SC Permitted Passive Euthanasia & Living Will as well as Right To Die, a Fundamental Right
Author : Abhishek Mishra ; 12 March 2018 Lucknow
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Legal Position of Euthanasia In India after Supreme Court's 2018 Verdict [Download in PDF Form....]
Follow on : Email | Facebook | Twitter | Linkedin
Legal Position of Euthanasia In India after Supreme Court's 2018 Verdict [Download in PDF Form....]
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| Euthanasia |
Introduction :
Euthanasia means
Intentional ending a life to relieve pain and suffering. In India the
legalization of euthanasia is directly related with the question that whether
"Right to life and Personal liberty" enumerated under Art. 21 of the
Indian Constitution includes right to die or not? Art. 21 enumerates that in
India no one should be deprived of his life and liberty unless the procedure
established by law provides. Here in case of euthanasia deprivation life
of a person depends at the whim of another i.e. "in euthanasia a third
person is either actively or passively involved about whom it may be said that
he aids or abets the killing of another person."
Thus here be have to
examine does it (euthanasia) would be permissible in our legal system or not?
If Yes!... Then what would be a "procedure established by law" for
its appropriate operation.
Hon’ble Supreme Court
Defined term Euthanasia as-
Euthanasia as the meaning of words suggest is an
act which leads to a good death.
Some positive act is necessary to
characterize the action as Euthanasia.
Euthanasia is also commonly called “assisted suicide” due
to the above reasons.[1]
Whether Right to die
is included in Art. 21 : Conflict before Hon'ble Supreme Court-
The question whether
Right to die is included in Art. 21 of the Constitution came for consideration
for the 1st time before Bombay High court in State of Maharashtra v.Maruty Sripati Dubal 1987. In this case Bombay High Court held that the
right to life guaranteed under Art. 21 includes a Right to die.
On the other hand the
Andhra Pradesh High Court in Chenna Jagdeeswar v. State of AndhraPradesh,1988 held that the right to die is not a fundamental right
within the meaning of Art. 21.
In P. Rathinamv. Union of India a division bench of the Supreme Court agreeing with
the view of the Bombay High Court in Maruti Sripati Dubal case held that a
person has a "Right to die". Holding view that, a person can not
beforced to enjoy right to life to his detriment, disadvantage or disliking.
The court announced its judgement but considering beyond the scope of issue at
present, rejected the plea that "euthanasia (mercy killing) should be
permitted by law."
Latter in 1996, in
case of Gian Kaur v. State of Punjab 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 Art. 21 of the Constitution does not
include right to die or right to be killed."
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| whether Euthanasia is legal in India? |
Aruna
Ramchandra Shanbaugh case : A Landmark Verdict on Euthanasia-
Aruna RamchandraShanbaugh v. Union of India, 2011 was the milestone in which Hon'ble Supreme Court permitted
Passive Euthanasia and laid down various guiding principles for its operation.
Facts if the case
were- Aruna RamchandraShanbaugh (a staff nurse in King Edward Memorial Hospital, Parel Mumbai) was
attacked on 27th Niv 1973 by a sweeper in the hospital by wrapping a dog chain
around her neck. She was sodomised and due to strangulation by the dog chain,
the supply of oxygen yo the brain stopped and her brain got damaged. Aruna's
parents were dead and her close relatives had no interest in her since she had
unfortunate assault on her.
She was in persistent
vegetative State from last 36 years when a writ petition was filed by Ms. Pinki
Virani of mumbai claiming to be the next friend of Aruna Ramchandra Shanbaugh
with a prayer for direction to the respondent to stop feeding and let Aruna die
peacefully.
Supreme Court
Permitted Passive Euthanasia for the first time as-
Regarding the
withdrawal of life support to a person in PVS or who was otherwise incompetent
to take a decision in this connection, the Hon'ble Supreme Court in a two
judges bench decision (i.e. Aruna Ramchandra Shanbaugh v. Union of India) laid
down the law of Passive Euthanasia to continue till the law made by parliament
on the subject.
Supreme Court's
Guideline for Euthanasia in Aruna R. Shanbaugh case-
In Aruna Ramchandra's
case while permitting the passive euthanasia Supreme Court issued it's
guideline, for exercising euthanasia as follows-
1. A decision has to be taken to discontinue
life support 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.
2. Even if a decision is taken by the near
relatives or doctors or next friend to withdraw life support, such a decision
requires approval from the High Court concerned.
3. When such an application is filled the Chief
Justice of the High Court should forthwith constitute a Bench of at least two
Judges who should decide to grant approval or not. A committee of three reputed
doctors to be nominated by the Bench, who will give report regarding the
condition of the patient. Before giving the verdict a notice regarding the
report should be given to the close relatives and the State. After hearing the
parties, the High Court can give its verdict.
Government of India
endorsed and re-validated passive Euthanasia Judgement -
Concluding Remark- At present Passive Euthanasia[8] is permitted in India which shall be exercised within the scope of the Directives[9] which were framed by Hon'ble Supreme Court in Common Cause (A Regd. Society) v. Union of India anothers, 2018. The earlier Aruna Ramchandra Shanbaugh's case was the first step taken by Indian Judicial system towards euthanasia.
treatment by a patient who is competent to take decision as well as with
regard to a patient who is not competent to take decision can be termed
as passive euthanasia, which is lawful and legally permissible in this country.
On December 23, 2014,
Government of India endorsed and re-validated the Passive
Euthanasia judgement-law as founded in Aruna R. Shanbaugh case in a Press Release, after stating in the Rajya Sabha as follows: that The Hon'ble
Supreme Court of India in its judgment dated 7.3.2011 [WP (Criminal) No. 115 of
2009], while dismissing the plea for mercy killing in a particular case, laid
down comprehensive guidelines to process cases relating to passive euthanasia.
Thereafter, the matter of mercy killing was examined in consultation with the
Ministry of Law and Justice and it has been decided that since the Hon'ble
Supreme Court has already laid down the guidelines, these should be followed
and treated as law in such cases. At present, there is no proposal to enact
legislation on this subject and the judgment of the Hon'ble Supreme Court is
binding on all. The Health Minister,J P Nadda stated this in a written reply in
the Rajya Sabha.
Right
To Die With Dignity A Fundamental Right, Supreme Court allowed Passive
Euthanasia and Living Will : SC's Verdict 2018 –
The Supreme Court on 9
March 2018 invoking it's inherent power under Art. 142 of
the Constitution held that right to die with dignity is a Fundamental Right.
The Five Judges[2]
Constitution Bench headed by CJI Dipak Mishra, declared that Passive Euthanasia
and a Living Will[3] also valid. The Bench held
that the right to live with dignity also includes the smoothening of the
process of dying in case of a terminally ill patient or a person in Persistent
Vegetative State with no hope of recovery. [4]
While delivering it's Judgment
the Five Judges Bench now unanimously held that the two-Judge Bench in Arun
Shanbaug had wrongly ruled that passive euthanasia can be made lawful
"only by legislation" through an erroneous interpretation of the
judgment in Gian Kaur. Recognizing passive euthanasia, it observed, "an
adult human being having mental capacity to take an informed decision has right
to refuse medical treatment including withdrawal from life-saving
devices."[5]
A person who executes a directive may revoke the document at any stage before
it is acted upon and implemented.[6]
What is existing
Juriprudence in various countries on Euthanasia :[7]
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| Global Position of Euthanaia |
But Now, In case of Common Cause (A Regd. Society) v. Union of India anothers, on 9 March 2018, when the Supreme Court allowed advance directives (“living will”)3 in healthcare, it was with the proviso that the “directives have been issued in exercise of the power conferred by Article 142 of the Constitution and shall continue to hold the field until a suitable legislation is enacted by Parliament to govern the area”.
[2] Five Judges Bench : Chief Justice of India Dipak Misra; Justice
A.K. Sikri,; Justice A.M. Khanwilkar; Justice D.Y. Chandrachud ; Justice
Ashok Bhushan.
[3] See
Appendix Note-II
Appendix**
·
·
What are living wills:
v
Where individuals can express their wish at a prior
point in time, when capable of making informed decisions, regarding their
medical treatment in the future, when they may not be able to make an informed
decision.
v
Exercise of the right to refuse treatment and the right
to die with dignity
Who can make a living will: Anybody can. SC’s judgment allows living wills to be executed for the terminally ill. So you can make a living will that’ll be in force in future if at the time you suffer from a terminal illness and cannot take a decision.
Who can make a living will: Anybody can. SC’s judgment allows living wills to be executed for the terminally ill. So you can make a living will that’ll be in force in future if at the time you suffer from a terminal illness and cannot take a decision.
Note-II[11]
Passive Euthanasia: When doctors don’t provide,
or remove patients from, life
sustaining treatment. Includes:
sustaining treatment. Includes:
v
Disconnecting life-support machines, feeding tubes, not
carrying out life-saving operations, not providing life-extending drugs.
v
Non-treatment not seen as the cause of death; patient
understood to have died because of an underlying condition.
Note-III[12]
The
Constitution Bench of the Supreme Court Concluded its Euthanasia Judgement in
following Terms
(i). The law of the land as existing today is that no one is permitted to cause death of another person including a physician by administering any lethal drug even if the objective is to relieve the patient from pain and suffering.
(i). The law of the land as existing today is that no one is permitted to cause death of another person including a physician by administering any lethal drug even if the objective is to relieve the patient from pain and suffering.
(ii).An adult human being of conscious mind is fully
entitled to refuse medical treatment or to decide not to
take medical treatment and may decide
to embrace the death in natural way.
(iii). We are thus of the opinion that the right not
to take a life saving treatment by
a person, who is competent to take an informed decision is not covered by
the concept of euthanasia as it is
commonly understood but a decision to withdraw life saving treatment by a patient who is competent to take decision as well as with
regard to a patient who is not competent to take decision can be termed
as passive euthanasia, which is lawful and legally permissible in this country.
(iv).
We also are of the opinion that
in cases of
incompetent patients who are unable to take an informed
decision, “the best interests principle” be applied and
such decision be taken by specified
competent medical experts and be implemented
after providing a cooling
period to enable aggrieved person to approach the court
of law.
(v). The
right of patient who is incompetent
to express his view cannot be outside of fold of Article 21 of the Constitution of India.
Main findings of
the Court were;
v The court reiterated “right to die with dignity as fundamental right”
wich was already been declared by the
Constitution Bench judgment of this Court in
Gian Kaur case (supra).
v Court declared that an adult human being having mental
capacity to take an informed decision
has right to
refuse medical treatment including withdrawal from life
saving devices.
v A person of competent mental faculty is entitled to
execute an advance medical directive in accordance to
Legal Position of Euthanasia In India after Supreme Court's 2018 Verdict [Download in PDF Form....]
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| उच्चतम न्यायलय ने लगाई इच्छा मृत्यु पर मुहर |
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