Right to life i.e. Right not to die or Section 309, I.P.C.?

Article 21 of the Constitution reads as follows:

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Safety of life and liberty of person are the two essential elements in an ordered society. Thus, right to life and personal liberty is guaranteed under Article 21 of the Indian Constitution. A person can be deprived of his life and personal liberty if two conditions are complied with, first, there must be law and secondly, there must be a procedure prescribed by that law, provided that the procedure is just, fair and reasonable.

Meaning of Right to life: Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being. Thus, right to life means to lead a meaningful and dignified life. It does not have a restricted meaning.

Whether right to die is included under right to life under Article 21 of the Indian Constitution?

Meaning of Right to die: The right to die is the ethical or institutional entitlement of the individual to commit suicide or to undergo voluntary euthanasia. Possession of this right is often understood to mean that a person with a terminal illness should be allowed to commit suicide or assisted suicide or to decline life-prolonging treatment, where a disease would otherwise prolong their suffering to an identical result.

The right to die is sometimes associated with the idea that one's body and one's life are one's own, to dispose of as one sees fit. Whether a person has a freedom to take his own life whenever he desires to do so? The question whether the right to die is included in Art. 21 of the Constitution came for first time before the Bombay High Court in State of Maharashtra v. Maruty Sripati Dubal,1987 Cr LJ 743(Bom). The Bombay High Court held that the right to life guaranteed by Art. 21 includes the right to live as well as the right to end one’s own life if one so desires, and consequently the court struck down Section 309, of IPC which says that “Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may exceed to one year”. The judges felt that the desire to die is not unnatural but merely abnormal and uncommon.

Similarly, in 1985 Delhi High Court in State v. Sanjaya Kumar ,1985 Cr LJ 931, while acquitting a young boy who attempted to commit suicide strongly advocated for deletion of section 309, IPC from the Statute Book and said that the continuance of sec 309 of the Indian Penal Code is an anachronism unworthy of a human society like ours.

However, in Chenna Jagdishwar v.State of A.P.,1988 Cr LJ 549, the Andhra Pradesh High Court held that the right to die is not a fundamental right within the meaning of Art. 21 and hence, Section 309 is not unconstitutional.

In 1994 a Division Bench of Supreme Court comprising of Justices R.M. Sahai and B.L. Hansaria in P.Rathinam v. Union of India (1994)3 SCC 394, while allowing the petitioners upheld the verdict given by the Bombay and Delhi High Courts and overruled Andhra ruling. The two petitioners assailed the validity of Sec 309 of the IPC by contending that the same is violative of Articles 14 and 21 of the Constitution. The right to live in Art.21 of the Constitution includes the right not to live, i.e., right to die or to terminate one’s life.

However, in 1996 a five member Constitutional Bench of the apex Court compromising of justices J.S. Verma, G.N.Ray, N.P. Singh, Faizauddin and G.T. Nanawati in Gyan Kaur v. Uninon of India (1996)2 SCC 648, overruled its decision of 1994 in P.Rathinam v. Union of India. The Apex Court said that as regards section 309, IPC is concerned the ‘right to life’ guaranteed under Art 21 of the Indian Constitution did not include the ‘right to die’ or ‘right to be killed’ and therefore attempt to commit suicide under section 309, IPC is within the constitutional parameters and are not void or ultra vires. The ‘right to die with human dignity’ cannot be construed to include within its ambit ‘the right to terminate natural life’, at least before the natural process of certain death. The ‘right to die’, if any, is inherently inconsistent with the ‘right to life’, as is death with life.

Right to die: A new dimension (Aruna Shanbaug’s case)

In a path-breaking judgement, the Supreme Court allowed "passive euthanasia" of withdrawing life support to patients in permanently vegetative state (PVS) but rejected outright active euthanasia of ending life through administration of lethal substances.

The Supreme Court of India, in its landmark judgment, pronounced passive euthanasia as permissible under Section 309 of the Indian Penal Code. The main ground for adjudication before the apex court was whether a person who advertently refuses to accept lifesaving treatments or food in order to die, commits a crime under IPC section 309 (suicide attempt). This landmark judgment was pronounced in relation to a journalist-writer, Pinki Virani’s plea to allow passive euthanasia for Aruna Shanbhag.

Aruna Shanbaug hailing from Haldipur town of Uttar kannada disrtict in Karnataka, was a junior nurse, at King Edward Memorial Hospital in Mumbai and was planning to get married to a medic in the hospital. On the night of 27 November 1973, Shanbaug was sexually assaulted by Sohanlal Bhartha Walmiki, a ward boy at the King Edward Memorial Hospital. Walmiki was motivated partly by resentment for being ordered about and castigated by Shanbaug. Walmiki attacked her while she was changing clothes in the hospital basement. He choked her with a dog chain and sodomized her. The asphyxiation cut off oxygen supply to her brain, resulting in brain stem contusion injury and cervical cord injury apart from leaving her cortically blind. The police case was registered as a case of robbery and attempted murder on account of the concealment of anal rape by the doctors under the instructions of the Dean of KEM, Dr. Deshpande, perhaps to avoid the social rejection of the victim and her impending marriage. Walmiki was caught and convicted, and served two concurrent seven year sentences for assault and robbery, neither for rape or sexual molestation, nor for the "unnatural sexual offence"

A petition for euthanasia was first by Pinki Virani, a journalist and her friend who has written a book on the woman who she is being forced to live her life stripped of basic dignity. The Supreme Court praised Ms. Virani’s concern, but ruled out that her relationship with the patient does not give her this right to file a petition on behalf of Ms. Shanbaug for mercy killing. The only party that can appeal for the euthanasia is the staff of KEM hospital where she had served as a nurse. Refusing mercy killing of Aruna Shanbaug, lying in a vegetative state for 37 years in a Mumbai hospital, a two-judge bench of justices Markandeya Katju and Gyan Sudha Mishra, laid a set of tough guidelines under which passive euthanasia can be legalised through high court monitored mechanism.

Ms Shanbaug has, however, changed forever India's approach to the contentious issue of euthanasia. The verdict on her case on 7^th March, 2011 allowed passive euthanasia contingent upon circumstances. So other Indians can now argue in court for the right to withhold medical treatment - take a patient off a ventilator, for example, in the case of an irreversible coma. The judgement made it clear that passive euthanasia will "only be allowed in cases where the person is in persistent vegetative state or terminally ill”. The apex court while framing the guidelines for passive euthanasia asserted that it would now become the law of the land until Parliament enacts a suitable legislation to deal with the issue.

The bench also asked Parliament to delete Section 309 IPC (attempt to suicide) as it has become "anachronistic though it has become constitutionally valid”. "A person attempts suicide in a depression, and hence he needs help, rather than punishment," Justice Katju writing the judgement said.

The apex court said though there is no statutory provision for withdrawing life support system from a person in permanently vegetative state, it was of the view that "passive euthanasia" could be permissible in certain cases for which it laid down guidelines and cast the responsibility on high courts to take decisions on pleas for mercy killings. "We agree with senior counsel T R Andhyarujina (who assisted the court in the matter) that passive euthanasia should be permitted in our country in certain situations, and we disagree with Attorney General (G E Vahanvati) that it should never be permitted," said the bench.

Thus, in each case, the relevant high court will evaluate the merits of the case, and refer the case to a medical board before deciding on whether passive euthanasia can apply. And till Parliament introduces new laws on euthanasia, it is Ms Shanbaug's case that is to be used as a point of reference by other courts.

Bibliography:

Pandey J.N, Central Law Agency, Constitutional law of India.

Gaur K.D, Universal Law Publishing Co., The Indian Penal Code.