NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

HUMAN RIGHTS

PROJECT ON

SHOULD EUTHANASIA BE LEGALISED IN INDIA?

Submitted To: - Submitted By:-

Prof. (Dr.) Uday Pratap Singh Garima Singh
2013BALLB74
 Acknowledgment

I am very grateful to our professor, for providing me this opportunity to research on this topic

and complete my project. I would also like to thank him for his extremely valuable

suggestions, which supported me in completing this project.

Garima Singh

2013 B.A.L.L.B.74
Introduction

Every human being is desirous to live and enjoy the fruits of life till he dies. But sometimes a
human being is desirous to end his life by use of unnatural means. To end one’s life in an
unnatural way is a sign of abnormality. When a person ends his life by his own act we call it
“suicide” but to end life of a person by others though on the request of the deceased, is called
“euthanasia” or “mercy killing”. 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. Euthanasia is a controversial issue which
encompasses the morals, values and beliefs of our society. Euthanasia has been a much
debated subject through out the world. The debate has become increasingly significant
because of the recent developments in Netherlands and England euthanasia has been allowed.
As a result many of the nations across the world are now hotly debating whether or not to
follow the Dutch example. Recently our Supreme Court in Aruna Shanbaug 1 case has already
given its decision on this point and allowed passive euthanasia in India.

1
Aruna Ramchandra Shanbaug v. Union of India, AIR 2011 SC 1290
Euthanasia: Definition and Types

According to Black’s Law Dictionary (8th edition) euthanasia means the act or practice of
killing or bringing about the death of a person who suffers from an incurable disease or
condition, esp. a painful one, for reasons of mercy.The term euthanasia was derived from the
Greek words “eu ”and “thanatos ”which means “good death” or “easy death ”.It is also
known as Mercy Killing. Euthanasia has been defined as the administration of drugs with the
explicit intention of ending the patient’s life, at the patient’s request.In the modern context
euthanasia is limited to the killing of patients by doctors at the request of the patient in order
to free him of excruciating pain or from terminal illness. Thus the basic intention behind
euthanasia is to ensure a less painful death to a person who is in any case going to die after a
long period of suffering.
There are two types of euthanasia: passive euthanasia and active euthanasia. Active
euthanasia is defined as taking an immediate action such as using lethal injection to
painlessly put a terminally-ill patient to death. Passive euthanasia is withdrawing treatment
while the life of the patient is still dependent on it and when it is believed that treatment is
more burdensome than beneficial. Passive euthanasia allows the patient to die naturally and is
often considered more acceptable.
Legal Aspects of Euthanasia

In India, euthanasia is absolutely illegal. If a doctor tries to kill a patient, the case will surely
fall under Section 300 of Indian Penal Code, 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 Indian Penal
Code,1860 and thus the doctor will be held liable under Section 304 of Indian Penal
Code,1860 for culpable homicide not amounting to murder. Cases of non-voluntary and
involuntary euthanasia would be struck by proviso one to Section 92 of the IPC and thus be
rendered illegal. There has also been a confusion regarding the difference between suicide
and euthanasia. It has been clearly differentiated in the case Naresh Marotrao Sakhre v.
Union of India . J. Lodha2 clearly said in this case. “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 effected.”

The question whether Article 21 includes right to die or not first came into consideration in
the case State of Maharashtra v. Maruti Shripathi Dubal 3. It was held in this case by the
Bombay High Court that ‘right to life’ also includes ‘right to die’ and Section 309 was struck
down. The court clearly said in this case that right to die is not unnatural; it is just uncommon
and abnormal. Also the court mentioned about many instances in which a person may want to
end his life. This was upheld by the Supreme Court in the case P. Rathinam v. Union of
India4. However in the case Gian Kaur v. State of Punjab 5 it was held by the five judge bench
of the Supreme Court that the “right to life” guaranteed by Article 21 of the Constitution does
not include the “right to die”. The court clearly mentioned in this case that Article 21 only
guarantees right to life and personal liberty and in no case can the right to die be included in
it.

In Aruna case Court has held that there is no right to die (suicide) under Article 21 of the
Constitution and attempt to suicide is a crime vide Section 309 Indian Penal Code

2
1996(1)BomCR92
3
AIR 1997 SC 411
4
AIR1994SC1844
5
1996 (2) SCC 648
(hereinafter IPC), the Court has held that the right to life includes the right to live with human
dignity, and in the case of a dying person who is terminally ill or in a permanent vegetative
state he may be permitted to terminate it by a premature extinction of his life in these
circumstances and it is not a crime vide Gian Kaur's case. Under the law, euthanasia is
administered only to patients who are in continuous, unbearable and incurable suffering. A
second opinion is that, the patient must be judged to be of sound mind, and his or her request
to die must be made voluntarily, independently and persistently.

After the Aruna judgement, the scenario has completely changed regarding euthanasia in
India. The Supreme Court said that although Section 309 IPC 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. It is therefore recommend to Parliament to
consider the feasibility of deleting Section 309 from the Indian Penal Code. The court also
clarified that until Parliament enacts a law, its judgement on active and passive euthanasia
will be in force. Now the government is considering over making a law for euthanasia.
Governments around the world also fear legalising euthanasia would spark a wave of assisted
suicides of disabled but otherwise healthy people, hence making a mockery of the supposedly
noble value of human life.

Arguments for legalizing euthanasia

From Ram’s jalasamadhi to Mahatma Gandhi and Vinoba Bhave’s fast till death (in which
Bhave died), euthanasia existed in Indian society. The judiciary has also viewed euthanasia
from a sympathetic angle, which is evident from the observation of the various judges in
cases dealing with right to suicide.

1. One school of thought argues that it should be allowed keeping in view the fact that the life
of a person is taken away by his own consent. According to the supporters of euthanasia the
decision of the patients should be accepted.Regarding this debate from legal point of view,
Article 21 clearly provides for living with dignity. A person has a right to live a life with at
least minimum dignity and if that standard is falling below that minimum level then a person
should be given a right to end his life.

2. Supporters of active euthanasia contend that since society has acknowledged apatient’s
right to passive euthanasia (foe example, by legally recognizing refusal of life-sustaining
treatment), active euthanasia should similarly be permitted. in light of increasing pressure on
hospital and medical facilities, it is argued that the same facilities should be used for the
benefit of other patients who have a better chance of recovery and to whom the said facilities
would be of grater value. Thus, the argument runs, when one has to choose between a patient
beyond recovery and one who may be saved, the latter should be preferred as the former will
die in any case.

3. Euthanasia provides a way to relieve the intolerably extreme pain and suffering of an
individual.It also relieves the relatives of a patient from the mental agony.

4. Another important point on which the supporters of euthanasia emphasize is that a lot of
medical facilities in which amount a lot of amount are being spent on these patients which are
in any case going to die. Our duty is not only towards the patient but also to the families who
look to us for emotional support and rational decisions to avoid unnecessary emotional and
financial burdens.

5. It is argued that euthanasia respects the individual’s right to self-determination or his right
to privacy. Interference with that right can only be justified if it is to protect essential social
values, which is not the case where patients suffering unbearably at the end of their lives
request euthanasia when no alternatives exist. Not allowing euthanasia would come down to
forcing people to suffer against their will, which would be cruel and a negation of their
human rights and dignity.

Arguments against legalizing euthanasia

The arguments against legalizing euthanasia are –

1. There is an intense opposition from the religious groups and people from the legal and
medical profession. Medical ethics call for nursing, care giving and healing and not ending
the life of the patient. In the present time, medical science is advancing at a great pace. Even
the most incurable diseases are becoming curable today. Thus instead of encouraging a
patient to end his life, the medical practitioners should encourage the patients to lead their
painful life with strength which should be moral as well as physical.

2. One major argument against euthanasia being legalized is that Decisions left in the hands
of doctors or relatives are very risky also. It might not always be clear that relatives and
doctors are always acting in the patient’s best interests.

3. Another favourite argument is that of the “slippery slope”. The slippery slope argument, in
short, is that voluntary euthanasia would over the years lead to a slide down the slippery
slope and eventually we would end up permitting even non-voluntary and voluntary
euthanasia.

4. Legalized euthanasia would produce huge social pressures on very vulnerable people to
‘volunteer’, causing much stress and suffering.

5. The victims would predominantly be the most disadvantaged members of society; the old,
poor, disabled, infirm and unemployed.

Conclusion
A close perusal of the arguments against euthanasia that have been summarized above tends
to indicate that all the talk about sanctity of life notwithstanding, the opposition to euthanasia
breeds from the fear of misuse of the right if it is permitted.It is feared that placing the
discretion in the hands of the doctor would be placing too much power in his hands and he
may misuse such power. Thus, it is humbly submitted that when a patient or his relatives can
willingly put his life in the hands of the doctor trusting him, then why can’t a doctor be given
such discretion to decide what will be in favour of his patient. Another doubt that is often
raised is that if the doctors will be given discretion to practice voluntary euthanasia then
surely it will gradually lead to asking for involuntary or non-voluntary euthanasia. But it is
humbly submitted that a separate legislation should be made allowing only voluntary
euthanasia and not involuntary or non-voluntary euthanasia. As has already been pointed out
earlier, we also have to keep in mind the limited medical facilities available in India and the
number of patients. This question still lies open that who should be provided with those
facilities; a terminally ill patient or to the patient who has fair chances of recovery. As the
patient himself out of his pain and agony is asking for death, doctor should not increasing that
pain of his should allow euthanasia.

The point that remains unanswered is regarding the abuse of this right by the doctors. But
relevant safeguards can be put on this right and thus its abuse can be avoided. One of the
safeguards can be that a proper quasi-judicial authority having a proper knowledge in the
medical field can be appointed to look into the request of the patient and the steps taken by
the doctor. To make it more foolproof some two or three assistant officials including one
from the legal field can also be appointed. This will avoid any abuse of this right granted to
the terminally ill patients. Here, we have to regard the painful situation in which the patient is
and top priority should be lessening his pain. Now when we already know that he is anyways
going to die today or tomorrow and he himself is asking for death, there is no point that he
should be denied with this right of at least leading a life with minimum dignity and willingly.
Otherwise his life will be no better in that situation.

Bibliography
 Pollard Brian,Human Rights and Euthanasia,1998
 The Indian Medical Council (Professional Conduct, 14. Etiquette and Ethics)
Regulations,2002.Availablefrom:http://www.mciindia.org/RulesandRegulations/Code
ofMedicalEthicsRegulations2002.aspx, accessed on September 6, 2015.
 ‘Euthanasia in India’ by A.K. Tharien retrieved from
http://www.eubios.info/EJ52/EJ52F.htm
 ‘Euthanasia seeker dies in India’ retrieved from
http://timesofindia.indiatimes.com/india/Arunas-death-reignites-the-debate-on-
euthanasia/articleshow/47335837.cms (last updated May 15,2015)
 Kharabsheh Omar, Euthanasia from the Human Rights Perspective,
http://gnrd.net/seemore.php?id=808 (last updated August 26,2014)