with an independent physician colleague who has experience in the field.
Poles Apart:
It is humbly submitted that the implementation of the above mechanism in India is utopian and thus the two situations incomparable. It is ironical to note that ninety percent of the patients succumb to death without receiving any primary health care. Thus the logical derivation of this aspect would be that India does not have an appropriate health-care mechanism in place, let alone foolproof procedures for euthanasia.
In the presence of the above bottlenecks and policing rampant in our country, the appropriate course of action would be to develop proper "care ethics", ensuring a "dignified existence and termination" of life. Let us augment the above and resultantly, the concept of euthanasia will be nothing but a distant reality.
All in all....... "No life that breathes with human breath has ever truly longed for death."