By MINAKSHI BISWAS 

‘Euthanasia’ and ‘end of life care’ are two contradictory subjects. Euthanasia is regarded as the only viable option when all end of life care mechanisms fall short of a better life for an individual who is terminally ill or in a vegetable-like state. Although a law on euthanasia is a prerequisite for people suffering from terminal illnesses, there was no legislation with respect to euthanasia in India until now.

The government of India has finally come up with a draft bill on passive euthanasia. It has also released a document on the website of the Ministry of Health and Family Welfare on May 9, 2016, inviting public comments on passive euthanasia to gather opinions from people in the country.

Background

It was only with the story of Aruna Shanbaug (a woman who had been in a vegetative state for 42 years) that the issues of end of life and euthanasia came up for public discussion. Pinki Virani, a social activist, journalist and writer, filed a writ petition on behalf of Shanbaug and claimed that her right to life guaranteed by the Indian constitution had been violated. In the Shanbaug case, March 2011, the Supreme Court of India upheld that conditional passive euthanasia would be permissible in the rarest of rare circumstances. It clearly stated that a petitioner concerning passive euthanasia would have to move the high court, which would then be followed by the medical expert board enquiry. The Supreme Court opined that it could not be solely left to the discretion of the patient’s relatives or the ‘next friend’ (like the nursing staff in the case of the Shanbaug case) to make decisions regarding the death of an individual. The court also stated that this judicial pronouncement would be valid till any further enactment on the subject by the legislature was set out. This case opened up a new dimension with regard to article 21, right to life. The prior judgments related to the issue of right to life require a special mention in any case concerning the issue of euthanasia.

One major judgment in this context is the case of P. Rathinam, 1994 which struck down section 309 of Indian Penal Code (attempt to suicide) as unconstitutional and stated that it violated article 21. It held that fundamental rights have both positive as well as negative aspects. For instance, the right to freedom of speech and expression can also be said to include the right not to speak or express. This decriminalising of section 309 of the IPC could have worked in favour of individuals asserting their right to discontinue with unwanted medical treatment. However, in 1996, the Gian Kaur case overruled the earlier decision, observing that article 21 speaks of life with dignity. Only aspects of life which make it more dignified can be read into this article, thereby pointing out that the right to die was inconsistent with it.

The Law Commission of India came out with two pertinent reports which dealt with the issue of euthanasia to some extent. The 196th report of the Law Commission on Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners), released in 2006, was the first report on the subject. The second was the 241th report in 2012, named Passive Euthanasia: A Relook, that dealt with the same issue. The former report was the one which came up much before the Aruna Shanbaug verdict, making passive euthanasia permissible under the rarest of rare conditions. Although the report clearly stated at the outset that it did not deal with euthanasia but with a ‘different matter of withholding life support measures’, the Shanbaug case referred to it while coming up with its verdict on passive euthanasia. The second report stated that it was in accord with the views of the judiciary on the Shanbaug verdict, where it legalised passive euthanasia and laid down a set of criteria to guide the framework of its working. It reiterated the views of the Shanbaug judgment and once again threw light on the issue of passive euthanasia and analysed the findings and recommendations of the Supreme Court verdict on the subject.

On February 25, 2014, a five judge bench was constituted by then chief justice P. Sathashivam who claimed that a clear law on the subject of euthanasia in India was mandatory. The constitutional bench was constituted for the purpose of providing a new set of guidelines on euthanasia. The court acted due to a petition filed by an NGO named Common Cause, which argued in favour of the right to die with dignity. It was stated that the procedure set in the Shanbaug verdict did not comply with article 21 of the Constitution, as the right to life guaranteed by the article did not include the right to die with dignity under the supreme law of the land. Despite this, the Supreme Court of India legalised passive euthanasia under certain circumstances and laid down a procedure for its working.

Again on July 16, 2014, the Supreme Court of India issued a notice to all states and union territories on a plea for the legalisation of passive euthanasia by allowing the withdrawal of treatment from patients in a permanent vegetative state. States and union territories were asked to respond within the next eight weeks. The concept of a living will, which had been completely out of the discussion on euthanasia so far, also gained ground in the new stir caused by the Supreme Court’s attempt. The Centre, however, opposed the petition and stated that it was a form of suicide which could not be permitted in the country. Then Health Minister, Harsh Vardhan, also commented on this issue, stating that a hasty resolution should be avoided and a national consensus should be built.

Recent developments

The debate on euthanasia in India remains inconclusive. The recent move by the government of drafting a bill on passive euthanasia and the release of a document inviting comments from the public can be regarded as a huge steps forward. This bill argues in favour of passive euthanasia and is in line with the judgment delivered in theShanbaug case of 2011. On gaining support, the bill will not only prove to be a landmark legislation, but also provide a panacea to the terminally ill and those who champion patient’s rights.

One may argue that the judgment delivered on all three cases mentioned above were based on liberal ideals which places the ‘individual’ (the patient in cases concerning euthanasia) at the centre. The verdict discussed here invoked the principles of autonomy and best interests of the patients. This clearly reveals the impact of a liberal perspective on the decisions of the judiciary. One needs to take into account how the state has taken up the role of a protector, aiming to foster and administer lives. Although it may appear that it is solely liberal principles that have been respected, a deeper analysis suggests a different idea that lies underneath.

The courts argued in favour of passive euthanasia in the cases mentioned. They supported the idea of removing patients from ventilation, artificial nutrition or hydration which were essentially of no benefit to the patients involved. It becomes important at this juncture to point out that the proponents of palliative care and many other do not regard passive euthanasia as a form of euthanasia at all. They believe that the idea of passive euthanasia is a misnomer. According to them, active euthanasia is the only true form of euthanasia. Within this context, it could be said that the courts not only respected liberal principles while pronouncing these verdicts, but also promoted the very ideals that the modern state is entrusted with.

The modern state has emerged as an entity that engages in fostering and administering lives. Therefore in cases that involve the issue of euthanasia, it cannot rule in favour of active euthanasia (the administration of lethal drugs). The courts ventured into the idea of passive euthanasia, which does not involve killing as much as letting a person die. This is where the moral distinction between passive and active euthanasia becomes significant. This also proves why a modern state may in some cases under rare circumstances make room for passive euthanasia but not active euthanasia as it cannot engage in actively killing someone.

Minakshi Biswas is a PhD scholar at the Centre for Political Studies, Jawaharlal Nehru University