DEMANDING DEATH WITH DIGNITY

Once again, the Supreme Court gives right to die with dignity a chance to be a fundamental right. The ink on the judgments of Gian Kaur vs. State of Punjab reported as (1996) 2 SCC 648 and Aruna Ramchandra Shanbaug vs. Union of India reported as (2011) 4 SCC 454 may have dried out but the issue of ‘right to die with dignity’ remains unsettled.  A writ petition under Article 32 of the Constitution of India was filed by Common Cause (A Regd. Society) in 2005. The Supreme Court admitted the case and directed that a constitution bench be constituted for deciding the issue, reported on 25^th February 2014.

The writ was filed to seek a declaration that ‘right to die with dignity’ is a fundamental right within the fold of ‘right to live with dignity’. The Petitioner sort the adoption of a suitable procedure for executing a document called, ‘my living will and attorney authorisation’ which can be presented to hospital for appropriate action in the event of the executant being admitted to the hospital with serious illness is not in a position to give consent to the treatment. Alternatively, the court should issue detailed guidelines for the exercise of the ‘right to die with dignity’ effectively.

THE PREMISE OF THE DISPUTE

As per the Hippocratic Oath, the primary duty of every doctor is to save lives of patients. Regulation 6.7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002 explicitly prohibits doctors from practicing Euthanasia. Regulation 6.7 reads as follows:-

“Practicing euthanasia shall constitute unethical conduct. However, on specific occasion, the question of withdrawing supporting devices to sustain cardiopulmonary function even after brain death, shall be decided only by a team of doctors and not merely by the treating physician alone. A team of doctors shall declare withdrawal of support system. Such team shall consist of the doctor in charge of the patient, Chief Medical Officer/Medical Officer in charge of the hospital and a doctor nominated by the in-charge of the hospital from the hospital staff or in accordance with the provisions of the Transplantation of Human Organ Act, 1994.”

In the case of Parmanand Katara vs. Union of India reported as (1989) 4 SCC 286, the Supreme Court emphasised that the primary duty of doctors is to provide treatment and to save the life whenever an injured person is brought to the hospital or clinic and not otherwise.

Whereas, in the case of Aruna Ramchandra Shanbaug, it was observed that the doctors cannot, by some active means/action/interjection like giving lethal injections end the life of a patient because this would amount to “active euthanasia” which is penalised in India. 

In Gian Kaur, the interpretation of Article 21 relating to the constitutional validity of Sections 306 and 309 of the Indian Penal Code, 1860, was in question.  It was held that ‘right to life’ under Article 21 does not include ‘right to die’. While affirming the above view, the Constitution Bench observed that ‘right to live with dignity’ includes ‘right to die with dignity’ in the following words:-

“The 'right to life' including the right to live with human dignity would mean the existence of such a right up to the end of natural life. This also includes the right to a dignified life up to the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the 'right to die' with dignity at the end of life is not to be confused or equated with the 'right to die' an unnatural death curtailing the natural span of life.”

But, the constitution bench did not express any binding view on the subject of euthanasia rather reiterated that legislature would be the appropriate authority to bring the change. Therefore, it was the Petitioner’s contention, in the present case is that Regulation 6.7 should be read to mean, prohibition on active euthanasia. The regulation could not be interpreted in a manner which casts an obligation on doctors to keep providing treatment to a person who has already expressed a desire not to have any life prolonging measure. (Emphasis Added)

PRESENT STATUS

In the light of the above discussion, it is clear that although the Constitution Bench in Gian Kaur (supra) upheld that the ‘right to live with dignity’ under Article 21 will be inclusive of ‘right to die with dignity’, the decision does not arrive at a conclusion for validity of euthanasia be it active or passive.

So, the only judgment that holds the field in regard to euthanasia in India is Aruna Shanbaug (supra), which upholds the validity of passive euthanasia and lays down an elaborate procedure for executing the same on the wrong premise that the Constitution Bench in Gian Kaur (supra) had upheld the same.

In view of the inconsistent opinions rendered in Aruna Shanbaug (supra) and also considering the important question of law involved which needs to be reflected in the light of social, legal, medical and constitutional perspective, the Supreme Court in the present petition thought it be extremely important to have a clear enunciation of law.

Thus, for finding an answer to the question of law involved, the Supreme Court has constituted a Constitution Bench for settling the issue and ofcourse, for the benefit of humanity as a whole.

Rimali Batra