LEGALIZATION OF EUTHANASIA IN INDIA

Introduction

No Longer simply the Greek term for “good”, “easy” of “happy” death,[1]euthanasia is now well known as synonymous with mercy killing. Euthanasia or mercy killing or Physician Assisted Suicide (PAS) is the bringing about of the gentle death of a patient in the case of a painful, chronic and incurable disease. In time past there was no need for legislation in the area of euthanasia. If a person got sick, one of two things happened; he either got well, or he died. Today, the medical advances of the last few decades have given the medical profession a two-edged sword; the extension of human life by artificial means and the painlessly termination of life by drugs.[2]This article will define and employ the concept of euthanasia.

The object is to explore the interaction and the law. Therefore, euthanasia will be discussed against the background of murder, suicide, constitutional law, standing and judicial decisions. It is necessary to consider how euthanasia is treated by the law today in the view of recent judgement passed by the Supreme Court of India, as well as exploring possible legalization through the existing framework of legal history.An effort has been made to confine discussion to purely legal issue. It must be noted, however, that the literature of euthanasia is composed predominantly of articles concerning relevant religious and moral considerations. It is, therefore, inevitable that some of these non-legal considerations would be discussed.

Accordingly, this article does not deal with involuntary euthanasia, rendered over the objection or without the express consent of the patient.

Euthanasia: Definition and Types

Generally, the word euthanasia is defined as the act or practice of painlessly putting to death or withdrawing treatment from a person suffering an incurable disease.[3]From the definition, one can say that euthanasia is an unethical act as much as it is a great sin for those who strongly believe in God. Euthanasia is intentionally killing another person to relieve his or her suffering.[4]It is not the withdrawal or withholding of treatment that results in death, or necessary pain and symptom-relief treatment that might shorten life, if that is the only effective treatment.[5]A discussion on euthanasia is long overdue. A serious debate is necessary on the issue of euthanasia. Euthanasia is one of the most perplexing issues which the courts and legislatures all over the world are facing today.[6]The topic has religious and moral overtones. Human life is inviolable.

Life is a gift from God and no one, not even the individual himself has right to take it. But if the life of a person becomes painful, fruitless and full of sufferings, should the person get rid of their life? A solution for such a problem is not just legalizing the mercy killing. It is not desirable or workable as each case has to be judged individually.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.[7]

Legal Aspects of Euthanasia

To legalize euthanasia would fundamentally change the way we understand ourselves, human life and its meaning. We create our values and find meaning in life by buying into a "shared story" - a societal-cultural paradigm. Humans have always focused that story on the two great events of every person's life, birth and death. In a secular society - even more than in a religious one - that story must encompass and protect the "human spirit."After a very recent Supreme Court of India decision in Aruna case[8], India now joins a handful of nations, including Belgium[9], Luxembourg[10], the Netherlands[11]and Switzerland[12], and the U.S. states of Oregon and Washington[13]in allowing some form of euthanasia.

India has no law on the issue, making the guidelines legally binding. As outlined, “Passive” euthanasia is allowed in exceptional cases after a review by medical experts and approval of the high court.[14]While Active euthanasia, in which a patient is given life-ending drugs or other lethal intervention, is not allowed.[15]This is the first time in India when Supreme Court allowed any kind of euthanasia.In Aruna case[16]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[17]Indian Penal Code (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[18].

Under the law, euthanasia is administered only to patients who are in continuous, unbearable and incurable suffering.[19]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.[20]Some exponents say that euthanasia should not be legalized at all. If so, then what about those people who are living an inhuman life, or those who are in a permanent vegetative state and have on chance to recover back to normal, or those who are in coma or paralytic from a very long period?The threshold constitutional question is whether the fundamental rights to live with dignity, privacy, autonomy, and self determination include the right to voluntary assisted suicide.[21]In India, the sanctity of life has been placed on the highest pedestal. “The right to life” under Article 21 of the Constitution has received the widest possible interpretation under the able hands of the judiciary and rightly so.

This right is inalienable and is inherent in us. It cannot and is not conferred upon us. This vital point seems to elude all those who keep on clamouring for the "Right to Die".

The Next Step

After the Aruna[22]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[23], the time has come when it should be deleted by Parliament as it has become anachronistic.[24]A person attempts suicide in a depression, and hence he needs help, rather than punishment.[25]It is therefore recommend to Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code.[26]The court also clarified that until Parliament enacts a law, its judgement on active and passive euthanasia will be in force.[27]Now the government is considering over making a law for euthanasia.[28]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.[29]There should be legislation on euthanasia because without a law we cannot resort to this kind of a decision with a judicial order. There would be a lot of humanitarian points to be looked into and said such petitions cannot be used as “an instrument” to kill somebody.[30]

Conclusion

In a concluding note, the author would like to say that the right to have one's life terminated at will is subject to social, ethical, and legal strictures. The question that should euthanasia be legalized is not an objective question. It is a subjective one which depends more upon the cases and circumstances.If the process of natural death has started, you can only help in that process on natural death. The person should be in a Permanent Vegetative State, or in coma, or living with a dead brain. The consent to discontinue life support of the patient should be must.

If the patient is not in a state to give his consent, then in that case a decision has to be taken either by the parents or spouse or other close relatives or in the absence of any of them, such a decision can be taken even by a person who is his next friend. It can also be taken by the doctors attending the patient. However, the decision has to be taken bona fide in the best interest of the patient.

If a person who has neither any relative nor any close friend and he is not in a state to give his consent, then in that case the court would direct the expert doctors to submit a medical deport of that person and court would look over it.