Suicide, Euthanasia and the Indian Law

‘Suicide’: Some Legal aspects.

The recent judgment of the Supreme Court in the case of Aruna Shanbaug has revided the debate on euthanasia and connected subjects in India.

Suicide has been defined as an act or instance of taking ones own life voluntarily and intentionally, the deliberate and intentional destruction of his own life by a person of years of discretion and sound mind; one that commits or attempts his self murder. Suicide is thus the voluntary act of intentional self destruction.

Suicide has been part of human behaviour though it has been deprecated by most of the religions known to man. There are also certain instances where it has been eulogized depending on the situation at which it has been indulged in. In India different forms of suicides are known. Johar, Sati, Samadhi, Prayopaveshan, Atmarpan are a few. Hinduism with its insistence on remaining steadfast on the path of ones Karma does not justify suicide. Christianity and the abhorrence it has towards suicide has played a prominent role is evolving legal norms towards prohibiting suicide. The Holy Quran too specifically despises suicide as a human behaviour.

The individual’s attitude towards suicide, as towards all ethical matters is largely influenced by the standards of his age and the moral atmosphere that surrounds him. Relationship between the individual and the state must first be analysed to determine the right to take ones life. That relationship is based on social contract between the individual and the state from which the state derives its interest in the continuous presence of a person.

There are a myriad of reasons that compel a person to go for self destruction.  In the vast majority of instances the apparent mountain of anguish would seem but a mole hill of temporary embarrassment in the perspective of long life. If the momentary impulse be resisted the unfortunate or discouraged one will have many years of average felicity in which to congratulate himself on his self control. It is of public as well as personal advantage to have suicide in general regarded as cowardly immoral and disgraceful.

Let us confine ourselves here to examine how the legal system has approached this grave social issue of suicide, leaving the psychological, sociological aspects thereof to be best handled experts from the said fields.  

India follows the Common law system of law which we inherited from the British. The Common law approach to suicide is succinctly stated by Black Stone:

“The law of England  wisely and religiously considered that no man hath a power to destroy life, but by commission from God, the author of it; and as suicide is guilty of a double offense, one spiritual, in invading the prerogative of the almighty and rushing  in to his immediate presence uncalled for; the other temporal, against the king, who hath an interest in the preservation of all his subjects; the law has therefore ranked this among the highest of crimes, making a peculiar species of felony, a felony committed on oneself….But now the question follows, what punishment can human law inflict on one who has withdrawn himself from their reach? They can only act on what he has left behind him, his reputation and fortune; on the former by an ignominious burial in the highway with a stake driven through his body; on the latter by a forfeiture of all his goods and chattels to the King; hoping that his care for either, his won reputation or the welfare of his family, would be some motive to restrain him from so desperate and wicked an act.”

Thus in common law from early times, suicide is a felony against one self - felon de se. Hence if a person before age for criminal responsibility commits suicide he cannot be held liable.  Suicide thus being a felony was punishable by an ignominious burial deprived of religious rites and buried at cross roads with a stake running through the heart and forfeiture of goods and chattel to the crown.

Medically assisted suicide (euthanasia, or the right to die) is currently a controversial ethical issue involving people who are terminally ill, in extreme pain, and/or have minimal quality of life through injury or illness. Euthanasia or mercy killing as we in India commonly term it has had tremendous implications on the law relating to suicide as it raises questions of immense legal importance relating to suicide. The word Euthanasia  is derived from a Greek word meaning “good death”. It includes killing motivated by the desire to alleviate the suffering or handicapped existence of the victim. Duty of the physician to his or her dying patient also involves the definition of “Life” and and the pivotal question as to when “Life” has ceased. Doctors have suggested “functional death”, that is when the brain no longer functions and has no possibility of functioning again. Thus the patient is for all practical purposes dead, notwithstanding the fact that heart beat and respiration may be continued by mechanical means. (Definition of irreversible coma 202 JAMA 337 as referred in Substantial Criminal Law: Barssiouni P. 239 )

Euthanasia may be voluntary, that is done with the request of the victim or involuntary, that is done without victims consent. Under common law Euthanasia was theoretically prosecuted as murder, no matter how kindly the motive. Motive of one who commits euthanasia is not a defense to murder. “One who commits euthanasia bears no ill will towards his victim and believes his act is morally justified, but nonetheless acts with malice if he is able to comprehend that society prohibits his acts regardless of his personal belief” (Survey: Euthanasia: Criminal, tort, Constitutional and Legislative Considerations, 48, Notre Dame Lawyer 1202 (1973).

Even the consent of the victim was looked upon as irrelevant because of the basic absolute principle that life is inalienable and that it is criminal to extinguish it. Thus those especial factors which may be said to distinguish euthanasia from more reprehensible forms of killing- humanitarian motive, possible consent of the victim, the victim’s hopeless condition – are irrelevant in the eyes of law. The common law makes no exception of euthanasia, but jealously guards the life of every individual however grotesque it may be. One who acts to shorten that life, for any reasons whatsoever is guilty of murder in the first degree. Arguments favouring euthanasia bases itself on the right to a dignified death which finds its expression in the right to privacy as a constitutionally guaranteed right (Quinlan Case) wherein the New Jersey Supreme Court unanimously agreed that a woman kept alive by machinery alone and had no independent life nor possibility of recovering had the right to “die with grace and dignity”.   

A phenomenal shift in the English legal approach towards suicide was witnessed with the passing of the Suicide Act 1961. Suicide and attempted suicide thus ceased to be an offence with the passing of the said Act. The Act makes assisting suicide an offence punishable with 14 years imprisonment. It decriminalized the act of suicide so that those who failed in the attempt would no longer be prosecuted. Prior to the Suicide Act 1961 it was a crime to commit suicide and anyone who attempted and failed could be prosecuted and imprisoned, while the families of those who succeeded also could potentially be prosecuted.

In 2009, the House of Lords ruled that the law concerning the treatment of people who accompanied those who committed assisted suicide was unclear, following Debbie Purdy's case that this lack of clarity was a breach of her human rights. (In her case, as a sufferer from multiple sclerosis, she wanted to know whether her husband would be prosecuted for accompanying her abroad where she wished eventually to commit assisted suicide.) Purdy, 46, from Bradford, West Yorkshire, who has primary progressive multiple sclerosis, succeeded in arguing that it is a breach of her human rights not to know whether her husband, Cuban jazz violinist Omar Puente, will be prosecuted if he accompanies her to Swiss clinic Dignitas where she wishes to die if her condition worsens. Ordering the director of public prosecutions to issue a policy setting out when those in Puente's position can expect to face prosecution, the court ruled that the current lack of clarity is a violation of the right to a private and family life. Despite at least 115 British people already known to have travelled abroad for an assisted suicide, with an average of two a month since 2002 and despite scores of police investigations, not a single family member has been prosecuted. In Netherlands Termination of Life on Request and Assisted Suicide (Review Procedures) Act took effect on April 1, 2002. It legalizes euthanasia and physician assisted suicide in very specific cases, under very specific circumstances.

A study of the law permitting euthanasia reveals that notwithstanding the novel legal approach to the concept, law still eagerly wishes to prevent a human choice as to who is going to live or more importantly who is going to die, for the fear that an ideal of a perfect race or superior race may emerge which would then justify the destruction of the inferior race. As of 2009, some forms of active euthanasia are legal in Belgium, Luxembourg, The Netherlands, Switzerland, and the U.S. states of Oregon and Washington.

Even in those jurisdictions, law makers have been careful to retain the legal norm that one who encourages another to commit suicide is guilty of felony as principal. The question of suicide raises the issue of consent to be killed by another or the delegation to another of the ‘privilege’ (from the compassionate view point of helping a distressed soul to liberate itself) to terminate ones life. Consent can be used as a defence only if the purpose of the act can be lawfully consented to. If suicide is a crime, no one can consent to it.  Even if suicide is not a crime, consent as a defence for assisting cannot be a defence. Law might decline to intervene in the right of privacy of the individual to terminate his life- but still assisting another is outside the purview of privacy.

Indian Legal position:

Does a person living in India have right to die? Sections 309 of the Indian Penal Code speaks as follows:

The constitutional validity of these provisions has been subjected to scrutiny in various judgments both by the Supreme Court of India and various High Courts. P. Rathinam V. Union of India, Maruti Shripati dubal v. State of Maharashtra, Chenna Jagadeeswar v. State of Andhra Pradesh, State v. Sanjay Kumar Bhatia, Naresh Marotrao Sakhare v. Union of India, Gian Kaur v. Union of India,  Surendran v. State of Kerala, Thomas Master v. Union of India etc.

The tricky nature of the issue can be gauged well from the fact that the Supreme Court itself had given varying dictums with regard to the issue.

Moreover, the Law Commission of India had taken note of the fact that the British Parliament had enacted the Suicide Act in 1961, under which an attempt to commit suicide has ceased to be an offence.  Law Commission, therefore, concluded that the penal provision contained in S. 309 of the I.P.C. was harsh and unjustifiable, and should be repealed.

In P. Rathinam v. Union of India, had taken the view that S. 309 of the IPC was unconstitutional, since it was violative of the provisions of Art. 21 of the Constitution.  It was held that the right to die was part of the right to life under Art. 21 of the Constitution and hence if S. 309 of the I.P.C. was held to be unconstitutional any person abetting a commission of suicide by another was merely assisting in the enforcement of the fundamental right under Art. 21, and, therefore, S.306 I.P.C. penalising assisted suicide was equally violative of Art. 21 of the Constitution. The Apex Court had reasoned in that case that all fundamental rights are to be read together (R.C. Cooper’s case.) What is true to one fundamental right is also true of another fundamental right. Fundamental right has their positive and negative aspects. For eg:- Freedom of speech includes freedom not to speak, freedom of association and movement includes freedom not to join any association or not to move. So logically it must follow that the right to live will include right not to live that is right to die or to terminate ones life. Prof. Stone’s view that “Right to die inevitably leads to right o commit suicide” was affirmatively viewed thereby.

In Maruti Shripati Dubal v. State of Maharashtra, a Division Bench of the Bombay High Court observed:

“If attempt to commit suicide is not considered an offence, it must logically follow that aiding and abetting the attempt must also not be an offence. This will open door for euthanasia or mercy killing in particular and death baiters in general.

According to us this fear arises firstly out of a misconception of the concepts of “suicide” and “mercy-killing”. Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating one’s own life by 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 S. 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. Unless it is specifically excepted it cannot but be an offence. Our Penal Code further punishes not only abetment of homicide but also abetment of suicide. S. 306 makes abetment of suicide of any person whereas S.305 makes abetment of suicide of child or insane person, an offence and prescribes different punishments for the two. These provisions can certainly take care of situations or threats posed by death-baiters. If however, any further safeguards were needed they can be had by enacting such provisions as in S.2. English Suicide Act of 1961, which makes criminally liable a person who aids, abets, counsel or procures the suicide of another or an attempt by another to commit suicide”.

The matter again came up for consideration of the Hon’ble Supreme Court in the case of Gian Kaur. In view of the earlier Division Bench judgment in Rathinam case, the matter was this time considered by a larger Constitutional Bench comprising of 5 judges.  The Apex Court in Gian Kaur's case 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 life.  That was the basis on which the earlier decision in  Rathinam's case proceeded.  The Court then distinguished the nature of rights under Art. 21 dealing with the right to life, as against the nature of rights under other Articles, such as freedom of speech and expression in Art. 19(1)(a), which includes the freedom not to speak; freedom of movement in Art. 19(1)(d) which includes the freedom not to move anywhere; 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 Court then pointed out the fallacy in the reasoning of the judgment of the Bombay High Court, to which a reference was made in  Rathinam's case, and came to the conclusion as under:

“When a man commits suicide he 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 Art. 21.  The significant aspect of sanctity of life is also not to be overlooked.  Art. 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can extinction of life be read to be included in 'protection to life'.  Whatever may be the philosophy of permitting a person to extinguish his life by committing suicide, we find it difficult to construe Art. 21 to include within it the 'right to die' as a part of the fundamental right guaranteed therein.  'Right to life' is a natural right embodied in Art. 21, but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of 'right to life'. With respect and in all humility, we find no similarity in the nature of the other rights, such as the right to 'freedom of speech' etc. to provide a comparable basis to hold that the 'right to life' also includes the right to die.  With respect, the comparison is inapposite, for the reason indicated in the context of Art. 21.  The decisions relating to other fundamental rights wherein the absence of compulsion to exercise a right was held to be included within the exercise of that right, are not available to support the view taken in P. Rathinam (1994) AIR SCW 1764), qua Art. 21.

To give meaning and content to the word 'life' in Art. 21, it has been construed as life with human dignity.  Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself.  The 'right to die', if any, is inherently inconsistent with the 'right to life' as is 'death with life'."

The Apex Court in Gian Kaur's case also considered the question of euthanasia which is sought to be justified on the view that existence in persistent vegetative state (PVS) is not a benefit to the patient of a terminal illness being unrelated to the principle of 'sanctity of life' or the 'right to live with dignity'.  It was held that the protagonism of euthanasia was of no assistance to determine the scope of Art. 21 for deciding whether the guarantee of 'right to life' therein includes the 'right to die'.  The 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 Court disagreed with the view expressed earlier in Rathinam's case and came to the conclusion that the reason for which S. 309 of the IPC was held to be violative of Art. 21, did not withstand legal scrutiny.  It was, therefore, held that S. 309 of the I.P.C. was not violative of Art. 21 of the Constitution.

As far as the validity of S. 306 of the I.P.C. is concerned, the Apex Court held that having regarding to the distinct nature of the offence under S. 306, where a person abets the commission of a suicide, there was nothing unconstitutional in the said provision, which was therefore held to be valid.

The Court then referred to the Suicide Act, 1961 enacted by the British Parliament, and considered the decisions of some of the Courts abroad, where it was held that euthanasia was not a lawful act, and stated that the desirability of bringing about such a change in euthanasia was considered to be the function of the legislature by enacting a suitable law providing therein adequate safeguards to prevent any possible abuse.

The aforesaid decision in Gian Kaur's case makes it clear that it is not permissible to distinguish between the right to voluntarily terminate one's life and “suicide” as commonly understood.

Subsequently the Kerala High Court too had an occasion to consider the matter though from novel view point. In Thomas Master v. Union of India a full bench of the High Court of Kerala considered the distinction between suicide commonly understood, and the right to voluntarily terminate one's life and held as follows:

“In our view, therefore, the word “suicide” in plain English language would mean - a person voluntarily putting an end to his life.  It is obvious, on a plain reading of the definition of “suicide”, that the causes and circumstances leading one to take such a decision are wholly irrelevant for deciding the question as to whether the death was a suicide or not.  A person who is frustrated or defeated in life, or considers himself to be frustrated or defeated in life, may, on the spur of the moment or after proper deliberation, come to the conclusion that he needs to put an end to his life.  On the other hand, a person who is otherwise happy and claims to be successful in life, and had led a contented life, like the petitioners before us claim, may also take a conscious decision of putting an end to one's life.  Such a decision may be taken to a full consideration of the relevant facts.  Such a decision, as in the case before us, is stated to have been based, in one's own interest with a view to avoid any pain, or misery, or suffering in old age, to himself or one's dependants.  Nevertheless, on a plain meaning of the word “suicide” it is difficult to say that the decision taken to voluntarily put an end to one's life, in the latter case where a person claims to be successful in life and happy, is not suicide.  In view of the above discussion, it is not possible for us to accept the petitioner's contention that voluntary termination of one's life is not suicide as understood in ordinary English language in the absence of any specific definition in the I.P.C.  If that be so, voluntary termination of one's life for whatever reason, assuming that it is by persons like the petitioners, who say they are successful in life, and had led a contended life, and claim that their mission in life is ended, would nevertheless amount to suicide within the meaning of Ss. 306 and 309 of the I.P.C.  In our view, no distinction can be made between suicide committed by a person who is either frustrated, or defeated, in life.  The question as to whether suicide was committed impulsively or whether it was committed after prolonged deliberation, is, in our view, wholly irrelevant.  Similarly, the decision taken by persons like the petitioners to voluntarily put an end to one's life on the footing that one has led a successful life, and the mission of his life was completed, would, in our view, amount to suicide.”

Gian Kaur raises some moral questions of moral values. If Sec. 309 and 306 are constitutionally valid and a person can be punished for attempting to commit suicide, then the following questions having moral and sociological overtones also will have to be answered.  How suicide prone persons are to be dealt with? What treatment should be provided for persons who attempt suicide? Do they deserve prosecution because they have failed?

According to official statistics, about a million people die by suicide annually, more than those murdered or killed in war. According to 2005 data, suicides in the U.S. outnumber homicides by nearly 2 to 1 and ranks as the 11th leading cause of death in the country, ahead of liver disease and Parkinson's disease. Worldwide suicide rates have increased by 60% in the past 50 years, mainly in the developing countries. Most suicides in the world occur in Asia, which is estimated to account for up to 60% of all suicides. According to the World Health Organization, China, India and Japan may account for 40% of all world suicides. In the United States, for example, the rate of suicide is increasing for the first time in a decade. The World Health Organization noted that over one million people commit suicide every year, and that it is one of the leading causes of death among teenagers and adults under 35. There are an estimated 10 to 20 million non-fatal attempted suicides every year worldwide. Our State tops the list with the largest number of suicides in India annually. It’s high time we geared ourselves up so as to face this grave challenge to our social existence. But there seems no affirmative action or initiative from the powers that be in the said regard.

In a functional democracy even issues of pivotal importance tend to be put on the back burner waiting for it to be taken later only when it is too late. Sec. 309 of the Indian Penal Code is archaic enactment of the British. It has to be humanized. Instead of sending to the jail, the person needs some help. Suicide is a psychiatric problem and not a manifestation of criminal instinct. Suicide is really a call for help and there is no call for punishment. Attempted suicide is a medical and social problem and has to be dealt with accordingly rather than as a criminal aberration of the human psyche. 

(By Adv. V.M. Syam Kumar-Lecturer for Maritime Law, National University for Advanced Legal Studies, Kochi.)