EUTHANASIA - A Negative or Positive Component

"Death solves all problems...no man, no problem.�... Joseph Stalin.

Introduction:

Today the development in the Medical science is bringing medicines to all most all the diseases and trying to cure them and also expanding the life span of the person. In all the religions life is regarded as being sacred. The taking of life is a crime in all societies. In few medial processes the concept of taking the consent of the patient is allowing like, what should be done to his body as a part of medical care, to prevent the filing of case by patient on the ground of medical process done beyond his consent, to maximize the patient cooperation for the course of treatment selected.

Giving a respect to the wishes of the individual person is a central belief in most of the western countries. This has been given rise to the acceptance of a right to die. The concept of Euthanasia and Physician Assisted Suicide has developed basing on these beliefs. Legal sanction for the concept of allowing Euthanasia has been under consideration but in some countries it has been legalised.

Due to the globalization of information and attitudes, individuals are demanding for the Euthanasia or Right to die the same concept is also developing in India. Therefore it is essential both the medical jurist and the legal experts have to take into consideration the prons and cons of Euthanasia.

Bu when the Euthanasia is allowed there may be a chance of misuse or over use of the euthanasia, so when allowing the euthanasia there should be a confined parameters laid down and while allowing the euthanasia it should be scrutinises under the supervision of a experts of panel belonging to different disciplines and there should be a open discussion while allowing the euthanasia

1.1. EUTHANASIA:

�I will give no deadly medicine to any one if asked, not suggest any such counsel � Hippocrates, Father of Modern Medicines (400 BC )[1]

Euthanasia is the practice of ending the life of a person in a painless way. The term, 'Euthanasia' comes from the Greek words �eu� meaning God, and �Thanatos� meaning death. Known also as mercy killing or assisted suicide, it is usually practiced on a terminally ill person. Euthanasia may be legal or illegal, depending upon a country's jurisdiction. For example, euthanasia is legal in countries like Belgium, Norway, Sweden and Albania, under the condition that the patient is suffering from chronic pain along with an incurable disease. In the United States, euthanasia is illegal; whatever may be the condition of the patient.

1.2. History of Euthanasia:

In earlier times, euthanasia was divided into two types, namely voluntary and involuntary. Euthanasia was voluntary when it was done with the consent of the patient/person, whereas involuntary euthanasia referred to killing a terminally ill person without his/her consent.

Many religions and medical practitioners opposed the idea of euthanasia and strongly claimed it to be illegal. In the 1930s, non-voluntary euthanasia was practiced for the first time by German physicians, to eliminate the diseased and disabled among the German people in closed gas chambers. The main purpose of the program was to get rid of handicapped children and people with psychiatric problems.

By 1945, it was estimated that 300,000 Germans had been killed. The Nazis used the same gas chambers to exterminate captured Russians, gypsies and Jews. In the 20th century, lot of organizations were formed to address the concerns regarding euthanasia. In 1935, the first group for legalization of euthanasia, called Voluntary Euthanasia Society, was formed by a group of doctors in London. In 1938, a similar organization, known as the Hemlock Society, was established in the United States. It is estimated that there are more than 60,000 members registered in this society. There have been many cases of physician-assisted suicide or euthanasia fought in the court. In 1935, Harold Blazer was arrested for performing euthanasia on his daughter, who was suffering from cerebral spinal meningitis for more than thirty years. However, during the trial, he was acquitted of the charges.

In 1986, another doctor, Joseph Hussmann, was charged guilty for administering a lethal dose of Demerol to his mother-in-law. He was fined and sentenced to two years imprisonment for the act. In 1999, euthanasia became a public issue, with the imprisonment of Dr. Jack Kevorkian for conducting voluntary euthanasia on Thomas Youk (52), who was in the final stage of ALS (amyotrophic lateral sclerosis). Kevorkian was charged with second-degree murder and served eight years in prison (from 1999 to 2007). It is claimed that he had administered euthanasia for at least 130 other patients (in this case, patients took lethal injection themselves).

The debate on euthanasia is still going on. There are both pros and cons of euthanasia andwhether to stand for or against euthanasia depends on the ideology and understanding of each individual.

1.3. Euthanasia Definitions:

� Euthanasia: the intentional killing by act or omission of a dependent human being for his or her alleged benefit. (The key word here is "intentional". If death is not intended, it is not an act of euthanasia)
� Voluntary euthanasia: When the person who is killed has requested to be killed.
� Non-voluntary: When the person who is killed made no request and gave no consent.
� Involuntary euthanasia: When the person who is killed made an expressed wish to the contrary.
� Assisted suicide: Someone provides an individual with the information, guidance, and means to take his or her own life with the intention that they will be used for this purpose. When it is a doctor who helps another person to kill themselves it is called "physician assisted suicide."
� Euthanasia by Action: Intentionally causing a person's death by performing an action such as by giving a lethal injection.
� Euthanasia by Omission: Intentionally causing death by not providing necessary and ordinary (usual and customary) care or food and water.

1.4. Legal denial of right to die:

In India the law treats the every attempt to take the life of oneself or of another is a punishable offence under the Indian penal code and also any assistance or abetment rendered is also a punishable offence. in this context the following provisions are important . they are

Sec � 299 deals with culpable homicide.
Sec � 304 A causing death by negligence.
Sec � 309 attempts to commit suicide is a offence punishable with fine or imprisonment up to 1 year.
Sec � 306 abetment of suicide etc.

1.5. Indian Constitution and Right to Life:

Ours is a democracy which means that it is by the people, of the people and for the people. Constitution locates power that resides in the people. It is the people's power for people's benefit. Constitution creates rights and duties. All most all our demands get converted into rights-even our feelings, emotions is governed by the rights and duties we have. The society is changing from time to time along with that the constitution should be changed to meet the current needs and to promote the common good of the people.

The Constitution of India provides a long list of fundamental rights under Part-III. Article 21 of our Constitution is one of the important fundamental rights among those rights. The article 21 of our constitution deals with �Protection of Life and Personal Liberty.�

�The Article 21 reads as follows: No person shall be deprived of his life or personal liberty except according to procedure established by law�.

According to this article right to life means the right to lead meaningful, complete and dignified life. It does not have restricted meaning. The object of the fundamental right under Article 21 is to prevent any restriction by the State to a person upon his personal liberty and deprivation of life except according to procedure established by law.

The meaning of the words �personal liberty� came up for consideration of the Supreme Court for the first time in A.K. Gopalan vs. Union of India [2]. The scope of Article 21 was a bit narrow at that time. In this case the Supreme Court held that the word deprivation was construed in a narrow sense and it was held that the deprivation does not restrict upon the right to move freely which came under Article 19 (1) (d).

Finally, in Maneka Gandhi vs. Union of India [3], the Supreme Court has overruled Gopalan�s case and widens the scope of the words �personal liberty�, which is as follows:

�The expression personal liberty in Article 21 is of widest in nature and it covers a bundle of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19�.

Later the supreme court from time to time has widened the scope of Art-21 of the Indian constitution and held that the following rights will also included within the meaning of Art -21 Right to Life under the constitution they are as Follows;

A) Right to education: below the age of 14yrs has been guaranteed by Article 21(a) recent developments are about guaranteeing education in the technical, higher educational institutions.
B) Right to clean environment
C) Right to life: is widely interpreted to include the right to dignified living this includes rights guaranteed to prisoners, inmates of protective homes, right to release and rehabilitation of bonded labourers, right to legal aid, and the right to know.
D) Right to go abroad.
E) Right to privacy.
F) Right against solitary confinement.
The constitution of India guarantees not only the right to live but also provides directives to the state to provide health care to all the citizens. There are certain articles in the constitution which indirectly is concerned with Article � 21 of Right to Life, they are,

1. Art � 14 the state shall not deny to any person equality before the law or equal protections of the laws within the territory of India.
2. Art � 39 and 47 of the Directive Principles of State Policy.

The supreme court of India in its landmark judgment in Pt,Parmanand Katara vs. Union of India and others [4] ruled that every doctor whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life [5].

1.6. Right to die under the Indian context:

v Right to die not a fundamental right under the Article � 21:

Under sec-309 of the Indian penal code 1860 an attempt to commit suicide is a punishable offence. But the question of whether right to life included the right to die and whether attempt to commit suicide should be criminalized or not was arisen for the first time in India.

In state of Maharashtra vs. Maruti Sripati Dubal[6] a Bombay police constable who was mentally deranged was refused permission to setup a shop and earn a living. Out of the frustration he tried to set himself a fire in the corporation�s office room. In this case the Bombay high court held that the right to life guaranteed by art � 21 of the Indian constitution includes the right to die and consequently the court struck down sec � 309 of the Indian penal code as unconstitutional. The judge felt that the desire to die is not unnatural, but merely abnormal and uncommon. They listed several circumstances in which people may wish to end their life, including diseases, cruel or unbearable condition of life, a sense of shame or disenchantment with life. They held that everyone should have the freedom to end his life as and when he desires.

On the other hand the Bombay high court held that the said section is violative of article � 14 and 21 of the Indian constitution. In the same case the court declared the section unconstitutional on the following grounds:

�Firstly, Article 21 also included the negative right not to live, secondly, suicide is generally committed for reasons, inter alia, mental disease, decrepit physical ailments, affliction by social performing normal functions , the lost of all senses or the desire for the pleasure of any of the senses or a need to defend ones honour, and lastly the Bombay high court also took into cognizance the existing customs in India of johary, sati, Samadhi, prayapaveshan, atmarpana � [7]

Finally the court held that fundamental right have both positive as well as negative aspect and therefore, stated logically it must follow that right to live will include right not to live i.e., the right to die or to terminate one�s own life.

In this case the court tried to make the distinction between the euthanasia and suicide. According to the court the suicide by its very nature is an act of self killing or termination of ones own life by ones at without assistance from others. But Euthanasia means the Intervention of other human agency to end the life. Mercy killing therefore cannot be considered on the same footing as suicide. Mercy killing is nothing but a homicide, whatever be the circumstances in which it is committed. [8]Hence the court cleared the position of Euthanasia in Indian laws as follows:

�Mercy killing is nothing but homicide, whatever the circumstances in which it is effected. Unless it is specifically expected it cannot but be an offence. Out penal code further punishes not only abetment of homicide, but also abetment of suicide�.

Later again the dispute came into consideration in the Andhra Pradesh high court .the division bench of the Andhra Pradesh high court in Chenna Jagadeeswar vs. State of Andhra Pradesh [9]rejected the challenge to the challenge to the right to die and the court came to a different conclusion and held that right to die is not a fundamental right within the meaning of art 21 and hence, section 309 of the Indian penal code 1860 is not unconstitutional.

Justice Amrareswari opened that there could be any number of reasons for attempting to commit suicide, and poverty was not the only reason. Under the law, sati is an offence and any woman who attempts to commit sati should be punishable under section 309 of the Indian penal code. The court further held that right to live cannot include right to die because by exercising the right to die one would be extinguished the very Fundamental right to live to oneself. [10]

Again the Supreme Court in P .Rathinam vs. union of India [11] rejected the constitutional validity of sec 309, IPC.based on art 14 but upheld the challenge on the basis of art 21 of the constitution. The Supreme Court expressed agreement with the view taken by the Andhra Pradesh high court. The Supreme Court then proceeded to consider the challenge with reference to art 21 of the constitution. The court was held that art 21 has enough positive content in it so that is also includes the �right to die� which inevitable leads to the right to commit suicide. The right to life in art 21 speaks of can be said to bring in its trial the right not to live a forced live.

The Supreme Court concluded that sec 309, of the Indian penal code deserves to be effaced form the statue book to humanise our penal laws. It is a crucial and irrenatioanl provision, and it may result in punishing a person again who has suffered agony and would be undergoing ignominy because of his failure to commit suicide. Then an act of suicide cannot be said to be against religion, morality and public policy and an act of attempted suicide has no baleful effect on society. Further the court held that suicide or attempt to commit suicide it causes no harm to others, because of which state�s interference with the personal liberty of the persons concerned is not called for.

The supreme court in Gian Kaur vs. State of Punjab[12] considered the question as to whether the right to life would include the right not to live, that is, the right to put an end to ,or to terminate, one�s own life. That was the basis on which the earlier decision in P. Rathinam�s case proceeded. The supreme court distinguished the nature of rights under art 21 dealing with the rights to life, against the nauret of rights under other articles, such as freedom of speech and expression art 19(a)(1), which includes the freedom not to speek;freedom of movement in art 19(a)(d) which includes the freedom not to move an where; the freedom of practising any profession or to carry on any occupation , trade or business under art 19(1) (g) which includes the freedom not to do any business. The Supreme Court came to the conclusion as under:

�when a man commits suicide he has to undertake certain positive over act and the genesis of those acts cannot be traced to, or be included within the protection of the right to life under article 21. The significant aspect of sanctity of life is also not to be overlooked. Art 21 is a provision guaranteeing protection of life be read to be included in the �Protection to Life�[13]
The supreme court emphasised that the �right to life � under art 21 would include the right to live with human dignity upto the end of natural life, which includes the right to a dignified life upto the point of death including a dignified procedure of death. 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. In this view of the matter, the supreme court disagreed with the view expressed earlier in P. Rathinam�s case and came to the conclusion that the reason for which sec 309 of the IPC was held to violative of art 21 did not withstand legal scrutiny. It was, therefore, held that sec 309 of IPC was not violative of art 21 of the constitution.

Euthanasia and suicide are different. Distinguishing euthanasia from suicide, Lodha J. in Naresh Marotrao Sakhre v. Union of India,[14] observed:

�Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating one's own act and without the aid or assistance of any other human agency. Euthanasia or mercy killing, on the other hand, means and implies the intervention of other human agency to end the life. Mercy killing thus is not suicide and an attempt at mercy killing is not covered by the provisions of Section 309. The two concepts are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is effected�.

Moreover, it is argued that when a healthy person is not allowed to commit suicide then why a diseased person should be allowed to do so. It is pointed out that suicide in a person who is diagnosed with terminal illness is no different than suicide for someone who is not considered terminally ill.

1.7. RECENT TREND IN INDIA:


In an another case which was happened in 2007 an Andhra youth , K.Ventakesh case[15], wanted to allow him to allow for Euthanasia which he wants to donate his organs to others and also filed a case through his mother in the Andhra Pradesh high court. But the Andhra Pradesh high court rejected his mother plea. Again the discussion on euthanasia came for discussion in India through this case.

The Society for Right to Die with Dignity and the All-India Body of Medical Practitioners in Critical Care Medicine filed a petition before the Supreme Court urging that the right to die be made legal in the country. Recently, the Law Commission of India and the law reforms panel in Kerala had suggested that euthanasia, or mercy killing, be made legal.

After senior advocate V A Mohta filed the application seeking urgent directions, the Bench headed by Justice B N Agrawal agreed to examine it. But the Bench, also comprising Justices G S Singhvi and Aftab Alam, tagged the case along with a pending petition filed by NGO Common Cause which also raises similar questions of law.

�Every individual has a fundamental freedom to choose not to live and particularly so under distressing conditions of ill-health which lead to an irremediable state,� this is the new issue raised by the petitioners. Like the earlier PIL, it has also named Union ministries of Health and Law and Justice as parties to decide whether the right to refuse essential medical support systems to prolong the life of a person afflicted with terminal disease can be legalised.

Conclusion:

Hence it is concluded that there are certain circumstances where the euthanasia can be allowed. But at the same time by allowing the euthanasia on the other side of the coin that there may be the chance of misuse or overuse of it and sometimes there may be a threat to the life. If we allow the euthanasia it may reduce the value of the life. Hence it is necessary that there should be a open discussion on the topic and now improvements should be developed to make research.

On the other hand it is necessary that there should be some changes to be made to the penal laws particularly with respect to the homicide laws and to include the factors as a legitimate defence, �just as homicide is acceptable in case of self defence. In the same way the euthanasia should be allowed if the motive is good. But at the same time there should be some parameters and would include patients' request and approval, or, in the case of incompetent patients, advance directives in the form of a living will or family and court approval.


[1] The above mentioned statement and history is taken form,
http://www.buzzle.com/articles/history-of-euthanasia.html
[2] A.K. Gopalan v. Union of India AIR 1950 SC 27
[3] Maneka Gandhi v. Union of India AIR 1978 SC 597
[4] Pt, Parmanand Katara vs. Union of India and others A.I.R 1989,SC 2309.
[5] Ranbir singh, A. Lakshminath �Constitutional Law� published by LexisNexis student series.
[6] State of Maharashtra vs. Maruti Sripati Dubal 1987 Cr LJ 549.
[7] Dr. L.M.Singhvi,�Constitution of India�, 2nd ed , Vol-1, Modern law publication.p,1085.
[8] state of Maharashtra vs. Maruti Sripati Dubal 1987 Cr LJ 743,refered in 2000 r LJ journal section, 161 at pp, 162,163.
[9] Chenna Jagadeeswar vs State of Andhra Pradesh 1988 Cr LJ 549

[10] Dr. L.M.Singhvi,�Constitution of India�, 2nd ed , Vol-1, Modern law publication.p,1086.
[11] P .Rathinam vs. union of India AIR 1994 SC 1844.
[12] Gian Kaur vs. State of Punjab AIR 1996 SC 946.

[13] Dr. L.M.Singhvi,�Constitution of India�, 2nd ed , Vol-1, Modern law publication.p,1087.
[14] Naresh Marotrao Sakhre v. Union of India

[15] K.Ventakesh case (2007)

L.Naga Srinivas
LL.M. 2nd Year
Corporate Law & Governance
NALSAR University of Law,Hyderabad
lnagasrinivas@gmail.com