Introduction

A famous Australian journalist and an author of ‘Bad Hair Days’ who after being diagnosed
with terminal cancer Pamela Bone fought four years with this prolonged diseases. Bone was a
Human Rights champion and before dying, she quoted that “I'm not afraid of being dead, I'm
just afraid of what you might have to go through to get there.”  She wished to end her life
because it is very for her to live in that pain. Unfortunately, she left the world on April 28,
2008.

Article 21 of the Constitution guarantees every citizen that no person should be deprived of
his life or personal liberty except to ‘procedure established by the law’. Article 21 also
interprets as Right to Die or Right to live with dignity. Jurist across the globe holds a
different opinion on this and especially on Euthanasia which means to voluntarily end one’s
life. The debate over Euthanasia always remains in the discussion because some found it to
be interpreted with the Fundamental Rights while others observe that it can be easily
misused. Euthanasia or mercy killing can be compared and observed with different aspects. It
can be viewed with Human rights, ethics and legality.    

In the whole world, the countries are also divided over this. Some countries advocated this by
legalizing Euthanasia while others are still reviewing its illegality. In this paper, we are
providing a comparative analysis of Passive Euthanasia with the other types of it. We will
also discuss the historical background and also the future of its legalization. The study will
also focus on the guidelines and judgements given by the Hon’ble Supreme Court in various
cases along with the international view on this issue.

What is Euthanasia?

The word ‘Euthanasia’ is derived from the combination of two Greek words, one is ‘Eu’
which means ‘good’ other is ‘Thanatos’ means ‘death’.  It can be drawn that ‘Euthanasia’
means ‘good death’. This term was coined by Sir Francis Bacon. Euthanasia is defined as an
act of purposely ending someone’s life who is in dare need of it. Euthanasia is performed and
recommended by doctors on those patients who are suffering from a terminal illness.
Euthanasia is also referred to as ‘intentional mercy killing’. The word was first time used in
the 17th century. The intention of using euthanasia is just to free the person from suffering in
which there is no chance of survival. The oxford dictionary defines euthanasia as “The
painless killing of a patient suffering from an incurable and painful disease or in an
irreversible coma.”

The feud of Euthanasia lies in the middle of its two aspects. One is the legal point of view
and the other is professional ethics. Public and the law across the globe is divided on this.
Some people also look at this with a philosophical and religious view. Euthanasia is of many
types and different countries have declared them legal according to their laws. A very famous
philosophical doctrine is applied in this case. The doctrine of double effect which means ‘it is
allowed to do an action that causes serious harm, to provide some good end’. This principle is
widely declared to be as ethical. The Indian constitution also views it with the scope of
Article 21 as Right to life vs. Right to Die. The Indian judiciary has shown a mixed attitude
over the years. Still, it is the need of the hour to revisit the euthanasia in India.

Types of Euthanasia

1. Active Euthanasia: In active euthanasia, the death of the patient is caused by active means.
It can be done by giving the patient an injection which contains a lethal dose of a drug. In
active euthanasia, the main element is the deliberate act which is the main reason for the
patient’s death. In India, active euthanasia is illegal. Active euthanasia is legal in countries
like Canada, Switzerland, etc. While debating on the issue of legalizing the active euthanasia
the people who are against it say that active euthanasia is immoral and unethical. A doctor
who is considered next to God cannot kill his patient by any means. 

2. Passive Euthanasia: It is an act of causing death to a terminally-ill person by the medical

professional either by stopping the life support of the patient or by stop doing the cat by
which the patient is alive. The acts such as switching off the life support, disconnecting a
feeding tube, not carrying out the operation and not providing the medicines that are
necessary for the patient to live are carried out in passive euthanasia. The life of the patient is
not taken away directly it should be by an indirect method. The Supreme Court of India after
a long discussion gave a judgement in favour of a PIL filed by an NGO Common Cause and
made it legal.   
3. Voluntary Euthanasia: The voluntary act of euthanasia is carried out on the request of the
person who is willing to die. In voluntary euthanasia, the dying person expresses his request
without any external and internal pressure. The act of voluntary euthanasia can be simply
carried out by asking medical professionals to help in dying. It can also be done by stopping
the medical treatment and the food to eat. Voluntary euthanasia is legal in countries like
Belgium, Switzerland, Luxembourg, etc.     

4. Non-Voluntary Euthanasia: In non-voluntary euthanasia the consent of the patient is

absent. The patient is not in the position to talk or to respond because of being unconscious.
In this case, the consent is giving by the family of the patient or the closed person to the
patient. The consent can also be given by the court in special cases. In the cases of the non-
voluntary euthanasia, the doctor prescribes it because of the condition of the patient after
proper examination.

5. Involuntary Euthanasia: The case of Involuntary Euthanasia is very different from others.
In this special case, the person wants to live but due to the unbearable pain and suffering the
patient is not allowed to live. It can also be linked to the murder and is punishable under
criminal law. But not every case of involuntary euthanasia is murder it can be understood as,
suppose a person had a serious accident and he is not going to survive due to the injury, so in
this case doctor knew about this and the patient is asking him to provide a pain killer or
perform the necessary operation. Due to the zero chances of survival, the doctor will end the
life of the patient without his consent by examining the medical conditions.

Cases in India

Gian Kaur Vs State of Punjab 1996

In this case, the Supreme Court held that euthanasia and assisted suicide are unlawful in
India. It was said that Article 21 of the constitution of India guarantees right to life and does
not include right to die.

Aruna Shanbaug case 2011

Aruna Shanbaug case is the first case in India which highlighted the importance of
euthanasia. She was a nurse, working a hospital of Mumbai where she was sexually assaulted
by a worker in 1973. She was strangled with a chain which left her oxygen deprived and
hence she entered into a persistent vegetative state. She was on a hospital bed for 48 years,
until she died of pneumonia in 2015. In 2009, a petition was filed in Supreme Court by Pinki
Virani challenging that Aruna was deprived of Article 21, that is her right to live with dignity.

In March 2011, the apex court gave its decision legalizing passive euthanasia, subject to some
conditions. These conditions were that the decision to withdraw treatment or discontinue life
support must be taken by parents, spouse or other close relatives and in the absence of them
this decision shall be taken by a next friend. The nurses of KEM hospital were considered to
be next friend in the case of Aruna Shanbaug, who decided not to give passive euthanasia.

Common Cause NGO Vs Union of India 2018

The issue of euthanasia has been at the centre of heated debates from many years. It has been
surrounded by ethical, legal, medical and religious point of views. The apex court in India
passed this judgement in 2018 and allowed Passive Euthanasia while also introduced the
concept of living will. The court also defined Active as well as Passive euthanasia in the
ruling. The living will is a right of the person to issue advance directive on the course of their
treatment. It may include withdrawal of the life support if in case such a state arises. An NGO
called as Common Cause filed a PIL IN 2005 to seek legal recognition of passive euthanasia
and living will in India.

The constitution Bench in 2018, held that the fundamental right to life and dignity includes
Right to withdraw treatment and die with dignity. Also the concept of living will helped the
Relatives and friends; from the moral pressure to decide whether to withdraw treatment or
not.

It also helped to safeguard doctors from any foul play or accusation Proper guidelines have
also been given by the supreme court of India regarding the formation and usage of this living
will. One of the live Judges. Justice Chandrachud said "Modem medical science should
balance its quest to prolong life with need to provide patients quality of life. One is
meaningless without the other."

History of Euthanasia in India

In May, 2005 Supreme Court allowed terminally ill patients to make a living will seeking
passive euthanasia as a response to the PIL filed by the Common Cause NGO. Right to die
with dignity was recognised as a fundamental right under Article 21 of the constitution.

In 2006, the apex court involved Delhi Medical Council asking for the documents on
passive euthanasia. Law Commission also suggested a bill on passive euthanasia as
Treatment of Terminally Ill Patients Bill, 2016. Also in a report issued by them in
2012, the commission stated that a competent adult has the right to Insist that there
should be no invasive medical treatment by way of artificial life sustaining measures
or treatment. They recommended that in case of a person in an irreversible coma, or
persistent vegetative state, relatives, next friend or doctors should approach the High
Court to seek permission to with hold life support. This would be if a person has not
earlier taken a decision on withdrawing life support.

The Supreme Court also allowed passive euthanasia in the case of Aruna Shanbaug in
2011 since she was in a permanent vegetative state. It also gave certain guidelines as
to who can decide on behalf of the patient (if the patient is not in a state to decide).

4. In 2014, A three-judge bench led by CJI started final hearing in the case. DMC filed
copy of proceedings of international workshop for policy statement on euthanasia in
India and SC reserved for that verdict. The court also cited inconsistencies in earlier
verdicts on passive euthanasia including the one given in the Shanbaug case. It
referred the PIL to a Constitution bench. In July a five judge bench started hearing on
the plea.

5. In October 2017, five judge Constitution bench led by CJI Dipak Misra heard
arguments and reserved the verdict.

6. At last in March 2018, Supreme Court gave sanction to living will made by terminally
ill patients for passive euthanasia and laid down guidelines and procedures to be
adopted.

Debate and arguments on Morality and Dignity

The long heating debate over the legitimacy of euthanasia will always be linked with
morality. But the arguments in favour will neutralise it on the Rights given by the
Constitution.

Arguments in Favour of Euthanasia (Pro-Euthanasia)

1. Quality of life which also includes dying with dignity:

One of the pro-euthanasia arguments is quality of life. A person who is on a deathbed
and struggling for life by hanging in between must have the right to end his life. The
sole purpose of euthanasia is a good death. The person will choose death because life
with suffering is not a dignified life. In a philosophical view, it is said that a person
must live a happy life. The person is not finding happiness in his life after maximum
efforts by the medical professionals. He has the right to choose death which wills
ensure the quality of life in the form of respectful death.

2. Right to choose death:

Life is a private matter and the state has no right to interfere in anyone’s personal life
subject to public safety or reasonable restrictions. Human beings should have the right
to decide about their life. The state cannot feel the same pain the person is in. Nobody
wants to die without any reason and if a person is choosing death over a painful life
then he/she should be allowed to do it. The argument follows the libertarian principle
of philosophy. It says an action which is taken in the best interest of everyone and
doesn’t violate others rights is morally acceptable.

3. Saving the Health resources for future:

Another argument in favour of Euthanasia is that sometimes the medical expenses are
very high that the family is nit the condition of affording them. This argument is not
supported by authority but due to the health infrastructure of which we are aware
indirectly supports this. First, the emotional burden on the family members of the
patient and then the economic situation also put them in double trouble. Sometimes it
takes years for a patient to die but they remain alive on life support and cannot even
respond.
Arguments against Euthanasia (Anti-Euthanasia)

1. The sanctity of life will be in danger:

The arguments against the euthanasia are very well supported from the religious point
of view. In our society religion holds a special position in our lives. It is believed that
euthanasia is against the will of God. Humans cannot choose death only God will call
them back. Apart from this spiritual view, a non-religious person will also believe that
life cannot be taken by the act of humans.

2. Neglecting Human life:

The anti-euthanasia argument proclaims that euthanasia will create a difference or a
sense of discrimination between the patient and the fit person. A patient will be
considered of less use or no use. It will create and sense and feeling that some lives
are of no use over others.

3. Allowing Euthanasia will start slippery slope:

When we are talking about conserving the resources for future use will it not create a
disastrous effect? The doctor-patient relationship is a fiduciary relationship that is
based on trust. It is considered as unethical in moral terms. It is also considered that
euthanasia cannot be properly regulated and it will also lead to its misuse.

Scenario across the world

Countries Active Passive Voluntary

Euthanasia Euthanasia Euthanasia
Australia
Belgium
Canada
Chile
Denmark
Finland
France
Germany
India
Israel
Japan
* *
Luxembourg
Netherlands
New Zealand
Spain
Turkey
United Kingdom
United States
* With Conditions

Legal
Illegal

Legislation in India

While Supreme Court in March, 2018 gave sanction to passive euthanasia and living, bill
regarding the same have been put forward a number of times. Even before the judgement was
passed, the Ministry of Health and Family Welfare as an answer to a question
raised in Lok Sabha, in 2017 said that it is not against the concept of living will. If a person is
willing to write or issue directions regarding their treatment in future (if they become
terminally ill), then they are free to do so. Although there is no legislation as of now, the
directives given by the Supreme Court remain in force.

Guidelines for living will:

 The person must be of sound mind. He/she must execute it without coercion after
having full knowledge.
  This will, will have to be executed in the presence of First Class Judicial Magistrate
and witnesses.
 The document shall clearly tell as to when the treatment has to be withdrawn and
which particular medical treatment is not to be given which may cause the patient
pain and only help in delaying the death.
 It must also include the name of the relative or guardian who will have the power to
refuse, give consent or withdraw a medical treatment.

In case of no living will:

 The doctor may inform which as a result will form a Hospital Medical Board. The
board will discuss the matter with the family and the doctor appointed by the family.
This discussion will be recorded.
 After enlightening the family members about the advantages and disadvantages of the
withdrawal of the treatment or medical care, the family will decide and give consent
in writing. The Hospital Board will then take necessary action.
 The hospital will then involve the jurisdictional collector. He will constitute the
Medical Board which in turn will consist of Chief District Medical Officer as the
chairman and three experts.
 If this board approve the withdrawal of the medical support, JMFC will be informed
regarding the same.
 The Magistrate shall verify the reports, examine the condition of the patient, discuss
with the family member of the patient.
 If there are conflicting opinions, the nominee of the patient or family member /
treating doctor/ hospital staff can seek permission from the high court regarding the
withdrawal of medical support.
