NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RIGHT TO DIE

CONSTITUTIONAL LAW-I

RESEARCH PAPER

SUBMITTED TO: SUBMITTED BY:

DR. SYAMLA KANDADAI ADITYA MISHRA
ASSOCIATE PROFESSOR, LAW SEMESTER: II ‘A’
NUSRL, RANCHI ROLL: 729

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INTRODUCTION

This descriptive study deals with the concept of the ‘Right to die’ which has emerged as a
subject of frequent discussions. It has been fashionable for sometime now and in many
aspects of common public life for people to demand what they want or need as a matter of
rights. In the past few decades we have heard claims of a right to health or health care, a right
to education or employment, a right to privacy, a right to clean air, a right to be born and a
right not to have been born. Most recently we have been presented with the ultimate new
rights claim, a ‘right to die.’

In many cases people with terminal illness are seeking to end their lives with the aid of a
physician. Most of these people suffer from hopeless condition of increasing debilitation,
sometimes accompanied by periods of excruciating pain. Many believe that it is permissible
for people who are suffering from terminal illness to commit suicide or even that such people
have the right to commit suicide. Some also argue that it is permissible for them, or they have
the right to use assistance of another person. These can be powerful reasons for considering
suicide, such as unbearable pain and debilitating terminal illness that renders worthwhile
Human life impossible. If such reasons are not overridden by countervening moral
considerations then they provide a justification for suicide. Some go further and claim that we
have the right to commit suicide. But it’s not always easy or even possible to commit suicide
without help. So in those cases the person who wants to die may also want the assistance of
another. Assisted death occurs when someone intentionally assists in causing another’s
voluntary death. This might involve knowingly provide the means for another to commit
suicide or actually killing a person who wants to die. It does not include such assistance as
merely providing comfort or giving person the means to commit suicide when there is no
reason to suspect that the recipient wants to die.

According to definition given in Merriam Webster for Euthanasia, “the act or practice of
killing or permitting the death of hopelessly sick or injured individuals in a relatively painless
way for reasons of mercy”.

Again according to definition given in Oxford Dictionary, Euthanasia means, “The painless
killing of a patient suffering from an incurable and painful disease or in an irreversible
coma”.

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So, from the above definition we can interpret that Euthanasia is the practise of killing one
person who is suffering from some kind of serious painful illness, so that he can get relief
from his pain on the ground of mercy and sometime even it is known as mercy killing also.

VARIOUS KINDS OF EUTHANASIA

VOLUNTARY EUTHANASIA

Voluntary euthanasia occurs when a person makes their own choice to end their life so that
he can avoid future suffering.

NON-VOLUNTARY EUTHANASIA

Non-voluntary euthanasia occurs when a decision regarding premature and merciful death is
made by another person and this happens because the individual to be euthanized is unable to
make his own decision. This form of euthanasia is commonly associated with young infants
or patients in a coma, who cannot, due to the nature of their age or condition, make any
decision for themselves.

The above offers a differentiation of types of euthanasia in terms of the person making the
decision. In addition, we can differentiate between types of euthanasia based on the method
involved in ending a life.

ACTIVE EUTHANASIA

If any person is actively euthanized it means that their death was caused by external
intervention or the voluntary swallowing of a deadly cocktail of drugs.

PASSIVE EUTHANASIA
Passive euthanasia occurs when a person is allowed to die due to the deliberate withdrawal of
treatment that might keep them alive. Thus, a person who is passively euthanized is allowed
to die via natural causes even though methods to keep them alive might be available.

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WHY ASSERT A RIGHT TO DIE?

Before moving forward to more challenging questions of the existence and ground of a ‘right
to die’, it will be useful to consider why such right is being asserted, and by whom. Some of
the reasons have already been noted in passing:

 The fear of prolongation of dying due to medical intervention; a right to refuse

treatment or hospitalization, even if death occurs as a result.
 The fear of living too long, without fatal illness to carry one off; hence, a right to
assisted suicide.
 The fear of the degradations of senility and dependence; hence, a right to death with
dignity.
 The fear of loss of control; hence, a right to choose the time and manner of one’s
death.

Equally important is for people are the fear of becoming a burden to others socially,
economically and physically. Few parents are however eager or willing they might be to stay
alive and are pleased by the prospect that they might thereby destroy their children’s and
grand children’s opportunities for happiness.

But the advocates of a “right to die” are not always so generous. On the contrary, much
dishonesty and mischief have taken place. Many people have seen the advantage of using the
language of individual rights, implying voluntary action, to shift the national attitudes
regarding life and death, to prepare the way for the practice of terminating “useless” lives.

Many who have argued for right to die mean for people not merely to have it but to exercise
it with dispatch, so as to decrease the mounting socio economic costs of caring for the
irreversible ill and dying. Children look at parents who are not dying fast enough, hospital
administrators and health economists concerned about cost cutting and waste, doctors
disgusted with caring for incurables, people with eugenic or aesthetic interests who are
repelled by the prospect of a society in which the young and vigorous expend enormous
energy to keep alive the virtually dead-all these want to change our hard-won ethic in favour
of life. But they are either too ashamed or too shrewd their true intentions

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IS THERE A RIGHT TO DIE?

If a newly asserted right, such as right to die cannot be established on the natural or rational
ground for rights offered by known thinkers than the burden of proof must fall on the
proponents of novel rights to provide a new yet equally solid ground in support of their novel
claims.

If we start from the beginning, with the great philosophical teachers of natural rights, the very
notion of the right to die would be nonsensical. As we have learnt from Hobbes and from
John Locke that all the rights of man, given by nature, presuppose our self-interested
attachment to our own life. All natural rights trace home to the primary right to life, or better
the right to self preservation- itself rooted in the powerful self loving impulses and passions
that seek our own continuance.

Rights are given to men by nature but they are needed because men are also subject to
nature’s improvidence. Since life is in danger, men’s equal right would be to life, to the
liberty that protects life and to the pursuit of the happiness with which life or a tenuous life is
occupied.

It is still not clear that whether there is anything such as right to die and different countries
have different stands on this issue. Supporters of euthanasia have argued that there is a moral
duty to respect the wishes of a patient who wants death as a final treatment for terminal
illness, uncontrollable pain or incurable sufferings. “Heroic” or extraordinary medical
treatment that prolong life and perpetuate sufferings are considered to be inhuman and
undignified which ignores “quality of life” which is seen as a legitimate factor in decision
making and that should not yield to the quantitative preservation of life as an absolute value.

Many proponents of euthanasia also argue that the distinction between active and passive
euthanasia is illusionary since the passive form still requires an action of some sort.
Especially an act of omission is equal to an act of commission since they have the same
motive and also same result.

In some cases, it is considered permissible to withhold patient and allow a patient to die, but
it is not at all easy to take direct action which is motivated to kill a patient. Here the problem
is that the process of ‘allowed to die’ can be slow and painful to the patient.

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But many who oppose euthanasia argue that killing is wrong in any context. They say that it
is God’s right to determine both the beginning and end of life and so euthanasia is a violation
of God’s will. In some situations, those who oppose euthanasia support killing in other
contexts as in situations such as capital punishment, self defence and mercy killing. Mercy
killing is not included in medical care here; mercy killing is placed in a wartime context, such
as that where soldier might be killed as a means to prevent capture and torture by a cruel
enemy.

Many also argue that physicians should adhere to the distinction between cessation of
treatment and active euthanasia as a doctor must not kill his patient as it is a violation of their
sacred canon of medical ethics. Also the slippery slope arguments suggest that legalization of
active euthanasia will lead to active involuntary euthanasia.

SHOULD RIGHT TO DIE BE LEGALISED

In various cases people with terminal illness are seeking to end their lives with the aid of a
physician. Most of those people suffer from hopeless condition of increasing debilitation and
periods of excruciating pain. But totally legalising the physician assisted suicide may not be a
concrete solution to this problem. As right to physician assisted suicide would discourage
people from dealing more productively with their distress and with the fact of death; that the
line between hopeless and hopeless condition is too thin and that any right to physician
assisted suicide.

Patients are left with some difficult options other than the right to die with dignity when death
is conceded to be imminent is the right to die sooner under these circumstances. Individuals
are denied the right to refuse life saving treatment for themselves when circumstances
suggested that they lacked the time for reflection on the choice. The question of who may
decide when to withhold or terminate life saving treatment, and the even crucial question of
who may decide when to administer treatment intended to cause death are of great moral,
ethical and legal concern.

Also the distinction between right to withdraw life sustaining equipment and the right to
physician assisted is problematic in many ways. So consider the following possibilities to
have a sense of factual contexts in which the right might be claimed;

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(1)A competent patient patient seeks death under conditions that are both medically hopeless
in the sense that the best medical judgement is that there is a fixed and relatively short period
of time to live, and physically difficult and debilitating, in the sense that the patient will
experience some intense pain.

(2)A competent patient wants death under condition that are medically hopeless, but do not
involve much physical pain.

(3)A competent patient with a disease that will produce a long period of deterioration and a
long span of life.

(4)A patient may be unconscious or otherwise incompetent and also in a medically hopeless
condition; his family or guardian seeks death with or without evidence that this would be the
patient’s desire.

(5)A competent patient may be facing a severe medical problem. Though his condition may
not be hopeless, he may want death because he is generally depressed or no longer considers
his life worth living.

(6)A patient may be facing a period of sustained medical difficulty without knowing whether
or not some improvement is eventually possible.

(7)Any of the above conditions might involve a person who seeks death, not with the
assistance of a physician, but with the assistance of a friend or family member.

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RIGHT TO DIE UNDER ARTICLE 21

The question whether right to die is included under Art.21 of the Indian Constitution came up
for the first time before the Bombay High Court in State of Maharashtra v. Maruty Sripati
Dubal1 The Bombay High Court held that the right to life guaranteed by Art.21 also includes
right to die, and consequently the court struck down section 309 of IPC which provides
punishment for attempt to commit suicide by a person as unconstitutional. The judges felt the
desire that to die is not unnatural but it is merely abnormal and uncommon. They also listed
several circumstances in which people may wish to end their lives, including disease, cruel or
unbearable condition of life, a sense of shame or disenchantment with life. They held that
everyone should have the freedom and liberty to dispose of his life as and when he desires. In
the given case a Bombay Police Constable who was mentally deranged was refused
permission to set up a shop and earn his livelihood. Out of frustration he tried to set himself
afire in the corporation’s office.

On the other hand, the Andhra Pradesh High Court in Channa Jagadeeswar v State of
A.P.2held that the right to die is not a fundamental right within the meaning of Art.21 and
hence section 309 of IPC is not unconstitutional.

In p. Rathinam v Union of India3a two judge bench held that a person has a right to die and
declared section 309 of the IPC unconstitutional which makes ‘attempt to commit suicide’ a
penal offence. The right to live under Art.21 of the constitution also includes the ‘right not to
live’, i.e. right to die or terminate one’s life. Thus the court concluded that the right to live of
which article 21 speaks of can be said to bring in its trail the right not to live a forced life.

The court declared section 309 of IPC unconstitutional as it is violative of article 21. A
person cannot be forced to enjoy right to life to his detriment, disadvantaged or disliking. The
court held that section 309 of the IPC was a cruel and irrational provision. The court held that
right to life of which Art.21 of the constitution speaks of can be said to bring in its trial not to
live a forced life.

1 1987 Cr LJ 549.
2 1988 Cr LJ 549.
3 (1994) 3 SCC 394

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In Gian Kaur v State of Punjab4a five judge Bench of Supreme Court has now overruled the
P.Rathinam’s5 case and rightly held that “right to life” under Art.21 of the constitution does
not include “right to die” or “right to be killed”.

Delivering the unanimous judgement of the court Mr. Justice J.S Verma, observed-:

“Any respect of life which makes it dignified may be read into Art. 21 of the constitution but
not that which extinguishes it and is, therefore inconsistent with the continued existence of
life resulting in effacing the right itself”.

“Right to Life” is a natural right embodied in Art.21 but suicide is an unnatural termination or
extinction of life and, incompatible and inconsistent with the concept of “tight to life”

Referring to protagonists of euthanasia’s view that existence in persistent vegetative state was
not a benefit to the patient of terminal illness being unrelated to principle of “sanctity of life”
or the “right to live with dignity” the court said that this argument was of no assistance to
determine the scope of Art.21 of the constitution for deciding whether the guarantee of “right
to life” therein includes the “right to die”

The court made it clear that the “right to life” including the right to live with human dignity
would mean the existence of such a right upon the end of natural life. This also includes the
right to a dignified life upon the point of death including a dignified procedure of death.

This may include the right of a dying man to also die with dignity when his life is ebbing out.
But the right to die with dignity at the end of life is not to be confused with the right to die an
unnatural death curtailing the natural span of life.

The court accordingly held that the section 309 of the IPC is not violative of Art.21 of the
constitution.

The court set aside the judgement of the Bombay High Court in Maruti Sripati caseand the
decision of the Supreme Court in P.Rathiman case wherein section 309 of IPC was held to be
constitutional and upheld the judgement of the Andhra Pradesh High Court holding that
section 309 of the IOC was not violative of Arts. 14 and 21 of the constitution.

4 (1996) 2 SCC 648.

5 (1994) 3 SCC 394.

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EUTHANASIA: In Aruna Ramchandra Shanbaugh v Union of India 6Aruna who was a staff
nurse in King Edward Memorial Hospital and she was attacked by a sweeper in the Hospital
by wrapping a Dog chain around her neck. He also tried to rape her. Next day a cleaner found
her lying on the floor with blood all over her. There was damage to many parts of her body.
The incident occurred about 36 years of her age and she was at the time of the judgement of
court 60 years of age. Her physical condition was alleged to be very weak. She was reduced
to a skeleton and was of feather weight. Her brain was virtually dead. According to medical
report Aruna’s health was normal but she would get disturbed when many people entered the
room. She met most of the criteria for being in a permanent vegetative state of 37 years. Her
dementia did not progress and remained stable for many years.

Her parents were dead and her close relatives had no interests in her since she had
unfortunate assault on her. Regarding the withdrawal of life support to a person in PVS or
who was otherwise incompetent to take a decision in this connection, the Supreme Court in a
two judge bench decision laid down the law of passive euthanasia to continue till the law
made by parliament on the subject as follows:

(1)A decision has to be taken to discontinue life support either by parents or the spouse or
other close relatives, or in the absence of any of them, such a decision can be taken even by a
person or a body of persons acting as a next friend. It can also be taken by the doctors
attending the patient. However, the decision should be taken bona fide, in the best interest of
the patient.

(2)It was hospital staff taking care of Aruna for a long, they were really her friends who could
take such a decision but they clearly expressed their wish of Aruna to be allowed to live. If
the hospital staffs at some future time changes its mind, it would have to apply to the Bombay
High Court for approval of decision to withdraw life-support.

(3)A petition can be made to the High Court to pass suitable orders under Art 226 of the
constitution praying for an order or direction and not for any writ. Article 226 gives abundant
power to the High Court to pass suitable orders on the application filed by the near relatives
or next friend or doctors/hospital staffs praying for permission to withdraw the life-support to
an incompetent person of the kind above mentioned.

6 AIR 2011 SC 1290.

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CURRENT STATUS OF RIGHT TO DIE IN INDIA

Supreme Court of India in March 2018 held that right to die with dignity is a fundamental
right. The bench also held that passive euthanasia and living will also legally valid.

“The right to life and liberty as envisaged under article 21 of the constitution is meaningless
unless it encompasses within its sphere individual dignity. With the passage of time, this
court has expanded the spectrum of article 21 to include within it the right to and liberty”.

The bench also held that right to live with dignity also includes the smoothening of the
process of dying in case of a terminally ill patient or a person in persistent vegetative state
with no hope of recovery.

WHAT IS LIVING WILL

Living will is a written document that allows a patient to give explicit instruction in advance
about the medical treatment to be administered when he or she is terminally ill or no longer
able to express informed consent.

It includes authorizing their families to switch off life support in case a medical board
declared that they were beyond medical help.

During the hearing, the government expressed its opposition to the concept of living will.

It argued that a living will be misused and may not be viable as a part of public policy. The
government however said that it had agreed in principal to permit ‘passive euthanasia’

It means allowing the withdrawal of life support from patients in a permanently vegetative
state and permitting them to die. The government even said it had drafted a ‘management of
patients with terminal illness, withdrawal of medical life support bill’.

Not agreeing with the government completely, the bench had said that it would lay down
norms governing how such living wills can be drawn up, executed and given effect to.

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CONCLUSION

Human life, its beginning as well as its ending, will be intertwined with the
complexities of social, legal, medical, moral, and ethical consciousness of this
era. It is a saddening feeling that, while science has proven many wonders, there
still remain the hopelessness, the deteriorated, degenerative aged, the mentally
incompetent, the destitute and the poor? at times fully neglected by their own
families, maybe even society. We are in an age of decreasing resources and
growing budget deficits. Seemingly the need for the provision of health and
human services is growing, not decreasing, in the face of economic constraints.
Perhaps a re-examination of where our priorities lie is in order. The
technological advances show no limit? Their use has complicated the question
of when life ends. There exists no natural death where artificial technology is
concerned. There is a tremendous void in the issue of the right to die. Our
population has a predominance of older people and the advances in science
show no limit. Seemingly, it remains doubtful if public policy will ever face and
fully address the growing concerns among our senior citizens in controlling
their own destinies to make their own decisions regarding life and death. Our
enduring reliance on our legal system to make decisions on values of life and
death will undoubtedly remain. As equally controversial, a déjà vu will be the
subject of euthanasia.

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