“EUTHANASIA: A SOCIO LEGAL STUDY WITH

SPECIAL REFERENCE TO LAW IN INDIA”

A Dissertation Submitted to Ideal Institute of Management &

Technology and School of Law in Partial Fulfillment of the
Requirement for the Degree of
BA.LL.B (H) 5th YEAR

Under the Supervision of: Submitted by:

................. .................
VICE PRINCIPAL BA.LL.B (H) 5th Year
Deptt. of Law Enrollment No: .................

DEPARTMENT OF LAW
IDEAL INSTITUTE OF MANAGEMENT & TECHNOLOGY AND SCHOOL OF
LAW
UNIVERSITY OF SCHOOL MANAGEMENT STUDIES
GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY
SECTOR 16-C, DWARKA
NEW DELHI-110078

Session: 2020-2021

i
.................
Vice Principal,
Department of Law,
Ideal Institute of Management & Technology and School of Law

SUPERVISOR'S CERTIFICATE

It gives me pleasure to certify that Mr. ................., Enrollment No: .................

BA.LL.B (H) 5th Year, Session 2020-2021 has completed his dissertation entitled
“EUTHANASIA: A SOCIO LEGAL STUDY WITH SPECIAL REFERENCE
TO LAW IN INDIA”, as partial fulfillment of the requirement of BA.LL.B (H) of
Ideal Institute of Management & Technology and School of Law under my
supervision. The dissertation is fit for submission and evaluation for the above
purpose.

(.................)
Vice Principal
Department of Law
Ideal Institute of Management
& Technology and School of
Law

ii
 CERTIFICATE

This is to certify that I, Mr. ................., a student of BA.LL.B (H) 5th Year has
worked on topic “EUTHANASIA: A SOCIO LEGAL STUDY WITH SPECIAL
REFERENCE TO LAW IN INDIA” under the supervision and able guidance of
.................. This work is original and meets the requirements laid down by BA.LL.B
(H) of Ideal Institute of Management & Technology and School of Law for awarding
the Degree of Masters of Law (LL.M).

(.................)
Enrollment No: .................

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 ACKNOWLEDGEMENT

At the onset, I would like to express my deepest appreciation to all those who
provided me the possibility to complete this dissertation report. As a special
gratitude, I would like to express my sincere thanks to my supervisor,
................., whose contribution in providing the necessary suggestions and
encouragement for completion of my dissertation.

I am thankful to all those who were connected to me directly or indirectly in

accomplishing this dissertation, especially my wife and my family. Without their
support, it would have been impossible to achieve this task.

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 TABLE OF CONTENTS

Chapter-1 Introduction..............................................................................................1-18

1.1 Introduction to Research...............................................................................1

1.2 Hypothesis of the Research...........................................................................3
1.3 Objectives and Aim of the Research.............................................................3
1.4. Importance of the Research.........................................................................4
1.5 Selection of the Research with Reasoning....................................................4
1.6. Scope of the Research..................................................................................5
1.7 Research Methodology.................................................................................5
1.8 Introduction...................................................................................................6
1.9 Meaning of Euthanasia.................................................................................7
1.10 Historical Background of Euthanasia.........................................................8
1.10.1. Definition of Euthanasia........................................................................14
1.10.2. Classification of Euthanasia...................................................................14
1.11 Reasons for Euthanasia..............................................................................17
1.11.1 Unbearable Pain..........................................................................17
1.11.2 Demand of “Right to Commit Suicide”......................................17

Chapter-2 Moral, Social and Relegious Implications of Euthanasia...................19-28

2.1 Religious Implications of Euthanasia..........................................................19

2.1.1 The Hindu Sentiment....................................................................19
2.1.2 The Sikh Sentiment.......................................................................20
2.1.3 The Buddhist Sentiment................................................................21
2.1.4 The Christian Sentiment...............................................................22
2.1.5 The Roman Catholic Sentiment....................................................23
2.1.6 The Muslim Sentiment..................................................................24
2.2 Ethical and Moral Aspects...........................................................................24

Chapter-3 Legal Aspects of Euthanasia..................................................................29-46

3.1 Legal Aspects of Euthanasia in India...........................................................29

3.2 Indian Dimension.........................................................................................34

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 3.3 Human Rights and Euthanasia.....................................................................36
3.4 Suicide Vs. Euthanasia.................................................................................43

Chapter-4 Position of India......................................................................................47-73

4.1 Judicial Aspect.............................................................................................47

4.1.1 Passive Euthanasia Legalised by Hon'ble Supreme Court............53
4.1.2 Legislative Provisions...................................................................55
4.2 New Dimensions in Indian History: Aruna Shanbaug's Case......................59
4.3 Law Commission's Report...........................................................................64
4.3.1 Law Commission and Its Recommendation.................................64
4.4 Judicial Approach and Pronouncements in India.........................................68

Chapter-5 Conclusion and Suggestions...................................................................74-77

5.1 Conclusion...................................................................................................74
5.2 Suggestions..................................................................................................76

Bibliography...................................................................................................................

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 TABLE OF ABBREVIATIONS

A.I.R : All India Reporters

All Cr R : All India Criminal

All LJ : All India Law Journal

Cr L.J : Criminal Law Journal

Cri : Crime

Crim. L.R : Criminal Law Review

Del : Delhi

Edi : Edition

S.C : Supreme Court

S.C.D : Supreme Court Division

S.C.J : Supreme Court Journal

IPC : Indian Penal Code

Cr P.C : Criminal Procedure Code

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 TABLE OF CASES

1. Aruna Ramchandra Shanbaug v. Union of India (AIR 2011 SC 1290)

2. Maruti Shripati Dubal v. State of Maharastra (1987 Cri.L.J 743 (Bomb)

3. Naresh Marotrao Sakhre v. Union of India (1995 Cri.L.J 95 (Bomb)

4. Smt. Gian Kaur v. State of Punjab 1996 (2) SCC 648 (AIR 1996 SC 946)

5. Chenna Jagadeeswar and Anr .v. State of Andhra Pradesh (1988 Cr LJ 549)

6. P. Rathinam v. Union of India (AIR 1994 SC 1844)

7. Suchita Srivastava and Anr.v. Chandigarh Administration (2000 Cr IJ 3729)

8. C.A. Thomas Master v. Union of India (2009) 9 SCC 1)

9. Laxman Balkrishna Joshi v. Trimbak Bapu Godboleand Anr. (AIR 1969 SC)

10. Maneka Gandhi v. Union of India (AIR 1981 SC 746)

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 ACKNOWLEDGEMENT

The research on “Euthanasia: A Socio Legal Study with Special Reference to Law
in India” has been given to me as a part of the curriculum in 5 years B.A.LL.B (H).

I have tried my best to present this information as clearly as possible using basic
terms that I hope will be comprehended by the widest spectrum of researchers,
analysts and students for further studies.

I have completed this research study under the guidance and supervision of Associate
Professor Dr. Navneet Thanvi, I will be failed in my duty if I do not acknowledge
the estimated scholarly guidance, assistance and knowledge. I have received them
towards faithful and timely completion of this work.

______________________
Rishabh Malhotra
08621503814
B.A. LL.B (H)

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 Chapter-1
INTRODUCTION
 INTRODUCTION

1.1 Introduction to Research

Research comprises "creative and systematic work undertaken to increase the stock
of knowledge, including knowledge of humans, culture and society, and the use of
this stock of knowledge to devise new applications". It is used to establish or confirm
facts, reaffirm the results of previous work, solve new or existing problems,
support theorems, or develop new theories. An approach becomes systematic when a
researcher follows certain scientific methods. In this context, legal research may be
defined as ‘systematic’ discovery of law on a particular point and making
advancement in the science of law. However, the finding of law is not so easy. It
involves a detailed study and research of legal materials, statutory, subsidiary and
judicial pronouncements. For making advancement in the science of law, one needs to
go into the ‘underlying principles or reasons of the law’. These activities warrant a
methodical approach. A scientific method needs to be applied by the researcher. So,
writing is just an instrument of communicating the researcher's findings and
conclusions to the audience or readers, or consumers of the research product. The
topic of my dissertation is ‘Euthanasia: A Socio Legal Study with Special Reference
to Law in India’.

Euthanasia is also described as mercy killing. The death of a terminally ill patient is
accelerated through active or passive means in order to relieve such patient of pain or
suffering and responsibility to alleviate the physical suffering of the body of the
patient. Euthanasia can be only voluntary, we are here concerned with socio legal
study of euthanasia in India. The study is also highlighted with reference to the
decision of the Supreme Court of India in Aruna Ramachandra Shanbaug vs. Union
of India1. In India too, active euthanasia is illegal and a crime under Section 302 or
304 of the IPC. Doctor's assisted suicide is a crime under Section 306 IPC (abetment
to suicide2). Passive euthanasia, otherwise known as ‘Negative Euthanasia’, however
it stands on a different footing. It involves withholding of medical treatment or
withholding life support system for continuance of life e.g., withholding of antibiotic

1
Writ Petition (Criminal) No. 115 Of 2009
2
Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.

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where by doing so, the patient is likely to die or removing the heart and lung
supporting machine from a patient in coma. Passive euthanasia is legal even without
legislation provided certain conditions and safeguards are maintained. The core point
of distinction between Active and Passive Euthanasia as noted by the Supreme Court
is that in Active Euthanasia, something is done to end the patient’s life while in
Passive Euthanasia, something is not done that would have preserved the patient’s
life. To quote the words of learned Judge in Aruna’s case 3, about passive euthanasia,
“The doctors are not actively bringing about death of anyone; they are simply not
saving him”. The Court graphically said “While we usually applaud someone who
saves another person’s life, we do not normally condemn someone for failing to do
so”. The Supreme Court pointed out that according to the proponents of Euthanasia,
while we can debate whether active euthanasia should be legal, there cannot be any
doubt about passive euthanasia as “You cannot prosecute someone for failing to save
a life”. Passive euthanasia is further classified as voluntary and non-voluntary.
Voluntary Euthanasia is where the consent is taken from the patient. In Non-
Voluntary Euthanasia, the consent is unavailable. When a person ends his life by his
own act it is called “SUICIDE” but to end life of a person by others though on the
request of the deceased is called “EUTHANASIA” or “MERCY KILLING”. We can
ask the question about the attitude towards the annihilation of life viewed by different
religions like Hindu, Muslim, Christian, Sikh, Buddhist and Roman Catholic. Though
the purpose of suicide and euthanasia is same i.e., self-destruction but there is a clear
difference between the two. The discussion will include the legal position in India i.e.,
the foundation document like The Constitution of India, The Indian Penal Code and
other laws in vogue, so also the position of different countries of the world. This
research provide for plausibility and scope of legalising euthanasia by analytically
appreciating the status of euthanasia in India. This research also goes into the human
right aspect involved in allowing mercy killing which is another term for euthanasia.
Further, it evaluates its legal and Constitutional position in India by drawing an
analogy with respect to the landmark judgment passed by the Supreme court of India
keeping in mind the recommendations made by the Law Commission of India.
Although the Supreme Court has already given its decision on this point but still we
can touch all the features of the issue which we need to analyze carefully.

3
(2011) 4 SCC 454

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1.2 Hypothesis of the Research

‘Hypothesis’ is derived from two words: ‘HYPO’ means ‘UNDER’, and ‘THESIS’
means an ‘IDEA’ or ‘THOUGHT’. Hence, Hypothesis means 'Idea underlying a
statement or proposition' .The Hypothesis is as follows:

Euthanasia: A Conflict between Life and Death

Though the Indian Constitution grants equality to everyone, either ill or healthy but in
the context of Euthanasia it does not permit to avail voluntary death. Indian law is
based on ‘Ahimsa4’. Voluntary death is taken as an attempt to suicide leading to
criminal offence and has been subjected to criticism, vilification and condemnation.
Passive euthanasia, which is allowed in many countries, has legal recognition in India.
When someone unconscious or of unsound mind and is a terminally sick patient
passive euthanasia can be lawfully granted without his consent.

1.2 Objectives and AIM of the Research

Research is undertaken with a view to arrive at a statement of generality.

Generalizations drawn from the study have certain effects for the established corpus
of knowledge. It may add credence to the existing accepted theory or bring certain
amendments or modifications in the accepted body of knowledge. The discovery of
truth is the foremost object of any research. The researcher acquires knowledge from
the research made or prepared by him/her. It is source of acquiring knowledge or
establishing the truth about a particular thing or object. One of the objectives of
research is to gain familiarity with a phenomenon or to achieve new insights into it.
Thus the objectives of the present research are as follows:

The main goal of the research is to know about the conventions about euthanasia

 To focus upon one the most debated subject i.e. euthanasia and give an oversight
in to the current position of Euthanasia in India

 To study and understand the meaning of brain death

 To study and analyze the premature termination of another person’s life either by
direct intervention (Active Euthanasia) or by withholding life-prolonging
4
Mahatma Gandhi, in Fundamentals of Gandhism (1995) by Anil Dutta Mishra, p. 130

3
 measures and resources (Passive Euthanasia), either at the express or implied
request of that person (Voluntary Euthanasia), or in the absence of such approval
(Non-Voluntary Euthanasia).

 To study the principle of causing the death of a person, who is in a Permanent

Vegetative State (PVS) with no chance of recovery, by withdrawing artificial life-
support is only an ‘ Omission (of support to life) and not an act of killing’

1.4. Importance of the Research

This research will be important from the following point of view:

A) Social Welfare

Social welfare research. This research is to judge the magnitude us of social evils of
euthanasia which can be achieved through socio-legal study of Euthanasia.

B) Law Reforms

There are various tools for law reforms. Research is an important tool for any project
of law reform. So this research may be important from the point of view of law
reforms in relation to Euthanasia.

D) Effectiveness

This research will be helpful in laying down effective policies and principles to make
the law on euthanasia an effective instrument in protecting organization of the
machinery engaged.

1.5 Selection of Research with Reasoning

The researcher has selected this research problem as it has a vested social interest.
Following are the reasons for selection of this research problem:

1) The problems are worth studying and hence need a focused study.

2) This research problem has social and legal significance.

3) This research is of practical importance.

4) This research problem requires solution on complex issues involved.

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5) Availability of resources, literatures, articles helps me in selecting this
research problem.

6) This research problem may furnish a basis for future study.

7) This research problem may meet out social needs of the concerned parties

1.6. Scope of the Research

Euthanasia has its pros and cons. It is discussed country wide. The awareness required
for the subject must be extensive and needs studious approach. Unfortunately it is
minimal on national front; therefore the scope of the research problem is limited to
Indian scenario. The judiciary is the most functional body on the subject. Supreme
Court has acknowledged the distinction between the “Act of Killing” and “Not Saving
One’s Life”. Accordingly, the court also emphasized two distinct types of Euthanasia:
Active Euthanasia and Passive Euthanasia.

This research also extends to:

A) The Constitutional Provisions.

B) The Indian Penal Code

C) National Perspectives of Euthanasia.

The research being a socio legal research is also useful in changing society’s view.
Many complex issues can be addressed through this. The needs of every party
involved can be recognized.

1.7 Research Methodology

Legal research can be classified in various ways. It can be divided on the basis of
nature of data collection, interpretation of already available data, tools of data
connection, purpose and other such criteria. The purposive research is divided as:-

1. Empirical i.e. Non-Doctrinal

2. Non-Empirical i.e. Doctrinal

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For the purpose of this research problem researcher has selected doctrinal research
methodology as many things can only be studied in empirical conditions. Being a
social issue the research has got the status of socio legal research. Hence, the
researcher thinks doctrinal method will hold the research in proper manner.
Researcher has studied the relevant literature available in books, case laws and
internet. Research Methodology is a systematized investigation to gain new
knowledge about the phenomena or problems. But in its wider sense ‘Methodology’
includes the philosophy and practice of the whole research process. On the other
Euthanasia with reference to Aruna Shanbaug’s case provides various guidelines
which would prove to be helpful in completing the purpose of this research.

1.8 Introduction

Euthanasia is mainly associated with people with terminal illness or who have become
incapacitated and don’t want to go through the rest of their life suffering. A severely
handicapped or terminally ill person should have the right to choose to live or die. The
right to choose to live or die should not be a right allocated for bodied individuals of
sound mind but to all human beings .From the moment of his birth, a person is clothed
with basic human rights. Right to life is one of the basic as well as fundamental right
without which all rights cannot be enjoyed. Right to life means a human being has an
essential right to live, particularly that such human being has the right not to be killed
by another human being. Every adult of sound mind has a right to determine what
should be done with his/her person. It is unlawful to administer treatment on an adult
who is conscious and of sound mind, without his consent. Patients with Permanent
Vegetative State (PVS) and no hope of improvement cannot make decisions about
treatment to be given to them. It is ultimately for the Court to decide, as "PARENS
PATRIAE"5 meaning thereby "Parent of the Nation" as to what is in the best interest
of the patient. An erroneous decision not to terminate results in maintenance of the
status quo; the possibility of subsequent developments such as advancements in
medical science, the discovery of new evidence regarding the patient’s intent, changes
in the law, or simply the unexpected death of the patient despite the administration of
life-sustaining treatment, at least create the potential that a wrong decision will
eventually be corrected or its impact mitigated. Every human being desires to live and
enjoy the life till he dies. But sometimes a human being wishes to end his life in the
5
https://doi.org/10.1002/9781118517383.wbeccj351

6
manner he chooses. To end one’s life in an unnatural way constitutes sign of
abnormality. When a person ends his life by his own act we call it “SUICIDE” but to
end a person’s life by others on the request of the deceased, is called
“EUTHANASIA” or “MERCY KILLING”

1.9 Meaning of Euthanasia

Mercy killing is the deliberate production of death of a human being especially in

cases where it is regarded that death would be a preferable alternative to the painful
existence. In today’s world, mercy killing is primarily limited to the acts of doctors
endeavouring to rid their patients of the excruciating pain they are experiencing and
though these doctors, if given a choice would not help in the killing of a patient, they
see no viable alternative. However, the concept of mercy killing has widened due to
the fact that modern technology can actually prolong life and thus, omission of an act
which can prolong life, is also considered a part of mercy killing.6

It is essential to determine the difference, if there is any, between Euthanasia and

Suicide. According to Durkheim, there is hardly any difference between the two
because; he described them as “death resulting directly or indirectly from a positive
or negative act of the victim himself, which he knows will produce this result” 7.As it
can be seen, the mental condition of the patient has not been factored into this
definition and thus, the two can be compared. It is a well known fact that suicide
across various religions is considered to be extremely abhorrent. The society however,
is still divided over mercy killing. The Indian courts have taken a more pragmatic
view of the same and the difference was distinguished by Justice Lodha as,

“Suicide by its very nature is an act of self-killing or self-destruction, an act of

terminating one’s own life and without the aid or assistance of any other human
agency. Euthanasia or mercy killing on the other hand means and implies the
intervention of other human agency to end the life. Mercy killing thus is not suicide
and an attempt thus mercy killing is not covered by the provisions of Section 309. 8

6
Jonathan Moreno ,arguing euthanasia : the controversy over mercy killing, Assisted Suicide and the
right ‘right to die’,1995
7
Eminent sociologist Durkheim described euthanasia in his words
8
Sec 309 of IPC “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”

7
The two concepts are both factually and legally distinct. Euthanasia or mercy
killing is nothing but homicide whatever the circumstances in which it is affected.”9

1.10 Historical Background of Euthanasia

The terms Euthanasia and Assisted Suicide are generally used synonymously. They
are however two different things. One way to distinguish them is to look at the last act
– The act without which death would not occur. Using this distinction, if a third party
performs the last act that intentionally causes a patient’s death, it is Euthanasia. For
example, giving a patient a lethal injection or putting a plastic bag over her head to
suffocate her would be considered euthanasia. On the other hand, if the person who
dies performs the last act, assisted suicide has taken place. Thus it would be assisted
suicide if a person swallows an overdose of drugs that has been provided by a doctor
for the purpose of causing death. It would also be assisted suicide if a patient pushes a
switch to trigger a fatal injection after the doctor has inserted an intravenous needle
into the patient’s vein.No one needs to be hooked up to machines against their will.
Neither the law nor medical ethics requires that "everything be done" to keep a person
alive. Insistence, against the patient’s wishes, that death be postponed by every means
available is contrary to law and practice. It is also cruel and inhumane.10

Worldwide, about a million people commit suicide annually. Suicide and attempted
suicide are not criminalized. Each and every year, in the United States alone, there are
1.5 times as many suicides as there are homicides. And suicide is one of the ten most
common causes of death in Great Britain. Suicide is an all too common tragic,
individual act. Indeed, the Surgeon General of the United States is currently
campaigning to reduce the rate of suicide. Euthanasia and assisted suicide are not
private acts. Rather, they involve one person facilitating the death of another. This is a
matter of very public concern since it can lead to tremendous abuse, exploitation and
erosion of care for the most vulnerable people among us. Euthanasia and assisted
suicide are not about giving rights to the person who dies but, instead, they are about
changing public policy so that doctors or others can directly and intentionally end or

9
Eminent sociologist Durkheim described euthanasia in his words
10
Euthanasia and rights of the terminally ill: Indian perspective, Rini ,M.V. Academy Law Review
2010

8
participate in ending another person’s life. Euthanasia and assisted suicide are not
about the right to die. They are about the right to kill11.

One of the most pressing arguments against euthanasia is that such right would be
available not only to those who are terminally ill but to others too, because of two
reasons – the definition of "terminal" and the changes that have already taken place to
extend euthanasia or assisted suicide to those who aren’t "terminally ill." There are
many definitions for the word "terminal." For example, Jack Kevorkian who
participated in the deaths of more than 130 people before he was convicted of murder
said that a terminal illness was "any disease that curtails life even for a day." Dutch
psychiatrist Dr. Boudewijn Chabot who provided a fatal dose of drugs to a depressed,
but physically healthy, woman, stated, "persistently suicidal patients are, indeed,
terminal." Oregon’s assisted suicide law defines "terminal" as a condition, which will
"within reasonable medical judgment, produce death within six months." A prognosis
of six month to live is also the basis upon which patients qualify for hospice coverage
under Medicare. However, federal officials note that about 10% of patients live longer
than the anticipated six-month life expectancy. The use of a six-month prognosis to
qualify a patient for assisted suicide or euthanasia was challenged in the World
Federation of Right to Die Societies' newsletter as well: The six-month standard "not
only calls on doctors to make an unreliable prediction, but prescribes a pointless time
limit: The longer the life expectancy the greater the patient's suffering. The essential
elements for legislation are that the condition is irremediable by medical treatment
and the suffering is intolerable to the patient." The Dutch who describe "terminal" as a
"concrete expectancy of death," have made no attempt to predict when that concrete
expectancy will be fulfilled. Even a Dutch physician who has carried out euthanasia is
reluctant to say how long the patient might have lived otherwise since "any estimate
of the extent of shortening of life can only be very general" and this has no "absolute
value." Not "terminal" The idea that euthanasia and assisted suicide should only be
practiced if a patient has a terminal condition has never been accepted in the
Netherlands. Under both the previous guidelines and the new law in the Netherlands,
unbearable suffering of either a physical or mental nature has been the factor that
qualifies one for induced death. It appears that not even the prerequisite of subjective
unbearable suffering will be maintained for much longer. Discussion now rests on

11
' Decision near the end of life’ quoted by http:/www.euthanaisaprocon.org

9
whether assisted suicide should be available to elderly people who are healthy but
"tired of life." Dutch Minister of Justice Els Borst has said, "I am not against it if it
can be carefully controlled so that only those people of advanced age who are tired of
life can use it." Assisted suicide for non-terminally ill patients has also been
advocated repeatedly in the United States. In 1994, the influential New England
Journal of Medicine published an article recommending legalization that would
permit assisted suicide not only for individuals who have terminal conditions but also
for those with "incurable debilitating illnesses." Likewise, the Hemlock Society,
citing the fact that many people fear becoming a burden, has publicly supported a
man’s legal attempt to "empower his wife to have a doctor end his life by lethal
injection, without criminal liability, should he be stricken by a debilitating illness." 12
Within two years after the passage of Oregon’s assisted suicide law, a model law was
drafted that would give doctors the right to provide assisted suicide if "the patient has
a terminal illness or an intractable and unbearable illness." A 1995 article in the
journal, Suicide and Life-Threatening Behaviour, concluded that suicide is a rational
choice for those with "hopeless conditions." 13 As defined, "Hopeless conditions
include, but are not necessarily limited to terminal illnesses, severe physical and/or
psychological pain, physically or mentally debilitating and/or deteriorating conditions,
or quality of life no longer acceptable to the individual." In a May 1996 speech to the
prestigious American Psychiatric Association, George Delury -- who portrays himself
as a loving husband who "helped" his non-terminally ill wife die -- suggested that
"hopelessly ill people or people past age sixty just apply for a license to die." He said
that doctors should grant such a license without examination. At a 1998 international
meeting held in Zurich, Switzerland, right-to-die activists issued a declaration calling
for the availability of assisted suicide and euthanasia for those suffering "severe and
enduring distress." A new proposal in South Australia, if approved, would make
euthanasia and assisted suicide available to those who are "hopelessly ill." According
to the "Dignity in Dying Bill 2001": "A person is hopelessly ill if the person has an
injury or illness (A) that will result, or has resulted, in serious mental impairment or

12
Steve Callandrillo, Corralling Kevorkian: Regulating Physician Regulated Suicide In America,
Virginia Journal of Social Policy and the Law, Fall 1999.
13
Diana Brahams, Opinion – Of Life and Death, Law Society’s Guardian Gazette,
(1993) 2 WLR 316.

10
permanent deprivation or consciousness; or (B) that seriously and irreversibly impairs
the person's quality of life so that life has become intolerable to that person."14

The modern evangelists list Euthanasia as one of the most important developments
that helps health care providers to contain costs. These implications were
acknowledged during a historic argument before the U.S. Supreme Court. 15 Arguing
against assisted suicide, acting solicitor general Walter Dellinger said, "The least
costly treatment for any illness is lethal medication." In the United States alone,
millions of people have no medical insurance and studies have shown that the elderly,
the poor and minorities are often denied access to needed treatment or pain control.
Doctors are being pressured by HMOs to reduce care; "futile care guidelines" are
being instituted, enabling health facilities to deny necessary and wanted interventions;
and health care providers are often likely to benefit financially from providing less,
rather than more, care for their patients. Canadians are faced with such long delays
getting treatment in the country’s overcrowded health care system that the Canadian
government has contracted for Canadians to be treated out of the country. Many
British doctors and nurses have concluded that the only way to secure the future of the
National Health Service (NHS) is to make more treatments available only to those
who can pay privately for them. And a survey by the Nuffield Trust and the nurses'
magazine, Nursing Times, found that the NHS is failing to care adequately for
hundreds of thousands of patients who die each year, many without proper care or
pain relief. Savings to governments could become a consideration. Drugs for assisted
suicide cost about $35 to $45, making them far less expensive than providing medical
care.16 This could fill the void from cutbacks for treatment and care with the
"treatment" of death. For example, the Oregon Medicaid program pays for assisted
suicide for poor residents as a means of "comfort care." In addition, spokespersons for
non-governmental health insurance plans have said the coverage of assisted suicide is
"no different than any other covered prescription." Legalized euthanasia or assisted
suicide raises the potential for a profoundly dangerous situation in which the "choice"
of assisted suicide or euthanasia is the only affordable option for some people.

14
Per Rehnquist CJ in Cruzan,497 US at 261,28
15
The state of New York had a statue punishing attempt to suicide. See Wilber larremore, “suicide and
the law” 17 harv L.Rev 331,340(1903-04)
16
Right of the “ alive but has no life at all”-crossing the rubicon from suicide to active euthanasia, by
V.R.jayadevan

11
Legally people cannot be forced into taking Euthanasia as an alternative. Oregon’s
assisted suicide law does not allow anyone to "coerce" or use "undue influence" to
obtain a request for assisted suicide. However, there is absolutely nothing in the
Oregon law to prevent HMOs, managed care companies, doctors or anyone else from
suggesting, encouraging, offering, or bringing up assisted suicide with a patient who
has not asked about it. Emotional, financial and psychological pressures could
become overpowering for depressed or dependent people. If the choice of euthanasia
or assisted suicide is considered as good as a decision to receive care, some people
will feel guilty for not choosing death. The concern about "being a burden" could
serve as a powerful force that could influence the decision. The third annual report on
deaths under the Oregon assisted suicide law illustrates this. In 63% of the deaths
reported, fear of being a burden was expressed as a reason for requesting assisted
suicide. Merely legalizing euthanasia and assisted suicide does not of itself guarantee
a pain free and peaceful death. Official reports in Oregon have not provided
information on problems and complications associated with assisted suicide deaths. If
it were not for occasional news reports and inadvertent disclosures, assisted suicide in
Oregon would seem problem free. However, two particularly troubling accounts have
shattered that image: After Patrick Matheny received his lethal dose of drugs from the
Oregon Health Sciences University via Federal Express, he delayed taking them for
four months. On the day of his death, he experienced difficulty. His brother-in-law,
Joe Hayes, said he had to "help" Matheny die. According to Hayes, "It doesn't go
smoothly for everyone. For Pat, it was a huge problem. It would not have worked
without help." Another assisted suicide that went awry was disclosed by attorney
Cynthia Barrett, an assisted suicide supporter, in December 1999 during a class at
Portland Community College titled, "Physician Assisted Suicide: Counselling
Patients/Clients." According to Barrett, "The man was at home. There was no doctor
there," she said. "After he took it [the drug overdose], he began to have some
physical symptoms. The symptoms were hard for his wife to handle. Well, she [the
wife] called 911. The guy ended up being taken by 911 to a local Portland hospital.
revived in the middle of it and taken to a local nursing facility. I don't know if he went
back home. He died shortly -- some period of time after that time." During the
campaign to legalize euthanasia in Australia’s Northern Territory, supporters painted
pictures of a calm, peaceful death with the patient surrounded by loved ones. The
Australian law (which was later overturned) legalized both euthanasia and assisted
12
suicide. Draft guidelines for its implementation recommended that family members
should be warned that they may wish to leave the room when the patient is being
killed since the death may be very unpleasant to observe. (Lethal injections often
cause violent convulsions and muscle spasms.) Although euthanasia and assisted
suicide remained technically illegal in the Netherlands until 2001, for many years the
Royal Dutch Association of Pharmacy has provided prescribing guidelines to prevent
problems and to increase the efficiency of euthanasia and assisted suicide. Yet there
are still a number of complications and problems reported with such deaths. Even
Dutch euthanasia activists acknowledge these difficulties, stating in their own
euthanasia society publication that, in one out of five cases of euthanasia or medically
assisted suicide, there are problems or complications.17

States which have legalized Euthanasia have done so that this practice can be carried
out under careful guidelines and are reported too, but that is not always the case. For
example, the Oregon law requires the Oregon Health Division (OHD) to collect
information and publish an annual statistical report about assisted suicide deaths.
However, the law contains no penalties for health care providers who fail to report
information to the OHD. Moreover, the OHD has no regulatory authority or resources
to ensure submission of information to its office. Thus, all information contained in
the OHD’s official reports is that which has been provided by the physicians who
prescribed the lethal drugs and only that which the physicians choose to provide. The
OHD even admitted that reporting physicians may have fabricated their versions of
the circumstances surrounding the prescriptions written for patients. "For that matter,
the entire account could have been a cock-and-bull story. We assume, however, that
physicians were their usual careful and accurate selves" when providing information.
Furthermore, even if every physician reported each case and did so accurately, there
would be no way to determine whether the deaths were accompanied with problems
and complications since the Oregon law does not require that a physician be present
when the patient dies. According to the third annual report issued by OHD, physicians
were present at only 52% of reported deaths. In the Netherlands, prior to enactment of
the 2001 law, physicians were assured that they would not be prosecuted for
euthanasia or assisted suicide as long as they followed guidelines and filed a report
after the patient’s death. However, official surveys of Dutch doctors, in which
17
Relevance of Durkheim’s theory of suicide in modern India: challenging existing law.by
Singh ,Preetesh Raman and Chhaba, Ravindra. Criminal Law Journal

13
physicians were granted both immunity and anonymity, revealed that only 41% of
euthanasia and assisted suicide deaths were reported. Cases, which failed to meet
practice guidelines, were most likely to go unreported.

1.10.1. Definition of Euthanasia

'Euthanasia' is a Greek word which is a combination of two words "EU"- good or

well and "THANATOS"- death or 'to die well.' Thus, 'Euthanasia' is defined as the
'Termination of human life by painless means for the purpose of ending physical
suffering. Sometimes, euthanasia is also defined as killing a person rather than ending
the life of a person who is suffering from some terminal illness, also called as 'Mercy
Killing' or 'Killing in the name of Compassion18'.According to J.S. Rajawat,
Euthanasia is putting to death a person who because of disease or extremely old age
or permanent helplessness or subject to rapid incurable degeneration and cannot have
meaningful life19. It may also be defined as the act of ending life of an individual
suffering from a terminal illness or incurable condition, by lethal injection or by
suspension of life support.

1.10.2 Classification of Euthanasia

'Euthanasia' is the termination of an ailing person's life in order to relieve him of the
suffering. In most cases, euthanasia is carried out because the person seeks relief and
asks for it, but there are cases called euthanasia where a person can't make such a
request. Broadly, Euthanasia may be classified according to whether a person gives
informed consent under the following heads:

(A) Voluntary Euthanasia

(B) Non-Voluntary Euthanasia

(C) Involuntary Euthanasia

There is a dispute amid the medical and bioethical literature about whether or not the
non-voluntary killing of patients can be regarded as euthanasia, irrespective of intent
or the patient's circumstances. According to Beauchamp and Davidson consent on the

18
Angkina Saikia, Euthanasia 'Is It Right To Kill' or 'Right To Die', Cr LJ 356.
19
J.S. Rajawat, Euthanasia, Cr 14 321.

14
part of the patient was not considered to be one of the criteria to justify euthanasia 20.
However, others see consent as essential.

(A) Volunttary Euthanasia

When euthanasia is practiced with the expressed desire and consent of the patient it is
called Voluntary Euthanasia. It is primarily concerned with the right to choice of the
terminally ill patient who decides to end his or her life, choice which serves his/her
best interest and also that of everyone else connected to him. This includes cases of:

- Seeking assistance for dying

- Refusing heavy medical treatment

- Asking for medical treatment to be stopped or life support equipment to be

switched off

- Refusal to eat or drink or deliberate fasting.

(B) Non- Voluntary Euthanasia

It refers to ending the life of a person who is not mentally competent to make an
informed decision about dying, such as a comatose patient. The case may happen in
case of patients who have not addressed their wish of dying in their Wills or given
advance indications about it. Instance can be enumerated, like severe cases of accident
where the patient loses consciousness and goes into coma. In these cases, it is often
the family members, who make the ultimate decision. The person cannot make a
decision or cannot make their wishes known. This includes cases where:

- The person is in a coma

- The person is too young (e.g. a young baby)

- The person is absent-minded

- The person is mentally challenged

20
Beaucham Davidson, the Definition of Euthanasia, Journal Medicine and Philosophy, 294 (1979).

15
(C) Involuntary Euthanasia

Involuntary euthanasia21 is euthanasia against someone’s wish and is often considered

as murder. This kind of euthanasia is usually considered wrong by both sides hence
rarely discussed. In this case, the patient has capacity to decide and consent, but does
not choose death, and the same is administered. It is quite unethical and sounds
barbaric. During World War II, the Nazi Germany conducted such deaths in gas
chambers involving people who were physically incapable or mentally retarded.
Euthanasia can be further classified in two regarding its manner. They are Active
Euthanasia and Passive Euthanasia.

1.) Active Euthanasia

It involves painlessly putting individuals to death for merciful reasons. A doctor

administers lethal dose of medication to a patient. Active euthanasia involves the use
of lethal substances and it is where the controversy begins. A person cannot himself
cause his death but requires someone else’s help with some medication causing death.
As already stated above active euthanasia is a crime all over the world except where
permitted by legislation. In India active euthanasia is illegal and a crime under section
302 or at least section 304 IPC. Physician assisted suicide is a crime under section 306
IPC (abetment to suicide).

2.) Passive Euthanasia

Euthanasia is passive when death is caused by turning off the life supporting systems.
Withdrawing life supporting devices from a terminally ill patient which leads
eventually to death in normal course is a recognized norm. In "passive euthanasia" the
doctors are not actively killing anyone; they are simply not saving him 22. Passive
euthanasia requires the withholding of common treatments, such as antibiotics,
necessary for the continuance of life. Passive euthanasia is described when the patient
dies because the medical professionals refrain from doing something necessary to
keep the patient alive, such as:

21
Jackson, Jennifer (2006). Ethics in medicine. Polity. p. 137
22
Aruna Ramchandra Shanbaug v. Union of India, 2011(3) SCALE 298

16
 - Switch off life-support machines

- Disconnect a feeding tube

- Not to carry out a life-extending operation

- Not to give life-extending drugs

1.11 Reasons for Euthanasia

Euthanasia is the intentional death caused by act or omission of a dependent human

being for his or her alleged benefit. There are certain reasons behind advocating
euthanasia. People under circumstances justify its use.

There are various reasons for euthanasia. Some of them are:

(a) Unbearable pain.

(b) Demand of "right to commit suicide"

1.11.1 Unbearable Pain

Patients who suffer from unbearable pain which is beyond treatment or improvement
desire peaceful death. It is life with less dignity or sometimes absence of dignity.
Medical sciences have reached its peak in inventing life saving drugs and treatments.
Numbing the severe pain caused by illness until recovery is acceptable, but depending
on painkillers for the rest of your life is not a welcome choice. If such choice becomes
a necessity of day to day living then the patient tends to develop the tendency towards
putting an end to his life. But death is not a solution on the patient’s troubles.
Sentiments and emotions must not make judgments in such cases. Doctors do not
advocate euthanasia in these circumstances. Passive euthanasia is justifiable in case of
patients with Permanent Vegetative State (PVS)

1.11.2 Demand of “Right to Commit Suicide”

The word right sounds absolute finality in the required choice. Sometimes it is
confused with fundamental right of life granted under Article 21 of the Constitution of
India23. That is not the case here. This is about the procedural right needed on the

23
Article 21 of the Constitution of India, 1950 provides that, “No person shall be deprived of his life or
personal liberty except according to procedure established by law.”

17
patient’s part. The rights of the relatives and medical professionals are also
considered. The terms must not be misunderstood with the right to die in general
sense. In other words, euthanasia is not about the right to die. It's about the right to
bring about someone’s death. Further it is not about giving recognition to the right but
to make legal provisions for smooth and harmonious procedure of conducting
euthanasia. Euthanasia and suicide should not be used together. These terms do not
have common ingredients. Suicide is a sad, individual act. Euthanasia is not about a
private act. It's about letting one person facilitate the death of another.

Conclusion

Considering the developments of medical technology and the vulnerable situation of

an incurable terminally ill patient, it is in the interest of terminally ill patients to
legalize euthanasia in India as (1) Life has intrinsic importance, however, it is
suggested that sanctity of life at least in case of terminally ill patients should not
prevail over the quality of life. The quality of life should be upheld in order to protect
the dignity of terminally ill patients. (2) Quality of life should also be maintained not
only in the clinical decisions but also in the legal perspective. (3) Life should be
protected, but the protection should not result as a forced burden for terminally ill
patients. In exceptional situations terminally ill patients should be allowed to die with
dignity. (4) Right to self-determination allows patient to refuse medical treatment.
But, it should be extended to allow terminally ill patients to die through physicians
assistance if needed. (5) The best interests of the patient should be considered not
only for protection of life but also for allowing to die peacefully when the patient is in
a hopeless health condition.

18
 Chapter-2
MORAL, SOCIAL AND
RELEGIOUS IMPLICATIONS OF
EUTHANASIA
 MORAL, SOCIAL AND RELEGIOUS IMPLICATIONS
OF EUTHANASIA

2.1 Religious Implications of Euthanasia

All faiths offer meaning and explanations for death and dying and all faiths try to find
a place for death and dying within human experience. Death is one of the most
important things that religions deal with. Religions provide understanding and
comfort for those who are facing death. Religions regard understanding death and
dying as vital to finding meaning in human life. Dying is often seen as an occasion for
getting powerful spiritual insights as well as for preparing for whatever afterlife may
be to come.24Most religions disapprove of euthanasia. Some of them absolutely forbid
it. The Roman Catholic Church, for example, is one of the most active organizations
in opposing euthanasia. Almost all religions state that those who become vulnerable
through illness or disability deserve special care and protection, and that proper end of
life care is a much better thing than euthanasia.

2.1.1 The Hindu Sentiment

There are several Hindu points of view on euthanasia. Most Hindus would say that a
doctor should not accept a patient's request for euthanasia since this will cause the
soul and body to be separated at an unnatural time. The result will damage the
KARMA of both doctor and patient. Hindus believe in the reincarnation of the soul
(or atman) through many lives - not necessarily all human. The ultimate aim of life is
to achieve MOKSHA or liberation from the cycle of death and rebirth. A soul's next
life is decided by karma, as the consequence of its own good or bad actions in
previous lives. A soul cannot achieve moksha without good karma 25.Other Hindus
believe that euthanasia cannot be allowed because it breaches the teaching of
AHIMSA (doing no harm).26However, some Hindus say that by helping to end a
painful life a person is performing a good deed and so fulfilling their moral
obligations. Hindus live their lives according to their dharma - their moral duties and

24
Right to die –social and ethical issues vis-à-vis law, AK. Jain .Criminal Law Journal
25
As cited in http://www.bbc.co.uk/religion/ethics/sanctity_life/euthrel.shtml;
26
“… no permanent appearance of happiness and distress and their disappearance in the due course, are
like the appearance of winter and summer seasons….”

19
responsibilities. The dharma requires a Hindu to take care of the older members of
their community.27

There are two Hindu views on euthanasia:

1) By helping to end a painful life a person is performing a good deed and so

fulfilling their moral obligations

2) By helping to end a life, even one filled with suffering, a person is

disturbing the timing of the cycle of death and rebirth. This is a bad thing
to do, and those involved in the euthanasia will take on the remaining
karma of the patient. The same argument suggests that keeping a person
artificially alive on a life-support machines would also be a bad thing to
do However the use of a life-support machine as means of a temporary
attempt at healing would not be a bad thing. Fasting to death, is an
acceptable way for a Hindu to end their life in certain circumstances. It is
only for people who are fulfilled, who have no desire or ambition left, and
no responsibilities remaining in this life. It is really only suitable for
elderly ascetics.

2.1.2 The Sikh Sentiment28

Sikhs derive their ethics largely from the teachings of their scripture, Guru Granth
Sahib, and the Sikh Code of Conduct (the Rehat Maryada). Sikhs have a high respect
for life which they see as a gift from God. Most Sikhs are against euthanasia, as they
believe that the timing of birth and death should be left in God's hands 29.The Sikh
Gurus rejected suicide (and by extension, euthanasia) as an interference in God's plan.
Suffering, they said, was result of the operation of karma, and human beings should
not only accept it without complaint but act so as to make the best of the situation that
karma has given them but this is not absolute. Sikhism believes that life is a gift from
God, but it also teaches that we have a duty to use life in a responsible way. Much of
Sikh moral teaching is devoted to caring for others who are less fortunate. This

27
“…without being attached to the fruits of activities one should act as a matter of duty, for by working
without attachment one attains the Supreme.”
28
As cited in http://www.bbc.co.uk/religion/ethics/sanctity_life/euthrel.shtml.
29
Study of nurse’s attitudes towards euthanasia and its relationship with religiosity and
morality.Roberio, PhilomenaJ .and Bhargava, Mahesh. Indian Journal of Criminology.

20
suggests that the Sikh reaction to situations where people think about euthanasia
would be to provide such good care that euthanasia became an unattractive option.

2.1.3 The Buddhist Sentiment

Buddhists are not unanimous in their view of euthanasia, and the teachings of the
Buddha don't explicitly deal with it. Most Buddhists are against involuntary
euthanasia. Their position on voluntary euthanasia is less clear 30. The most common
position is that voluntary euthanasia is wrong, because it demonstrates that one's mind
is in a bad state and that one has allowed physical suffering to cause mental suffering.

Meditation and the proper use of pain killing drugs should enable a person to attain a
state where they are not in mental pain, and so no longer contemplate euthanasia or
suicide. Buddhists might also argue that helping to end someone's life is likely to put
the helper into a bad mental state, and this too should be avoided. Avoiding harm

Buddhism places great stress on non-harm, and on avoiding the ending of life. The
reference is to life - any life - so the intentional ending of life seems against Buddhist
teaching and voluntary euthanasia should be forbidden. Certain codes of Buddhist
monastic law explicitly forbid it. Buddhists regard death as a transition. The deceased
person will be reborn to a new life, whose quality will be the result of their karma.
This produces two problems. If the next life is going to be even worse than the life
that the sick person is presently enduring it would clearly be wrong on a utilitarian
basis to permit euthanasia, as that shortens the present bad state of affairs in favour of
an even worse one. The second problem is that shortening life interferes with the
working out of karma, and alters the karmic balance resulting from the shortened life.

The Buddha himself showed tolerance of suicide by monks in two cases. The
Japanese Buddhist tradition includes many stories of suicide by monks, and suicide
was used as a political weapon by Buddhist monks during the Vietnam War. 31But
these were monks, and that makes a difference. In Buddhism, the way life ends has a
profound impact on the way the new life will begin. So a person's state of mind at the
time of death is important - their thoughts should be selfless and enlightened, free of
anger, hate or fear. Thus suicide and euthanasia is only approved for people who have
achieved enlightenment and that the rest of us should avoid it.
30
Euthanasia; social science perspective.Minocha, AneeetaA., Mishra, Arima and Minocha.
31
Euthanasia ; A blemish or a bliss, Kaur, Shailender Delhi Judicial Academy Journal

21
2.1.4 The Christian Sentiment32

The Greek Orthodox Archdiocese of America, commenting on the case before the
U.S. Supreme Court in 1996 commented: "The Orthodox Church opposes murder,
whether it be suicide, euthanasia or whatever, and regardless if it is cloaked in terms
like 'death with dignity.' A person contemplating ending it all because of despondency
instead should turn to God for strength and support. The Book of Job serves as a
prime example of how someone overcomes extreme suffering by staying focused on
God."Christians are mostly against euthanasia. The arguments are usually based on
the beliefs that life is given by God, and that human beings are made in God's image.
Some churches also emphasise the importance of not interfering with the natural
process of death. All life is god given and birth and death are law or rule of the life
processes which God has created, so we should respect them. Therefore no human
being has the authority to take the life of any innocent person, even if that person
wants to die. Human life possesses an intrinsic dignity and value because it is created
by God in his own image for the distinctive destiny of sharing in God's own life. To
propose euthanasia for an individual is to judge that the current life of that individual
is not worthwhile and such a judgement is incompatible with recognising the worth
and dignity of the person to be killed. People who have mental or physical handicaps
and patients in a persistent vegetative state, although seriously damaged, remain
living human beings, and so their intrinsic value remains the same as anyone else's.
Thus it would be wrong to treat their lives as worthless and to conclude that they
'would be better off dead'. Therefore arguments based on the quality of life are
completely irrelevant and no person should anyone ask for euthanasia for themselves
because no-one has the right to value anyone, even themselves, as worthless. The
process of dying is spiritually important, and should not be disrupted Many churches
believe that the period just before death is a profoundly spiritual time and they think it
is wrong to interfere with the process of dying, as this would interrupt the process of
the spirit moving towards God. Some features of Christianity suggest that there are
some obligations that go against the general view that euthanasia is a bad thing:

2.1.5 The Roman Catholic sentiment33

32
As cited in http://www.bbc.co.uk/religion/ethics/sanctity_life/euthrel.shtml
33
As cited in http://www.bbc.co.uk/religion/ethics/sanctity_life/euthrel.shtml

22
 “Everyone is responsible for his life before God who has given it to him. It is God
Who remains the sovereign Master of life. We are obliged to accept life gratefully
and preserve it for His honour and the salvation of our souls. We are stewards, not
owners, of the life God has entrusted to us. It is not ours to dispose of."

The Roman Catholic church regards euthanasia as morally wrong. It has always
taught the absolute and unchanging value of the commandment "You shall not
kill".34The church has said that "nothing and no one can in any way permit the killing
of an innocent human being, whether a foetus or an embryo, an infant or an adult, an
old person, or one suffering from an incurable disease, or a person who is dying." The
church regards any law permitting euthanasia as an intrinsically unjust law.
Pope John Paul II has spoken out against what he calls a 'culture of death' in modern
society, and said that human beings should always prefer the way of life to the way of
death. Life is a thing of value in itself. It's value doesn't depend on the extent that it
brings pleasure and well-being. This means that suffering and pain do not stop life
being valuable, and are not a reason for ending life. The church believes that each
person should enter the dying process with all its mysteries with trust in God and in
solidarity with their fellow human beings; they should die with the dignity of letting
themselves be loved unconditionally.

The Roman Catholic church does not accept that human beings have a right to die.
Human beings are free agents, but their freedom does not extend to the ending of their
own lives. Euthanasia and suicide are both a rejection of God's absolute sovereignty
over life and death. A human being who insists that they have the right to die is
denying the truth of their fundamental relationship with God. The church believes that
each human life is a manifestation of God in the world, a sign of his presence, a trace
of his glory. "The life which God offers to man is a gift by which God shares
something of himself with his creature."The church regards it as morally acceptable to
refuse extraordinary and aggressive medical means to preserve life. Refusing such
treatment is not euthanasia but a proper acceptance of the human condition in the face
of death.

2.1.6 The Muslim Sentiment35

34
Study of nurse’s attitudes towards euthanasia and its relationship with religiosity and morality.
Roberio, PhilomenaJ.and Bhargava, Mahesh. Indian Journal of Criminology
35
Study of nurse’s attitudes towards euthanasia and its relationship with religiosity and morality.
Roberio, Philomena J.and Bhargava, Mahesh. Indian Journal of Criminology

23
The Qur'an states: "Take not life which Allah made sacred otherwise than in the
course of justice" An essay on the web page of the Islamic Centre of Southern
California states that "Since we did not create ourselves, we do not own our
bodies...Attempting to kill oneself is a crime in Islam as well as a grave sin. The
Qur'an says: 'Do not kill (or destroy) yourselves, for verily Allah has been to you most
Merciful.' (Quran 4:29)...The concept of a life not worthy of living does not exist in
Islam."

Muslims are against euthanasia. They believe that all human life is sacred because it
is given by Allah, and that Allah chooses how long each person will live. Human
beings should not interfere in this. Euthanasia and suicide are not included among the
reasons allowed for killing in Islam "Do not take life, which Allah made sacred, other
than in the course of justice." (Qur'an 17.33) "If anyone kills a person - unless it be for
murder or spreading mischief in the land- it would be as if he killed the whole
people." (Qur'an 5.32). Allah decides how long each of us will live "When their time
comes they cannot delay it for a single hour nor can they bring it forward by a single
hour." (Qur'an 16.61) "And no person can ever die except by Allah's leave and at an
appointed term." (Qur'an 3.145) Suicide and euthanasia are explicitly forbidden

"Destroy not yourselves. Surely Allah is ever merciful to you." (Qur'an 4.29)

The Prophet said: "Amongst the nations before you there was a man who got a
wound, and growing impatient (with its pain), he took a knife and cut his hand with it
and the blood did not stop till he died. Allah said, 'My Slave hurried to bring death
upon himself so I have forbidden him (to enter) Paradise.' " (Sahih Bukhari
4.56.669)36

2.2 Ethical and Moral Aspects37

Euthanasia firstly drew attention of Indian doctors and sociologists in April 2002,
when the Dutch Parliament legalized it (actually in practice there for two decades)
making the Netherlands the only country in the world to do so. Earlier, Oregon
became the only State in the U.S. to pass the "Death with Dignity Act" in 1997

36
Study of nurse’s attitudes towards euthanasia and its relationship with religiosity and
morality .Roberio, Philomena J.and Bhargava, Mahesh. Indian Journal of Criminology
37
Attempt to commit suicide : from offence to not offence to offence , Thakur Naveen. Criminal Law
Journal

24
enabling patients to administer lethal injections themselves. Here the patient (instead
of doctor) practices euthanasia with legal sanction. In certain cases, there is the seal of
approval too. For instance, recently a U.K. family court granted the right to die to a
43-year old woman, paralysed from the neck downwards, who wanted to have her
ventilator switched off. This is yet another case of granting legal sanction to passive
euthanasia, a judicial exemption to the law of land. Similarly, in Columbia doctors are
not held responsible if they followed terminally ill patient's request for mercy killing.
Among the proponents of euthanasia, Dr. Jack Kevorkian (known as Dr. Death) who
claimed that he had helped more than 130 people die since 1990 is unique. In an
extreme case, he not only administered the lethal injection to Thomas Youk suffering
from a wasting disease, but also made a "60 minute TV programme" of the process.
Terming this as audacious, Judge Jessica Cooper awarded `Dr. Death' 10-25 year
prison sentence for murder in April 1999 under the law of State of Michigan.
Although Dr. Kevorkian styles himself as a crusader comparable to Dr. Martin Luther
King, he had little support from his compeers. The American Medical Association
blamed him for perverting physician-patient relationship, which weakened public trust
in medical profession. People are naturally apprehensive that the ongoing happenings
elsewhere will have a ripple effect in India too 38. Two cases of Indian courts turning
down requests of the patients to die were reported in the year 2001. The Patna High
Court dismissed Tarakeshwar Chandravanshi's plea seeking mercy killing for his
25-year-old wife Kanchan, who had been comatose for 16 months. Again the Kerala
High Court said no to the plea of BK Pillai, who had a disabling illness, to die. In
spite of clear legal mandates, passive euthanasia, although sporadic, is prevalent in
India. Here is an illustrative report from India Today (April 15, 2002) :

"One case was of 59 year-old Neena Bonarji, an international bridge player who was
suffering from progressive lung disease for three years and was being treated at
Delhi's Ganga Ram hospital, had instructed her daughter Nisha Bhambani to put her
off the ventilator when the time came. `When my mother slipped to 100 per cent
supplementary support, we did what she had wished for,' says Bhambani. Within an
hour, Bonarji passed away." Suicide is a legal act that is theoretically available to all.
But a person who is terminally ill or who is in a hospital setting or is disabled may not
be able to exercise this option - either because of mental or physical limitations. In

38
Right to die A critique, Mustafa, faizan, Civil and Military Law Journal

25
effect, they are being discriminated against because of their disability. Should they be
given the same access to the suicide option as able-bodied people have? Although
mercy killing appears morally justifiable (especially in brain dead patients whose
organs can be donated to save other lives) in case of incurable diseases, doctors
should be doubly careful, since they run the risk of attracting punishment for murder
under section 302 of the Indian Penal Code. Dr. P.K. Dave, former director of New
Delhi, emphasized: "even if the relatives insist, we never opt for it." The central
ethical argument for voluntary euthanasia -- that respect for persons demands respect
for their autonomous choices as long as those choices do not result in harm to others
-- is directly connected with this issue of competence because autonomy presupposes
competence. People have an interest in making important decisions about their lives
in accordance with their own conception of how they want their lives to go. In
exercising autonomy or self-determination people take responsibility for their lives
and, since dying is a ending of life, choices about the manner of their dying and the
timing of their death are, for many people, doing of what is involved in taking
responsibility for their lives. Most people are concerned about what the last phase of
their lives will be like, not merely because of fears that their dying might involve
them in great suffering, but also because of the desire to retain their dignity and as
much control over their lives as possible during this phase. The rationale of the more
concrete and traditional moral wisdom; there are means which cannot be justified by
any end; do not do evil that good may come and the statement made by Kant in
opposition to early Utilitarianism: - treat humanity in oneself and others always as an
end and as a means. The technological interventions of modern medicine have had an
effect on how drawn out the dying phase may be. Sometimes this added life is an
occasion for rejoicing, sometimes it may serve to stretch out the period of significant
physical and intellectual decline in such a way as to impair and burden the end of life
so that life comes to be no longer worth living. There is no single, objectively correct
answer, which has application to everyone, as to when, if at all, life becomes a burden
and unwanted. But that simply points up the importance of individuals being able to
decide autonomously for themselves whether their own lives retain sufficient quality
and dignity. In making such decisions individuals decide about the mix between their
self-determination and their well-being that suits them. Given that a critically ill
person is typically in a severely compromised and debilitated state it is, other things
being equal, the patient's judgement of whether continued life is a benefit that must
26
carry the greatest weight, provided always that the patient is competent. 39Suppose it is
agreed that a person's exercise of her autonomy warrants our respect. If medical
assistance is to be provided to help a person achieve her autonomously chosen goal of
an easeful death (because she cannot end her own life), the autonomy of the assisting
professional(s) also has to be respected. The value (or right) of self-determination
does not entitle a patient to compel a medical professional to act contrary to her own
moral or professional values40. If voluntary euthanasia is to be legally permitted it
must be against a backdrop of respect for professional autonomy. Thus, if a doctor's
view of her moral or professional responsibilities is at odds with the request of her
patient for euthanasia, provision must be made for the transfer of the patient's care to
another who faces no such conflict 41.Opponents of voluntary euthanasia have
endeavoured to counter this very straightforward moral case for the practice in a
variety of ways.42

Conclusion

Ethical Theories on Mercy Killing: Utilitarianism and Kantian Application. If

someone has a terminal illness and are in pain, they may seek assisted suicide in
mercy. In this situation, death is unavoidable and their suffering is in vain. The ethical
question is:

Do we kill in mercy to relieve them or is it unethical or immoral to do so?

Most central to this ethical problem is whether killing is okay. Fundamentally, we say
it is not okay to kill another human, but unlike most ethical and moral theories, life
has exceptions. For instance, most people don't blink at the thought of killing at all,
their answer is an absolute "no, it's not okay--ever".

39
Euthanasia : contemporary debates .Singh, Subash Chandra
40
Euthanasia of the red books MukhopadhyaSukumar, Excise Law Times
41
Euthanasia and law ; qadri ,S.M.Afzal Criminal Law Journal
42
Dr. John Wilkinson, Ethics of Euthanasia, Journal of the Law Society of Scotland

27
But what about capital punishment?

It is mostly accepted and just another day when we hear of a convicted murderer
being euthanized. This type of killing falls under retributivism, and is a form of
vindication and closure for the victim's family when a murderer is murdered.

But is that not what it is? Murdering?

We do agree that if someone murdered one of our loved ones, they, too, deserve to
die, correct? Most agree. If that is so, then those in agreement should also agree that
mercy killing is ethical, too. But when someone asks to die, people find it inhumane.

There are two ethical approaches to this dilemma. Kantians and Utilitarians.

A Utilitarian approach to this dilemma would allow the mercy killing only if certain
conditions are met. Utilitarians do not follow divine command, thus they are not
bound by a holy scripture to find guidance. A Utilitarian would weigh the
circumstances and state that the right thing to do is whatever results in the greatest
amount of happiness for the greatest number of people involved. Thus if the person
wanted to die, and less family members objected than those who agreed, the mercy
killing would be ok.

However, if more family members objected than agreed, the Utilitarian would push
the principles of the Utilitarian approach back on the family members to ask what
would result in the greatest amount of happiness. In a mercy killing case, the
unnecessary suffering of a family member that will inevitably result in death is not
choosing to produce the greatest amount of happiness. Thus the conclusion would be
to allow the mercy killing.

A Kantian approach would disagree that mercy killing is the right thing to do as it
would result in a new acceptable behaviour of murdering. Although it, too, excludes
divine command, its theory states whatever you do, you create a universal law. So by
killing you are approving of murder without exception. Kantians don’t believe in
exceptions to creating universal laws. However; the inconsistency here is that
Kantians agree with retributivism.

28
 Chapter-3
LEGAL ASPECTS OF
EUTHANASIA
 LEGAL ASPECTS OF EUTHANASIA

3.1 Legal Aspects of Euthanasia in India

Euthanasia is a highly debated subject amongst other in the legal world. Euthanasia is
"inducing the painless death to a person for reasons assumed to be merciful. There are
four types of euthanasia:

Voluntary and Direct, Voluntary and Direct Euthanasia is chosen and carried out by
the patient.

Voluntary But Indirect, Voluntary but Indirect Euthanasia is chosen in advance.

Direct But Involuntary, Direct but Involuntary Euthanasia is done for the patient
without his or her consent.

Indirect And Involuntary, Indirect and Involuntary Euthanasia occurs when a

hospital decides that it is time to remove life support.

Euthanasia can be traced as far back as to the ancient Greek and Roman civilizations.
It was sometimes allowed in these civilizations to help others die. Voluntary
euthanasia was approved in these ancient societies. As time passed, religion
improved, and life was viewed to be sacred. Euthanasia in any form was perceived as
wrong. A number of legal considerations and implications are involved in the issue of
handling cases of euthanasia. Involvement of the State became obligatory to deal with
the situations leading to death by mercy. In a modern or welfare State, it would
always be the State which can firmly decide about the rights of its people. Whether to
have a comprehensive legal framework for the procedure of euthanasia, or not to
make it legal at all, is totally dependent on the State’s view. This is a basic, grass root
issue in approving euthanasia and its legality. One cannot go on suggesting what the
State or legislature must do about it. The issue of legalizing euthanasia is quite bold
and must be considered critically. Medical and paramedical professionals, human
rights advocates, lawyers, medical patients and their relatives, friends etc. are the
main stakeholders in this issue. Their involvement is vital while giving the issue a
legal and procedural basis. Awareness about euthanasia and its manners are very low
in India. The rural population is quite novel to the problem while the ignorance of

29
urban population is fairly high. Educating people about it is a huge task ahead for the
State and its machineries. Apart from legal problems, the social, ethical and religious
matters need to be addressed. India is a case of population explosion, where basic
needs of the citizens require attention. A literate population can understand the
veracities of the problems offered by the issue. The problem is complex and its
medical and legal consequences are expansive. While suggesting initiative steps one
can offer basic guidelines. It is crucial to realize the State’s intention about legalizing
euthanasia. The present government has taken a step further in accepting the
recommendation of decriminalization of Section 309 of the Indian Penal Code,1860 43
hereinafter IPC but making euthanasia legal is a bold step for a nation like us. We can
suggest that formation of panel consisting of experts who can study the criticalities of
the problem. The panel can make suggestions and offer recommendations. The legal
and medical procedures can be detailed into a draft. Appointment of a regulator can
be considered to look after the whole situation involving euthanasia of a patient. A
referendum can help decide the approval and acceptance of the public in India. The
medical treatments and effects have a large impact on how people view euthanasia.
Malpractices in medical profession like cut practice must be avoided. The opinion of
the Judiciary matters a lot. It has strictly objected to the legality of active euthanasia.
Several dimensions must be strictly observed. To conclude, the machinery involved
must be inspected; drawbacks must be identified and corrected. A discussion on the
manner of conducting euthanasia might be revolting and barbaric for some people.
But a healthy discussion won’t do damage. In India, sophisticated methods can be
used to carry out euthanasia. It is legal to turn off a patient’s life support when the
higher centres of the brain stop working. Patients are allowed to choose passive
euthanasia but cannot choose active euthanasia. Passive euthanasia is when nothing
can be done to prevent death. Active euthanasia is when one deliberately causes
death. One of the main forms of euthanasia is the process of withholding food and
fluids. Many see this as cruelty due to its effects on the patient. It causes nausea,
vomiting, heart problems, depression, dry skin and shortness in breath. As one can see
there are many aspects and issues that make euthanasia controversial.”Controversies
on legalization of euthanasia in Europe and America are continuing. The argument for
legalizing euthanasia is that the individual's freedom entails liberty or choice in all
43
Section 309 of IPC,1860: Attempt to commit suicide: 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

30
matters as long as the rights of any other person are not infringed upon. The argument
against legalizing euthanasia is that it will lead to disrespect for human life.
Euthanasia can then be abused for criminal purposes. A financial motive is sometimes
advanced in favour of euthanasia. It costs money to the family or the government to
keep terminally ill people on life support which will be wastage of resources if they
eventually die.

For the purpose of analyzing euthanasia, 5 principles are recognized by most of the
theorists. These principles are:

(a) The principle of motive, i.e., each action is judged by the intention behind it.

(b) The principle of certainty, i.e., a certainty cannot be voided, changed or

modified by uncertainty.

(c) The principle of injury, i.e., an individual should not harm others or be harmed
by others.

(d) The principle of hardship, i.e., hardship mitigates easing of the rules and
obligations.

e) The principle of custom, i.e., what is customary is a legal ruling.

(A) The Principle of Motive or Intention–

The principle of motive is invoked in three situations:

(1) There is no legal distinction between active and passive euthanasia because
the law considers only the intention behind human actions. The physician who
advises, assists, or carries out euthanasia at the instruction of the patient in full
knowledge of the underlying intention of committing a crime.

(2) The physician involved in euthanasia either as an active participant or an

advisor may have intentions relating to self-interest and not the interest of the
patient or those of religion. These could include trying to get rid of a difficult
medical case cutting costs of intensive and expensive terminal care, or
possible ulterior material, political, or social motive.

31
(3) Members of the family may have the intention of hastening death in order to
inherit the deceased's estate. They may also want to avoid the costs of terminal
care.

Thus, the general principle of the law is to give priority to prevention of evil over
accrual of a benefit. Thus, euthanasia is forbidden because of the potential evil
inherent in it.

(B)The Principle of Certainty-

The principle of certainty is also invoked in three situations:

(1) Definition of death requires that there should be no doubt at all about death, means
there should be complete cardio-respiratory failure. There is no doubt about its
irreversibility. Brain death, partial and complete, is still controversial and it is possible
that new medical technology could reverse brain death. The implication of brain death
is that once a person is declared dead with certainty, the withdrawal of life support
does not constitute homicide and is not a case of euthanasia.

(2) There is doubt about the legality of the living Will because it is made by a person
in perfect health. The same person could have different opinions when he suffering
from terminal or severe illness. It is, therefore, untenable that in the case of euthanasia
the living will is accepted without restriction.

(C) The Principle of Injury-

The principle of injury, asserts that no one should be hurt or cause injury to others.
Decisions on euthanasia hurt patients in their life and health. The family is also hurt
emotionally and psychologically by the death of the patient. The converse argument
could be made that continuation of the pain and suffering of the patient under life
support in terminal care, the emotional and psychological burden on the patient and
the family, and the material costs of expensive terminal care constitute an injury to all
involved. The law requires that any injury should be mitigated to the extent possible.
However, one injury cannot be removed by another injury of similar magnitude. A
lesser injury can be removed by a bigger one but not at the cost of death by
euthanasia.

32
(D) The Principle of Hardship-

The principle of hardship could be invoked wrongly in euthanasia situations. The pain
and suffering of terminal illness are not among the hardships recognized by classical
jurists. In general, in cases of hardship where a clear necessity is established, the
prohibition can be allowed at least temporarily until the hardship is relived. A
necessity is defined in law as what threatens any of the five purposes of the law
namely religion, life, intellect, progeny and wealth. Euthanasia cannot be accepted as
a necessity since it destroys and does not preserve two of the purposes of the law:
religion and life.

(E) The Principle of Custom -

The principle of custom has several applications in euthanasia. Custom is defined as

what is uniform, wide-spread, predominant and not rare. Once a custom is established
it must be accepted until there is evidence to the contrary. Custom has the force of
law. It is invoked in the two situations:

(1) Definition of death is based on custom and precedent. The traditional definition of
cardio-respiratory failure is the only one that fulfils the criteria of custom and will
have to be accepted until a better definition evolves and gains wide acceptance.

(ii) The role of the physician has customarily been known to be preservation of life. It
is, therefore, inconceivable that they could be involved in any form of euthanasia that
destroys life.

Thus, euthanasia like other controversial issues is better prevented than waiting to
resolve its present problems. So there is no legal basis for euthanasia. Physicians have
no right to interfere with the fate which the God decides. Diseases will take its natural
course until death. It is, therefore, necessary that the physicians must concentrate on
the quality of the remaining life and not reversal of death. Life support measures
should be taken with the intention of quality in mind. However, ordinary medical care
and nutrition cannot be stopped. This can best be achieved by the hospital having a
clear and plain public policy on life support without regard to age, gender, religion or
race.

33
3.2 Indian Dimension

The legal position of India cannot and should not be studied in isolation. India has
drawn its constitution from the constitutions of various countries and the courts have
time and again referred to various foreign decisions. In India, euthanasia is
undoubtedly illegal. Since in cases of euthanasia or mercy killing there is an intention
on the part of the doctor to end the life of the patient, such cases would clearly fall
under clause first of Section 300 of the Indian Penal Code, 1860. However, as in such
cases there is a valid consent of the deceased Exception 5 to the above mentioned
Section would be attracted. The doctor or the medical professional would be
punishable under Section 304 of Indian Penal Code, 1860 for culpable homicide not
amounting to murder. But it is only cases of voluntary euthanasia (where the patient
consents to death) that would fall under the Exception 5 provided under Section
300.Cases of non-voluntary and involuntary euthanasia would be struck down by
proviso one to Section 92 of the Indian Penal Code,1860 and thus be rendered illegal.
The law in India is also very clear on the aspect of assisted suicide. Right to suicide is
not a “RIGHT” available in India – It is punishable under the India Penal Code, 1860.
Provision of punishing suicide is contained under sections 305 (Abetment of suicide
of child or insane person), 306 (Abetment of suicide) and 309 (Attempt to commit
suicide) of the said Code. Section 309, IPC has been brought under the scanner with
regard to its constitutionality. Right to life is an important right enshrined in
Constitution of India. Article 21 guarantees the right to life in India. It is argued that
the right to life under Article 21 includes the right to die. Therefore the mercy killing
is the legal right of a person. After the decision of a five judge bench of the Supreme
Court in Gian Kaur v. State of Punjab 44 it is well settled that the “Right to Life”
guaranteed by Article 21 of the Constitution does not include the “Right to Die”. The
Court held that Article 21 is a provision guaranteeing “Protection of Life and Personal
Liberty” and by no stretch of the imagination can extinction of life be read into it. In
existing regime under the Indian Medical Council Act, 1956 45 also incidentally deals
with the issue at hand. Under section 20A read with section 33(m) of the said Act, the
Medical Council of India may prescribe the standards of professional conduct and
44
1996 AIR 946 1996 SCC (2) 648
45
Indian Medical Council Act, 1956 is an Indian legislation. The Act provides for the constitution of the
Medical Council of India (MCI). The MCI regulates standards of medical education, permission to start
colleges, courses or increase the number of seats, registration of doctors, standards of professional
conduct of medical practitioners.

34
etiquette and a code of ethics for medical practitioners. Exercising these powers, the
Medical Council of India has amended the code of medical ethics for medical
practitioners. There under the act of euthanasia has been classified as unethical except
in cases where the life support system is used only to continue the cardio-pulmonary
actions of the body. In such cases, subject to the certification by the term of doctors,
life support system may be removed. A person attempts suicide in a depression, and
hence he needs help, rather than punishment.

The Bombay High Court in Maruti Shripati Dubal v. State of Maharashtra 46

examined the constitutional validity of section 309 and held that the section is
violative of Article 14 as well as Article 21 of the Constitution. The Section was held
to be discriminatory in nature and also arbitrary and violated equality guaranteed by
Article 14. Article 21 was interpreted to include the right to die or to take away one’s
life. Consequently it was held to be violative of Article 21.The High Court of Bombay
in Maruti Shripati Dubal’s case held Section 309 (punishment for attempted suicide)
of the Indian Penal Code (IPC) as violative of Articles 14 (Right to Equality) and 21
(Right to Life) of the Constitution. The Court held section 309 of the IPC as invalid
and stated that Article 21 to be construed to include right to die. In P. Rathinam’s
case, the Supreme Court held that section 309 of the IPC is violative of Article 21 of
the Constitution as the latter includes right to death. The question again came up in
Gian Kaur v. State of Punjab case. In this case a five judge Constitutional bench of the
Supreme Court overruled the P. Rathinam’s case 47 and held that right to life under
Article 21 does not include right to die or right to be killed and there is no ground to
hold section 309, IPC constitutionally invalid. The true meaning of life enshrined in
Article 21 is life with human dignity. Any aspect of life which makes a life dignified
may be included in it but not that which extinguishes it. The right to die if any is
inherently inconsistent with the right to life as is death with life. Recent developments
must be observed here. The Government has decided to decriminalize the section 309
by deleting it from the Indian Penal Code. State governments and 4 union territories
have supported the recommendation of the Law Commission of India.

46
1987 (1) BomCR 499, (1986) 88 BOMLR 589
47
1994 AIR 1844, 1994 SCC (3) 394

35
3.3 Human Rights and Euthanasia

The original concept, grounded in nature and reason, claimed welfare rights are
grounded in the self-creating will, are of variable force and are frequently contentious.
They are not universally applicable and many would be thought absurd and/or
unattainable in many cultures. Natural rights did not come into existence only when or
because they were articulated. If a natural right is genuine, it always existed, even
before it had been discerned. Just claiming them cannot create genuine rights, unless
it can be agreed they have always existed, in nascent. 48This creates new difficulties in
evaluating many of to-day’s complex issues, including some of those related to
advances in medical treatment. First, the subject matter being examined is changed
when ‘What is right?’, where the focus is on the acts of the community of individuals,
is replaced by ‘What are the rights?’ where the focus is on the acts of individuals in
the community. Second, discussion of rights is subject to selective, and therefore
distorted, consideration when only those rights are admitted into the debate which
might help gain a desired outcome. Third, resort to claims of rights is not always, or
even often, the best way to achieve a consensus, protective of the rights of everyone,
not just of certain individuals or groups. These notions will be further discussed later.
After the end of the Second World War, when it had become apparent how
extensively human rights had been lately so abused, the United Nations defined and
proclaimed human rights, in the hope that they would thereby be better understood
and secured. Accordingly, in 1948, the Universal Declaration of Human Rights
declared that ‘the foundation of freedom, justice and peace in the world’ is the
‘recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family’. Further, ‘everyone has the right to life’ and ‘all are
equal before the law and are entitled without any discrimination to equal protection of
the law’. This Declaration was supplemented by more specific proclamations,
including the 1966 International Covenant on Civil and Political Rights, Article 6 of
which states: ‘Every human being has the inherent right to life. Law shall protect this
right. No one shall be arbitrarily deprived of his life’.49

48
“Pros and Cons of euthanasia” P.G. Chavan Criminal Law Journal
49
Should euthanasia be legalized ?Sarabjeet Tanaja, Journal of Constitutional and Parliamentary
Studies

36
Words such as ‘equal’, ‘inherent’, ‘inalienable’, ‘without discrimination’ and
‘arbitrary’ were meant to define the essence of natural rights, particularly that they do
not depend on circumstance or personal preference. Natural rights are not be taken
away and, just as importantly, are not be given away. The right to life is to be
protected by law, invariably and equally, and life is not to be taken for reasons based
on opinion. The right to one’s life is declared to be the fundamental natural right, on
which every other right depends for its existence and its validity50.

When an attempt is made to justify euthanasia by using claims about human rights, it
will be seen how problematical these claims become when they focus only on a single
right, and when that one is of doubtful validity. Wide disparity between doubtful and
genuine rights is not, however, commonly taken to be the prompt for some necessary
exploration of the gap; rather the gap is simply ignored. Paradoxically, assertions of
dubious rights generally go unchallenged, while insistence on respect for genuine
rights may be labelled as evidence of religious or emotional bias. The common
reasons to want legalized euthanasia can be categorized as: seeking the compassionate
relief of pain and suffering, providing protection for doctors who behave
compassionately, showing respect for human rights and assisting in the containment
of health costs. There is a common presumption that there is a ‘right to die’, in the
sense of an autonomous right to choose the time and manner of one’s death, and that
an appeal to this right will be sufficient ground for legalizing euthanasia. There is an
ethical right to die, in the sense of a right to be allowed to die, when one is dying and
it is in one’s interest to die, by discontinuing or not commencing unwanted,
burdensome and/or futile medical treatment, and by providing all necessary comfort.
But this is not what is meant in the context of euthanasia. What is now implied are
claims to new and different grounds, going beyond the wishes of an individual. They
include claims to rights to request another to take one’s life, to respond to that request
by intentionally taking that life, and to justify such killing simply because it was
requested. This is a vastly different position from what is generally understood by
personal autonomy, though this extension is rarely made explicit. A right to have
one’s life taken on request has never been recognized in codes of ethics or the law of
any country. Its assumption conflicts directly with the genuine right to one’s life,
acknowledged and protectively enunciated in the Universal Declaration, to which

50
“Pros and Cons of euthanasia” P.G. Chavan Criminal Law Journal

37
most countries, including Australia, are signatories 51.To those who question the
application of international declarations of human rights to Australian conditions, Mr.
Justice Michael Kirby, now a Judge of the High Court and a leading human rights
campaigner, said: ‘We in Australia, who enjoy so many blessings of nature, history,
law and democratic institutions cannot be entirely cut off from international moves for
the protection of universal human rights. A right to have one’s life taken on request
would conflict with, and overturn, the principle of the criminal law in this as in every
nation that human life that presents no threat to another is inviolable, and that
protection for all innocent life against predation is necessary. A minimal requirement
before removing that protection, therefore, should be a full discussion of all the
consequences of any proposed change52. Could this novel, claimed right to die be
justified, even occasionally, by the rational request of a person, expressing his or her
free choice? If the natural right to one’s life is really inherent and inalienable, that is
not even remotely possible. If, for the sake of discussion, there were a natural right to
be killed on request, it ought to be able to be validated by reasoned argument, it
should always have existed, it must apply equally to all who ask, and it must oblige
respect. The supporters of euthanasia offer no arguments that such a right has always
existed or that it exists now, they do not think it has universal application because
they place limitations on those to whom it would apply, and they are careful to
disclaim that such requests are binding on others. Could euthanasia be justified as a
genuine welfare right, autonomously requested? Some genuine welfare rights do
oblige compliance by others, even without a request. For example, the welfare right of
a patient to be sufficiently informed of the significant risks of proposed medical
treatment does not depend on the patient asking for the information - it is the
responsibility of the doctor to provide it, whether or not there is a request. If the rights
to euthanasia on request were genuine, and a doctor was permitted to take the life of a
patient who asked for it, the doctor would also be justified, and perhaps obliged out of
compassion, in taking the lives of others in similar unfortunate circumstances. This
may apply especially when, for any reason, patients could not ask. It could be thought
discriminatory and unjust to withhold such a benefit, merely because it could not be
requested, if there were also a right to that benefit. While the right itself may not be
51
Should euthanasia be legalized ?Sarabjeet Tanaja, Journal of Constitutional and Parliamentary
Studies

52
“Moral basis for a right to die” SushilaRao

38
established, suppose the power of autonomy were such that the request became valid
in the conditions in which it is usually said to be made. Indeed, it appears that this is
what is often assumed, since autonomy is commonly discussed as though it was about
having whatever is freely, informally and competently requested. But since no one is
owed anything just because they ask, autonomy must have limits53.

What then might those limits be? Leaving that question unasked, let alone
unanswered, is one of the many ways in which the relationship between euthanasia
and rights is confused. Autonomy refers to one’s claim to have what one is entitled to,
short of infringing the valid rights of other individuals or of the community. As one
American philosopher put it: ‘Your right to swing your fist ends at the tip of my
nose’. If autonomy were as unlimited as is commonly supposed when discussing
euthanasia, though it is less common to find it so rigidly interpreted in other contexts,
a competently self-determined request could never be refused, and a competent
request for euthanasia would be justified for any stated reason or none, by any person,
sick or not, at any time. Since the common good is a good for all, not a good for each,
proposals for the legalization of euthanasia must, at the very least, include some
attempt to find a balance between individual choice and the community’s need for
good order, social harmony, and the protection of its vulnerable members. Finding
that balance is especially demanding in a society which places high value on respect
for persons and their autonomy, but the search for balance is frustrated by lack of an
agreed understanding of autonomy. Though the common good presumes moral
concerns for arrangements beyond the individual, these are ignored when exclusive
emphasis is placed on individual autonomy. It is extraordinary that, although at least
two persons are involved in euthanasia, both of whom will have to make an
autonomous decision, only the autonomy of the patient is discussed. The doctor is a
separate moral agent, with autonomous responsibility for his or her own actions,
particularly those with undoubted moral content, but his or her autonomy totally
escapes examination. What makes it extraordinary is that the doctor’s autonomy will
always be more determinative of the fact of euthanasia than the patient’s, since it will
not occur without a consenting doctor. 54This omission conceals two important issues:
first, the means by which the doctor’s decision is reached and second, the great

53
Should euthanasia be legalized ?Sarabejet Tanaja, Journal of Constitutional and Parliamentary
Studies
54
Should euthanasia be legalized ?Sarabjeet Tanaja ,Journel of Contitutional and Parliamentary Studies

39
difference between the doctor and the suffering patient in their capacities to make
autonomous judgments. How might a doctor’s reasons for agreeing to a request for
death be formulated, so as to be objectively tenable? Surely, doctors could not be
permitted to take life simply because they were asked; since nobody would destroy
something they valued, he or she would necessarily have concluded that that life had
lost such value as would require its protection. But there are no objective criteria by
which anyone could reach such a conclusion, and certainly none, which would
indicate when life may be taken. That conclusion could only have been arrived at by
having regard to its low quality at that time, and would presume that value resided in
the circumstances at a particular time, and was not inherent. Since it is not possible to
suppose that all observers, considering the same factors, would reach the same
conclusion, the judgment would relate to the observer’s personal values, expressed as
an opinion. This could not be objectively tested, and being arbitrary, would lack an
essential condition for being just, and being seen to be just. There is no right to
behave unjustly. Patients and doctors do not have equal decision-making capacity.
Patients with life-threatening illness often have greatly impaired capacity to make
rational judgments about complex matters. Potent emotions, such as fear, anguish or
despair, are frequently present, though when they are recognized and treated
adequately by competent doctors, the reason for a request to be killed will often
disappear. To accept requests for death at face value without providing adequate care
would be a form of patient abandonment, by taking advantage of their vulnerability in
such states. In so doing, their autonomy would be abused, in the name of honoring it.
By contrast, the doctor must be presumed to be rationally capable of decision-making,
prepared to have his or her decisions scrutinized, and prepared to take both moral and
legal responsibility for them. A further major difficulty with the discernment of
genuine autonomy in those who are dying concerns the close association between the
sincere wish to be dead and mental illness, present in up to 95% of those who wish to
commit suicide or who request euthanasia. Numerous articles in the literature of
psychiatry reveal that the great majority of patients who desire death during a terminal
illness are suffering from a treatable mental illness, most commonly a depressive
condition. This is not a diagnosis which can easily be made by the average doctor
unless he or she has had extensive experience with depression and suicide, and it is
frequently missed even in those already under medical care.55
55
Euthanasia and rights of the terminally Ill: Indian perspective. M.V.Rini

40
It has been suggested, therefore, that patients will be protected by having a
psychiatrist see every person who requests euthanasia. But it is not so simple, since
only those psychiatrists with extensive experience of terminal illness and suicide will
be sufficiently qualified in this area. Frank Varghese, Professor of Psychiatry in
Brisbane, believes that if these patients were always seen by someone with the
appropriate experience, ‘it is unlikely euthanasia would ever go ahead’. Hendin and
Klerman, American psychiatrists with extensive experience with suicide, comment
that ‘there is still too much we do not know about such patients, too much study yet to
be done before we could mandate psychiatric evaluation for such patients and define
conditions under which assisted suicide would be legal’. Depressive illnesses can be
associated with a number of cognitive changes, including a significant and measurable
decrease in intellectual functioning, diminished concentration, indecision, mild
memory loss and sometimes confusion. In fact, serious debilitating illness of any kind
can cause degrees of confusion and depression. When to these factors is added the
lack of any objective criteria for assessing the degree of mental competence required
for different kinds of decision-making, simple assumptions about the presence of
genuine self-determination evaporate. Yet another problem is the question of external
influence on those who are ill by subtle, undetectable degrees of coercion which
would negate freedom of choice and invalidate autonomy. In its Working Paper
Number 28 of 1982, titled Euthanasia, Assisting Suicide and the Cessation of
Treatment, the Canadian Law Reform Commission described this possibility as ‘a
constant danger’, and one that could not be protected against. The 1994 Report of the
Select Committee on Medical Ethics of the House of Lords concluded ‘It would be
next to impossible to ensure that all acts of euthanasia were truly voluntary, and that
any liberalisation of laws would not be abused’. When these difficulties are taken
together, the conditions necessary for the genuine exercise of autonomy may be
doubtful or absent in an unknown number of requests for euthanasia, possibly the
majority. It is unlikely that these problems could ever be overcome by any
arrangement of words in a draft bill, since they relate to human variables, unable to be
measured or even discerned.56Some of the results of an over-ready resort to claims of
rights in preference to a reasoned exploration of all the issues in dispute, already
mentioned, will now be examined.

56
Death with dignity –international perspective Sharmila ,Indian Socio legal Journal

41
First, discussing individual rights cannot settle questions of right or wrong. Rather, it
is a way of avoiding the issue. It is often said that, in a pluralistic society, what is
ethical or moral is a matter for private determination. Despite that, there is real
community consensus on the morality of most of the actions that are the subject of
criminal law, and even the most liberal libertarians are as keen as others to articulate
their grievance when they feel have been wronged. If, as a society, we cannot agree
that it is wrong to take innocent life, that natural rights need respect and protection,
and that the frailties of mind and body imposed by serious illness render the sick
peculiarly vulnerable to manipulation by others who may resent them for social
reasons, on what can we certainly agree? If we cannot agree on the morality of
anything, then the law can be dispensed with, except in so far as it represents self-
interest or mob rule.

Second, in any discussion of rights, each person may decide which rights they will
enter into the debate, and which they will omit. What may seem to be a fair and
reasonable treatment of an issue is easily distorted when important matters are
omitted. No better example of this can be found than the near-total neglect of the
undoubtedly genuine and equal right of every innocent person to their life, while
highlighting only the asserted, but unproven, novel right to die. By this omission, the
interests of an articulate select group are promoted at the expense of the vulnerable
who will be left to take their chance at the hands of those who, in many instances, are
already known to want some of them dead. Nothing could be more hypocritical or
callous. If the state will not protect the weak, who will?

Third, when the ways are examined in which human rights are commonly promoted,
the powerful are seen to have access to, and influence in, the media where they are
argued. At present, the diminished autonomy of vulnerable groups is regularly taken
advantage of, even as the egalitarian objectives of individual human rights are
articulated. It was the view of the former Australian Human Rights Commissioner,
Mr. Brian Burdekin, from his experience, that the vulnerable sick were already ‘the
most systematically abused and the most likely to be coerced’. Putting sole emphasis
on individual rights has a proven record of breeding hatreds and ignoring the
consequences for society, and of by-passing processes which show due regard for the
interests of every group in the community. 57Sociologists at Flinders University in
57
Death with dignity –international perspective Sharmila ,Indian Socio legal Journal

42
South Australia in 1994 published the results of a survey conducted among doctors
and nurses, about their attitudes and practices regarding euthanasia. The survey
discovered that on half the occasions doctors admitted they had carried out
euthanasia, there had been no patient consent or request. It also uncovered the view of
some of these professionals, the acknowledged guardians of health and life, that poor
quality of life, mental disability and physical handicap should be sufficient reasons for
active euthanasia, whether or not this was requested.

One of the surveyors, who had previously held no particular view on euthanasia, was
moved by these findings to publicly express her disquiet that the very arguments
about human rights used to promote euthanasia are in fact abused by its practice. She
concluded: ‘There is a danger that legalization of active euthanasia, voluntary or non-
voluntary, may expand the potential for further abuses.’ I consider legalization could
undermine the value placed on human life, and erode our sense of security. We need
to ensure that the state continues to protect people.’

Euthanasia cannot be considered without reference to human rights, but all relevant
rights should be included. These will include the rights of every person to their life
and to the standards of health care appropriate to their illness and, where the provision
or quality of that care is demonstrably uneven, to the right to distributive justice to
protect the equal rights of all the sick. No right should be included unless its existence
has been validated beyond question. Up until now Euthanasia has not been considered
as a Human Right but as has already been shown perspectives are changing.

3.4 Suicide v. Euthanasia

Death is a subject that most people are uncomfortable with and refuse to talk about,
but it is a reality that each one of us must face. This is due to the fact that we are
naturally afraid of things that are uncertain and what becomes of us after death is very
uncertain. There are many causes of death; it may be the result of an accident,
malnutrition, a disease, predation, or suicide and euthanasia. Suicide is the act of
killing oneself. It ranks number 13 on the leading causes of death in the world, with
over a million people committing suicide every year. On the other hand, Euthanasia
which is the process of ending a life in order to stop pain and suffering can also fall
into the category of suicide if it is voluntary. Voluntary euthanasia is done with the

43
consent of the patient. The patient will ask the physician to assist him bring about his
death. Also known as assisted suicide, voluntary euthanasia is legal in US States of
Oregon and Washington and in the European countries of Belgium, Luxembourg, the
Netherlands and Switzerland. While the purpose of euthanasia is to end the pain and
suffering of a terminally-ill person, a person that commits suicide can have several
different reasons. Suicide is certainly committed out of despair or mental illness like
depression and it also includes drug abuse and alcoholism. Suicide is voluntary,
means it is the persons' Will to end his life while euthanasia can also be involuntary or
non-voluntary. Involuntary euthanasia is ending a person's life against his Will. Non-
voluntary euthanasia is ending a person's life when he is unable to give his consent as
in the case of child euthanasia. In religious views, both kinds of death are wrong.
Taking one's life is horrified the beliefs and teachings of religion like Christianity. For
them life is sacred and it is an offence towards God to take one's life. However,
Hindus consider it as a part of their culture. Under Muslim law, suicide and
euthanasia are explicitly forbidden. According to them human life is sacred because it
is given by Allah, and Allah chooses how long each person will live. Human beings
should not interfere in this. Jewish law forbids euthanasia and regards it as murder.
There is no exception to this rule and it makes no difference if the person concerned
wants to die. However, if a patient is certain to die, and is only being kept alive by a
ventilator, it is permissible to switch off the ventilator since it is impeding the natural
process of death. It is interesting to note that euthanasia was supported by the ancient
Greek philosophers though they opposed suicide. Many other thinkers say that suicide
is an act of cowardice whereas euthanasia is an act of mercy. The legality of
euthanasia is established by so many countries of the world whereas, suicide is illegal.
Anyone who attempts suicide is strictly punishable under law. Suicide arises from the
lack of motivation to live. It is a harsh and sudden act. On the other hand, euthanasia
is not a sudden and harsh act. It is a philosophical act. It takes place after a thorough
deliberation with the patient and other people concerned. Suicide on the other hand
does not take place after a thorough deliberation. It takes place without consideration.
It takes place without a constructive thought. On the other hand, euthanasia takes
place with a constructive thought.

Lastly, it is important to note that euthanasia is carried out in case of animals as well
as human beings. On the other hand suicide is not applicable to animals. Justice

44
Lodha in Naresh Marotrao Sakhare v. Union of India observed that euthanasia and
suicide are different. "Suicide by its very nature is an act of self-killing or self-
destruction, an act of terminating one's own self without the aid or assistance of any
other human agency". On the other hand euthanasia implies the intervention of other
human agency to end the life. A person commits suicide when he is puzzled or
mentally upset while euthanasia is an act of ending the life of an individual suffering
from a terminal illness of an incurable condition. The Bombay High Court in Maruti
Shripati Dubal’s case58has attempted to make a distinction between suicide and
euthanasia or mercy killing. According to the court the suicide by its very nature is an
act of self killing or termination of one’s own life by one’s act without assistance
from others. But1387. Act not intended and not known to be likely to cause death or
grievous hurt, done by consent.—Nothing which is not intended to cause death, or
grievous hurt, and which is not known by the doer to be likely to cause death or
grievous hurt, is an offence by reason of any harm which it may cause, or be intended
by the doer to cause, to any person, above eighteen years of age, who has given
consent, whether express or implied, to suffer that harm; or by reason of any harm
which it may be known by the doer to be likely to cause to any such person who has
consented to take the risk of that harm euthanasia means the intervention of other
human agencies to end the life. Mercy killing therefore cannot be considered on the
same footing as on suicide. Mercy killing is nothing but a homicide, whatever is the
circumstance in which it is committed.

In Naresh Marotrao Sakhre’s case59 the Bombay High Court also observed that
suicide by its very nature is an act of self killing or self destruction, an act of
terminating one’s own life and without the aid and assistance of any other human
agency. Euthanasia or mercy killing on the other hand means and implies the
intervention of other human agency to end the life. Mercy killing is thus not suicide.
The two concepts are both factually and legally distinct. Euthanasia or mercy killing
is nothing but homicide whatever the circumstances in which it is affected. Herein,
the concept of assisted suicide is also involved, which can be defined as providing an
individual with the information, guidance and means to take his or her own life with
the intention that it will be used for this purpose.

58
MarutiShripatiDubal v. State of Maharastra; 1987 Cri.L.J 743 (Bomb)
59
NareshMarotraoSakhre v. Union of India; 1995 Cri.L.J 95 (Bomb)

45
Conclusion

Medical science is progressing in India as in the rest of the world, and hence currently
we are having devises that can prolong life by artificial means. This may indirectly
prolong terminal suffering and may also prove to be very costly for the families of the
subject in question. Hence, end-of-life issues are becoming major ethical
considerations in the modern-day medical science in India. The proponents and the
opponents of euthanasia and PAS are as active in India as in the rest of the world.
However, the Indian legislature does not seem to be sensitive to these. The landmark
Supreme Court judgment has provided a major boost to pro-euthanasia activists
though it is a long way to go before it becomes a law in the parliament. Moreover,
concerns for its misuse remain a major issue which ought to be addressed before it
becomes a law in our country.

46
 CHAPTER-4
POSITION IN INDIA
 POSITION IN INDIA

4.1 Judicial Aspect

In India, euthanasia is as of yet illegal. Since in cases of euthanasia or mercy killing

there is an intention on the part of the doctor to kill the patient, such cases would
attract Section 300 (1) of the Indian Penal Code, 1860. However, as in such cases
there is the valid consent of the deceased Exception 5 to the said Section would be
attracted and the doctor or mercy killer would be punishable under Section 304 for
culpable homicide not amounting to murder. But it is only cases of voluntary
euthanasia (where the patient consents to death) that would attract Exception 5 to
Section 300. Cases of non-voluntary and involuntary euthanasia would be struck by
proviso one to Section 92 of the IPC and thus be rendered illegal. Euthanasia and
suicide are different, distinguishing euthanasia from suicide, Lodha J. in Naresh
Marotrao Sakhre v. Union of India60, observed:

“Suicide by its very nature is an act of self-killing or self-destruction, an act of

terminating one’s own act and without the aid or assistance of any other human
agency. Euthanasia or mercy killing on the other hand means and implies the
intervention of other human agency to end the life. Mercy killing thus is not suicide
and an attempt at mercy killing is not covered by the provisions of Section 309 61. The
two concepts are both factually and legally distinct. Euthanasia or mercy killing is
nothing but homicide whatever the circumstances in which it is affected.”

The law in India is also very clear on the aspect of assisted suicide. Abetment of
suicide is an offence expressly punishable under Sections 305 and 30662 of the IPC.

Moreover, after the decision of a five judge bench of the Supreme Court in Gian Kaur
v. State of Punjab63 it is well settled that the “right to life” guaranteed by Article 21
of the Constitution does not include the “right to die”. The Court held that Article

60
1995 Cri LJ 96 Bom
61
Sec 309 of IPC “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”
62
Sec 306 of IPC provides, if any person commits suicide, whoever abets for suicide shall be punished
with imprisonment for ten years and fine while section 309 provides that whoever attempts to commit
suicide shall be punished with simple imprisonment for one year or fine or both.
63
AIR 1996 SC 1997

47
2164is a provision guaranteeing “protection of life and personal liberty” and by no
stretch of the imagination can extinction of life be read into it. According to Section
30965 of Indian Penal Code, who ever attempts to commit suicide and does any act
towards the commission of such offence is punishable. Thus section 309 66 of IPC
clearly takes away the right not to live. The constitutional validity of section 309 IPC
has therefore come in for review before various courts. Hon’ble Bombay High Court
in Maruti Sripal Dubal vs. State of Maharashtra 67has considered the issue at length.
It has observed that Article 21 has conferred a positive right to live which carries with
it the negative right not to live as well. In this conviction it is stated that fundamental
rights are to be read together as held in R. C. Cooper Vs Union of India68.

1. The court considered the causes which led people to commit suicide. These
being mental diseases and imbalances, unbearable physical ailments, affliction
by socially dreaded deceases, decrepit physical condition disabling the person
from taking normal care of his body and performing normal chores, the loss of
all senses or of desire extremely cruel and unbearable conditions of life
making it painful to live, a sense of same or disgrace or need to defend once
honour or sense of fulfilment of the purpose for which one was born with
nothing left to do and a genuine urge to quit the world at the proper moment.

2. The Hon’ble court letter considered different kinds of suicides as known to the
society, these being JOHAR (mass suicide or self immolation) committed by
ladies to avoid being dishonoured by the enemy. SATI (self immolation by the
widow on the burning pyre of her deceased husband). SAMADHI (termination
of life by self restraint on breath). PRAYOPAVESHAN (starving unto death)
and ATMA-ARPANA (self sacrifice) saints and savants, social and religious
have immolated themselves in the past and do so even today by one method or
the other and society has not only disapproved of the practice but eulogized

64
Art 21 of Indian Constitution “No person shall be deprived of his life or personal liberty except
according to procedure established by law”
65
Sec 309 of IPC “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”
66
Sec 309 of IPC “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”
67
1987 Cri LJ 743
68
AIR 9170 SC 1318

48
 and commemorate the practitioners. The Hon’ble court while striking section
30969 IPC has distinguished between suicides and mercy killings.

a) The apex court in P. Rathinam Vs Union of India 70has considered whether

article 2171 also includes right not to live. After giving references to a number
of decisions the court observed that ‘Life’ Article 21 means right to live a
human dignity and the same merely does not connote continued drudgery. It
takes within its force some of the finer graces of human civilization which
makes life worth living and that the expanded concept of life would mean,
tradition, culture and heritage of the concerned person.

b) Life in not merely living but living in health. Health is not the absence of
illness but a glowing vitality, the feeling of wholeness with a capacity for
continuous intellectual and spiritual growth. Physical, social, spiritual and
psychological well being are intrinsically interwoven into the fabric of life.
According to Indian philosophy that which is born must die. Death is only
certain thing in life. The next important issue discussed by the apex court is as
to whether a person living in India has a right to die. The court observed in
Para 33 that one may refused to live, if his living is not according to person
concerned worth living or if the riches and fullness of life were not to demand
living further. One may rightly think that having achieved all worldly
pleasures or happiness, he has something to achieve beyond his life. This
desire for communion with god may very rightly lead even a healthy mind to
think that he would forgo his right to live and would rather choose not to live
in any case, a person cannot be forced to enjoy right to life to detriment,
disadvantage or disliking. The apex court in Para 35 summarized that right to
live of which article 2172 speaks can be said to bring in its trail the right not to
live a forced life. The constitution bench of the apex court in the case of Gian

69
Sec 309 of IPC “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”
70
AIR 1994 SC 1846
71
Art 21 of Indian Constitution “No person shall be deprived of his life or personal liberty except
according to procedure established by law”
72
Art 21 of Indian Constitution “No person shall be deprived of his life or personal liberty except
according to procedure established by law”

49
 Kaur Vs State of Punjab73held section 30974 I.P.C. as not violating article 21
of the constitution. The apex court in the above judgment has distinguished
between termination of life as accelerating conclusion of the process of natural
death which has already commenced. In Para 22 the court has observed that a
question may arise in the context of a dying man who is terminally ill or in a
persistent vegetative state that he may be permitted to terminate it by a
premature execution of his life in those circumstances. This category of cases
may fall within the ambit of right to die with dignity as of right to live with
dignity when death due to termination of natural life is certain and imminent
and the process of natural death has began.

The issues involved under euthanasia are:

1. Whether there can be a misuse of the practice- wherein property matters and
inheritance come to light. This can be a hindrance to the spirit of euthanasia.

2. Life is precious and here the ethical principles of life are involved.

In case of minors or mentally retarded persons, the will of the parents can be taken
into account. The earlier mentioned procedure for consent will remain constant. In the
Jain religion, there is provision that considers euthanasia as legal. As the law now
stands, physicians and surgeons who wish, in the interest of compassion and
humanity, to respond to the patient's wishes in a suitable case, are inhibited from
acting in accordance with their conscience for fear that they might be breaking the law
of the land of which they are loyal citizens. It is also possible that a doctor in such a
predicament may be exposed to blackmail. It is therefore necessary that doctors, who
act with care and humanity, must be protected from prosecution and persecution.

The Indian Constitution says that the 'Right to Die' is not a fundamental right under
Article 21. Whether the right to die is included in Article 21 of Constitution came up
for consideration for the first time before the Bombay High Court in The State of
Maharashtra v. Maruti Shripathi Dubal75 .The Court held that the right to life,
guaranteed by Article 21 includes the right to die. Consequently, the Court struck
73
AIR 1996 SC 94
74
Sec 309 of IPC “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”
75
1987 C.L.J 473

50
down Section 30976 IPC, which provides punishment for the attempt to commit
suicide as unconstitutional. The judges felt that the desire to die is not unnatural, but
merely abnormal and uncommon. They listed several circumstances in which people
may wish to end their lives, including disease, cruel or unbearable condition of life,
and a sense of shame or disenchantment with life. They held that everyone should
have the freedom to dispose of his life as and when he desires. The Supreme Court in
P. Rathinam v. Union of India 77, upheld the Bombay High Court's decision.
However, in the case of GianKour v. State of Punjab78, a five judge Constitution
Bench of the Court overruled the P. Rathinam's case and held that 'Right to Life,'
under Article 21 of the Constitution, does not include 'Right to Die' or 'Right to be
Killed.' The Right to Die is inherently inconsistent with the Right to Life. The Court
held that the Right to Life is a natural right, embodied in Article 21. However, suicide
is an unnatural termination or extinction of life and, therefore, incompatible and
inconsistent with the concept of Right to Life. Supporters of euthanasia are of the
opinion that being in a permanent comatose and helpless condition was not at all
beneficial to the patient. IT was held that this concept was unrelated to the 'Principle
of Sanctity of Life' or the 'Right to Live with Dignity'. The Court said that this
argument was of no assistance to determine the scope of Article 21 of the Constitution
while deciding whether the guarantee of 'Right to Life' includes the 'Right to Die. 'The
liberty of a person to be or not to be is the supreme example of a person’s “self
regarding duty” to himself. But a balance has to be made between the interests of the
individual and the society as an individual has a duty towards himself, community,
neighbours, family, friends and the society. It is to protect these interests and to
enforce a duty of the individual to them that Section 309 of the Indian Penal Code 79
was enacted long ago in 1860 under which it is an offence for a person to attempt to
commit suicide. It is eminently reasonable and in accordance with Article 21 if the
Constitution if it is understood to prevent a person from committing suicide with a
view to escape the performance of his duties to himself and to others. But can it be
said that the whole of one’s life is always intended for others? On the contrary one’s
76
Sec 309 of IPC “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”
77
AIR 1994 SC 1846
78
AIR 1996 SC 1847
79
Sec 309 of IPC “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”

51
life is mainly for oneself even though it may also be for others .If therefore a person
has no duties to perform either to himself or to others when he is terminally ill, he
may decide to end his life and relieve himself from the pain of living and the others
from the burden of looking after him. Section 309 80 could not have intended to
comprise this kind of suicide within it.81When others try to prevent such a suicide they
would be acting immorally, if not, illegally .As Mill says” the public with the most
certain indifference, passing over the pleasure or inconvenience of those who conduct
the censure, and considering their only preference”, have no right at all to interfere in
this essentially personal decision of the individual to end his life.82

Such a construction would make Section 309 83 consistent with Article 21 of the
Constitution. If on the other hand Section 309 were to be construed as laying down an
absolute rule that in no case can a person legally attempt to end his own life, it would
be unconstitutional insofar as it interfered with this personal liberty of such person
who is fully justified by circumstances to decide not to live any longer. Acharya
Vinoba Bhave decided to end his own life and was allowed by the guardians of law to
do so. Even the Prime Minister of India who would have very much wished him to
live did not think it fit to use the force of law against his own decision and no action
was taken to forcibly feed him. It is for this reason that prosecutions under Section
84
309 are unheard of. The court made it clear that the 'Right to Life,' including the
right to live with human dignity, would include the existence of such a right till the
end of natural life. This also includes the right to a dignified life up to the point of
death, including a dignified procedure of death. This may include the right of a dying
man to die with dignity, when his life is ebbing out. However, the 'Right to Die' with
dignity at the end of life is not to be confused with the 'Right to Die' an unnatural
death, curtailing the natural span of life. The Court reiterated that the argument to
support the views of permitting the termination of life in such cases (e.g. a dying man,
who is terminally ill and is totally dependent on life support systems), by accelerating
the process of natural death, when it was certain and imminent, was not available to
80
Sec 309 of IPC “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”
81
V. S. Deshpande J.- To be or not to be
82
Ibid
83
Sec 309 of IPC “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”
84
Ibid

52
interpret article 2185 to include the right to curtail the natural span of life. Euthanasia
can never be implemented in a country where there is a clash of ideologies.

4.1.1 Passive Euthanasia Legalised by Hon'ble Supreme Court

Recently in Aruna Ramchandra Shanbaugvs Union of India &Ors86

Judgment delivered by Hon’ble Markandey Katju and Gyan Sudha Mishra J.)

Markandey Katju, J. Quoted:

“MARTE HAIN AARZOO MEIN MARNE KI

MAUT AATI HAI PAR NAHIN AAI”
-MIRZA GHALIB

Writing the judgment, Justice Katju said: “There is no statutory provision in our
country as to the legal procedure for withdrawing life support to a person in PVS or
who is otherwise incompetent to take a decision i.e. (Passive Euthanasia). He said that
passive euthanasia should be permitted in our country in certain situations, and
disagree with statement that it should never be permitted.”

The Bench pointed out that in the absence of a law against sexual harassment at work
places, the Supreme Court in the Visakha case had laid down guidelines. Similarly,
“we are laying down the law in this connection which will continue to be the law until
Parliament makes a law on the subject. A decision has to be taken to discontinue life
support [to a patient in PVS] either by the parents or the spouse or other close
relatives, or in the absence of any of them, such a decision can be taken even by a
person or a body of persons acting as a next friend. It can also be taken by the doctors
attending the patient. However, the decision should be taken bona fide in the best
interest of the patient.”The Bench also said: “If we leave it solely to the patient's
relatives or to the doctors or the next friend to decide whether to withdraw life support
to an incompetent person, there is always a risk in our country that this may be
misused by some unscrupulous persons who wish to inherit or otherwise grab the
property of the patient. Considering the low ethical levels prevailing in our society
85
Art 21 of Indian Constitution “No person shall be deprived of his life or personal liberty except
according to procedure established by law”
86
Writ Petition no. (CRL) 115

53
today and the rampant commercialization and corruption, we cannot rule out the
possibility that unscrupulous persons with the help of some unscrupulous doctors may
fabricate material to show that it is a terminal case with no chance of recovery.”

Distinguishing the difference between Active and Passive Euthanasia the bench said
“An important idea behind the distinction is that in "passive euthanasia" the doctors
are not actively killing anyone; they are simply not saving him. While we usually
applaud someone who saves another person's life, we do not normally condemn
someone for failing to do so. If one rushes into a burning building and carries
someone out to safety, he will probably be called a hero. But if one sees a burning
building and people screaming for help, and he stands on the sidelines -- whether out
of fear for his own safety, or the belief that an inexperienced and ill-equipped person
like himself would only get in the way of the professional fire fighters, or whatever --
if one does nothing, few would judge him for his inaction. One would surely not be
prosecuted for homicide. (At least, not unless one started the fire in the first place.
Thus, proponents of euthanasia say that while we can debate whether active
euthanasia should be legal, there can be no debate about passive euthanasia: You
cannot prosecute someone for failing to save a life. Even if you think it would be
good for people to do X, you cannot make it illegal for people to not do X, or
everyone in the country who did not do X today would have to be arrested”.

“Time for Parliament to delete section 309 of IPC on attempt to suicide”

1. Hon’ble Supreme Court in Aruna Ramchandra Shanbaug vs Union of India 87, the
bench said that “We are of the opinion that although Section 309 88 Indian Penal
Code(attempt to commit suicide) has been held to be constitutionally valid in Gian
Kaur's case, the time has come when it should be deleted by Parliament as it has
become anachronistic. A person attempts suicide in a depression, and hence he needs
help, rather than punishment. We therefore recommend to Parliament to consider the
feasibility of deleting Section 309 from the Indian Penal Code.

2. Writing the judgment, Justice Katju said: “It may be noted that in Gian Kaur's case
although the Supreme Court has quoted with approval the view of the House of Lords

87
Writ Petition no. (CRL) 115
88
Sec 309 of IPC “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”

54
in Airedale's case, it has not clarified who can decide whether life support should be
discontinued in the case of an incompetent person, e.g. a person in a coma or PVS
[Permanent Vegetative State]. This vexed question has been arising often in India
because there are a large number of cases where persons go into a coma (due to an
accident or some other reason) or for some other reason are unable to give consent,
and then the question arises who should give consent for withdrawal of life support.”

4.1.2 Legislative Provisions

Article 2189 of the Constitution of Indian, the question arise, whether right to life
includes in itself right to die? Or the expression “protection to life” does mean
“extinction of life”? or whether the Section 309 90 of IPC is ultra vires of the articles
14 and 21 of the constitution ? Whether right to euthanasia (mercy killing) is a legal
right? In connection to ‘the right to die’ under article 21 of the Constitution of India
and validity of Section 309 of IPC some leading cases are discussed below. The right
to life under Article 2191 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 clamouring for the ‘Right to Die’.

Francis Coralie v. Union of India92, Apex Court of India holds that right to life does
not mean animal existence. Therefore any state of life below the reasonable standard
of human dignitary is not a life and hence liable to be extinguished. Moreover, to keep
a person on persistent vegetative state (PV) is not natural and it only enhances the
agony and suffering of the person who is labouring under the incurable disease. It is
unnatural because it hinders the natural death of the person who would have been died
if he is not supported by the artificial medical instruments. This category of cases may
fall within the realm of the “right to die” with dignity as part of right to live with
dignity. State of Maharastra v. Maruti Sripati Dubal93 in this case ,the question
whether the right to die is included in Article 21 of the Constitution came for
89
Art 21 of Indian Constitution “No person shall be deprived of his life or personal liberty except
according to procedure established by law”
90
Sec 309 of IPC “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”
91
Art 21 of Indian Constitution “No person shall be deprived of his life or personal liberty except
according to procedure established by law”
92
AIR 1978 SC 597
93
1987 Cr. LJ 549

55
consideration first time before the Bombay High Court. The court held that the “right
to life” guaranteed by Article 21 includes a “right to die” and consequently the court
struck down the Section 30994 of the IPC which provides punishment for attempt to
commit suicide by a person as unconstitutional and void. Chenna Jagdeswar v. State
of A.P95the court on the other hand held the right to die is not fundamental right
within the meaning of Article 21 and hence section 309 of IPC is not unconstitutional.
Maneka Gandhi v. Union of India96the world ‘life’ under Art 21 has been construed
as life with human dignity. P. Rathiram v. Union of India97 ,this case ,a Division
Bench of the SC comprising Mr .Justice M. Sahai and Mr. Justice Hansaria in Sripati
Dubal held that a person has e “right to die” and declared unconstitutional Section 309
of Indian Penal Code which makes “attempt to commit suicide” a penal offence. In
Gian Kaur v. State of Punjab 98, a five Judge Constitution Bench of the Supreme
Court has now overruled the P. Rathinam’s case and rightly held that ‘right to life’
under Article 2199 of the Constitution does not include “right to die” or “the right to be
killed”. The right to die is inherently inconsistent with the “right to life” as is death
with life. In furtherance the right to 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. Upholding the validity of Sec 309 100 it
held that is not volatile of Articles 14.19. and 21. 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 affected. The above inference leads 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 sanity of life and the right to life as a whole. This
apart ,the decriminalization of euthanasia is unworkable in the Indian perspective,

94
Sec 309 of IPC “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”
95
1988 Cr. LJ 549
96
AIR 1981 SC 746
97
(1994) 3 SCC 394
98
(1996) 2 SCC 648
99
Art 21 of Indian Constitution “No person shall be deprived of his life or personal liberty except
according to procedure established by law”
100
Sec 309 of IPC “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”

56
even on humanitarian grounds, as it involves a third person Constitutional
Justification-Article 21 is a positive provision which guaranteeing the protection of
life and personal liberty. Right to life and right to die are two opposite ends. It has no
similarity, consistency and compatibility with the other fundamental rights. The word
life has to be construed as life with human dignity. Any aspect of life which makes it
dignified may be read into it but not that which extinguishes it. Section 306 101 and 309
of IPC, Sec 306 prescribes punishment for abetment of suicide. 102 Abetment of
attempt to commit suicide is outside the purview of section 306 and it is punishable
only under section 306103 read with section 107 IPC i.e. abetment of a thing. this
reported decision show that even on conviction under sec309 of IPC in practice the
accused has been dealt with compassion by giving benefit under the Probation of
Offender Act,1958 or 360 Criminal Procedure Code,1973.

In India the apex court in P. Rathinam v. Union of India 104, held that section 309105
of IPC is unconstitutional as it is inhuman and it is necessary to remove section 309 in
order to humanize the criminal law. Also it was held on the same logic as in the Bejoe
mannual case that as in Art 19(1)(a),in Article 21106 also the negative of the positive
right is implicit that is the right to remain silent is implicit in the right to freedom of
speech and expression and similarly the right to die is implicit in the right to life. In
Gian Kaur v. State of Punjab107 5 judges bench J.S. Verma J. delivered judgment. It
was challenged that on the same logic as section 309, section 306 also should be
unconstitutional. The Apex court over ruled the P. Rathinam judgment and held that
the very logic regarding similarity between Art 21 and 19 is incorrect. Article 19
confers the fundamental freedoms to the individuals i.e. the various rights to some
freedom of action, whereas Art 21 is just an acknowledgement of the existence of life
101
Sec 306 of IPC provides, if any person commits suicide, whoever abets for suicide shall be punished
with imprisonment for ten years and fine while section 309 provides that whoever attempts to commit
suicide shall be punished with simple imprisonment for one year or fine or both.
102
Sec 306 of IPC provides, if any person commits suicide, whoever abets for suicide shall be punished
with imprisonment for ten years and fine while section 309 provides that whoever attempts to commit
suicide shall be punished with simple imprisonment for one year or fine or both.
103
Sec 306 of IPC provides, if any person commits suicide, whoever abets for suicide shall be punished
with imprisonment for ten years and fine while section 309 provides that whoever attempts to commit
suicide shall be punished with simple imprisonment for one year or fine or both.
104
( 1994 SC)
105
Sec 309 of IPC “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”
106
Art 21 of Indian Constitution “No person shall be deprived of his life or personal liberty except
according to procedure established by law”
107
(1996 SC)

57
and personal liberty of an individual which cannot be taken away by the State. Life in
particular is not freedom of positive action rather it is because an individual exists.
Since it is not positive action it doesn’t have implied in it the right not to do that
action i.e. if one has the right to live, he cannot have the right to die as implicit in it.
Otherwise also the life of particular individual in the society is not to be seen in
isolation rather it is associated with and the affects the others also and therefore if the
right to die is allowed to individual that may have grave social implications. The
Supreme Court in its latest judgment on April 2011 in Aruna Shanbaug case, has
made clear the things regarding euthanasia in India. In this case in Para 103 the SC
has kind of reverted back to the P. Rathinam judgment. Markendey Katju Justice has
observed that section 309 shall be removed by the Parliament as a person who already
is under suffering and attempts to commit suicide shall not be made to suffer by
punishing him rather such a person needs help from the state. Being a 2 judge bench
in this case, the judge bench decision of Gian Kaur could not be over ruled rather S.C
in this case has upheld the constitutionality of section 309 108. This case was mainly
concerned with law regarding euthanasia mercy killing the court held that euthanasia
can be divided into 2 broad category Active and passive euthanasia. Active euthanasia
is some positive act like giving of poison etc is done i n order to kill that person. Such
euthanasia, it was held be it voluntary or involuntary, that is with the consent or
without the consent of victim will be illegal and punishable unless declared to be valid
by legislation. Passive euthanasia on other hand if the patient is alive only because of
some life support system then the removal of that life support system is what is called
passive euthanasia i.e. the victim is not killed as such rather the artificial support of
life given to the victim is withdrawn. Here in the case of voluntary passive euthanasia
the court held that it is legal as it is done with the consent of victim on the other hand
regarding involuntary passive euthanasia the court held that even though it is lawful,
the adequate safeguards should be followed as it may be misused by the relatives and
others for proprietary gains etc. The court held that unless a legislation is made in that
regard the following guidelines have to be followed- a) for such euthanasia the
concerned person i.e. the near relatives or doctors or the next friend shall make an
application to the chief justice of H.C concerned and the C.J would constitute
108
Sec 309 of IPC “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”

58
forthwith a bench of atleast 2 H.C. Judges. b) this bench would seek the opinion of the
committee of 3 reputed doctors (one doctor should be neurologist, psychiatrist,
physician) the committee shall examine the patient carefully and also should see the
medical report of the patient and consult the hospital staff and then it will submit its
report to the bench. c) the H.C should also served the notice to state and the close
relatives of the patient and in the absence of such relatives notice to the next friend of
the patient. They also should be supplied of the copy of doctors report. d) the H.C
should examine all the above and it come to the conclusion in the best interest of the
patient and the decision shall be speedy.

4.2 New Dimensions in Indian History: Aruna Shanbaug's Case

Aruna Shanbaug109, was a 25 years old nurse, at KEM Hospital and dreaming of
marrying her fiancé - a young doctor colleague. She was sexually assaulted on the
night of November 27, 1973 by a ward boy named Sohanlal Walmiki. He sodomized
Aruna after strangling her with a dog chain. Then he left her lying there and went
away, but not before robbing her of her earrings. Next day, Aruna was discovered by
a cleaner, unconscious, lying in a pool of blood. It was then realized that the assault
and resulting asphyxiation with the dog chain had left her cortically blind, paralyzed
and speechless. She also suffered cervical cord injury. She went into a coma from
where she has never come out. Her family gave up on her. She is cared for by KEM
hospital nurses and doctors for 37 years. The woman does not want to live any more.
The doctors have told her that there is no chance of any improvement in her state. She
faded from public memory until 1998, when journalist Pinki Virani wrote 'Aruna's
Story', a book that brought her back into the public consciousness. The ward boy got a
7 years' sentence for attempted murder and robbery. He was not tried for rape as the
matter of anal rape was then concealed at the time, perhaps fearing social
repercussions on the victim. Her next friend (a legal term used for a person speaking
on behalf of someone who is incapacitated) described Shanbaug: "her bones are
brittle. Her skin is like 'Paper Mache' stretched over a skeleton. Her wrists are twisted
inwards; her fingers are bent and fisted towards her palms, resulting in growing nails
tearing into the flesh very often. She chokes on liquids and is in a PVS (persistent
vegetative state)." So, she through her 'next friend' and lawyer Pinki Virani, decided
to move the Supreme Court with a plea to direct the KEM Hospital not to force feed
109
Aruna Ramchandra Shanbaug v. Union of India, AIR 2011 SC 1290.

59
her. But doctors at KEM hospital don't agree, they say she responds through facial
expressions. Former Dean, KEM Hospital Dr. Pragna Pai says that Aruna is not in
coma. "I used to go and talk to her and when you tell some story, she would start
laughing or smiling or when you start singing some prayers or shlokas, she would
look very quiet and peaceful, as if she is also joining the prayers," said Dr. Pai.
Aruna's case is the focal point of the debate over euthanasia in India. On the one side,
it is the right to live, and the other, death with dignity and the Supreme Court has the
unprecedented and difficult task of deciding on the fate of a victim in a crime
committed 41 years ago. On 17th December, 2010, the Supreme Court of India
admitted the woman's plea to end her life. The Supreme Court Bench comprising
Chief Justice K.G. Balakrishnan, Justice A.K. Ganguly and B.S. Chauhan agreed to
examine the merits of the petition and sought responses from the Union Government,
Commissioner of Mumbai Police and Dean of KEM Hospital.

On 24th January, 2011, Hon'ble Markandey Katju and Gyan Sudha Mishra, J. of the
Supreme Court of India responded to the plea for euthanasia filed by Aruna's friend
Journalist Pinki Virani, by setting up a medical panel to examine her. The three-
member medical committee subsequently set up under the Supreme Court's directives,
checked upon Aruna and concluded that she met "most of the criteria of being in a
PVS." However, it turned down the mercy killing petition on 7th March, 2011. The
Court, in its landmark judgment, however, allowed passive euthanasia in India. While
rejecting Pinki Virani's plea for Aruna Shanbaug's euthanasia, the Court laid down
guidelines for passive euthanasia. According to these guidelines, passive euthanasia
involves the withdrawing of treatment or food that would allow the patient to live.
The judge who says that a CD he reviewed of Ms.Shanbaug shows, "she is certainly
not brain-dead. She expresses her likes or dislikes with sounds and movements. She
smiles when given her favourite food. She gets disturbed when too many people enter
her room and calms down when touched gently". Ms. Virani issued this statement
after his verdict. "Because of the Aruna Shanbaug case 110, the Supreme Court of India
has permitted Passive Euthanasia which means that Aruna's case will worsen with
persistent diarrhoea as her body cannot handle much of that being put through the
pipe; no catheter to catch body fluids and waste matter which excrete themselves;
lengthening response time due to a 'sinking'. But, because of this woman who has

110
Writ Petition (Criminal) No. 115 OF 2009

60
never received justice, no other person in a similar position will have to suffer for
more than three-and-a-half decades."The medical attention they have lavished on Ms.
Shanbaug was praised by the judges in their verdict. Ms. Shanbaug has, however,
changed forever India's approach to the contentious issues of euthanasia. The verdict
on her case today allows passive euthanasia contingent upon circumstances. So other
Indians can now argue in Court for the right to withhold medical treatment - take a
patient off a ventilator, for example in the case of an - irreversible coma. Today's
judgment makes it clear that passive euthanasia will "Only be allowed in cases where
the person is in PVS (persistent vegetative state) or terminally ill."In each case, the
relevant High Court will evaluate the merits of the case, and refer the case to a
Medical Board before deciding on whether passive euthanasia can apply. And till
Parliament introduces new laws on euthanasia, it is Ms. Shanbaugh's case that is to be
used as a point of reference by other Courts.

Recently, in November 2007, a member of Indian Parliament who belongs to the

Communist Party of India introduced a bill to legalize euthanasia to the Lok Sabha.e;
to the Lower House of representative in the Indian Parliament. C.K. Chandrappan, a
representative from Trichur, Kerala, introduced a Euthanasia Permission and
Regulation Bill that would allow the legal killing of any patient who is bed-ridden or
deemed incurable. The legislation would also permit any person who cannot carryout
daily chores without assistance to be euthanatized. "If there is no hope of recovery
fora patient, it is only humane to allow him to put an end to his agony in a dignified
manner111.However, there are number of cases where the High Courts have rejected
the euthanasia petitions. In Bangalore, the High Court has rejected the euthanasia plea
of a 72 years old retired teacher who sought the Court' permission to die. Justice Ajit
Gunjal disposed of H.B. Karibasamma's petition based on reports by neuro-surgical
and psychiatric experts from Nirnhans. The reports said Karibasamma does not suffer
any pain or severe ailment. Her spine is normal and she can get-up without any pain.
Neither does she suffer from any mental disorder."Since she is elderly and fears she
would become disabled in future due to her multiple ailments, and has no family
support, she could be provided psychiatric counselling", the report suggested, nothing
that Karibasamma refused to undergo any further investigation and medication. Based
on the Court's order, doctors examined Karibasamma and referred her to experts at
111
Quoted by Dr. B.K. Rao, Chairman of Sir Ganga Ram Hospital in New Delhi; http://legal
servicesindia.com

61
Nimhans. Karibasamma, who claimed to have suffered slip disc and was bed-ridden
for 10-11 years, had written to local authorities and even the President and Prime
Minister, seeking permission for euthanasia since 2003. Karibasamma claimed that
she was getting only Rs. 8968 as monthly pension in 2010 and it wasn't enough to
meet her medical expenses. Because of her age, doctors have opted for non-surgical
treatment, and the pain she is undergoing is excruciating. However, the High Court
rejected her plea based on reports by neuro-surgical and psychiatric experts that she
does not suffer any pain or severe ailment112.Similarly, the Kerala High Court in C.A.
Thomas Master v. Union of India 113, dismissed the Writ Petition filed by a citizen
wherein he wanted the government to set up "Mahaprasthan Kendra" (Voluntary
Death Clinic) for the purpose of facilitating voluntary death and donation,
transplantation of bodily organs. In 2005, 'Mohd. Yunus' from Kashipur, Odissa
requested the President for euthanasia on the ground that his children were suffering
from incurable disease but the request was rejected. Similarly, a petition filed by Mr.
Tarkeshwar Sinha from Patna was also rejected. In 2004, a two-judge Bench of the
Andhra Pradesh High Court in Suchita Srivastava v. Chandigarh Administration 114
dismissed the writ petition of a 25-year old terminally-ill patient 'Venktesh' who
sought permission to donate his organs in a non-heart beating condition. The High
Court dismissed the writ petition where 'Venktesh' had expressed his wish to be put
off the life support system. Euthanasia is totally different from suicide and homicide.
Under the Indian Penal Code, attempt to commit suicide is punishable under section
309 of Indian Penal Code and also abetment to suicide is punishable under section
306 of Indian Penal Code. A person commits suicide for various reasons like marital
discord, dejection of love, failure in the examination, unemployment etc. But in
euthanasia these reasons are not present. Euthanasia means putting a person to
painless death in case of incurable diseases or when life becomes purposeless or
hopeless as a result of mental and physical handicap. It also differs from homicide. In
murder, the murderer has the intention to cause harm or cause death in his mind. But
in euthanasia although there is an intention to cause death, such intention is in good
faith. A doctor applies euthanasia when the patient, suffering from a terminal disease,
is in an irremediable condition or has no chance to recover or survival as he is

112
http://www. Articles, times of India. corn
113
2000 Cr IJ 3729.
114
Civil Appeal No. 5845 of (2009)

62
suffering from a painful life or the patient has been in coma for 20/30 years like
Aruna Shanbaug. It is evident from the various judgments that the judiciary is not
only reluctant but also cautious about taking steps towards approving euthanasia.
Theirs is a quite model approach, which fair and equitable in certain situations.
Extinguishing a life or giving permission for the same sounds pretty horrific. The
patient or the person concerned who passes all the criteria of living cannot be
subjected to death on the ground of unbearable pain. The Central Government has
taken a decision on decriminalizing the section 309 of the IPC 115. It is a welcoming
step and must applaud. In Aruna Shanbaugh’s case the court has permitted passive
euthanasia but it does not award active euthanasia to Aruna. As it has been already
stated, the issue of legalizing euthanasia is not a simple task. Whatever the parliament,
the executive and the judiciary face regarding its handling is not possible to describe.
India is a diverse country with diverse culture and traditional norms. It is not an
urgently required legislation in India, when other grave matters require government’s
attention and dealing. Demand for euthanasia legislation is not inappropriate or
untimely. There are many medical problems and unethical practices in India which
are prone to violate moral, ethical and humane sides of practice of euthanasia. A
consideration can be given for enacting a law for carrying out euthanasia. But it poses
practical problems. Euthanasia is a process which cannot be applied generally. Every
case is different and thus requires different standards. The conditions and
requirements for carrying out euthanasia are not watertight compartments. Hence, it
should not become an emotional matter. The judiciary in India is quite in its senses,
which studies the issue on case to case basis. No constitutional body can be rushed or
pressurized to legalize euthanasia. The scholars advocating euthanasia suggest that
India can make legislation on the basis of models of the countries with such
legislation. These laws can give us guidelines as what can be done and what must be
avoided. Such laws provide best practices and ethical norms for the medical field. The
argument is valid and it is not impossible to legalize euthanasia in India. The problem
is about the conditions which prevail in India and in such states are not identical. It
would be appropriate to say that ours is a totally different case. The countries which
have legalized euthanasia, are pretty small in case its territory. The population therein
is more literate and is aware about their rights and dangers of euthanasia.
115
309. Attempt to commit suicide.—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 1[or with fine, or with both].

63
Additionally, the machinery in play is sophisticated. Indian population has a larger
portion of illiterates than the literates. The literate population is not much liberal about
euthanasia and might not approve its legalization. We Indians deal with such issues
with sentiments and which cannot override our reasoned decisions. It is better to left
the issue with the judiciary, until we prepare ourselves emotionally and practically to
accept it as part of our life.

4.3 Law Commission's Report

4.3.1 Law Commission of India and Its Recommendation

The Law Commission in its 42ndReport116 recommended the repeal of section 309 of
India Penal Code. The Indian Penal Code (Amendment) Bill, 1978, as passed by the
Rajya Sabha, accordingly provided for omission of section 309. Unfortunately, before
it could be passed by the Lok Sabha, the Lok Sabha was dissolved and the Bill lapsed.
The Commission submitted its 156th Report 117 after the pronouncement of the
judgment in Gian Kaur vs. State of Punjab 118, recommending retention of section 309.
Later the Law Commission in its 210th Report 119 submitted that attempt to suicide
may be regarded more as a manifestation of a diseased condition of mind deserving
treatment and care rather than an offence to be visited with punishment. The Supreme
Court in Gian Kaur focused on constitutionality of section 309. It did not go into the
wisdom of retaining or continuing the same in the statute. The Commission has
resolved to recommend to the Government to initiate steps for repeal of the
anachronistic law contained in section 309, IPC, which would relieve the distressed of
his suffering. This 196th Report120 of the Law Commission on ‘Medical Treatment to
Terminally Ill Patients (Protection of Patients and Medical Practitioners)’ is one of the
most important subjects ever undertaken by the Law Commission of India for a
comprehensive study. This Report is relating to the law applicable to terminally ill
patients (including patients in persistent vegetative state) who desire to die a natural
death without going through modern Life Support Measures like artificial ventilation
and artificial supply of food.

116
http://lawcommissionofindia.nic.in/1-50/Report42.
117
http://lawcommissionofindia.nic.in/101-169/Report156Vol2.
118
1996 (2) SCC 648 : AIR 1996 SC 946
119
http://lawcommissionofindia.nic.in/reports/report210.
120
http://lawcommissionofindia.nic.in/reports/rep196.

64
Various Recommendations Given by the Commission.

1. Obviously, the first thing that is to be declared is that every ‘competent

patient’, who is suffering from terminal illness has a right to refuse medical
treatment (as defined i.e. including artificial nutrition and respiration) or the
starting or continuation of such treatment which has already been started. If
such informed decision is taken by the competent patient, it is binding on the
doctor. At the same time, the doctor must be satisfied that the decision is made
by a competent patient and that it is an informed decision. Such informed
decision must be one taken by the competent patient independently, all by
himself i.e. without undue pressure or influence from others. It must also be
made clear that the doctor, notwithstanding the withholding or withdrawal of
treatment, is entitled to administer palliative care i.e. to relieve pain or
suffering or discomfort or emotional and psychological suffering to the
incompetent patient (who is conscious) and also to the competent patient who
has refused medical treatment.

2. We propose to provide that the doctor shall not withhold or withdraw treatment
unless he has obtained opinion of a body of three expert medical practitioners
from a panel prepared by high ranking Authority. We also propose another
important caution, namely, that the decision to withhold or withdraw must be
based on guidelines issued by the Medical Council of India as to the
circumstances under which medical treatment in regard to the particular illness
or disease, could be withdrawn or withheld. In addition, it is proposed that, in
the case of competent as well as incompetent patients, a register must be
maintained by doctors who propose withholding or withdrawing treatment.
The decision as well as the decision-making process must be noted in the
Register. The Register to be maintained by the doctor must contain the reasons
as to why the doctor thinks the patient is competent or incompetent, as to why
he thinks that the patient’s decision in an informed decision or not, as to the
view of the experts the doctor has consulted in the case of incompetent
patients and competent patients who have not taken an informed decision,
what is in their best interests, the name, sex, age etc. of the patient. He must
keep the identity of the patient and other particulars confidential. Once the

65
 above Register is duly maintained, the doctor must inform the patient (if he is
conscious), or his or her parents or relatives before withdrawing or
withholding medical treatment. If the above procedures are followed, the
medical practitioner can withhold or withdraw medical treatment to a
terminally ill patient. Otherwise, he cannot withhold or withdraw the
treatment.

3. A patient who takes a decision for withdrawal or withholding medical

treatment has to be protected from prosecution for the offence of ‘attempt to
commit suicide’ under section 309 of the Indian Penal Code, 1860 121. This
provision is by way of abundant caution because it is our view that the very
provisions are not attracted and the common law also says that a patient is
entitled to allow nature to take its own course and if he does so, he commits no
offence. Likewise, the doctors have to be protected if they are prosecuted for
‘abetment of suicide’ under sections 305122, 306123 of the Penal Code, 1860 or
of culpable homicide not amounting to murder under section 299 124 read with
section 304 of the Penal Code, 1860125 when they take decisions to withhold or
withdraw life support and in the best interests of incompetent patients and also
in the case of competent patients who have not taken an informed decision.
The hospital authorities should also get the protection. This provision is also
by way of abundant caution and in fact the doctors are not guilty of any of
these offences under the above sections read with sections 76 and 79 of the
121
309. Attempt to commit suicide.—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 1[or with fine, or with both].
122
305. Abetment of suicide of child or insane person.—If any person under eighteen years of age, any
insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide,
whoever abets the commission of such suicide, shall be punished with death or 1[imprisonment for
life], or imprisonment for a term not exceeding ten years, and shall also be liable to fine.
123
306. Abetment of suicide.—If any person commits suicide, whoever abets the commission of such
suicide, shall be punished with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.
124
299. Culpable homicide.—whoever causes death by doing an act with the intention of causing death,
or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge
that he is likely by such act to cause death, commits the offence of culpable homicide.
125
304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable
homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of
either description for a term which may extend to ten years, and shall also be liable to fine, if the act by
which the death is caused is done with the intention of causing death, or of causing such bodily injury
as is likely to cause death, or with imprisonment of either description for a term which may extend to
ten years, or with fine, or with both, 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.

66
 Indian Penal Code as of today. Their action clearly falls under the exceptions
in the Indian Penal Code, 1860. We are also of the view that the doctors must
be protected if civil and criminal actions are instituted against them. We,
therefore, propose that if the medical practitioner acts in accordance with the
provisions of the Act while withholding or withdrawing medical treatment, his
action shall be deemed to be ‘lawful’.

4. We have therefore thought it fit to provide an enabling provision under which

the patients, parents, relatives, next friend or doctors or hospitals can move a
Division Bench of the High Court for a declaration that the proposed action of
continuing or withholding or withdrawing medical treatment be declared
‘lawful’ or ‘unlawful’. As time is essence, the High Court must decide such
cases at the earliest and within thirty days. Once the High Court gives a
declaration that the action of withholding or withdrawing medical treatment
proposed by the doctors is ‘lawful’, it will be binding in subsequent civil or
criminal proceedings between same parties in relation to the same patient. We
made it clear that it is not necessary to move the High Court in every case.
Where the action to withhold or withdraw treatment is taken without resort to
Court, it will be deemed ‘lawful’ if the provisions of the Act have been
followed and it will be a good defence in subsequent civil or criminal
proceedings to rely on the provisions of the Act.

5. It is internationally recognized that the identity of the patient, doctors,

hospitals, experts be kept confidential. Hence, we have proposed that in the
Court proceedings, these persons or bodies will be described by letters drawn
from the English alphabet and none, including the media, can disclose or
publish their names. Disclosure of identity is not permitted even after the case
is disposed of.

6. The Medical Council of India must prepare and publish Guidelines in respect
of withholding or withdrawing medical treatment. The said Council may
consult other expert bodies in critical care medicine and publish their
guidelines in the Central Gazette or on the website of the Medical Council of
India.

4.4 Judicial Approach and Pronouncements in India

67
The Indian Penal Code makes suicide as well as assistance in suicide a punishable
offence with different punishments. With regard to the aspect of euthanasia, the laws
in India do not recognise any such act as euthanasia, and thereby any person killing
another at his request or risk, is bound to commit culpable homicide. The provisions
in law are discussed below:

Section -306 IPC Abetment of suicide - If any person commits suicide, whoever
abets the commission of such suicide, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.

Section - 309 IPC Attempt to Commit Suicide -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.

Section - 92 IPC ACT done IN Good faith for Benefit of A Person without
Consent -Nothing is an offence by reason of any harm which it may cause to a person
for whose benefit it is done in good faith, even without that person’s consent, if the
circumstances are such that it is impossible for that person to signify consent, or if
that person is incapable of giving consent, and has no guardian or other person in
lawful charge of him from who it is possible to obtain consent in time for the thing to
be done with benefit:

68
Provided -

First – That this exception shall not extend to the intentional causing of death, or the
attempting to cause death;

Secondly – that this exception shall not extend to the doing of anything which the
person doing it knows to be likely to cause death, for any purpose other than the
preventing of death or grievous hurt or the curing of any grievous disease or
infirmity;

Thirdly – That this exception shall not extend to the voluntary causing of hurt, or to
the attempting to cause hurt, for any purpose other than preventing of death or hurt;

Fourthly – That this exception shall not extend to the abetment of any offence, to the
committing of which offence it would not extend.

Thus it is conclusive from the above that euthanasia and assisted suicide is absolutely
illegal in India. If a doctor tries to kill a patient, the case will surely fall under Section
300 IPC, 1860. But this is only so in the case of voluntary euthanasia in which such
cases will fall under the exception 5 to section 300 of IPC and thus the doctor will be
held liable under Section 304 of Indian Penal Code,1860 for culpable homicide not
amounting to murder. In case of non voluntary and involuntary euthanasia, such act
would be struck down by the proviso 1 to section 92 of IPC and thus will be rendered
illegal.

(1) Naresh Marotrao Sakhre Vs. Union of India126

The difference and confusion with regard to euthanasia and assisted suicide was first
discussed in the case of Naresh Marotrao Sakhre v. Union of India. Lodha J.
pronounced “Suicide by its very nature is an act of self-killing or self-destruction, an
act of terminating one’s own act and without the aid or assistance of any other human
agency. Euthanasia or mercy killing on the other hand means and implies the
intervention of other human agency to end the life. Mercy killing thus is not suicide
and an attempt at mercy killing is not covered by the provisions of Section 309. The
two concepts are both factually and legally distinct. Euthanasia or mercy killing is
nothing but homicide whatever the circumstances in which it is affected.”

126
1995 Cri LJ 96 Bom

69
(2) P. Rathinam Vs. Union of India127

The question that arose before the Supreme Court bench in this case was whether
section 309 is violative of article 14 and 21 of the constitution. In this case, the
conflicting decisions given by various High Court benches, with regard to section 309
being violative of article 14 and 21 of the Constitution of India were discussed. The
court quoted the following conflicting judgments to view the question whether section
309 if Indian Penal Code violated fundamental rights.

(3) State Vs. Sanjay Kumar Bhatial128

In which the Court was seized with the question as to whether the investigation of the
case under Section 309 should be allowed to continue beyond the period fixed by
Section 368 CR.P.C was as under:

“It is ironic that Section 309 IPC still continues to be on our Penal Code. Strange
paradox that in the age of votaries of Euthanasia, suicide should be criminally
punishable. Instead of the society hanging its head in shame that there should be such
social strains that a young man (the hope of tomorrow) should be driven to suicide
compounds its inadequacy by treating the boy as a criminal. Instead of sending the
young boy to psychiatric clinic it gleefully sends him to mingle with criminals. The
continuance of Section 309 IPC is an anachronism unworthy of a human society like
ours. Medical clinics for such social misfits certainly but police and prisons never.
The very idea is revolting. This concept seeks to meet the challenge of social strains
of modem urban and competitive economy by ruthless suppression of mere symptoms
this attempt can only result in failure. Need is for humane, civilised and socially
oriented outlook and penology. No wonder so long as society refuses to face this
reality its coercive machinery will invoke the provision like Section 309 IPC which
has no justification to continue to remain on the statute book.”Thus, the judgment of
the Delhi High Court, favoured the repeal of section 309 being violative of the
fundamental rights.

127
1994 AIR 1844, 1994 SCC (3) 394
128
1 1985 Cri LJ 931 :(1985) 2 DMC 153 (Del) 402

70
(4) Maruti Shripati Dubal Vs. State of Maharashtra129

In which the Bench, on being approached for quashing a prosecution launched against
the petitioner under Section 309 of the Penal Code on the ground of
unconstitutionality of the section, took the view and that the section was ultra vires
being violative of Articles 14 and 21 and was therefore struck down. We would note
the reasons for the view taken later. Close on the heels was the decision of a Division
Bench of Andhra Pradesh High Court in Chenna Jagadeeswar v. State of A.P in which
on the High Court being approached against the conviction of the appellants under
Section 309, inter alia, on the ground of the section being violative of Articles 14 and
21 of the Constitution, the Bench held that the section was valid as it did not offend
any of these articles. The Bombay view was dissented to; the reasons of which also
we shall advert to later. Construing Article 21 in broader sense, the court states that if
a person has a right to live, question is whether he has right not to live. The Bombay
High Court stated in paragraph 10 of its judgment that as all the fundamental rights
are to be read together, as held in R.C. Cooper v. Union of India what is true of one
fundamental right is also true Of another fundamental right. It was then stated that is
not, and cannot be, seriously disputed that fundamental rights have their positive as
well as negative aspects. For example, freedom of speech and expression includes
freedom not to speak. Similarly, the freedom of association and movement includes
freedom not to join any association or move anywhere. So too, freedom of business
includes freedom not to do business. It was, therefore, stated that logically it must
follow that the right to live will include right not to live, i.e., right to die or to
terminate one's life.

The Supreme Court dealt with a plethora of material, case precedence, law
commission report and the observation with regard to suicide related criminal
liabilities in other common law countries. Thereafter it came to the conclusion that,
Section 309 of the Penal Code deserves to be effaced from the statute book to
humanise our penal laws. Article 21 of the constitution also has positive elements and
not just negative elements to it. Thus, this is a cruel and irrational provision, and it
may result in punishing a person again (doubly) who has suffered agony and would be
undergoing ignominy because of his failure to commit suicide. Then an act of suicide
cannot be said to be against religion, morality or public policy, and an act of
129
1987 Cri LJ 743

71
attempted suicide has no baneful effect on society. Further, suicide or attempt to
commit it causes no harm to others, because of which State's interference with the
personal liberty of the persons concerned is not called for. Thus, section 309 of the
Indian Penal Code stood ultra vires, the constitution being violative of Article 21 i.e.
the right to life. But this judgment was soon overturned in the case of Smt. Gian Kaur
v State of Punjab.

(5) SMT. Gian Kaur V. State of Punjab130

The appellants Gian Kaur and her husband Harbans Singh were convicted by the Trial
Court under Section 306, IPC for abetting the commission of suicide by Kulwant
Kaur. They appealed against their conviction under section 306 IPC for abetment of
suicide. The appellants also contended that section 306 was unconstitutional. They
cited the decision of the Supreme Court itself in P. Rathinam v Union of India, where
the learned division bench of the court stated section 309 of IPC to be violative of
article 21 of the constitution. Urging that ‘right to die’ should be included in article
21, it stated that if section 309 of IPC (Attempt to commit Suicide) can be declared as
illegal as being infringing upon the fundamental right to life, then section 306 IPC
(Abetment of suicide) is also violative as being restrictive in assisting the enforcement
of fundamental right under article 21. This argument, it is urged, is alone sufficient to
declare that Section 306, IPC also is unconstitutional being violative of Article 21 of
the Constitution. One of the points directly raised is the inclusion of the `right to die'
within the ambit of Article 21 of the Constitution, to contend that any person assisting
the enforcement of the `right to die' is merely assisting in the enforcement of the
fundamental right under Article 21 which cannot be penal; and Section 306, IPC
making that act punishable, therefore, violates Article 21.For coming to such
conclusion, emphasis was given to the interpretation of fundamental rights both in
their positive and negative aspects. Thus, a right to live will also give a right to due, as
discussed in the previous case. From that the court concluded that the earlier decision
was reached on the basis that if a person has a right to live, he also has a right not to
live. The decisions relied on for taking that view relates to other fundamental rights
which deal with different situations and different kind of rights. In those cases the
fundamental right is of a positive kind, for example, freedom of speech, freedom of
association, freedom of movement, freedom of business etc. which were held to
130
1996 AIR 946, 1996 SCC (2) 648

72
include the negative aspect of there being no compulsion to exercise that right by
doing the guaranteed positive act. But the court observed that it does not flow from
those decisions that if the right is for protection from any intrusion thereof by others
or in other words the right has the negative aspect of not being deprived by others of
its continued exercise e.g. the right to life or personal liberty, then the converse
positive act also flows there from to permit expressly its discontinuance or extinction
by the holder of such right. In those decisions it is the negative aspect of the right that
was invoked for which no positive or overt act was required to be done by
implication. This difference in the nature of rights has to be borne in mind when
making the comparison for the application of this principle. The court held that when
interpreted as stated above, article 21 of the constitution guarantees protection of life
and liberty and thus, by no stretch of imagination it can be extended to include
extinction of life within it. With regard to section 309 IPC being violative of Article
14 of the Constitution of India by being a barbaric piece of legislation in not
differentiating between the seriousness of attempts, the court came to the conclusion
that the argument was not withstanding.

As regarding the question of section 306 IPC (Abetment of Suicide) is concerned, the
court came to the conclusion that such is not violative of any provision of the
fundamental right. The reason for that being is that the abettor is viewed differently,
inasmuch as he abets the extinguishment of life of another persons and punishment of
abetment is considered necessary to prevent abuse of the absence of such a penal
provision. The court further added that, Abetment of suicide or attempted suicide is a
distinct offence which is found enacted even in the law of the countries where
attempted suicide is not made punishable. Section 306 IPC enacts a distinct offence
which can survive independent of Section 309 in the IPC. Thus, the court overturned
the verdict of P. Rathinam and upheld section 306 and 309 to be constitutionally
valid.

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 CHAPTER-5
CONCLUSION AND SUGGESTIONS
 CONCLUSION AND SUGGESTIONS

5.1 Conclusion

Effective therapeutic treatment is possible with these patients. Compassionate

counselling and assistance, which are provided in hospitals as well as psychological
care, can prevent a patient to chose death. Euthanasia should never be implemented.
Legalization of it would only give way to numerous conflicts. It looks down on
several facts and most of all it is against God. What euthanasia only does is create
sinners. People will violate laws and worst of all kill themselves and fellow human
beings. If euthanasia is legalized it will definitely be equal to legalizing homicide. The
basic aims of criminal law are to provide equal protection and Justice for every citizen
and to prevent the weak. Additionally, the consent of the victim is by legal tradition
no defence to a crime. After discussing several different aspect regarding the matter,
answer be no, because it is against the law of humanity. But in rarest of the rare cases
where we don’t have any medical treatment and the patient is experiencing lot of pain
and he/she does not want to live any more, mercy killing could be permitted. This is
so because why should a person who any how is going to die be not allowed to end
his life. But it should be permitted only on his consent. If he is unable to give his
consent it becomes a difficult matter. Then legislators would have to handle the case
very carefully. So at last it could be said that “euthanasia” can be legalized. But in
special circumstances and to legalize it in India special conditions should be
applied ,otherwise it could bring many side effects like in depression or frustration
people will begin to ask the right to die.

Euthanasia is like a 'will', made by a person when he is hale and hearty, just as the
will which deals with property and inheritance. Any person, who is competent in the
eyes of the law, should be allowed to make a will. This will should be made in front
of two witnesses, stating his desire to die in case of terminal illness. He should also
state that his decision can be revoked by him at his own will at any given time in the
future. It should not be binding on him that he must exercise his right to die in case of
a terminal illness. He should have the option of revoking such a decision at any given
point in the future. A person should be given the choice to decide the time and place
of his death.It could be exaggerating to say that the issue of legalizing euthanasia is

74
over and there is hope of putting it into an enactment in the near future. Making a law
is not a solution on every problem we face in day to day life. Mercy killing is not a
common situation but quite a rare condition. One in thousands situation medical
practitioners come across cases of patients with chronic conditions, where euthanasia
is considered. It is not a common case. Taking into account euthanasia in case of a
patient with PVS state is practical but that does not happen with every such case.
Evaluating every case in here is not practical and won’t serve the purpose of the
research. It is important to assess the practical task behind legalizing euthanasia in
India. Countries where euthanasia is legal in all aspects, the practice of the same has
turned into a convention. The mechanism has seen a long span of time tackling
obstacles and setting new norms. It is not the situation that the practice is full proof
and without loopholes in those nations. During that period the nations and their
citizens have gone through a radical change in the medical field as well as human
perspective. It has developed the mindset of the whole community towards forming
the opinion about choosing death over life. This understanding has flowed through
generations now, which is pretty much revolutionary.

What India needs is the maturity to handle the issue and understanding its pros and
cons thoroughly. The requirement of having legislation on euthanasia depends on the
intensity of number of patients with terminal illness and the gravity of such situations.
It is not commonly accepted in India. What a situation would demand in future and
what would be its repercussions are matter of unknown reality. Indian population has
not developed the healthy potential required for legalizing active euthanasia.

After the Gian Kaur’s case, suicide has become illegal per se, but the same could not
be said for euthanasia. Recently the judgment of our Supreme Court in Aruna
Ramchandra Shanbaug v. Union of India legalized the passive euthanasia and
observed that passive euthanasia is permissible under supervision of law in
exceptional circumstances but active euthanasia is not permitted under the law. In
view of the discussion above I believe that voluntary euthanasia should also be
allowed in India and that the legislature should step in and make a special law dealing
with all the aspects of euthanasia. So we need a law to legalize euthanasia with
adequate safeguards. The recommendations laid down in the Reports of Law
Commission of India and guidelines given in the Aruna’s case are to be taken into

75
consideration when any law on that point is to be framed to prevent the malpractices
and misuse of euthanasia. Besides, if the suggestions laid down above are
implemented then the chances of misuse of euthanasia would be greatly
reduced.Individual's life by making it continue even at the cost of unbearable pain and
suffering for both the patient and the patients family.. There can be no constant
defining principles which can guide us through this decision; the decision will depend
upon the facts of each case.

5.2 Suggestions

The following suggestions are to be made on the issue of Euthanasia:

1. Euthanasia should be accepted as Human right, because if the individual is not

able to live with human dignity, the life has no value. Hence, euthanasia
should be permitted subject to legal framework supported by public opinion.
2. Since, the Medical Science also support the Mercy killing, thus it should be
permitted.
3. By legalizing the euthanasia, the natural death of the individual who is
suffering from irrecoverable disease can be made easier.
4. There should be a Constitutional Body including Medico-Legal representative
in deciding the case of mercy killing. Such a body should examine the case
circumstances and gravity before referring the case to court for legal
permission for mercy killing.
5. The land laws should be amended according to requirement of the society
keeping in view of the modern socio-legal dimension in the modern world.
Law has to adopt the liberal attitude. It is true that it poses a great challenge
before the law but there is solution for everything. Law is made for the
society, not the society is made for law.
Hence restoring dignity, quality of life and give people back control over their
lives is far better than fatal injections. Rather than opting for short cut to relief
we must try and expand our medical researches and knowledge in health
sphere. When life is weak, full of depression and pain that life is most
deserving of tender care. We must care for life and not end life. Euthanasia
supporters declare that the life of a patient with an incurable disease is not
anymore worth living. In contrast, a life not worth living does not exist. Thus

76
 a life full of respect and concluded by a respectful death is the right of every
individual.
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 my opinion, a quasi-judicial officer be appointed by the appropriate authority under
the proposed statute to supervise all cases of euthanasia within a feasible territory.
Such officer must be reasonably well versed with the nuances of medical science. Any
doctor who feels that his patient’s request to die should be fulfilled would report such
a case to the said supervising officer. The supervisor would then interview the patient
to satisfy himself whether the request is free, voluntary and persistent. The supervisor
would also then refer the case to a minimum of two other experienced doctors to get
their opinion on the case. If both the doctors so referred feel that the patient is beyond
recovery, that there is no alternate treatment available and that death would be a more
suitable option for him then the supervisor would inform the patient’s relatives about
the patient’s request and the doctor’s opinion. Finally, the supervisor would issue a
certificate allowing the doctor to let the patient die. Such certificate would also have
to bear the signatures of the two doctors to whom the case was referred and of the
legal guardian of the patient who would, after a talk with the patient, certify that the
consent of the patient was not obtained by force. In the end, we would do well to
remember the following words of Mahatma Gandhi:

“Death is our friend, the truest of friends. He delivers us from agony. I do

not want to die of a creeping paralysis of my faculties — a defeated man.”131

131
By Mahatma Gandhi

77
BIBLIOGRAPHY

78
 BIBLIOGRAPHY

BOOKS:

 KI Vibhute, PSA Pillai’s Criminal Law, 13th edition, 2017, Lexis Nexis

 Dr. J.N. Pandey, Constitutional Law of India, 45 th edition, 2008, Central Law
Agency

 V.N. Shukla & Singh, M. P., Constitution of India, 13th edition, 2017
Lucknow: Eastern Book Co.

 Ratanlal and Dhirajlal , The Code of Criminal Procedure,1973, 22nd edition,

2017, Lexis Nexis

STATUTES:

 The Constitution of India,1950

 Indian Penal Code,1860
 Criminal Procedure Code,1973

ARTICLES CONSULTED AND REFERRED:

 Marya Mannes, "Euthanasia v. Right to Life, "Baylor Law Review", 2017.

 Angkina Saikia, "Euthanasia "Is it Right to kill" or "Right To Die", Cri LJ

2016

 J.S. Rajawat, Euthanasia, Cri LJ, 2017

 Sarah Boseley, Call for non-consent euthanasia, the Guardian, 2018

 Damin Keown, "End of Life: The Buddhist View", Lancet, 2018

 Joseph Fletcher, "Infanticide and the ethics of loving concern, 2018

 JM Appeal, "Neo-natal Euthanasia: Why Require Parental Consent?”Journal

of Bioethical Inquiry, 2017

BOOKS AND REPORTS CONSULTED AND REFERRED:

 20th Century Encyclopedia

 Report of the AVMA Panel on Euthanasia, 2017
 Brian Polland, Human Rights and Euthanasia, 2016
 196th Report of Law Commission of India, (2010) 17th Ed.

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PERIODICALS:

 AIR
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 Criminal Law Journal
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