By Dr Swati Jindal Garg
British theoretical physicist, cosmologist and author Stephen Hawking rightly said: “I think those who have a terminal illness and are in great pain should have the right to choose to end their own life, and those that help them should be free from prosecution.” He himself suffered from Amyotrophic Lateral Sclerosis.
The debate on whether euthanasia or mercy killing should be legalised is a long standing one. In a recent judgment, the Delhi High Court declined to allow a 30-year-old man’s plea to undergo passive euthanasia. The petitioner, Harish Rana, had been in a vegetative state due to head injuries suffered in 2013 and had approached the Court for his case to be referred to a medical board.
He was a student at Punjab University and had fallen from the fourth floor of his paying guest accommodation in 2013. Despite his family’s best efforts, he was confined to bed due to diffuse axonal injury and had 100% disability. His plea states that his family had consulted various doctors, but were informed that there was no scope for his recovery.
He has not responded for the last 11 years and developed deep and large bed sores that resulted in further infection. Having lost all hope of recovery and taking into consideration that the parents were not able to take good care of him due to their advancing years, the plea was filed before the Court for referring his case to the medical board for allowing passive euthanasia.
But the Court declined permission on the ground that Rana was not dependent on any life support systems to remain alive, nor was he terminally ill. “The petitioner is not on any life support system and the petitioner is surviving without external aid. While the court sympathises with the parents, as the petitioner is not terminally ill, this court cannot intervene and allow consideration of a prayer that is legally untenable,” the Court said. Justice Subramonium Prasad, while referring to apex court judgments which held that active euthanasia is legally impermissible, also said: “The petitioner is thus living, and no one, including a physician, is permitted to cause the death of another person by administering any lethal drug, even if the objective is to relieve the patient of pain and suffering.”
Euthanasia is a practice of painlessly putting to death persons suffering from painful and incurable disease or incapacitating physical disorder or allowing them to die by withholding treatment or withdrawing artificial life-support measures. Euthanasia and its regulation have always presented challenging questions of balance. On the one hand, there are questions of the patient’s continued suffering without any hope for future recovery, while on the other, there are questions about whether a person has any right to end his life, and if granted, how the State may regulate the serious repercussions emanating from it.
Courts have dealt with these questions in many cases, but the prevailing legal position on euthanasia has been established by the apex court through three cases:
- Gian Kaur vs State of Punjab in 1996.
- Aruna Shanbaug vs Union of India in 2011
- Common Cause vs Union of India in 2018.
In all these cases, an important distinction has been made between active and passive euthanasia. While active euthanasia is when specific positive actions are taken to end a patient’s life, passive euthanasia is when life-support mechanisms that are preserving the patient’s life are withdrawn, leaving him to fend for himself.
This distinction was further enumerated by the Supreme Court in the Common Cause case where it held that in passive euthanasia, the patient’s death was caused by the underlying disease itself on withdrawal of life-support measures, while in active euthanasia, lethal substances such as injections are administered and cause the death directly.
It has been continuously held by Indian and foreign courts that active euthanasia can only be legalised through legislation, i.e., acts representing popular will. However, the law is not set on passive euthanasia. In the Aruna Shanbaug case, the Court held that passive euthanasia can be applied for persons in a permanent vegetative state by invoking the writ jurisdiction of the High Court under Article 226 of the Constitution. This judgment was passed after Pinki Virani’s plea to the highest court in December 2009 under the constitutional provision of “Next Friend”. It was a landmark law which places the power of choice in the hands of the individual over government, medical or religious control which sees all suffering as “destiny”.
The Supreme Court specified two irreversible conditions to permit the Passive Euthanasia Law in its 2011 Law:
- The brain-dead for whom the ventilator can be switched off.
- Those in a Persistent Vegetative State for whom the feed can be tapered out and pain-managing palliatives can be added, according to laid-down international specifications.
The same judgment also asked for the scrapping of 309, the code that penalises those who survive suicide attempts. However, on February 25, 2014, a three-judge bench of the Supreme Court termed the judgment in the Aruna Shanbaug case to be “inconsistent in itself” and referred the issue of euthanasia to a five-judge Constitution bench. This was after a PIL was filed by Common Cause which recognised the sanctity of human life as mentioned in the Constitution under Article 21 that guarantees the fundamental right to life. This right cannot be waived in circumstances other than those provided by law.
In the case of Common Cause, the Supreme Court dealt with the question of whether the right to life under Article 21 encompasses within its ambit a “right to die with dignity”. Answering in the affirmative, the Court had also emphasised the dynamic and constantly evolving nature of fundamental rights. Further, in the Puttuswamy case, the apex court had reaffirmed that individual dignity fell under Article 21 and had also interpreted the right to live with human dignity as necessarily meaning a right to live a dignified life until the point of death, including a dignified procedure of death. This allows a terminally ill person or a person in a permanent vegetative state to seek passive euthanasia to protect their right under Article 21.
In order to give effect to this right, the Court had also in Common Cause issued guidelines regarding Advance Directives (AD) which are documents that detail the choices of the patient regarding treatment decisions along with who would be competent to take decisions on their behalf in case of their inability to do so. While these guidelines were amended in February 2023 to facilitate easier implementation of ADs to larger sections of society, they still place an onerous burden on each applicant. Each AD is subject to the opinion of two medical boards and their decisions can only be challenged via a writ petition under Article 226. The current position puts the onus largely on the families of the patients, who are subjected to a rigorous bureaucratic process in order to give effect to the ADs, which are notarised documents signed and testified in front of a judicial magistrate.
While active euthanasia has still not been granted legal sanctity in India, there are many countries where it has. These include The Netherlands and Belgium in 2002, Luxembourg in 2009, Colombia in 2014, Canada in 2016 and Spain and New Zealand in 2021. In the US, while active euthanasia is still illegal, a patient has the right to passive euthanasia. In fact, some states even allow physician-assisted suicide, whereas most others allow the withdrawal of life-preserving interventions such as respirators and feeding tubes.
In the UK, too, active euthanasia is still illegal despite there being four failed bids between 2003 and 2006 to introduce bills for legalising it. For passive euthanasia, patients are allowed to refuse treatment and food and liquid can be withdrawn from a person in a vegetative state even without the court’s permission.
Plainly speaking, euthanasia is mercy killing. It simply means that a person wants to pass away peacefully or without any pain. As per American writer Marya Mannes, euthanasia is simply to be able to die with dignity at a moment when life is devoid of it.
While all the judgments above outline detailed procedures for passive euthanasia and advance directives, the reality is very different. The fact of the matter is that very few people are aware of these directives and legalities. End of life decisions, whether taken for self or next of kin, are incredibly hard to take. If the right to live with dignity has to be implemented, more needs to be done to translate these directives and judgements and make them accessible to all.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi