RIGHT TO LIFE VIS-À-VIS RIGHT TO

DIE

A Research Paper submitted in partial fulfillment of the course, criminal

Law I for the requirement of the degree, B.A., LL.B (Hons) for academic
year 2019-20

Submitted by
Name- Priti Guide
Roll no- 1953 (3rd semester)

Submitted to
Dr. Father Peter Ladis F.
Faculty Of Law

August 2019
CHANAKYA NATIONAL LAW UNIVERSITY
NYAYA NAGAR, MITHAPUR, PATNA – 800001

1
 1. INTRODUCTION

Article 21 of the Indian Constitution grants” RIGHT TO LIFE” only. According to Article 21
“no person shall be deprived of his life or personal liberty except according to the procedure
established by law” Right To Life is a natural right. This right is considered to be the heart of the
Constitution and one of the most progressive provision in our Constitution. Article 21 can only
be claimed when a person is deprived of his life or personal liberty by the STATE as defined in
Article 12 of the Indian Constitution. Violation of rights by individuals will not come under the
preview of Article 21. Basically, Article 21 secures two rights:
(i) Right to life, and
(ii) Right to personal liberty.

Everyone has the Right to life, liberty and the security of person. Right to life is the most
fundamental of all the rights. Article 21 of the Indian Constitution , 1950 provides that, “no one
shall be deprived of his life and personal liberty except according to the procedure established by
law. Life in Article 21 of the Indian Constitution is not merely the physical act of breathing. It
does not connote mere animal existence but, it has much wider meaning which includes right to
live with human dignity, right to livelihood, right to health, etc.
Right to life is fundamental to our very existence without which we cannot live as a human being
and with dignity. It make life meaningful and worth living. Those requirements which are basic,
minimum and essential for the person to live is the core concept of Right to life.

The word Euthanasia has been derived from a Greek word “eu” which means well or good and “

thanatos” means death so, the term in whole means good death. The term Euthanasia implies an

intentional termination of life by another at the unequivocal request of the person who wishes to die. It is
sometimes also called mercy killing , because it is the act of killing an incurably ill person out of concern

for that person’s suffering. It is usually separated into two categories: Passive Euthanasia and Active

Euthanasia. In many jurisdictions Active euthanasia is considered as murder. Right to die with dignity has
been legalized and approved living will to provide terminally ill patients a dignified exit by refusing
medical treatment or life support.

2
 OBJECTIVES OF THE STUDY

 The researcher aims to present a detailed study of “Right to Life vis-a-vis “Right to die”,
through articles,, affirmation, decisions and suggestions.
 The main aim of this research is to understand the legal position in Indian context.
 And also, to know about evolution of related case law(s) with changing spectra of
society.

HYPOTHESIS
The researcher presumes that;
 Right to life includes Right to die.
 Right to life includes Right to live with dignity.

RESEARCH QUESTIONS
 What is the meaning of due procedure established by law.
 What is the constitutional validity of Sec-309 of I.P.C.
 What is the meaning of Right to live with dignity under Art- 21 of the Indian Constitution
 What are the provisions of Right to life and die in countries outside India.
 Are there any drawbacks pertaining to the recent development done under sec-309 of IPC
by Judiciary.

RESEARCH METHODOLOGY:
The researcher has successfully conducted a doctrinal method of research. The doctrinal method
helps in comparative study of the topic. This involves various primary and secondary sources of
literature and insights.

SOURCES OF DATA
PRIMARY SOURCE
 Case Law.
 Constitution Of India.
 Indian Penal Code,1860.

3
SECONDARY SOURCES
 Blogs and Journals
 Books
 Case comments

REVIEW OF LITERATURE
 RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE, (22nd Ed., 2014, Lexix
Nexis)
This legal classic has served the legal profession and everyone associated with it for
almost a century. Learned yet simple in its approach, it allows readers to quickly grasp
the principles of criminal law. All technical rules of law have been illustrated and
explained in a lucid, comprehensive and systematic manner. The 22nd edition of this work
has been painstakingly updated to include the latest case law, legislative amendments and
current development in the law relating to criminal offences in India. Case law decided
under the old code which continues to remain relevant has been retained under the
corresponding provisions of the new code.
Authenticity, originality and reliability have always been the hallmark of this publication
and every possible case has been taken in this edition to maintain the original excellence,
style and quality of the work. As has been the hallmark of previous edition, the current
edition too offers a great help to students and professionals, when they require a quick
overview, in the form of summary at the end of the work. The book is in invaluable
source of reference for the widest possible range of readers including students,
academics, legal practitioner, judges, administrators, public prosecutor, police officers
and police trainees.

LIMITATION OF THE STUDY

The researcher is confined to a time of ten days and this research contains only doctrinal method
works which are limited to library sources.

4
TENTATIVE CHAPTERISATION
1. MEANING AND CONCEPT OF RIGHT TO LIFE.
2. RIGHT TO LIVE WITH HUMAN DIGNITY
3. EUTHANASIA AND RIGHT TO DIE
4. SENTENCE OF DEATH RAREST OF THE RARE CASE
5. RIGHT TO LIFE AND RIGHT TO DIE- AN INTERNATIONAL PERSPECTIVE
6. CONSTITUTIONAL VALIDITY OF SEC-309 OF IPC, 1860
7. CONCLUSION AND SUGGESTION

5
 DECLARATION BY THE CANDIDATE

I PRITI GUIDE, student of Chanakya National Law University hereby declare that the work
reported in the B.A., LL.B (hons) project report entitled: RIGHT TO LIFE VIS-À-VIS RIGHT
TO DIE submitted at Chanakya National Law University under the supervision of Dr. Father
Peter Ladis F. I have not submitted this work elsewhere for any other degree or diploma. I am
responsible for the content of my project report.

(Signature of the candidate)

NAME: PRITI GUIDE
ROLL NO: 1953
COURSE: B.A., LL.B (HONS)
SEMESTER: 2019-20
SESSION: 2018-23

6
 ACKNOWLEDGEMENT

I would like to thank my faculty Dr. Fr. Peter Ladis F. whose guidance helped me a lot with
structuring of my project. I take this opportunity to express my deep sense of gratitude for his
guidance and encouragement which sustained my efforts on all stages of this project.

I owe the present accomplishment of my project to my friends, who helped me immensely with
materials throughout the project and without whom I couldn’t have completed it in the present
way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped
me out at every stage of my project.

THANK YOU

NAME: PRITI GUIDE

ROLL NO: 1953

COURSE: B.A., LL.B. (Hons.)

7
 2. RIGHT TO LIVE WITH HUMAN DIGNITY

The Constitution of India is one of the unique Constitutions of the world which takes care of
each and every section of the society irrespective of caste, religion, creed, sex class etc. The
framers of Constitution were very much aware of the importance of human dignity and
worthiness as a result, they incorporated the word human dignity in the preamble of the
Constitution of India. The most important feature of the Constitution is the fundamental rights.
Fundamental rights are guaranteed by the Constitution to all people without any discrimination.
The provision of fundamental rights preserve and protects the human dignity.
The Constitution of India guarantees equal protection to all and forbids the state from depriving
anybody’s life and personal liberty without procedure established by law.
Article 21 is the important provision of the Indian Constitution and occupies a unique place as a
fundamental right and enforceable against state. Since Maneka Gandhi’s case1 the Supreme
Court interpreted article 21of Constitution has ushered a new era of expansion of the horizons of
right to life. Traditionally right to life was called as natural right of the people. Right to life is
one of the important fundamental rights of the citizen of India and aliens of India. It is protected
by the Constitution of India.

In Francis Coralie v. Union Territory of Delhi2, observed that:

“The right to live includes the right to live with human dignity and all that goes along with it,
viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head and
facilities for reading writing and expressing oneself in diverse forms, freely moving about and
mixing and mingling with fellow human beings and must include the right to basic necessities
the basic necessities of life and also the right to carry on functions and activities as constitute the
bare minimum expression of human self.”

Another broad formulation of the theme of life to dignity is to be found in Bandhua Mukti Morcha v.
Union of India3. Characterizing Art. 21 as the heart of fundamental rights, the Court gave it an expanded
interpretation. Bhagwati J. observed:

1
AIR 1978 S.C. 597
2
1981 AIR 746, 1981 SCR (2) 516
3
(1997) 10 SCC 549

8
“It is the fundamental right of everyone in this country… to live with human dignity free from
exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath
from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and
Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength
of workers, men and women, and of the tender age of children against abuse, opportunities and
facilities for children to develop in a healthy manner and in conditions of freedom and dignity,
educational facilities, just and humane conditions of work and maternity relief.

In Chandra Raja Kumar v. Police Commissioner Hyderabad4, it has been held that the right to
life includes right to live with human dignity and decency and, therefore, holding of beauty
contest is repugnant to dignity or decency of women and offends Article 21 of the Constitution
only if the same is grossly indecent, scurrilous, obscene or intended for blackmailing. The
government is empowered to prohibit the contest as objectionable performance under Section 3
of the Andhra Pradesh Objectionable Performances Prohibition Act, 1956.

Human dignity is connected with the individual life and it’s having Constitutional jurisprudential
value as fundamental rights. Dignity refers to presentation of honor and personal merits of
individual. The idea of human dignity is associated with the protection against the exploitation,
and violation of inalienable rights. The term human dignity is commonly used for protecting the
status and honor of the person, without that person cannot live in the earth. Every one having
their own status and respect and they are living for that only. Human dignity attaches with their
own behavior and role of the person in the society. The word human “dignity” has been derived
from a Latin “dignitas” which means worth, merit, quality or state worthy of esteem and respect
or high status, reputation. The term dignity means simply ‘worthiness’ or ‘excellence’. It is any
quality of a person entitling them to be regarded, respected and honored by other5.

Constitution used the term ‘dignity’ in its preamble; the preamble reads as ‘assuring the dignity
of the individual and the unity and integrity of the nation. Dignity is attached to the identity of a

4
1998 (1) ALD 810
5
Ravi Ranjan, Interrogation the conceptualization of Human Dignity: A Human Right perspective Social Action
Journal, Vol 65, No. 03, July- Sept. 2015, ISSN No. 003757627, P. 26

9
human being as a person, when a human being does not enjoy the right to a persons, dignity does
not exist at all. In simpler terms, it can be said that dignity can be ensured when every member of
the society has a feeling that he or she is a respectable member and no one can humiliate, harass,
exploit and insult him or her on the basis of caste, creed, sex and stats etc.6

A.K. Gopalan v. state of Madras7 right to life as it is nothing but fundamental freedoms which is
guaranteed under Article 19 of the Constitution of India. It means that the right to life is not merely a
fundamental right it also basic right to an individual i.e. no one should withdraw the life without
following process of law.

The importance of right to life has been given by Justice Krishna Iyer. Right to life does not
mean that mere existence of life but it must be a dignified quality life. In case of Kharah Singh v.
State of Uttar Pradesh 8 apex court held that the expression ‘Life’ was not limited to bodily
restraint or confinement to prison only but something more than mere animal existence.

According to Justice Krishna Iyer depriving a person of his right is nothing but a murder. If state
or anybody violate or deprived rights of any person of his constitutional rights, it also commits
murder. He also observed that life is not vegetable existence. The Supreme Court quoted with
approval Field, J. observation in case Munn v. Illinois9 by the term ‘Life’ something more is
meant than mere animal existence. The inhibition against its deprivation extends to all those
limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the
body by the amputation of the arm or leg or putting out of an eye or the destruction of any other
organ of the body through which the soul communicate with the outer world. The deprivation not
only of life but of whatever God has given to everyone with life or its growth and enjoyments is
prohibited by the provision in question if its efficacy be no frittered away by judicial decision.

6
Dr. N.K Chakrabriti & Dr. Shachi Chakrabarti, “Gender Justice” Vol II, first Edited 2006, Pub R Combray and Co.
Private Ltd, Kolkata, P. 339
7
(AIR 1950 SC 27)
8
1963 AIR 1295, 1964 SCR (1) 332
9
94 U.S. 113 (1876)

10
 3. EUTHANASIA AND RIGHT TO DIE

The word euthanasia, originated in Greece means a good death. Euthanasia encompasses various
dimensions, from active (introducing something to cause death) to passive (withholding
treatment or supportive measures); voluntary (consent) to involuntary (consent from guardian)
and physician assisted (where physician's prescribe the medicine and patient or the third party
administers the medication to cause death.) Request for premature ending of life has contributed
to the debate about the role of such practices in contemporary health care10. This debate cuts
across complex and dynamic aspects such as, legal, ethical, human rights, health, religious,
economic, spiritual, social and cultural aspects of the civilized society. Here we argue this
complex issue from both the supporters and opponents’ perspectives, and also attempts to present
the plight of the sufferers and their caregivers. The objective is to discuss the subject of
euthanasia from the medical and human rights perspective given the background of the recent
Supreme Court judgement.
Euthanasia, or mercy killing, means the deliberate killing of a patient who is terminally ill
and/or in severe and chronic pain. More recently, “physician‐assisted suicide” has superseded the
term euthanasia as terminally ill patients take more assertive roles in expressing their wishes and
requesting physician support.
Euthanasia has been a much debated subject throughout the world. The debate has become
increasingly significant because of the recent developments in Netherlands and England
euthanasia has been allowed. As a result many of the nations across the world are now hotly
debating whether or not to follow the Dutch example. Recently our Supreme Court in Aruna
Shanbaug case11 has already given its decision on this point and allowed passive euthanasia in
India.
Euthanasia literally means putting a person to painless death especially in case of incurable
suffering or when life becomes purposeless as a result of mental or physical handicap12 .
Euthanasia or mercy killing is the practice of killing a person for giving relief from incurable

10
http://ncbi.nlm.nih.gov/pmc/articles/PMC3612319
11
Aruna Ramchandra Shanbaug v: Union Of India, 2011 (3) SCALE 298: MANU/SC/01761204
12
http://www.legalserviceindia.com

11
pain or suffering or allowing or causing painless death when life has become meaningless and
disagreeable .
In the modern context euthanasia is limited to the killing of patients by doctors at the request of
the patient in order to free him of excruciating pain or from terminal illness. Thus the basic
intention behind euthanasia is to ensure a less painful death to a person who is in any case going
to die after a long period of suffering.
Euthanasia may be classified as follows:- (1) Active or Positive (2) Passive or negative (also
known as letting-die) (3) Voluntary (4) Involuntary (5) Non-Voluntary
Active or Positive: - Active euthanasia involves painlessly putting individuals to death for
merciful reasons, as when a doctor administer lethal dose of medication to a patient.

Passive or negative: - euthanasia is passive when death is caused because a treatment that is
sustaining the life of the patient is held off and the patient dies as a result thereof. For example,
withdrawing life supporting devices from a serious patient, removing which, the patient dies. In
"passive euthanasia" the doctors are not actively killing anyone; they are simply not saving him13

Voluntary: - it is voluntary when the euthanasia is practiced with the expressed desire and
consent of the patient. voluntary euthanasia is primarily concerned with the right to choice of the
terminally ill patient who decides to end his or her life, choice which serves his/her best interest
and also that of everyone else.
Involuntary: - when the patient is killed without an expressed wish to this effect, it is a form of
involuntary euthanasia. It refers to cases wherein a competent patient’s life is brought to an end
against the wishes of that patient that oppose euthanasia; and would clearly amount to murder14.

Non-Voluntary:- it refers to ending the life of a person who is not mentally competent to make
an informed request to die, such as a comatose patient. In Non-Voluntary euthanasia the patient
has left no such living will or given any advance directives, as he may not have had an
opportunity to do so, or may not have anticipated any such accident or eventuality. In cases of
non voluntary euthanasia, it is often the family members, who make the decision15.

13
Aruna Ramchandra Shanbauj v: Union Of India, 2011 (3) SCALE 298; MANU/SC/0176/2011
14
http://www.healthline.com/health/what-is-euthanasia-
15
ibid

12
In the case ofAruna Shaunbaug

In this case, the Petitioner was in a permanent vegetative state (PVS) for 37 long years. In the
case, the Two-Judge Bench of the Supreme Court allowed passive euthanasia subject to certain
conditions and subject to the approval of the High Court after following the due procedure as laid
down by the Court in the case

Constitutional validity of Right to Die

Now, the question arises whether right to life under Article 21 includes right to die or not. This
question came for consideration for first time before the High Court of Bombay in State of
Maharashtra v. Maruti Sripati Dubal16. In this case the Bombay High Court held that the right
to life guaranteed under Article 21 includes right to die, and the hon'ble High Court struck down
section 309 IPC which provides punishment for attempt to commit suicide by a person as
unconstitutional.

In P Rathinam v. Union of India17 a Division Bench of the Supreme Court supporting the
decision of the High Court of Bombay in. Maruti Sripati Dubal case held that under Article 21
right to life also include right to die and laid down that section 309 of Indian Penal Court which
deals with ' attempt to commit suicide is a penal offence' unconstitutional.

This issue again raised before the court in Gian Kaur v. State of Punjab18. In this case a five
judge Constitutional Bench of the Supreme Court overruled the P. Ratinam's case and held that
Right to Life under Article 21 of the Constitution does not include Right to die or Right to be
killed and there is no ground to hold that the section 309, IPC is constitutionally invalid. To true
meaning of the word 'life' in Article 21 means life with human dignity. Any aspect of life which
makes life dignified may be include in it but not that which extinguishes it. The 'Right to Die' if

16
(1987) Cri LJ 743
17
1994 AIR 1844, 1994 SCC (3) 394
18
1996 AIR 946

13
any, is inherently inconsistent with the Right to Life as is death with Life.19

19
http://www.legalserviceindia.com/.../1374-Article-21-and-constitutional-validity-of-Right-to-die

14
 SENTENCE OF DEATH RAREST OF THE RARE CASE

A death sentence is a legal process where a person is put to death by the state as a punishment for
a crime committed by him. The judicial decree that someone should be punished in this manner
is called a death sentence, while the actual process of killing the person is called an execution.
Crimes that can result in a death penalty are known as capital crimes or capital offenses. The
term capital has a Latin origin from the term capitalist, literally “regarding the head”. It refers to
a sentence that condemns a convicted defendant to death. It is also an affliction or a situation that
is considered to be fatal; also a prognosis of death.

In India, section 368 of the Criminal Procedure Code gives the power of confirmation of death
sentence to the High Courts. A death sentence is normally given in case of murder, for waging
war against the state and also in cases cited as Rarest of Rarest Cases.

In India, death penalty is handed out by the method of hanging by the neck till death. This
method has been in practice ever since the British times and has not been abolished till date.
Section 53 of the Indian Penal Code 1860 provides for a death sentence and section 368 of the
Code of Criminal Procedure provides power to High Courts to confirm death sentences. Death
penalty is handed out in cases known as rarest of the rare cases i.e. those cases in which the
collective conscience of the community is so shocked that it will expect the judiciary to deliver
death penalty on the accused. The Indian Supreme Court has stated that cases in which a murder
is committed in its extreme state can be put under the purview of rarest of rare cases20.

In Jagmohan v. State of U.P21, the Supreme Court had held that the death penalty was not
violative of Articles 14, 19 and 21. It was said that the judge was to make the choice between the
death penalty and imprisonment for life on the basis of circumstances, facts, and nature of crime
brought on record during trial. Therefore, the choice of awarding death sentence was done in
accordance with the procedure established by law as required under article 21.

20
http://blog.ipleaders.in
21
1973 AIR 947, 1973 SCR (2) 541

15
But, in Rajindera Parsad v. State of U.P.]22 Krishna Iyer J., speaking for the majority, held that
capital punishment would not be justified unless it was shown that the criminal was dangerous to
the society. The learned judge plead for the abolition of the death penalty and said that it should
be retained only for “white collar crimes”

In the case of Mithu v. State of Punjab(2001), the Supreme Court made the decision that mandatory
death penalty is unconstitutional in nature. While. Although the consequent legislation for drug and
criminal offenses prescribes a mandatory death penalty, the Supreme Court has not expressly struck
down death penalty as unconstitutional. Also, Indian courts have not actually applied the mandatory
death penalty for these crimes

However, in Bachan Singh v. State of Punjab 23 , the leading case of on the question, a
constitution bench of the supreme court explained that article 21 recognized the right of the state
to deprive a person of his life in accordance with just, fair and reasonable procedure established
by valid law. It was further held that the death penalty for the offense of murder awarded under
section 302 of I.P.C did not violate the basic feature of the constitution.

In India, non-governmental organizations are fighting against inhuman, degrading and cruel
punishment and protection of human rights. Although judiciary has evolved the principle of
“rarest of rare cases” and has indicated that it is with special reasons that death penalty must be
imposed in cases of exceptional and aggravating circumstances where offenses are very grave in
nature, the application of the principle itself, as evident from a plethora of cases, is in violation of
Constitutional provisions. Justice V.R. Krishna Iyer, an eminent jurist and former judge of the
Supreme Court of India was himself against death sentence. According to Justice Iyer, life is
given by God and can be taken away by God himself. The state does not have the right to take
away a person’s life. Execution by state amounts to inhumanity. He further stated that Gandhi’s
country must set an example by abolishing death penalty. Even if supported by a judicial
decision, the state must not hang a person24.

22
1979 AIR 916, 1979 SCR (3) 78
23
AIR 1980 SC 898 CriLJ 636, 1982 (1)
24
Soma Sarkar, Rarest Of the rare doctrine, Times New Journal

16
In the recent judgment in Shatrughan Chauhan Vs. Union of India(2014), the Supreme Court of
India has laid down certain guidelines as to how death penalty can be converted into a life
sentence. The same was implemented in the case of Union of India vs. Sriharan(2015), popularly
known as the Rajiv Gandhi assassination case whereby the death sentence of the killers of Rajiv
Gandhi was reduced to a life sentence by the Supreme Court of India.

17
 RIGHT TO LIFE AND RIGHT TO DIE – AN INTERNATIONAL
PERSPECTIVE

In the popular mind, "euthanasia" conjures the image of an elderly, terminally ill, lucid patient
requesting the assistance of health carers to die now pain free rather than to die later after
profound suffering . Over the years, it has turned out to be one of the most controversial issues in
law, medicine, ethics, religion and politics. The law commission in its report on “Medical
Treatment to Terminally Ill Patients “tried to give an account of the present day scenario with
respect to the terminally ill patients in light of the recent medical advances.
The laws with reference to the permissibility of euthanasia vary from country to country. Most
countries have been reluctant to accommodate active euthanasia within their legal system
whereas some of the countries have taken a lead in legalizing it. The reluctance to accord legal
sanctity to euthanasia stems from the fact that many countries consider the practice of euthanasia
as morally and ethically abhorrent. The ethical considerations surrounding euthanasia in different
states have influenced tremendously in taking a legal position on the subject in the states.

However, countries like Netherland took a radical step in the year 2000 when it legalized
euthanasia. The law which was passed by an overwhelming majority of the Dutch lawmakers
provides for the addition of a special “criminal liability exclusion” clause to Article 293 and 294
of the Dutch Penal Code that deals with the offence of homicide. By virtue of the exception,
doctors are exonerated from the commission of offences under the said Articles if they comply
with the due care criteria set out in Article 2 of the Act (Termination of Life on Request and
Assisted Suicide (Review Procedures) Act 2001).

18
Under the Dutch law, it is now legal for a doctor to help a patient who seeks his assistance to end
his life. Similarly, Belgium became the second country to legalize active euthanasia The Belgian
law sets out conditions under which suicide can be practiced without giving doctors a license to
kill. According to the Belgian law, patients wishing to end their own lives must be conscious
when the demand is made and repeat their request for euthanasia. They have to be under
"constant and unbearable physical or psychological pain" resulting from an accident or incurable
illness. The law gives patients the right to receive ongoing treatment with painkillers -- the
authorities have to pay to ensure that poor or isolated patients do not ask to die because they do
not have money for such treatment.

One of the important safeguards provided by the Law is that every mercy killing case will have
to be filed at a special commission to decide if the doctors in charge are following the
regulations. The Belgian Law makes departure from the Dutch law when it comes to the issues
of a minor patient.
All societies have the mission to attain a right for the individual to make a decision for himself
towards the end of his/her life. the controversy over euthanasia differs from country to country,
society to society and culture to culture. For the convenience, the major countries of the world
have been placed alphabetically.

Netherlands

In April 2002, the Netherlands became the first country to legalise euthanasia and assisted
suicide. It imposed a strict set of conditions: the patient must be suffering unbearable pain, their
illness must be incurable, and the demand must be made in "full consciousness" by the patient. In
2010, 3,136 people were given a lethal cocktail under medical supervision.

19
 AUSTRALIA
Euthanasia was legalized in Australia’s Northern Territory, by the rights of the Terminally Ill
Act, 1995. The northern territory consists of about 1/6 the landmass of Australia but only has a
population of about 168000 people. The law started as a private member’s bill rights of the
Terminally Ill Bill 1995, sponsored by Marshall Perron. It was opposed by the Australian
Medical Association and a variety of Right-to-Life groups. The above act came into effect on
July, 1996. It permitted active euthanasia, under careful controls, when certain prerequisites were
met. Similar bills were introduced in other Australian states.
Belgium The Belgian Act on euthanasia was enacted on 28th May, 2002. It came into effect on
22 September after its publication in official Belgian gazette. The Belgian Law allowed doctors
to help kill patients who during their terminal illness, express the wish to hasten their own death.
Thus, the Belgian became the third jurisdiction after the Netherlands (April, 2002) and the state
of Oregon USA (1997) to legalize euthanasia.
China and Hong Kong Euthanasia is not legal in China and Hong Kong. It is against the Chinese
concepts of morality. According to the existing law of the country it is equivalent to murder.
Colombia In Colombia, euthanasia became permissible in 1997 when the highest judicial body,
the Constitutional Court, ruled that an individual may choose to end his life and that doctors
cannot be prosecuted for their role in helping... Carlos Gaviria, the judge who wrote the court's
majority ruling, is now a senator, and he plans to submit a bill to Congress to regulate the
practice… Gaviria said, he will submit a bill to the present legislative session establishing
guidelines similar to those in the Netherlands and Belgium, where doctors must seek second
opinions, give patients rigorous mental tests before inducing death and have cases reviewed by
government commissions...
Germany Euthanasia has long been a taboo subject in Germany because of the Nazi programme
of so-called euthanasia, which targeted thousands of men, women and children considered
handicapped or mentally ill. The law on assisted suicide is not clear. While no longer illegal, it
cannot involve a doctor because that would violate the code of professional medical conduct and
might contravene a doctor's legal duty to save life.

20
"In Russia, euthanasia is illegal. But courts have been sympathetic to people charged with
helping others die.
Recently, the California Government, Jerry Brown, has signed the California's right-to-die bill
into law, allowing terminally ill citizens of the country to end their own lives with the help of
their physician. According to this new law a terminally ill
patients can seek medical aid for ending their lives as long as they have been given six months or
less to live by two doctors, provided a written request and two oral requests at least 15 days apart
and are deemed mentally capable of making decisions about their own health. Montana, Oregon,
Vermont and Washington have also legalized the practice, while aid-in-dying is currently in
dispute in New Mexico's courts.
The California bill was passed due to Brittany Maynard, the 29-year-old resident of San
Francisco Bay Area who gained national attention for her decision to move to Oregon to take
advantage of the state's longstanding aid-in-dying law. Maynard had been diagnosed with
terminal brain cancer, but as a California resident, could not pursue end-of-life options at home
It was in the year 2002, when Netherlands became the first country to legalize euthanasia and
assisted suicide. But it imposed certain strict condition which one must check before allowing
some for Euthanasia as well as for Assisted suicide i.e the patient must be suffering unbearable
pain, their illness must be incurable, and the demand must be made in "full consciousness" by the
patient
Again Belgium becomes the second country in the world to legalize Euthanasia and it passed its
law in the year 2002. The law says doctors can help patients to end their lives when they freely
express a wish to die because they are suffering intractable and unbearable pain. Patients can also
receive euthanasia if they have clearly stated it before entering a coma or similar vegetative state.

21
 CONSTITUTIONAL VALIDITY OF SEC-309 OF I.P.C

In India, attempt to suicide is made punishable under section 309 of Indian Penal Code, 1860.
There is always conficts because of judgments given by our Courts about whether right to life
includes right to die within the meaning of article 21 of the Constitution of India.There is two
kinds of opinion by people that Article 21 of the Constitution of India is a provision providing
Right to life and personal liberty. By declaring an attempt to commit suicide a crime, the Indian
Penal Code upholds the dignity of human life, because human life is as precious to the State as it
is, to its holder and the State cannot turn a blind eye to a person in attempting to kill himself.
Another set of people are of the opinion that the Section 309 of Indian Penal Code is cruel and
irrational because it provides double punishment for a troubled individual whose deep
unhappiness had caused him to try and end his life. It is cruel to inflict additional legal
punishment on a person who has already suffered agony and ignominy in his failure to commit
suicide.

Indian Penal Code does not define 'suicide'. Generally The term ‘ suicide’ is the human act of
self-Killing, self-death It has been defined by various sociologists and psychologists in different
ways.

S. 309 – Attempt to commit suicide: “ 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 extend to one year or with fine, or with both.”

The state’ s power under section 309, I.P.C. is questioned not only on grounds of morality, but
also on the constitutionality of the provision. In the case of Maruti Shripati Dubal v. State of
Maharashtra(5), It is the first time it came for the consideration before the court that whether a
person has a right to die. The petitioner, a police constable, who became mentally ill after a road
accident attempted to commit suicide by dousing himself with kerosene and then trying to light a

22
match was prevented and prosecuted under section 309 of I.P.C. In 1987, the Division Bench of
Bombay High Court stuck down sec 309, I.P.C., as ultra vires vide article 14 and 21 of the
constitution which guarantees ‘ right to life and personal liberty’ . The court said the ‘ right to
life’ includes ‘ right to live’ as well as ‘ right to end one’ s life’ if one so desires.It was pointed
out that that Fundamental Rights have positive as well as negative aspects. For example:
Freedom of Speech and Expression also includes freedom not to speak and to remain silent. If
this is so, logically it must follow that right to live as recognised by article 21 of the constitution
also includes a right not to live or not to be forced to live.
Justice P.B. Sawant: “ If the purpose of the prescribed punishment is to prevent the prospective
suicides by deterrence, it is difficult to understand how the same can be achieved by punishing
those who have made the attempts. Those who make the suicide attempt on account of mental
disorder requires psychiatric treatment and not confinement in the prison cells where their
condition is bound to be worsen leading to further mental derangement. Those on the other hand,
who makes a suicide attempt on account of actual physical ailments, incurable disease, torture
(broken down by illness), and deceit physical state induced by old age or disablement, need
nursing home and not prison to prevent them from making the attempts again. No deterrence is
going to hold back those who want to die for a special or political cause or to leave the world
either because of the loss of interest in life or for selfdeliverance. Thus in no case does the
punishment serve the purpose and in some cases it is bound to prove self defeating and counter –
productive

Gian Kaur v. State of Punjab (6) In 1996, a five judge Constitutional Bench of the Apex Court
said about the Constitutional validity of sec 309 of IPC. The appellant and her husband were
convicted by the Trial Court under Section 306, I.P.C. for abetting the commission of suicide by
Kulwant Kaur
The Court while dismissing the petition held that the ‘ right to life’ is inherently inconsistent with
the ‘ right to die’ as is ‘ death’ with ‘ life’ . In furtherance, the right to life, which includes right

23
to live with human dignity, would mean the existence of such a right up to the natural end of life.
It may further include ‘ death with dignity’ but such existence should not be confused with
unnatural existence of life curtailing natural span of life. In progression of the above, the
constitutionality of section 309 of the I.P.C. which makes “ attempt to suicide” an offence, was
upheld, overruling the judgment in P. Rathinam’ s case.
The Apex Court further held that Section 306, I.P.C. as constitutional and said that ‘ right to life’
does not include ‘ right to die’ . Extinction of life is not included in protection of life. The Court
further went on to say that Section 306 constitute a distinct offence and can exist independently
of Section 309, I.P.C. As regards Section 309, I.P.C. is concerned, the court said that the’ right to
life’ guaranteed under Article 21 of the Constitution did not include the ‘ right to die’ or ‘ right to
be killed’ and therefore an attempt to commit suicide under section 309, I.P.C. or even abetment
of suicide under section 306, I.P.C., are well within the constitutional mandated, and are not void
or ultra vires. [14]
Right to life means right to live peacefully as an ordinary human being. One can appreciate the
theory that an individual may not be permitted to die with a view to avoiding his social
obligations. He should perform all duties towards fellow citizens. At the same time, however, if
he is unable to take normal care of his body or has lost all the senses and if his real desire is to
quit the world, he cannot be compelled to continue with torture and painful life. In such cases, it
will indeed be cruel not to permit him to die. There are people who though see suicide as morally
wrong, still create obligatory grounds to commit suicide and advanced some arguments with
moral backups in favour of suicide. Thus giving us the chance of raising the question whether
man has the moral right to die or take his life.
The state’s power under section 309, I.P.C. is questioned not only on grounds of morality but
also on the constitutionality of the provision.

24
 1. Maruti Shripati Dubal v. State of Maharashtra[9]

This is the case in which first time it came for the consideration before the court that whether a
person has a right to die. The petitioner, a police constable, who became mentally ill after a road
accident attempted to commit suicide by dousing himself with kerosene and then trying to light a
match was prevented and prosecuted under section 309 of I.P.C. In 1987, the Division Bench
of Bombay High Court stuck down sec 309, I.P.C., as ultra vires vide article 14 and 21 of the
constitution which guarantees ‘right to life and personal liberty’. The court said the ‘right to life’
includes ‘right to live’ as well as ‘right to end one’s life’ if one so desires. It was pointed out that
Fundamental Rights have positive as well as negative aspects. For example: Freedom of Speech
and Expression also includes freedom not to speak and to remain silent. If this is so, logically it
must follow that right to live as recognized by article 21 of the constitution also includes a right
not to live or not to be forced to live.

2. State v. Sanjaya Kumar Bhatia[10]

In 1985, the Division Bench of Delhi High Court while acquitting a young boy who attempted to
commit suicide by consuming ‘Tik Twenty’ strongly advocated for deletion of section 309,
I.P.C. from the statue book and held that “the continuance of section 309 of the Indian Penal
Code is an anachronism unworthy of human society like ours. Instead of sending the young boy
to a psychiatric clinic society, gleefully (happily) sends him to mingle with criminals. Medical
clinics are needed for such social misfits; but police and prison never.”

3. Chenna Jagadishwar v. State of A.P.[11]

The Division Bench of Andhra High court upheld the constitutionality of section 309, I.P.C., and
remarked that “right to life does not necessarily signify a right to die” which is an offence and
therefore section 309 is not violative of Articles 19 and 21 of the constitution. It was also

25
pointed out that the courts have sufficient power to see that unwarranted harsh treatment or
prejudice is not meted out to those who need care and attention. This, therefore does not violative
of article 14.

6. Thomas Master v. Union of India[15]

The accused, a retired teacher of 80 years, wanted to voluntarily put an end to his life after
having had a successful, contented and happy life. He stated that his mission in life had ended
and argued that voluntary termination of one’s life was not equivalent to committing suicide. The
Kerala High Court held that no distinction can be made between suicide as ordinarily understood
and the right to voluntarily put an end to one’s life. Voluntary termination of one’s life for
whatever reason would amount to suicide within the meaning of Sections 306 and 309,
I.P.C. No distinction can be made between suicide committed by a person who is either
frustrated or defeated in life and that by a person like the petitioner. The question as to whether
suicide was committed impulsively or whether it was committed after prolonged deliberation is
wholly irrelevant.

26
 CONCLUSION AND SUGGESTIONS
Thus we can conclude that Right to die should be incorporated in Right to life. The research
over Right to life vis-à-vis Right to die has is basically commence with the discussion on the
concept of life and its various aspects, such as, the value of life, quality of life, sanctity of life,
protection of life. It has been observed that not only the value but also the quality of life is
extremely important. The quality of life has to be evaluated in the clinical and legal perspective,
in the course of legalizing euthanasia.
As Article 21 of the Indian Constitution guarantees, among other things, life, liberty, privacy
and human dignity. The Indian judiciary magnificently has broadened the horizon of Article 21
by providing the widest possible interpretation to include various facets of life under this
provision. Unfortunately, the judiciary has not gathered courage to completely interpret right to
die with dignity as a facet of Article 21.

The researcher is of the opinion that it is equally important to identify the glaring difference
amongst suicide, physician assisted suicide, passive euthanasia, active euthanasia, voluntary and
involuntary euthanasia. Further, after considering the various forms of euthanasia, the researcher
comes to an conclusion that all forms should not be considered for legalization as that may lead
to catastrophic situation. Only euthanasia in the form of physician assisted suicide needs to be
given attention by the law makers especially in India. The right to refuse medical treatment along
with right to self autonomy and the doctrine of informed consent supports legalization of
euthanasia.
By and large, Mercy Killing and euthanasia in the form of physician assisted suicide are
misconceived to be one and the same by the majority. But the reality is both these concepts differ
substantially. Mercy killing includes termination of life by assistance of any person for very
many reasons like for e.g., physically or mentally challenged, whereas, euthanasia is demanded
always in case of a person who is a terminally ill patients. It will empower a person of sound
mind to make living will specifying that in the event of him slipping into a terminal medical
condition in future. The person too will be in a position to authorize through the will, relative,
friends to decide in consultation with medical experts when to pull the plug. Thus Right to die
must incorporated under Right to life

27
 BIBLIOGRAPHY
1. RATANLAL & DHIRAJ LAL, THE INDIAN PENAL CODE, 1860 ( 22nd Ed ,2014,
Lexix Nexis)
2. S.N MISHRA, INDIAN PENAL CODE,(21st Ed, 2018)
3. K.A. PANDEY, INDIAN PENAL CODE,(4th Ed, 2018)
4. B.M GANDHI, INDIAN PENAL CODE,(4th Ed,2018)
5. M.P. TANDON, INDIAN PENAL CODE, (2015)
6. N.V. PARANJAPE, INDIAN PENAL CODE, (2016)

WEBLIOGRAPHY

28
29
 1|Page

30