India has the highest suicide rate in the world after China, with 371 suicides taking place every day. The ‘right to die’ is in accordance with a capitalistic, property-oriented outlook which prefers to treat everything, including the human body, organs and even emotions, as a commodity. Within 24 hours of finally accepting Hadiya’s freedom to choose her husband, the apex court has given another landmark judgment on ‘right to die’ but then it is not a clear recognition of ‘right to die’ as part of right to life but a limited right in the form of passive euthanasia. Even active euthanasia has not been validated.
Of course, the court has also permitted ‘living will’ and ‘advance directive’. CJI Dipak Mishra rightly flagged the primary issue, i.e., whether the law permits accelerating the process of dying, sans suffering, when life is on the path of inevitable decay and if so, at what stage and to what extent?
In fact in the last 24 years starting with P. Rathinam(1994), the Indian Supreme Court has given as many as four judgments on this subject, the latest being Common Cause v. Union of India (March 9, 2018). Common Cause India is the NGO founded by leading social litigation lawyer Prashant Bhushan.
Suicide has been an act of great commendation as well as strong condemnation and therefore these judgments discuss philosophy, morality, ethics and law at length. Brevity is not a strength of Indian judges; the five judges have given four concurring opinions in 538 pages (Chief Justice of India Dipak Mishra on behalf of himself and Justice AM Khanwilkar running to 192 pages), Justice AK Sikri’s opinion is in 112 pages, Justice DY Chandrachud took 134 pages and Justice Ashok Bhushan’s judgment runs into 100 pages. There are all kinds of quotes in them including a song from Hindi film. Doctoral candidates in humanities must learn art of thesis writing from our judges.
This judgement basically makes the distinction between letting a patient die and making him die abundantly clear with examples from entire world.
The best part of the judgement is that it has taken human dignity, autonomy and self-determination to such a level that the government should start worrying about the impending Aadhar verdict, particularly since the same five judges are hearing the Aadhar matter and have issued an interim order which has indefinitely extended the deadline of linking of Aadhar with PAN and mobile till the judgement is delivered by them. The court has conceded that at times the State’s interest has to make way for the individual choice. The court has admitted that right to live with dignity includes easing the process of dying in case of a terminally ill patient or a person in a persistent vegetative state (PVS) with no hope of recovery. To deprive individual dignity towards the end of one’s life has been accepted as denying meaningful human existence.
Previous rulings on the right to die and passive euthanasia
In the first judgement in 1994, a two-judge bench held that right to life includes right to die as every fundamental right has both positive as well as negative connotations. Thus, just like right to free speech includes right to silence, similarly right to life includes right to die.
Within two years of this ruling, a five judge bench headed by Justice JS Verma, hearing the Gian Kaur case in 1996, which arose from a conviction for abetment of suicide, overruled this judgement and declared Section 309 of Indian Penal Code, which punishes attempt to suicide, and Section 306 which punishes abetment to suicide, constitutional. The court said that the sanctity of life cannot be overlooked.
The Gian Kaur case did not specifically deal with euthanasia. But it extrapolated from the earlier judgement that the right to live with dignity includes the right to a dignified life up to the point of death as well as a dignified procedure of death. Thus, it may include the right of a dying man to die with dignity as his life is ebbing out. But the court categorically rejected ‘right to die’ when it referred to unnatural death curtailing an individual’s natural lifespan. Dying with dignity was thus recognised in 1996 during the Gian Kaur hearing.
In 2011, another two-judge bench headed by Justice Katju validated passive euthanasia during the hearing of the case of Aruna Shanbaug despite the non-existence of any statutory basis. However, nurse Aruna, who was in coma for 38 years, did not gain any relief since the judges concluded that she still had some life left in her, on the basis of doctor’s report. Aruna finally died in 2015.
On February 25, 2014, a three-judge bench while agreeing with Justice Katju that as per the Gian Kaur decision, euthanasia in India can become lawful only through legislation, noted inherent inconsistencies in the Aruna decision and made a reference to a five judge bench. Further, departing from the well-established practice of framing the issues for a larger bench, they referred the entire matter to the constitution bench as euthanasia involves social, legal, medical and constitutional dimensions. The latest judgement is in response to this reference.
In the latest judgement, the five-judge bench headed by Chief Justice Dipak Misra has unanimously yet again upheld passive euthanasia. It also noted that Justice Katju’s judgement was based on a flawed reading of Gian Kaur verdict and the court devoted too much time for clarifying that it had not considered and approved of the House of Lords decision in Airedale NHS Trust v. Bland (1993), which had held that euthanasia could be made lawful only by legislation. It was in the Bland ruling that for the first time in English history right to die by withdrawal of life-support system was recognised.
The latest judgement said that the Gian Kaur case quoted the Bland judgment only as a passing reference. CJI Misra explicitly said that “we unequivocally express our opinion that Gian Kaur is not a binding precedent for the purposes of laying down the principle that euthanasia can be made lawful only by legislation.” But then the court did say, in so many words, that detailed guidelines it lays down will hold only till the Parliament legislates on this subject. This fine point may not impress the common people, but legal fraternity will certainly appreciate the fine point forcefully made in the four judgements.
An informed patient and an elitist problem
However, the bench also agreed with Justice Katju that autonomy means self-determination and an informed patient should have right to decide his treatment. To be autonomous, hence, the patient should be competent to make his decisions and choices. He will have the right to refuse treatment. In the event that he is incompetent to make choices, his wishes expressed in advance in the form of a living will, or the wishes of surrogates acting on his behalf are to be respected.
Justice Sikri’s observation that with Section 115 of Mental Healthcare Act (2017), attempt to suicide is no more punishable under Section 309 of IPC may not entirely correct as this creates an assumption that every person attempting suicide shall be deemed to be under ‘severe stress’ and shall not be tried and punished. The Act strangely gives no definition of ‘severe stress.’
One obvious comment, which has been admitted even by some of the learned judges in the latest ruling, including Justice DY Chandrachud, is that the problem of euthanasia is an elitist one in the sense that most of these facilities are not available to poor people. Thus, even though only rich people can afford life support system, this subject receives maximum media and judicial attention. Other judges such as Justice AK Sikri discussed the economics of euthanasia in the context of high cost of medical treatment in India. The learned judges were worried about how poor people will be able to afford exorbitant health care cost and, thus, the passive euthanasia validated by this judgement.
He rightly observed: “India is one of the worst countries to die in, especially for those suffering from terminal illnesses. In 2015, the Economist Intelligence Unit brought out a Quality of Death Index, which ranked India 67th out of the 80 countries it had surveyed. In December 2017, a joint report published by the World Health Organisation and the World Bank revealed that 49 million Indians are pushed into poverty every year due to out-of-pocket expenditure on healthcare, accounting for half of the 100 million who meet such a fate worldwide.”
He went on to say that “India’s spending on health is among the lowest in the world. The Economic Survey of 2017–18 shows that the government spends only 1.4% of its gross domestic product on health.” The court admitted that public health system is in shambles and only rich can afford treatment in the private hospital.
Drawing from our mythology
Both the P.Rathinam judgement as well as the latest one have given lot of prominence to religions and their views on suicide and death. Ideally, the highest court of a secular country should not give much credence to religious texts and our judgements should avoid religious discourse. During the Rathinam case, the court observed that “insofar as our country is concerned, mythology says Lord Rama and his brothers took jalasamadhi in river Saryu near Ayodhya; ancient history says Buddha and Mahavira achieved death by seeking it.” The aforementioned people are our religious and spiritual leaders; they are eulogised and worshipped. In the latest judgement Justice Ashok Bhushan, quoting the Bhagwad Gita, said that “according to Hinduism, life never comes to an end. The soul never dies although body may decay.”
Due to sanctity of life, one cannot take another person’s life but the person concerned can in certain situations take his own life. The learned judge went on to observe that Vedic rules forbid suicide but in one’s fourth ashrama i.e., vanprastha, one can go to a forest and survive just on air and water to bring an end to life. He then quoted the controversial Manu who said that a Brahmin can get rid of his body by drowning in water, leaping from heights, burning or starving to death. He and Justice Sikri briefly mention other religions such as Jainism, Buddhism, Christianity and Islam and noted that Jainism permits ‘sallkhana’ or fast unto death and Buddha too allowed self-inflicted death for a terminally ill person.
Legal active and passive euthanasia around the world
Active euthanasia is legal in Canada, the Netherlands, Switzerland. In the United States, active euthanasia is illegal but physician-assisted death is legal in the States of Oregon, Colorado, Vermont, California, Washington and Montana. A distinction has been drawn between euthanasia and physician-assisted suicide. In both Oregon and Washington, only self-administration of the lethal dose is permitted. Any form of assistance to help a person commit suicide outside the provisions of the legislation remains a criminal offence. Physician-assisted suicide is an entirely different concept where the patient carries out the procedure leading to his death though on the advice of his doctor.
Passive euthanasia, under those circumstances where a patient is in PVS and terminally ill, where the condition is irreversible, or where he is brain-dead is permitted in India. The 241st Law Commission report favoured passive euthanasia, subject to certain safeguards. A competent adult patient has the right to refuse invasive medical treatment by way of artificial life sustaining measures/ treatments. Such a decision is binding on the doctors/ hospital attending to such a patient, provided that the doctor is satisfied that the patient has taken an ‘informed decision’ exercising his will.
A medical power of attorney is an instrument through which people nominate representatives to make decisions regarding their medical treatment at a point in time when they are unable to make informed decisions themselves. However, Clause 11 of the draft Treatment of Terminally-Ill Patients (Protection of Patients and Medical Practitioners) Bill (2016) states that any directives or medical power of attorney shall be void and of no effect, which is unfair and unreasonable.
Active euthanasia is defined as the administration of a lethal substance or force to kill a person i.e., a lethal injection given to a person suffering from agony in a terminal state of cancer. Passive euthanasia on the other hand means the withholding or withdrawing of medical treatment necessary for continuance of life like removing the patient from artificial heart/lung support or even withholding antibiotics without which the patient may die. Thus, in passive euthanasia life sustaining treatment is not provided. This ‘omission’ is not considered as cause of death and death is attributed to the patient’s underlying condition.
Justice Chandrachud highlighted that the distinction between an ‘act’ and an ‘omission’ gets blurred at times and in fact ‘omission’ may indeed amount to a positive act in some situations. In any case, illegal omissions are punishable under IPC. Another vital distinction pointed out by Justice Chandrachud was that in active euthanasia, there is an intent to cause death (mens rea) while in passive euthanasia there is no guilty mind or intent. Moreover since in passive euthanasia, a doctor neither causes bodily injury nor death, his act can neither be considered murder nor culpable homicide. The patiently merely dies due to a pre-existing medical condition.
A living will has useful functions. It gives moral and social reassurance to the family members that the decision to withdraw treatment was in accordance with the patient’s free will. The living will has now been recognised as part of right to live with dignity under Article 21. The choice of treatment should be expressed in the will when a person is in a sound mental state. A “best standard” test has been adopted by giving a supervisory oversight role to an expert body. It is interesting to note that The Mental Healthcare Act 2017 had already recognised living wills and advanced directives. In the US, advanced directives were recognised for the first time in 1976 when California passed the Natural Death Act. Today 48 out of 50 states have laws permitting advance directives.
Finally, the court has overlooked the fact that poor people are never put on life support systems or get to make living will. Only rich people will benefit from this judgement. In fact there is a real possibility of poor people being declared ‘brain-dead’ and their organs being made available to rich people. The detailed and very stringent guidelines laid down by the court in the best interest of people may meet the same fate as guidelines under Organ Transplantation Act. Despite or possibly because of the economic slowdown, when the entire job-market is down, organ trade is still thriving and may now get a fresh impetus.
The real issue for poor is denial of food due to Aadhaar. So many starvation deaths have taken place. Let us hope the court will do complete justice in this matter of life and death.
This is the revised and enlarged version of the article which was published by Indian Express
Faizan Mustafa is the Vice-Chancellor NALSAR University of Law. The views are personal.