Introduction:
‘No person shall be deprived of his life or personal liberty except according to procedure established by law’. This Article 21 in the constitution of India is the foremost with respect to other rights, as it gives a right to life to any person (citizens, non-citizens). The Supreme Court also considered this Article as “heart of fundamental rights”. As the time passed, this Article has been interpreted by the judiciary many times. The present article tries to explore the timeline of right to life, in reference to important cases and how they shaped Article 21 by incorporating the right to die.
Right to Life is Right to Die: P. Rathinam v. Union Of India (1994)
In the present case, Section 309 of India penal code (IPC) was in question which states that ‘Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both’.[1] It was contented by the petitioner that Section 309 directly violates Article 14 and Article 21 of the constitution, right to equality and right to life respectively.[2]
Two bench judge of Supreme Court emphasised that “It is a cruel and irrational provision (section 309), and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide. Suicide or attempt to commit it causes no harm to others, because of which State’s interference with the personal liberty of the persons concerned is not called for and held that section 309 violates Article 21”.[3]
Reasoning behind this judgement was, right to life under Article 21 have positive and negative aspects. In the view of this hon’ble Court, freedom of speech and expression includes not to speak, freedom not to join any association, freedom not to do any business, so one may refuse to live if it is not worth living.[4]
The validity of this judgement was being questioned in 1996 in the case of Gian Kaur v. The State of Punjab.
Right to Life does not Include Right To Die: Gian Kaur v. The State Of Punjab (1996)
A key question on which this whole judgement was based is, whether assisting someone to commit suicide infringes the fundamental right under Article 21?
Appellants in the instant case were Gian Kaur and her husband Harbans Singh who was convicted for abetting the commission of suicide by Kulwant Kaur. They referred to the judgement of P.Rathinam v. Union of India and contended that any person assisting the enforcement of the `right to die’ is merely assisting in the enforcement of the fundamental right under Article 21 which cannot be penal, section 306 of IPC making that act punishable, which, therefore, violates Article 21.[5]
Here section 306 of Indian Penal Code states ‘If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine’.[6] Constitutional bench cleared the air by differentiating positive and negative aspects of fundamental rights which was discussed in P.Rathinam’s case (supra).
The Hon’ble court said that “right to life does not include right to die, it provides protection of life, a right to live with dignity up to natural death, including dignified procedure of death, but does not comprehend extinction of life which amounts to an unnatural death. Right under Article 21, which has a negative aspect of not being deprived by others of continued exercise of the right to life cannot be construed to include the positive aspect of the right to die”.[7]
One thing which needs to be noted, that in this case, the court incorporated the word ‘Dignity’. Right to life does not include the right to die but it includes the right to die with dignity. In the judgement, it was stated that the right to die with dignity should not be confused with the right to die as the former does not include unnatural death curtailing the natural span of life.[8] The court did not say anything further to explain what right to die with dignity is and only excluded committing suicide within its scope.
Euthanasia is not Considered as Right to Die with Dignity: Aruna Ramchandra Shanbaug v. Union Of India And Others (2011)
Before this case, euthanasia was discussed earlier in Gian Kaur’s case (supra) but the constitution bench did not express any relevant view regarding euthanasia and suggested that legislative authority would be the one to bring the change.
Petition was filed on behalf of the Sixty-year-old woman who was in a persistent vegetative state (PVS) for 37 years and it was alleged that she is virtually a dead person and has no state of awareness, and her brain is virtually dead.[9] Petitioner contended that respondents should be directed to stop feeding Aruna and let her die peacefully.[10]
Euthanasia defined as the hastening of death of a patient to prevent further sufferings.[11] It is of two types of active euthanasia and passive euthanasia. Inactive euthanasia, physician administer lethal drugs to incurable or terminally ill patient’s life, whereas passive euthanasia refers to withholding or withdrawing treatment which is necessary for maintaining life.[12] According to judgement active euthanasia is illegal and is an offence in IPC under section 302 or section 304, and passive euthanasia is nothing but the physician-assisted death which comes within the scope of abetment to suicide falling under section 306 of IPC. It is interesting to note, that the hon’ble court while giving the judgement was of the view that ‘doctors must not declare a patient to be the hopeless case unless there appears to be no reasonable possibility of any improvement by some newly discovered medical method in the near future’.[13]
Passive Euthanasia is Permissible: Common Cause v. Union Of India (2018)
A registered society filed a petition seeking to declare ‘right to die with dignity’ within the scope of ‘right to life’ under Article 21 and contended that a ‘living will’ should be executed by the patient who is terminally ill. The hon’ble court was of the view with reference to Aruna’s case (supra) that the doctors in passive euthanasia is not killing a patient actively but only accelerating the process of natural death which has already commenced.[14]
The bench held that “patients, if adult and while in the conscious mind, can execute a living will (voluntary or non-voluntary) in the form of “Advance Directive” directing not to prolong their life by medical treatment”.[15] The Hon’ble court laid down the detailed safeguard and guidelines, and considered right to die with dignity as a fundamental right under Article 21.
Conclusion
Article 21 in layman terms only provides that no person shall be deprived of his life and personal liberty but there is an exception that legislators are empowered to make changes, Judiciary has interpreted Article 21 for decades regarding the right to die. Article 21 came a long way now, after many interpretations, right to life includes right to adequate food, right to shelter, right to health or the right to basic necessities which are important for the survival of a human being.
After the landmark judgement of Common cause v. Union of India, the inclusion of the right to die with dignity is as important as the right to life of Article 21, but this needs to keep in mind that enforcement of the right to die with dignity is only applicable in the case where the patient is terminally-ill by administering him/her passive euthanasia, and infringement of such right would violate Article 21.
References:
[1] Indian penal code, 1860
[2] (1994) 3 SCC 394
[3] Id.
[4] Id.
[5] 1996 SCC (2) 648
[6] Supra note 1
[7] Supra note 5
[8] Id.
[9] (2011) 4 SCC 454
[10] Id.
[11] Kalaivani Annadurai, Raja Danasekaran, and Geetha Mani, Euthanasia:Right to Die with Dignity, US NATIONAL LIBRARY OF MEDICINE NATIONAL INSTITUTES OF HEALTH, Oct-Dec 2014, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4311376/
[12] Id.
[13] Supra note 9
[14] (2018) 5 SCC 1
[15] Id.
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