Group-4: Right to Die with Dignity

Right to Die with Dignity

Article 21 of the Indian Constitution:

Article 21, which guarantees the right to life and personal liberty, is one of the most flexible articles, capable of multiple interpretations. Historically, it can be observed that the Supreme Court of India went from a positivist literal interpretation in the 1950s to judicial activism in the post-emergency period (1980s), inventing new rights and expanding the scope of Article 21.

Article 21 provides that the personal liberty of a person can be deprived only by the ‘procedure established by law’, not the ‘due process of law’, similar to the Japanese Constitution. The Japanese Constitution was framed by General McArthur of the U.S. Army, with the aim of ensuring parliamentary supremacy and limiting judicial interference. This is in significant contract to American experience, where Judicial Activism was conservative, pro-market and right winged. The judiciary was in constant conflict with the other parts of the government. While the Supreme Court struck down social welfare legislations passed by Roosevelt, an angry Roosevelt changed 9 out of 19 Supreme Court judges, after which the Court overturned many of its previous judgments, thus marking supremacy of the Legislature over the Judiciary.

In India, such a conception of judicial activism was opposed. Judicial Activism in India was largely socialist in its approach, through PILs, enlarging the scope of rights, as advocated by Justice Krishna Iyer and others. Although “due process” was initially rejected by the Constituent Assembly on Rao’s recommendations based on the U.S. experience, it was effectively read into Article 21 later by the Supreme Court.

“Due process of law” is a combination of:

1.        Pure form of law (Textual, parliament supremacy),

2.        Procedural aspect (manner in which deprived),

3.        Substantive law (Objective, nature of the law).

Article 21: Important Cases:

During the class activity, the important case laws which mark the incredible journey of Article 21 were discussed to examine how the scope of the Article has been transformed through Constitutional Interpretations.

The A.K. Gopalan Case (1950): In this case, the Supreme Court, following an originalist, literal interpretation, took deliberate steps towards rejecting the doctrine of “due process” as is Applicable in America in context of the Right to Life and Personal Liberty. The vagueness of the phrase, the failure of American courts to define “due process” made the Constituent Assembly reject it, and adopt a more clear, uniform and specific doctrine of “procedure established by law” and establishing Parliamentary supremacy.

The Maneka Gandhi Case (1978): In the post-emergency period, with increasing judicial activism, the interpretation of Article 21 massively changed. Justice Krishna Iyer adopted a Constitutional Interpretation, placing the Liberty of citizens on an ever so high pedestal. He adopted Structuralist Constitutional Interpretation, wherein he considered Parrt III of the Constitution as ‘continent’, and not the individual rights as separate ‘islands’. He rejected the idea that the Right to Personal Liberty can be fettered by any formal, legislative ‘procedure’ established by ‘law’. Article 14, 19, 21 are inseparable and any ‘procedure’ established by ‘law’ has to pass the test under these provisions and anything ‘arbitrary, freakish or bizarre’ ought to be discarded.

The Francis Coralie Case (1981): In this case, the court used the new ambit of Article 21 explored my Maneka Gandhi to treat the Right to Life and Personal Liberty as the most fundamental of all. The court rejected the narrow and rigid interpretation of Fundamental Rights and emphasized the importance of interpreting the right under Article 21 in a wide way, to keep pace with changing social context. The Right to Life was for the first time expanded to consider the dignity of the individual. Mere animal existence was rejected as the Right to Life sought to be protected under Article 21 and aside from the crucial aspect of basic human dignity, bare necessities such as nutrition, clothing, shelter etc. were also read within the Right to Life.

Does Right to Life include Right to Die with Dignity: The Euthanasia Debate in India:

Group 3’s Presentation concerned the debate regarding euthanasia in India. Euthanasia is the practice of ending someone’s life intentionally in order to relieve the concerned person of his or her suffering and pain. It is characterised into three types: Voluntary Euthanasia, Non-voluntary Euthanasia and Involuntary Euthanasia. Euthanasia can further be classified as Active and Passive Euthanasia. Most of the countries allow only Passive Euthanasia, wherein the doctors are not “actively” killing, rather they are just “not saving” the patient. In India, euthanasia is an offence covered under Section 309 of IPC i.e., attempt to suicide.  While, the Supreme Court interpreted Article 21 as the right to live of dignity, when there is pain is there dignity? 

A. Cases: 

Aruna Shaunbaug v. Union of India: In the landmark judgment, the court explained what euthanasia is and explained its types. The Court opined that based on the doctors’ report and the definition of brain death under the Transplantation of Human Organs Act, 1994, Aruna was not brain dead. Though she is in a PVS, her condition was been stable. So, terminating her life was unjustified. This case clarified the issues revolving around euthanasia and also laid down guidelines with regard to passive euthanasia. Alongside, the court also made a recommendation to repeal Section 309 of the Indian Penal Code. This case becomes specifically significant as it prescribed the procedure to be followed in an area that has not been legislated upon. 

The judgment referred to several cases: 

·         State of Maharashtra v. Maruty Shripati Dubal: ‘Right to life’ also includes ‘Right to die’, even though  it is uncommon and abnormal. 

·         P. Rathinam v. Union of India:  Article 21 has a positive content. Section 309 IPC is unconstitutional w.r.t Article 21 as it is cruel and irrational.

·         Gian Kaur v. State of Punjab: The right to live with human dignity must also include a death with dignity and not one of subsisting mental and physical agony. Overruling the P. Rathinam  but the court opined that in the context of a terminally ill patient or one in the PVS, the right to die is not termination of life prematurely but rather accelerating the process of death which has already commenced

·         Airedale NHS Trust v. Bland (England): The Right to die was allowed through the withdrawal of life support systems including food and water. This case placed the authority to decide whether a case is fit or not for euthanasia in the hands of the Court. 

Common Cause v. Union Of India (2018): Here the Petitioners demanded that the Right ot die with dignity should be declared as a fundamental right under Article 21 and terminally ill patients should be allowed to form a ‘Living Will’ or any other advance directive, stating their wishes for end-of-life medical care. The court held, when life is ebbing out, and in the case of a terminally ill patient or a person in PVS, where there is no hope of recovery, accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity. The court further laid down regulations regarding the Living will. 

B. Comparative Analysis: 

Netherlands: The Termination of Life on Request and Assisted Suicide (Review Procedures) Act (2002) legalizes euthanasia in very specific cases and conditions. Criteria concerns patient’s request, patient’s suffering, information provided to the patient, absence of reasonable alternatives, consultation of another physician and the applied method of reducing life. The Act also requires physicians to report the euthanasia to a review committee. 

Belgium: Section 2 of The Euthanasia Act 2002 defines euthanasia as, ῾intentionally terminating life by someone other than the person concerned, at the latter’s request’. Adult patients must be in a ῾medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated, resulting from a serious and incurable disorder caused by illness or accident.’ In order to reassure the public and concerned parties regarding the operation of the Law on Euthanasia the Federal Control and Assessment Commission was set up shortly after the Act was brought into force.  

Debate and Discussion:

The Group Presentation ended with a debate as to whether Identical twins, who were blind and deaf, should be allowed euthanasia or not. Though based on a real case, wherein they were allowed euthanasia, the debate in the class brought some interesting aspects of this extremely subjective issue, which wide ranging consequences.

The students who were in favor of euthanasia argued they had spent a significant part of their life in such prolonged suffering and were able to make an informed choice. They should be given autonomy to make such intimate personal decisions in their life, and hence it should be allowed. However, those against it argued that euthanasia should only be allowed in case a person is irrevocably, terminally ill or in a PVS. Allowing euthanasia for every disability could lead to trivializing the suffering of those who actually require it. Also, a person suffering from any disease may not be in the correct mental state to make such a decision, he might be pessimistic about his chances of survival, despite scientific advancement in medical services and possible solution for the disability. They could overcome their disability if they are provided with psychiatric help and counseling. Allowing euthanasia may invalidate the option of survival and recovery. Moreover, it was argued that allowing euthanasia may not reduce suicide, rather regularize, systemize and legalize it.

In India, there is no law allowing passive euthanasia, it has been legalized through judicial activism. The Supreme Court, through the landmark judgments, have read the right to die within the right to life under Article 21, and has laid down the procedure to be followed if a person wants to be euthanized. In such a scenario, it may seem like the Court has taken the role of the Legislature, thereby overstepping its boundaries, and leading to Judicial Overreach. In this regard, questions arise as to whether judicial activism is correct, what is its best from, and how to prevent it from becoming judicial overreach. However, in the context of euthanasia, it is not judicial activism against the Government. Given the lack of legislations in this regard and the prolonged pain and suffering of the patients, such a decision seemed to be necessary.

Now that passive euthanasia has been allowed, there are several instances wherein it can be misused. By recognizing the concept of “living will”, the elderly have the option to choose ‘do not resuscitate (DNR)’. A standard form contract of a living will might be a welcome move for the Supreme Court, ensuring regular and standard form of contract and access to justice. However, if a patient is not in mentally or physically stable condition to decide on his own, then the next of kin and doctors are allowed to decide. If the relatives feel burdened and frustrated, they may abuse of the ‘living will’ of the patient. They also may be more concerned with inheriting the wealth of the patient, rather than the health of the patient. Additionally, illegal clinics may open up, wherein the doctors could become ‘part-time executioners’ and misuse euthanasia.

In India, euthanasia is extremely restricted – it is permitted only for citizens, after the required procedure has been complied with. However, some counties like Switzerland, allow non-citizens to be euthanized. Several German and British nationals get euthanized in Switzerland.

Dignitas is an organization in Switzerland which assists euthanasia, once the established procedures are followed. Since Swiss law allows assisted suicide, as long as there is no selfish intent, but not euthanasia (the difference being that the person who wants to die must actively take the dose himself), the act of voluntarily drinking the drug, mixed with 60ml of water, and the subsequent death is videoed by the Dignitas companions, who stay behind to deal with the police and the undertakers in the hours that follow. He further argues that providing a service to help people kill themselves properly will reduce the large number of catastrophically failed suicides. (The following link, has a detailed interview of Minelli, which is a very interesting read- https://www.theguardian.com/society/2009/nov/18/assisted-suicide-dignitas-house)

In Gian Kaur case, it was highlighted that suicide does not have religious connotations. However, religious leaders have argued that ‘no one has the right to put an end to human life. The ultimate aim of the medical science is to save life from death. Thus, there is a significant conflict between religious beliefs and the right to die. So, is life sacrosanct, something bestowed upon by God, and hence, neither the individual’s nor the state’s to take? The conception of life has been molded in a Universal Christian manner, owing to the legacy of colonisation: Our lives are gifts of god that we cannot ourselves end, without risking hellfire.

However, in India, in the Jain Community, there is a practice of Santhara, wherein the people voluntarily and systematicallyfast unto death. Through this act, one prepares his soul to pass into death and beyond. It is usually undertaken by the old and infirm, most of who are terminally ill. And even after taking the vow, the individual is free to withdraw it. This is quite similar to the voluntary passive euthanasia wherein no efforts are made to provide food to a person. Even the Supreme Court issued a stay order on the ruling of the Rajasthan High Court, which criminalized Santhara. (You can further read up on Santhara: https://scroll.in/article/752830/why-a-jain-tradition-of-suicide-could-reorient-our-attitude-to-life-and-death, http://www.openthemagazine.com/article/india/the-right-to-die/)

The Idea of Dignity:

The debate around euthanasia becomes significant as to whether the citizens have the right to die with dignity, under Article 21. The word ‘dignity’ is not mentioned in Part III of the Constitution, but the Preambles aims to ensure dignity to every citizen. So, the question arises as to what is dignified life and dignified death.

Intrinsic dignity is what is attached to one by the virtue of being a human being- it is inalienable, inviolable, and absolute, and involves a minimal standard of moral respect and care. Thus, such dignity is violated in case if torture, use of force, force-feeding, pain and suffering and going against one’s wishes. A German Case law interpreted human dignity means that a human being can’t be reduced to means to an end.  The South African Constitution has included human dignity and inherent dignity explicitly within the Constitution.

The other idea is of Contingent dignity, which is related to one’s personal and intimate choices. Thus, it is contingent on one’s capability to make an informed autonomous choice.  In the Landmark US judgment of Lawrence v Texas, the Court held that astatute banning consenting homosexual adults from engaging in sexual acts violated the Fourteenth Amendment's guarantee of equal protection, and thereby their dignity and personal autonomy.

The debate around euthanasia also relates the debate around abortion, wherein there is a conflict between right to life of the mother and right to life of the child. So, when abortion is demanded in the grounds of severe abnormalities in the unborn fetus, it is similar to ask for the right to die with dignity of the unborn child itself.