Health Law PRN:22010125308 Word Count- 1974

III YEAR B.A., LL.B (DIV. D)

SEM-V

1ST INTERNAL ASSESSMENT

HEALTH LAW

CRITICAL RESEARCH ESSAY

APURVA KUMARI- 22010125308

DIVISION: D

COURSE: B.A. LL.B.(H)

BATCH YEAR: 2022-27

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Health Law PRN:22010125308 Word Count- 1974

CONCEPT OF PHYSICIAN ASSISTED SUICIDE (PAC):

EXAMINING RELEVANT LAWS AND ETHICAL
DEBATE IN INDIA

INTRODUCTION & BACKGROUND

The remarkable progress in medical research and technology has had a substantial influence
on society. They have highlighted concerns that are changing the way people live and the values
of society. Simultaneously with these changes, there is a significant increase in the recognition
and support of human rights, autonomy, and the ability to make choices freely. These concerns
necessitate a reassessment of our understandings of societal and medical ethics as well as our
value systems.

The concept of a death wish has been proposed as a fundamental element in various
interconnected matters, such as suicide and thoughts of suicide, the desire for physician-
assisted suicide or euthanasia, and the request for physician-assisted suicide or euthanasia.

Terminal sickness not only induces severe physical agony but also triggers mental distress and
psychological torment in both the sufferer and the carer. Should individuals with terminal
illnesses have the autonomy to choose the method of their own death? The fundamental topic
at hand is whether individuals with a terminal condition should be provided with aid in
hastening their death or if they should be allowed to endure discomfort until their natural
demise.

Today's modern society has a complex stance on Physician Assisted Suicide (PAC),
simultaneously embracing and rejecting it.

Although passive euthanasia has been granted legal status in India, there are several factors
that make its legalisation unsuitable and inappropriate for the country. One of the main
concerns is the potential for coerced consent, which is necessary before carrying out passive
euthanasia.

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CONCEPT/ RELEVANT LAWS, CASES AND THEORIES WITH CRITICAL ANALYSIS

The applicability of Article 21 of the Indian Constitution encompasses a wide range of

fundamental rights that pertain to personal liberty. This article explicitly specifies that no one
can be deprived of their life or personal liberty, unless in accordance with the legally established
procedure. These rights encompass the entitlement to good health, the entitlement to a means
of support, the entitlement to live with respect, the entitlement to housing, and the entitlement
to privacy, among other entitlements. The Supreme Court has given a broad and elastic
construction to the concept of "life" as defined in Article 21.

In the K.S. Puttaswamy v. Union of India1 case, the Supreme Court of India restated the idea
that human dignity is an essential component of Article 21. The right to live with dignity
encompasses facilitating a smooth dying process for terminally ill patients who have no chance
of recovery. Currently, the legal stance is that the concept of "right to life" does not encompass
the notion of "right to die." However, the concept of "right to live with dignity" does encompass
the idea of "right to die with dignity."

Article 21 of the Constitution guarantees the Right to one's physical and mental health, which
is further safeguarded in Part III of the Constitution. Within the realm of health and medical
choices, an individual's exercise of self-determination and autonomy encompasses the right to
determine if and to what degree they are willing to undergo medical procedures and treatments
that align with their personal objectives and principles.

The Right to privacy is considered a fundamental aspect of the Right to life and liberty, as
stated in Article 21 and protected by Part III of the Constitution. This guarantees that
individuals keep their independence in making decisions on the personal realm of death, while
also preserving their physical well-being.

In the case of State of Maharashtra v. Maruty Sripati Dubal2, the Bombay High Court
determined that the Right to life, as stated in Article 21, includes the Right to die. Consequently,

1
K.S. PUTTASWAMY V. UNION OF INDIA, AIR 2018 SC (SUPP) 1841, 2019 (1) SCC 1, (2018) 12 SCALE 1, (2018) 4 CURCC
1, (2018) 255 DLT 1, 2018 (4) KCCR SN 331 (SC), AIRONLINE 2018 SC 237
2
STATE OF MAHARASHTRA V. MARUTY SRIPATI DUBAL, 1987(1)BOMCR499, (1986)88BOMLR589

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the Court declared section 309 of the Indian Penal Code, 1860, as invalid and beyond the scope
of its authority.

In the case of P. Rathinam v. Union of India3, the petitioners contended before the Supreme
Court that Section 309 of the Indian Penal Code, 1860 was unconstitutional because it violated
Articles 14 and 21 of the Constitution. The two-judge panel reached the determination that the
right to life, as protected by Article 21, included the right to avoid living a life that is imposed
upon an individual. Consequently, they declared Section 309 of the IPC to be unconstitutional.

The Constitution Bench discussed and examined the accuracy of the verdict made in P.
Rathinam's case in relation to the Gian Kaur v. State of Punjab case. In the matter of Gian Kaur
(supra), the Appellants were convicted by the lower court for committing an offence under
Section 309 of the IPC, 1860. The Appellants contested this conviction, arguing that Section
309 of the IPC is unconstitutional. The court determined that the constitutional right to life, as
stated in Article 21, does not encompass the freedom to end one's own life. In order to provide
significance and substance to the term "life" in Article 21, it has been interpreted as referring
to life that is accompanied by human dignity. The concept of the 'right to die', if it exists, is
fundamentally contradictory to the concept of the 'right to life', just as 'death' is contradictory
to 'life'. Consequently, it was determined that both euthanasia and assisted suicide were illegal
in India. However, the decision in the said instance did not include a final stance on non-
voluntary passive euthanasia. Referring to the concept of euthanasia, the Court in Gian Kaur
noted that advocating for euthanasia based on the existence of a patient in a persistent
vegetative state (PVS) does not provide any benefit to a terminally ill patient and is not relevant
to the principles of "sanctity of life" or the "right to live with dignity". Therefore, it does not
help in determining the scope of Article 21 in deciding whether the guarantee of the "right to
life" includes the "right to die".

However, it is important to distinguish and not conflate the concept of the "right to die" with
dignity at the end of life from the "right to die" by means that interrupt the natural course of
life. Instances in which death is certain and imminent due to the termination of natural life, and
the process of natural death has already begun, may be considered within the scope of the "right
to die with dignity" as a part of the broader "right to live with dignity". These are examples of

3
P. RATHINAM V. UNION OF INDIA, 1994 AIR 1844 1994 SCC (3) 394 JT 1994 (3) 392 1994 SCALE (2)674

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expediting the inherent process of death that has already commenced, rather than cases of
terminating life. Even in these circumstances, the matter of permitting physician aid in
terminating life remains a subject of contention. Article 21 does not encompass the right to
intentionally reduce a person's natural lifetime in order to alleviate the suffering that would
otherwise be experienced upon a natural death. In the case of Gian Kaur, the Constitution Bench
declared Section 309 IPC to be constitutional. The Court determined that the right to live with
human dignity does not encompass the right to end one's life, particularly prior to the onset of
an inevitable natural death.

The matter of euthanasia was directly brought before the Supreme Court in the case of Aruna
Ramchandra Shanbaugh v. Union of India.4 An application was submitted by a friend of the
petitioner to seek permission for "passive euthanasia" to terminate the life of the petitioner. The
petitioner is a rape victim who has been in a persistent vegetative state (PVS) for the past 38
years. The petitioner was employed as a nurse in Mumbai. An employee of the hospital
assaulted her by encircling her neck with a canine leash and attempted to sexually assault her.
On the next day, she was discovered in a prone position on the floor, completely unconscious
and covered in blood. The prevailing belief is that the brain suffered damage due to the
cessation of oxygen supply caused by strangling with the chain, resulting in a permanent
vegetative condition. Pinky Virani, an activist-journalist, submitted a plea to the Supreme Court
invoking Article 32 of the Constitution. She said that there was no hope for her recovery and
requested permission to undergo passive euthanasia in order to be relieved from her suffering
and distress. A two-member panel of judges thoroughly examined the intricacies of euthanasia,
including active and passive euthanasia, as well as voluntary and forced euthanasia. They also
considered the legality and permissibility of euthanasia, and its relationship with offences
outlined in the IPC. The ruling legalised the practice of passive euthanasia and provided a
comprehensive set of instructions for its implementation.

However, this action was required to be completed under specific and strict conditions, which
included obtaining the approval of a High Court after following the proper legal procedures
established by the Court.

4
ARUNA RAMCHANDRA SHANBAUGH V. UNION OF INDIA, AIR 2011 SUPREME COURT 1290, 2011 (4) SCC 454, 2011

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According to common law, a person is not considered guilty of attempting to commit suicide
(as stated in section 309 IPC). Similarly, a doctor who fails to provide treatment is not guilty
of assisting in suicide (as stated in section 306 IPC) or of causing death due to negligence (as
stated in section 299 read with section 304 of IPC).

Common Cause, a registered society, filed a writ petition before the Supreme Court of India
under Article 32 of the Constitution . The petition sought to establish the "right to die with
dignity" as a fundamental right. The petitioner also requested guidance on implementing a
proper procedure to allow individuals with declining health or terminally ill patients to create
a document that can be presented to the hospital for appropriate action if the person is admitted
with a serious illness that may endanger their life. The petitioner also sought guidelines
regarding the use of "living wills".

An Advanced Directive is a legally binding document that outlines the specific measures to be
conducted on behalf of an individual in the event that they are no longer able to make decisions.
The Court established criteria for Advanced Directives, specifying the eligible individuals who
can carry out the directives and the necessary procedures for their execution, content,
recording, and preservation. It also determined the circumstances under which the directives
can be implemented, addressed the scenario of refusal by the Medical Board, and discussed the
possibilities of revocation or inapplicability of Advanced Directives.

Subsequently, the Indian Society of Critical Care Medicine filed a Miscellaneous

Application[9] seeking clarification of the judgement in Common Cause directives through a
judgement dated 24.01.2023. The Supreme Court has now simplified the process for carrying
out Living Will and Advanced Directive. The five-Judge bench made several alterations and
adjustments to the initial approach outlined in the 2018 judgement.

The Court stated that the Advanced Medical Directive would be an effective way to ensure the
realisation of the fundamental right to life with dignity. The aforementioned Directive will
alleviate any uncertainties that may arise at the appropriate moment when providing medical
care to the patient. In addition, it will enhance the mental fortitude of the treating physicians,
as they will be able to guarantee, once they are convinced, that they are acting in a legal manner.

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The court introduced changes include modifying the requirement of execution in the presence
of two attesting witnesses and counter signing by a judicial first-class magistrate, changes
regarding surrogate decision-maker, the role of district court judiciary, informing family
members and family physician and the government, ascertaining authenticity, preliminary
opinion and final opinion of medical board, withdrawal of treatment, refusal of first medical
board, and appeal before High Court.

CONCLUSION

The ongoing discussion on euthanasia in India is debated over a lot. However, no specific laws
have been enacted, thus both medical professionals and individuals still follow the standards
established by the Courts. The law regarding this matter is now undergoing development and
evolution, as evidenced by the 2018 judgement. This judgement has to be adjusted through an
order dated January 24, 2023, in order to make the implementation of Advanced Directives and
Living Wills more practical. Therefore, it is uncertain whether this is still a work in progress
until the Legislature establishes a thorough statute on the matter.

BIBLIOGRAPHY

• SCC
• Manupatra
• Lexology data hub
• National Library of Medicine
• National Center for Biotechnology Information