On March 9, 2018, a Constitution Bench of the Supreme Court of India, in four separate opinions[1], affirmed the right of individual suffering from a terminal illness to ‘die with dignity’ by allowing passive euthanasia on compassionate grounds and setting out the procedure for making advance directives in this regard[2]. While this judgment is a hugely welcome step in the path of...
On March 9, 2018, a Constitution Bench of the Supreme Court of India, in four separate opinions[1], affirmed the right of individual suffering from a terminal illness to ‘die with dignity’ by allowing passive euthanasia on compassionate grounds and setting out the procedure for making advance directives in this regard[2]. While this judgment is a hugely welcome step in the path of affirming the right to self-determination in our country, this article highlights that there is still a ways to go, and argues that the right to die with dignity should be expanded to become a ‘universal right’, applicable to all citizens. It is hoped that these notes may be useful when considering parliamentary legislation in the field of euthanasia.
The petition filed by the society Common Cause, sought to obtain a declaration from the Court that the ‘right to die with dignity’ is a fundamental right within the fold of ‘right to live with dignity’ guaranteed under Article 21 of the Constitution.[3] Thus, they appear to have sought a general declaration, not limited in applicability to terminally ill/PVS patients. In addition, they also asked the Court to issue directions to the Government to adopt suitable procedures to ensure that persons of deteriorated health or terminally ill patients should be able to execute a document in the nature of a ‘living will’.[4] In concluding that ‘the right to live with dignity also includes the smoothening of the process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery’[5], the Court appears to have made a specific declaration limited to terminally ill/ PVS patients, which may be interpreted to mean that the right to ‘die with dignity’ is not necessarily guaranteed under Article 21 to those who are not in such a condition.
In this piece, I seek to question the underlying assumptions that underlie the making of this and other distinctions in the judgment. My reasoning is based on a dedication to steadfastly upholding the principles of autonomy, consent and self-determination as inherent and inviolable. While the Court has recognized and upheld these principles in the abstract, it often loses sight of them when conclusions are formed. For example, while some of the questions which I raise based on adherence to these principles are reflected in parts of the various opinions, the conclusions proceed upon ignoring their implications and continuing to maintain arbitrary distinctions between active and passive euthanasia. In addition, I analyse the reasoning and conclusions of the Judges from the perspective of mental illness, and argue that the history of legislation and litigation around the criminalization of attempt to suicide and abetment to suicide need to be revisited. Finally, I wonder whether there is a larger interest at stake – that of control over a person’s life (and death) by the Institutions of Power.
Arbitrary distinctions
The judgment proceeds on the framing of questions in a certain way. For example, ‘the heart of the matter is whether the law permits for accelerating the process of dying sans suffering when life is on the path of decay…’[6] (emphasis supplied). Isn’t life, by its very nature, since its very inception, on the ‘path of decay’, leading towards death? Since this is the case, shouldn’t the Court’s judgment be applicable to everyone alive, and not only to terminally ill/PVS patients?
Elsewhere, there is an explicit acknowledgment of the idea that ‘medical advances have complicated the question of when life ends. There exists no natural death where artificial technology is concerned’[7]; and that ‘modern technology has in a fundamental manner reshaped the notion of life. As technology continuously evolves into more complex planes, it becomes even more necessary to re-evaluate its relationship with the meaning and quality of life’.[8]
Given the idea that modern life, by its very nature, is sustained through artificial means, the very idea of who can be said to be “terminally ill” can be questioned. In a way, isn’t everyone leading a modern life on “technologically enabled life support”? Consequently, shouldn’t we all have the right to request a death with dignity?
Active versus Passive Euthanasia, or Action versus Omission
The Courts have long been obsessed with making a fine distinction between the doing of an overt ‘action’ to accelerate the process of dying, such as giving a lethal injection on the request of a patient (active euthanasia), and the ‘passive’ ‘omission’ of refraining from continuing to provide a form of medical treatment that was ‘artificially’ sustaining life on the request of a patient (passive euthanasia). The making of this distinction is not limited to India alone, but finds place in almost all jurisdictions, with the difference only being the extent to which either is allowed, and the conditions attached to the process.
However, if the central reasoning behind allowing voluntary euthanasia in the first place comes from a compassionate understanding of suffering and is based on the principles of autonomy and self-determination, then making the distinction based on action/ omission appears to be arbitrary, as long as there is consent. In fact, this line of critique has been expressly acknowledged in the judgment itself, in the opinion authored by Justice Chandrachud[9]; however, in the conclusion, the distinction has been maintained.
Inconsistency of differentiation
Another critique of this distinction may be conceptualized as follows: the understanding of ‘passive euthanasia’ conflates the case of a person who is first put on treatment, which is later withdrawn (action), and that of a person who was never put on treatment in the first place (omission). If the distinction between action and omission is not maintained in the understanding of both cases as ‘passive euthanasia’ and allowing them as such, then maintaining the distinction between action and omission to disallow active euthanasia seems arbitrary. Again, this line of logic was also recognized by Justice Chandrachud[10], but not used to expand the final conclusion of the Court.
Sanctity of life
The judgment has also, very progressively, recognized that there might be limits to or nuances of the sanctity principle. Specifically, they have acknowledged the work of philosopher and medical ethicist James Rachels, stating that ‘the value of life is not the value that it has for God or the value that it may have from any religious perspective…the value of life is the value that it has for the human beings who are subjects of lives. Thus the value of life must be understood from the perspective of the person who will be harmed by the loss, the subject of life.’[11]
In light of these observations, the continued maintenance of the distinction between active and passive euthanasia is unjustified. If this recognition of autonomy of the individual is upheld, then it seems unreasonable to deny individuals the right to request ‘active’ euthanasia based on an exercising of the right to subjectively self-determine the value of one’s life.
What is ‘terminally ill’? - Physical versus mental illness
As discussed, this judgment recognizes the right of passive euthanasia is in the limited context of terminally ill/ PVS patients. The understanding of terminally ill/ PVS in the judgment is further limited to the context of physical illnesses. Some of the international precedents that the Court has looked into, as well as the Court’s own conclusions allowing passive euthanasia, are framed only for those who have are ‘competent’, which in most jurisdictions including India, disqualifies those who have been diagnosed/labelled as suffering from some form of mental illness. For example, in paragraphs 130 and 131 of the Chief Justice’s opinion, it is stated:
- The recognition of the freedom of competent adults to make choices about their medical care necessarily encompasses recognition of the right to make choices since individual free choice and self-determination are themselves fundamental constituents of life…
- In the 21st century, with the advancement of technology in medical care, it has become possible, with the help of support machines, to prolong the death of patients for months and even years in some cases. At this juncture, the right to refuse medical treatment comes into the picture. A patient (terminally ill or in a persistent vegetative state) exercising the right to refuse treatment may ardently wish to live but, at the same time, he may wish to be free from any medical surgery, drugs or treatment of any kind so as to avoid protracted physical suffering. Any such person who has come of age and is of sound mind has a right to refuse medical treatment. [emphasis supplied]
The field of psychiatry has even less answers than other fields of medicine dealing with physical illnesses, regarding the causes, measurements, and cures for certain kinds of mental illnesses. In fact, most existing psychiatric medications indicate severe side effects, and several are used to ‘manage’ chronic illnesses rather than ‘cure’ them. Thus, there can be said to be ‘terminal’ cases of mental illness as well. When viewed from the lens of autonomy and dignity of the person, which are recognized as ‘inherent’ under Article 21 of the Indian Constitution as well as under several international human rights instruments, making a distinction between physical and mental illness in the context of recognizing the right to die with dignity, seems arbitrary and inconsistent with both law and ethics.
The Bench itself has acknowledged that ‘In the context of mental illness, Parliament has now expressly recognized the validity of advance directives’[12] and hence the applicability of the guidelines for advance directives given in this judgment being restricted only to terminally ill/ PVS patients excluding the mentally ill, is inconsistent.
Further, India is a signatory to the United Nations Convention on the Rights of Persons with Disabilities, which upholds the right of all person with disabilities to enjoy “legal capacity” on an equal basis with others.[13] Hence, India has an international obligation not to discriminate against those with mental illness when framing guidelines or creating rights in favour of its citizens based on an understanding of incapacity.
What would it mean if the same principles of autonomy, agency and self-determination which have been recognized as the lynchpins upon which the judgment rests its conclusions, were used to examine the rights of persons suffering from similar degrees of severe mental illness? Why are such persons denied the same right to refuse medical treatment for their suffering based on the same grounds to self-determine based on a subjective sense of suffering and hopelessness (the value of life from the perspective of the subject of life), especially when the relevant medical science has no conclusive answers?
The problem of suicide
The judgment traces the litigation history around the criminalisation of attempt to commit suicide and abetment to suicide.
Decriminalisation of attempt to commit suicide: In P. Rathiram v. Union of India & Anr.[14], a 2-judge Bench recognised that a person cannot be forced to enjoy the right to life to his detriment, disadvantage, or disliking, and concluded that ‘the right to live of which Article 21 speaks can be said to bring in its trail the right not to live a forced life’,[15] and declared Section 309 of the Indian Penal Code (criminalising the attempt to commit suicide)[16] ultra vires, holding that ‘it deserved to be effaced from the statute book to humanize our penal laws.’[17] (emphasis supplied)
Re-criminalisation of attempt to commit suicide: Unfortunately, only two years later, in Gian Kaur v. State of Punjab[18], a case in which the appellants were convicted under Section 306 of the Indian Penal Code (criminalizing abetment of suicide)[19], an interesting argument was made on their behalf: it was urged that once Section 309 had been held to be unconstitutional, any person abetting the commission of suicide by another is merely assisting in the enforcement of the fundamental right under Article 21 and, therefore, Section 306 penalizing abetment of suicide is equally violative of Article 21.[20] This case was referred to a Constitution Bench[21], which overturned P. Rathiram, holding not only that Section 306 IPC is constitutional, but that Section 309 IPC is, as well – thus re-criminalizing attempt to commit suicide.
The Court, in Gian Kaur, critiqued the reasoning applied by the judges in P. Rathiram. In P. Rathiram¸ they had taken the view that if a person has a right to live, he also has a right not to live, by relying on a comparison with other fundamental rights (the right to speak under Article 19 includes the right not to speak). However, the Court in Gian Kaur stated that while the decisions relied upon by the Court in P. Rathiram involved the negative aspect of the right for which no positive or overt act was to be done, in the case of suicide, a man has to undertake certain positive overt acts and the genesis of those acts cannot be traced to or be included within the protection of the right to life under Article 21.[22] However, this appears to be a distinction based on a technicality and fairly arbitrary (as discussed earlier in this article).
No criminal trial for attempt to commit suicide: In this judgment, the Court did recognize that ‘This Court’s holding in Gian Kaur that the right to life does not include the right to die in the context of suicide may require to be revisited in future in view of domestic and international developments pointing towards decriminalisation of suicide.’[23] It further went on to recognize that ‘In India, the Mental Healthcare Act 2017 has created a “presumption of severe stress in cases of attempt to commit suicide…[24] Section 115 removes the element of culpability which attaches to an attempt to commit suicide under Section 309. It regards a person who attempts suicide as a victim of circumstances and not an offender, at least in the absence of proof to the contrary, the burden of which must lie on the prosecution. Section 115 marks a pronounced change in our law about how society must treat and attempt to commit suicide.’[25]
Going forward: It is hoped that the Court will, indeed, rely upon this observation to revisit Gian Kaur, not only to re-de-criminalize Section 309, but also reconsider the criminality underlying abetment of suicide under Section 306 based on similar compassionate reasoning underlying Section 115 of the Mental Health Act.
An Issue of Control?
We look around us and see millions of people in this country who are struggling to live. Countless individuals negotiating day-to-day survival, due to poverty, homelessness, abuse and neglect, individuals whose right to live with dignity that the State owes a responsibility to protect. On the other hand, some people who are in extreme suffering may feel compelled choose not to live.
Rather than forcing a negotiation with the State and other authorities (11 (eleven) ‘authorities’ in the Living Will directions) to ‘validate’ one’s ‘request’ to terminate one’s own life, perhaps an ethical response would require asking questions about how society has failed to provide the individual with the kinds of support that create a context which sustains in that individual the desire to live (value of life from the perspective of the subject of life). Requiring State permission to terminate life runs dangerously close to that patriarchal practice so popularly critiqued recently in the movie Padmaavat, where control over the agency to end one’s own life in the face of seemingly impossible choices was exercised by another.
The judgment balances the ‘interest of an individual’ versus ‘interest of the State’, stating that ‘in our considered opinion, an individual interest has to be given priority over the State interest.[26]’ While this conclusion is a reaffirmation of the individual freedoms guaranteed by the Constitution, the very idea that these may be conflicting interests is ironic in a democracy, where elected representatives of the State are supposed to represent the interests of the people.
One wonders how far a democratic State may legitimately hold a place as the patriarch, the protector, the decision maker and the ‘permission-giver’ over free, autonomous citizens. In fact, the framing of issues in P. Rathiram’s case[27] includes the question ‘Does the commission of suicide damage the monopolistic power of the State to take life?’ (emphasis supplied) – is it time to question the idea that the State has such a monopolistic power in the first place?
This article has argued the need for taking a closer look at the rationale for making the kind of distinctions that have been upheld in the judgment, between act and omission for purposes of euthanasia, between recognising self-determination in the case of certain people and certain illnesses but not in others, etc. Ignoring these questions leads to drawing arbitrary lines between ‘us’ and ‘them’, which may lead to various forms of control and exclusion that are not justifiable on legal and ethical grounds.
The author is currently working as a Senior Associate at a Law Firm based in NCR. She holds an LLM from NYU (2015) and received her first law degree from NUJS, Kolkata (2011).
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]
[1] Judgments authored by CJI Dipak Misra (writing for himself and Justice Khanwilker), Justice Sikri, Justice DY Chandrachud and Justice Ashok Bhushan. Hereinafter, references to specific paragraphs from their individual opinions are referred to by the name of the Judge who authored it.
[2] Common Cause v. Union of India & Anr. [WP(C) 215/2005]
[3] Para 6, Prologue, CJI
[4] Para 6, Prologue, CJI
[5] Conclusions (ix) and (x), CJI
[6] Para 5, Prologue, CJI
[7] Para 67, Justice Chandrachud
[8] Para 72, Justice Chandrachud
[9] Paras 37 – 40, Justice Chandrachud
[10] Para 41, Justice Chandrachud
[11] Para 61, Justice Chandrachud
[12] Para 135, Justice Chandrachud
[13] Article 12 of this Convention states that
- States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
- States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
- States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
Further, Article 17 states that
Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.
[14] (1994) 3 SCC 394
[15] Para 16, CJI
[16] 309. Attempt to commit suicide.—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.
[17] ibid
[18] (1996) 2 SCC 648
[19] 306. Abetment of suicide.—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.
[20] Para 18 CJI
[21] 5-judge Bench
[22] Para 19 – 20, CJI
[23] Section 115(1) provides thus: “Notwithstanding anything contained in section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.”
[24] 115. (1) Notwithstanding anything contained in section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.
(2) The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.
[25] Para 22, Justice Chandrachud
[26] Para 175, CJI
[27] supra