IS EUTHANASIA LEGAL IN INDIA?

The term “euthanasia” is derived from two Greek words “Eu” meaning “easy,” and “thanos,” which means “death.”

Therefore, the term euthanasia, sometimes known as mercy killing, refers to commission or omission of any action, for the purpose of causing or hastening the death of a human being after birth, usually for the alleged purpose of elimination of the person’s suffering. It is an intricate process which involves weighing many elements. Local laws, a person's physical and mental health, and their personal beliefs and wishes all play a vital role.

Technological advancement and modern medicine provide with the ability to extend life which ultimately raises the question of what courses of action should be available to the physician and family in times of acute physical or emotional pain, particularly if the patient is unable to make decisions for himself. Euthanasia has a few different forms, each of which brings a different set of rights and wrongs. The critical differences between various forms of euthanasia and natural death must be defined precisely before any rational discussion on the various “shades” of euthanasia may proceed. Following are the various types of euthanasia:


Active and passive

In active euthanasia action is taken deliberately and directly for the purpose of either causing or hastening death of a person. Here the death is brought about through an act such as giving a person lethal injection or overdose of pain-killers.

Passive euthanasia is omission of action for the purpose of causing or hastening death i.e., when someone lets a person die. These measures include the withholding treatment or withdrawal of non-heroic measures, including food, hydration, and oxygenation. For instance, letting a person die of their disease by switching off a life supporting machine that is keeping a person alive.

Conventionally, passive euthanasia is considered to be less immoral than active euthanasia. However, this distinction is morally unsatisfactory as even though a person doesn't 'actively kill' the patient, they have complete knowledge that their inaction will result in death of the person.


Voluntary and involuntary euthanasia

Voluntary euthanasia is committed at the request of the person who dies with the willing and autonomous cooperation of the subject. Here, there is direct or indirect pressure from others on the subject.

Non-voluntary euthanasia committed when either the person is unconscious or otherwise unable to give consent due to facts such as very young age or extremely low intelligence of a person to make a rational choice between living and dying. In such cases a decision is taken by an appropriate person on their behalf. It is inclusive of cases where a child is mentally and emotionally capable of taking decisions but however isn’t considered old enough by the law to take decisions of that nature.

Involuntary euthanasia is committed when the subject who dies chooses life but is killed against his expressed wishes anyway. Generally, it is called murder, but under certain circumstances it is likely to imagine cases where the death would be considered as being for the benefit of the person who dies.

However, the debates on euthanasia in a country like India are all the way more confusing as it is a country of diversities when it comes to religious groups, educational status, beliefs and cultures. Furthermore, the Supreme Court of India expressed the view that the right to life guaranteed under Article 21 of the constitution is not inclusive of the right to die. Section 309 of the Indian Penal Code deals with the attempt to commit suicide and Section 306 of the IPC deals with abetment of suicide – both actions are punishable. But Euthanasia has no legal aspect in India. It is commonly seen as either suicide or murder as the legal system does not have a specific provision for it. There has been no difference established between active and passive euthanasia. Only those subjects who are announced as brain dead can be taken off life support with the help of family members. [1]

Accordingly, Section 309 of the IPC has been a focus of all debate and vulnerable to judicial review for a long time. On several occasions, the Supreme Court of India and different High Courts have examined the constitutional validity of Section 309 of the Indian Penal Code in various cases ever since.

In P. Rathinam vs Union of India, Supreme Court of India remarked that the ‘right to live’ also includes ‘right not to live’ i.e., right to die or to terminate one’s life. The Supreme Court derived a connection between the other fundamental rights and as a result, Section 309 of IPC was declared unconstitutional.[2]

Meanwhile, in Gian Kaur vs state of Punjab a five-judge bench of the Apex Court overruled P. Rathinam’s case.

A Trial Court held Gian Kaur and her husband Harbans Singh guilty of assisting suicide and violating Section 306 of the Indian Penal Code, 1860. The Supreme Court held that the “right to life” under Article 21 of the Constitution does not include the “right to die”. The court clearly stated that Article 21 only guarantees right to life and personal liberty and in no case can the right to die be a part of it. Hence it was observed anyone who aids in the act of suicide is punished under Section 306, while anyone who tries to commit suicide is punished under Section 309 of the Code.[3]

In 2006 Law Commission of India in its 196th Report, suggested that some legislation be enacted to protect terminally ill individuals who refuse medical care, artificial feeding, or hydration from being prosecuted under Section 309 of the Indian Penal Code. In addition to that, physicians who follow such a patient’s decision, or who make such a decision for incompetent patients in their best interests, shall not be subject to prosecution under Sections 306 or 299 of the IPC. As per the report, the ‘patient’ must be suffering from a terminal illness. The definition of terminal illness includes an illness, injury, or degeneration of a physical or mental condition that stimulates extreme pain and suffering and, from the standpoint of a prudent medical expert, will result in the patient’s untimely death inevitably.[4]

While in 2008, the Indian Law Commission, in its 210th Report declared Section 309 of the IPC to be inhumane and described suicide attempts as a symptom of a ‘diseased mental condition’. To impose more punishment on someone who is already in pain was held to be is unjust and unfair and therefore the report sought to decriminalise attempt to suicide.[5]

In march 2011, a major development transpired in this field. The Supreme Court, in Aruna Ramachandra Shanbaug v. Union of India, passed a landmark judgment, which allowed passive euthanasia. Ms. Shanbaug had been in a Persistent Vegetative State in a Mumbai Hospital for years after being sexually assaulted in 1973.

Ms. Shanbaug’s ‘next friend’ had filed a petition before the apex Court, requesting that it allow the hospital to cease feeding her through tubes and let her die peacefully. Although the Court did not grant permission to withdraw Ms. Shanbaug’s medical treatment, a two-judge bench legalised passive euthanasia through a high-court monitored mechanism by laying down a set of tough guidelines. The court further held that parents, spouses, or close relatives of the patient can make such a plea to the high court. On receipt of such a plea, the chief justices of the high courts would set up a bench to decide it. The bench would be responsible for appointment of a committee of at least three renowned doctors to advise them on the matter.[6]

As Medical science is progressing new devices are being introduced that can prolong life by artificial means. As a result, it may indirectly prolong terminal suffering and may also prove to be very expensive for the families of the subject suffering from terminal illness. Consequently, end-of-life issues are now major ethical concerns when it comes to modern-day medical science in India. However, the legislature in the country does not seem to be sensitive to these issues. The landmark judgment of Aruna Shanbaug case has provided a major boost to pro-euthanasia activists but it is still a long way to go before it is enacted as a law in the parliament. Furthermore, apprehensions for its misuse remain a crucial issue which ought to be attended to before it becomes a law in our country.


-- [1] Brian Clowes, An Introduction to the Problem of Euthanasia, HUMAN LIFE INTERNATIONAL, (July 11, 2022, 9.29 PM), Types of Euthanasia and the Language of the Euthanasia Debate (hli.org) [2] P. Rathinam vs Union of India, 1994 AIR 1844 [3] Gian Kaur vs state of Punjab, 1996 AIR 946 [4] Law Commission of India, Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners, (Law Com. No. 196 2006) [5] Law commission of India, Report No. 210 Humanization and Decriminalization of Attempt to Suicide, (Law Com. No. 210 2008) [6] Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454



This article is written by Navya Arora of NLC, Bharati Vidyapeeth Deemed University, Pune.

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