Life, everyone would agree, is the most precious gift. Yet there are times when living becomes extremely difficult. There are situations when people wish they were dead or had never been born. Suicide seems to be the only way out. More so when a person is terminally ill and eagerly seeks death for relief from pain and misery. Under the Constitution, right to life is considered as the most important fundamental right. “No person shall be deprived of his life or personal liberty except according to procedure established by law,” reads Article 21.
Thus, the Supreme Court has held that the right to life guaranteed under the Article 21 includes the Right to Live with Human Dignity. Now the question arises: Has a person who is confined by a disease or disorder and is too crippled to lead an independent life, requiring assistance of another person to sustain his life the Right to Die by virtue of his Right to lead a Dignified Life under Article 21? The apex court’s answer to it has so far been negative.
A constitution bench, Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, on October 11 re-clarified that Right to Life does not mean right to die. It, however, said that a dignified life would certainly include right to die with dignity, as advance directive would take effect once a medical board affirms that the patient comatose state is irreversible. “One cannot say that you have a right to die, but you have a right to dignified death. If we recognise the right to dignity in death, then why not dignity in dying,” the bench observed, adding that life must be preserved but not prolonged in suffering.
The Supreme Court bench also hinted that it might recognise the execution of ‘living will’ in cases of passive euthanasia, as right to die peacefully is part of fundamental right to life under Article 21 of the Constitution. The apex court, however, said there should be adequate safeguards and implementation of living will would be subject to medical board’s certifying that the patient’s comatose state is irreversible.
It has been decided that every district should have a medical board whose duty will also be to decide the validity of the living will — a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express informed consent. The decision of the board, whose preliminary duty will be to ensure that there is enough reason to pull the plug on a dying person, will be final. Thus, the medical board needs to be extra cautious. “A person suffering from terminal illness should be granted the decisional autonomy to state that he no longer wanted to be under continued treatment, especially in a country like India where medical facilities are woeful and often prolong a person’s suffering even if he is not clinically certified as dead. This autonomy should be treated as part of a person’s right to die with dignity, which a previous constitution bench held as being a part of the right to life under Article 21,” said senior counsel Prashant Bhushan, appearing for petitioner NGO Common Cause, as he stressed on the need of “iron-clad” safeguards while deciding on a life support withdrawal of a patient. The issue concerning Right to Die initially came before the Bombay High Court in the case of State of Maharashtra v. Maruty Sripati Dubal. In this case, the court held that the Right to Life includes the Right to Die and declared Section 309 of Indian Penal Code, 1860 which makes attempt to suicide as punishable offence, unconstitutional. This was followed by the Supreme Court in the case P. Rathinam vs. Union of India and Anr wherein the court the court held Section 309, IPC as unconstitutional as it is violative of Article 21 of the Constitution. In this case it was held that Right to Die is included in Article 21 of the Constitution. But the same court in Gian Kaur vs The State of Punjab held that, Section: 309 of IPC is not violative of Article: 21 and the right to die is not a part of the right to life. The court held that Article 21 guarantees the protection of life and personal liberty and by no exaggeration can extinction of life be included in protection of life. The Supreme Court stated that: “Right to life is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of right to life”.
Separately, the apex court had recognised passive euthanasia in 2011 in Aruna Shanbaug’s case in which it had permitted withdrawal of life-sustaining treatment from patients not in a position to make an informed decision. She had been in a permanent vegetative state for more than two decades when the court passed the judgement. While the court declined to intervene in her case, its general guidelines came into force. The Supreme Court held that passive euthanasia is allowed in certain conditions but only on approval by the High Court following the due procedure. An application for passive euthanasia must be filed before the Chief Justice of the High Court. On
receipt of such application, the Chief Justice of the High Court should constitute a Bench of at least two Judges with discretionary powers over the approval of the application. The Bench should obtain the opinion of a committee of three reputed doctors, nominated by the Bench after consulting with medical authorities/medical practitioners. The High Court Bench must issue notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, and supply a copy of the report of the doctor’s committee to them. The High Court bench would give their verdict after hearing the contentions.
The government, on its part, is finalising a draft law on passive euthanasia called ‘The Management of Patients With Terminal Illness — Withdrawal of Medical Life Support Bill’, which has been drawn up in line with the recommendations of the Law Commission of India that life support can be withdrawn for patients in persistent vegetative state or suffering an irreversible medical condition. The Centre, however, has objection to legalising the concept of ‘living will’. It pointed out that this may lead to the abuse and neglect of the elderly, especially if they were financially well-off. Additional Solicitor General PS Narasimha, on behalf of the Centre, has opposed recognition of ‘living will’ ,saying the consent for removal of artificial support system given by a patient may not be an informed one and without being aware of medical advancements. The government is of the view that the living will is a concept which contradicts a person’s instinctive urge to survive. Besides, the Ministry of Health and Family Welfare has, in an affidavit filed in January 2016 before the apex court, had refused to legalise ‘active euthanasia’, saying it would lead to potential misuse and is practised in “very few countries worldwide”.
The 241st report of the Law Commission, which stated that passive euthanasia should be allowed with certain safeguards, may go a long way in making Right to Die a fundamental right. Till then, withdrawal of supporting devices to sustain cardio-pulmonary function even after brain death, shall be decided only by a doctors’ team and not by the treating physician alone.