A plea has been moved in Delhi High court seeking orders to stop a man from traveling to Switzerland for assisted suicide at a Swiss-based firm Dignitas.

The petition claims that the man has obtained a Schengen visa by falsely informing authorities that he is traveling to Belgium for treatment. The petition has sought orders to direct the Indian government to not grant an emigration clearance and also sought directions to constitute a team of a medical board to examine his medical condition and provide necessary medical help to him.

This person suffers from Chronic Fatigue Syndrome (CFS) also known as Myalgic Encephalomyelitis. CFS is a long-term neuro-inflammatory disease. Though the man was getting treatment in AIIMS for the same, it was suspended because of the unavailability of donors. Now the man is completely bed-bound and can hardly move a few steps with assistance.

This case will throw up a plethora of questions related to constitutional law, the right to life with dignity, and the right to choice.

An important question here is whether the court will allow traveling to another country to hasten the death of a person by administering a lethal substance to end the suffering. Euthanasia is a complex ethical question that courts have been trying to answer across the world.

Let's look at the judgments that have shaped the Euthanasia laws in India. In India all forms of euthanasia were illegal, but in landmark judgments Aruna Shanbaug v UOI^[1] and Common Cause (A Regd. Society) v UOI^[2], the SC has held legality and clarity about the rights to end the life of terminally ill patients.

Suicide And Right To Die

An attempt to commit suicide is a criminal offense in India under Section 309 of the Indian Penal Code. It's a unique offense – if one fails in an attempt, one is punished, but if one succeeds there is no one left to punish. Suicide is not a crime in all countries, but abetting suicide is an offense in most countries. In India abetting suicide is punishable under Section 306 IPC.

Section 309 has been challenged before high courts and supreme courts several times. In Maruti Dubal v State of Maharashtra^[3], a police constable who tried to immolate himself outside the office of Bombay Municipal Corporation was pressed with criminal charges. He questioned the validity of section 309 of IPC in Bombay High Court. Bombay High courts had earlier agreed that fundamental rights have positive and negative aspects and what is true for one fundamental right has to be true for other fundamental rights too. Citing an example the court explained that freedom of speech includes the freedom to not speak. So logically it should follow that right to live should mean the right to die.

Is it permissible to penalise suicide was questioned in P. Rathinam v Union of India^[4]. While hearing the writ petition challenging the constitutional validity of Section 309 of IPC, the court held that an attempt to commit suicide indicated psychological problems rather than a criminal intention and the court struck down Section 309 of IPC. It found Section 309 in contravention of Article 21.

But these judgments have been overruled in Gian Kaur v State of Punjab^[5] when a married couple appealed against the conviction of abetting suicide under section 306. They argued that Section 306 was unconstitutional and to sustain this argument they cited the P.Rathinam case wherein Section 309 of IPC was held unconstitutional and in violation of Article 21.

In this case, the court observed that the right to life is a natural right embodied in Article 21 but suicide is unnatural termination of life which is inconsistent and incompatible with the right to life. And the right to life does not include the right to die. The right to terminate natural life is not within the ambit of the right to life with human dignity.

This case also opened the opportunity to legalize euthanasia within the existing legal framework. The constitution bench said that the right to life including the right to live with human dignity will include such a right up to the end of life including a dignified procedure of death – the right of a dying man to die with dignity when life is ebbing out.

Right To Die And Article 21 In Terminally Ill Patients

The right of a terminally ill patient, who is already dying, to terminate his existence has been debated extensively. In such cases, the termination of life is certain and imminent. Since the process of natural death has already commenced and life is already ebbing out, permitting termination of life would only reduce the period of suffering. The SC has agreed that the right to die with dignity is a part of the right to life under Article 21.

The artificial measures for the continuance of the life of a patient in PVS are of no benefit to the patient. In Airedale NHS Trust v Bland^[6] it was held that the sanctity of life is not an absolute one. A premature extinction of the life of terminally ill patients by withdrawing medical treatment would not amount to a crime.

Euthanasia

In Aruna Shanbaug v Union of India^[7] Supreme court was deciding the fate of Aruna Shanbaug. Pinki Virani, a journalist who had followed Aruna's life closely moved the Supreme court to stop medical treatment such as artificial feeding to keep her alive. Along with deciding on Aruna Shanbaug's fate, the SC went above and beyond and decided on a larger question – the permissibility of passive euthanasia.

The court distinguished between Active euthanasia and passive, voluntary and non-voluntary euthanasia.

Passive Euthanasia is withdrawing life-prolonging treatment with an intention causing death of a terminally ill patient or a patient in a Permanent Vegetative State (PVS). For example, if a patient needs kidney dialysis to stay alive, then deliberately not giving dialysis to end life. The court held that passive euthanasia comes under the ambit of Article 21. The courts can make a decision on the same because the right to die with dignity is an intrinsic facet of Article 21. It is the court alone that is entitled to take a decision as parens patriae.

Active Euthanasia entails a positive act or act of commission i.e. the use of lethal substances such as a lethal injection to extinguish the life of a patient. An example was cited in a later case - such as injecting sodium pentothal which causes a state of deep sleep and the person instantly dies.

In euthanasia, a physician or third party administers the drug but in "physician-assisted suicide" the patient administers drugs under the instruction of a physician. Active Euthanasia does not fall under the ambit of Article 21 and can be legalized by means of legislation only. Active euthanasia is a crime under section 302 or at least under 304 of IPC.

Voluntary euthanasia is a condition when the patient is in a position to express consent and capable to decide that he would prefer to die because of various reasons. However, in non-voluntary euthanasia, a person is not capable of giving consent and deciding for himself because she is comatose or in PVS. Non-voluntary euthanasia involves more complexities because it requires a surrogate or 'next friend' to make a decision on behalf of the person.

Aruna Shaunbag's case followed a method that it thought appropriate and established a benchmark for all high courts related to cases of passive euthanasia. This includes appointing a team of doctors –a neurologist, a psychiatrist, and a physician – to report to the court, issue notices and inform the state and close relatives of the patient. This mechanism was supposed to operate till a legislation is passed in the parliament.

In Common Cause v Union of India^[8], a petition was filed by Common Cause to seek declaration that the right to die with dignity fell within the ambit of the right to life with dignity under Article 21. It also sought provisions for living wills or Advanced medical directives.

The court analysed in detail Gain Kaur and Aruna Shanbaug case. It also analysed numerous foreign judgments, especially the Airedale case.

Though the court disagreed with the interpretation of Gian Kaur case regarding passive euthanasia in Aruna Shanbaug judgment, it agreed that withdrawal of lifesaving measures is permissible in India. It held that in case of an incompetent person only a court as parens patriae can take a decision on whether to withdraw the life support.

The sources referred to arrive at the decision, in this case, is a medley of Indian precedents and foreign judgments. The court mentioned the legislations of numerous countries such as the Netherlands, Belgium, Switzerland, the United Kingdom, and the United States of America in detail along with other sources related to the topic.

It extensively cited the judgment from House of Lords in Airedale NHS Trust v Bland^[9] where the withdrawal of life support for patient Anthony Bland was allowed. This case argues about discontinuing treatment that confers no benefit at all. It was also held that the sanctity of life was not absolute and keeping patients (terminally ill or in PVS) alive will only prolong suffering. And the decision must be in the best interest of the patient.

The petitioner in the Common Cause case had also sought a directive on Advance Medical Directive or living will. Advance Medical Directive is an individual's advanced exercise of autonomy on medical interventions that he wishes to allow on his body. The court held that the right to self-determination and bodily integrity can be exercised in affirmation of Article 21.

The principle of self-determination respecting the patient's wishes to carry on treatment has been held important in many other judgments.

The court held that

a. "Right to life including right to life with human dignity" means such right extends till the end of human life and includes a dignified procedure of death. This right is part of the fundamental rights conferred in Article 21. The right to die with dignity is a fundamental right.

b. Passive euthanasia where the medical practitioner withdraws the life support comes under the ambit of Article 21. Whereas active euthanasia where the lethal drug is administered is not covered under Article 21.

c. An adult human being can refuse medical treatment and decide to embrace death in a natural way. The right of patients who are not competent to take informed decisions also falls under Article 21

d. An Advance Medical Directive can be executed by any person having mental capacity in recognition of affirmation of a person's rights of bodily integrity and self-determination.

The judgment given in Common Cause v Union of India^[10] is the current law for euthanasia in India. The SC guidelines are meant to operate till a law is enacted by the Parliament. The legislation making provisions for passive euthanasia for terminally ill patients, The Medical Treatment of Terminally-ill Patients (Protection of Patients and Medical Practitioners) Bill, 2016, is still pending in Parliament. SC judgment should not be used as a substitute for a law for too long. It is now imperative that Parliament enacts suitable law regarding active and passive euthanasia that fulfills the expectations of society.

Views are personal.

References

· 10 Judgments that changed India : Zia Mody

· Common Cause (A Regd. Society) vs Union Of India on 9 March, 2018 : https://indiankanoon.org/doc/184449972/

· Aruna Ramchandra Shanbaug vs Union Of India & Ors on 7 March, 2011 : https://indiankanoon.org/doc/235821/

[1] (2011) 4 SCC 454