1

DR. RAM MANOHAR LOHIA

NATIONAL LAW UNIVERISTY

RIGHT TO DIE : CONSTITUTIONALLY RIGHT?

SUBMITTED TO SUBMITTED BY
DR. ATUL KUMAR TIWARI PARAM CHAUDHARY

ASSOCIATE PROFESSOR Enrolment No. - 210101099

(CONSTITUTIONAL LAW- I) B.A. LL.B.(Hons.)

Dr. Ram Manohar Lohia National Law University 3rd Semester, Section ‘B’
 2

DECLARATION

I hereby declare that my project work titled “Right to Die : Constitutionally Right?”

submitted to the Law department, Dr. Ram Manohar Lohia National Law University,

Lucknow is a record of an original work done by me under the guidance of Dr. Atul Kumar

Tiwari and this project work is submitted in the partial fulfilment of the requirements for the

award of the degree of B.A. LLB.(hons). This project work has not been submitted to any

other University or Institute for the award of any degree or diploma.

 3

ACKNOWLEDGEMENT

I would like to express profound gratitude to Dr. Atul Kumar Tiwari, Associate Prof. (Law),

who gave me the opportunity to work on this project and allowed me to develop the skills and

acquire the necessary knowledge to complete this project. I would also like to express humble

gratitude for the exemplary guidance, monitoring and constant encouragement throughout the

course of this project

I would also like to thank the faculty of Dr. Madhu Limaye Library who extended their

assistance to me by helping me consult relevant legal research material which was essential to

the completion of this project

Lastly, I would like to thank my family for their constant encouragement without which this

project would not have been possible to complete.

Param Chaudhary
 4

INDEX

S. NO. HEADING PAGE NO.

1 RESEARCH METHODOLOGY 5

2 EUTHANASIA : WHAT IS IT? 6

3 HISTORICAL BACKGROUND 7-8

4 LEGAL BASIS FOR EUTHANASIA 9 - 11

5 LANDMARK JUDGEMENTS 12 - 15

6 ADVANCE MEDICAL DIRECTIVES 16

7 CONCLUSION 17
 5

RESEARCH METHODOLOGY

The project on “Right to Die : Constitutionally Right? ”, was completed through an analysis

of various legal works in the form of Supreme Court and various High Court judgements and

legal website articles, along with some Law Commission reports, which were associated and

concerned with passive euthanasia and other relevant legal provisions. These sources were

able to provide me with accurate and thorough information about the topics concerned.
 6

EUTHANASIA : WHAT IS IT?

“There is a certain right by which we may deprive a man of life, but none by which we may
deprive him of death; that is mere cruelty.”

-Fredrich Nietzsche; Human, All Too Human.

Euthanasia is the act of painless killing of a patient suffering from an incurable and painful
disease and/or in an irreversible coma or vegetative state. The word is derived from the Greek
words ‘eu’ which means good and ‘thanotos’ which means death; thus, the word literally
means ‘good death’. There are broadly two types of Euthanasia – Active euthanasia and
Passive euthanasia.

Active Euthanasia : In this, some form of lethal poison or substance is administered to the
patient to actively terminate their life and end their suffering.

Passive Euthanasia : In this, any external life support or lifesaving intervention is stopped
and/or omitted to let the patient die a natural death.

Euthanasia can also be categorized, based on consent of patient, into 2 categories:-

Voluntary : In this case, the patient is both competent and willing to undergo euthanasia and
can make the decision to do so orally or in written form.

Involuntary : In this case, the patient is incompetent to willingly consent to undergo

euthanasia such as in the cases of permanent vegetative state, coma patients, etc.

There is a long and complex legal as well as philosophical history of euthanasia. It has been
discussed in relation to society at large since the time of ancient Greeks and has been debated
vigorously in relation to its legal validity ever since modern form of law has come into being.
Even in India, suicide has always been a topic of discussion, all the way since the times of
Srutis, Smritis, Vedas, Upanishads and Puranas. Even the great Hindu epics, Ramayana and
Mahabharata have dealt with themes of suicide.

In this project, I shall delve into the legal history of euthanasia, its legal validity and
arguments for and against it, its current position in Indian law and the important legal
milestones pertaining to euthanasia in India.
 7

HISTORICAL BACKGROUND

The concept of euthanasia, or the right to end one’s life on one’s own terms is not a novel
idea. Suicide has ancient roots, with one of the earliest recorded instances of suicide being
Pyramus and Thisbe who died in Persia around 2000 BC. And discussions on the morality of
suicide are also not new, with the ancient Greeks having discussed suicide in relation to State
and society at large. Religion too has tried to control or restrict euthanasia. For example, in
Christianity and Islam, suicide is a grave sin.

However, in modern times, euthanasia has come to represent one of the most fundamental
rights of an individual, the right to control their own life, through to the very end. It is seen by
its proponents as a mere yet rightful extension of the Right to Life which is guaranteed by
most Nation States. India has an extensive history of the discussions and validity of
Euthanasia since Vedic times; however, we shall focus primarily on the current era.

India has seen much legal debate on euthanasia. The Law Commission of India’s report in
1971 recommended deletion of Section 309 of the Indian Penal Code, which criminalized
attempt of suicide and/or suicide assistance. In 1994, the Supreme Court in Rathinam v.
Union of India1 held that Section 309 IPC is violative of Article 21 of the Constitution of
India. The Court termed the said section as cruel and irrational, resulting in punishing a
person again, who has already suffered agony and would be undergoing ignominy because of
his failure to commit suicide.

In 1996, however, the above judgment was overruled by a Constitution Bench of the Supreme
Court in Gian Kaur v. State of Punjab2, where it was held that “right to life” is inherently
inconsistent with the “right to die” as is “death” with “life”. In 2006, the Law Commission of
India came up with the 196th Report on terminally ill patients, which recommended legalising
‘passive euthanasia’ in a very strict and controlled mechanism. The Report made it clear that
euthanasia and physician-assisted suicide shall remain illegal, and the Report only dealt with
the protection of the patients in cases where the terminally ill patient is in a permanent
vegetative state with no chance of recovery. In such a case, the patient voluntarily by oral or

1
1994 AIR 1844
2
1996 AIR 946
 8

written request, can seek for the removal of support system, thereby hastening his
death, albeit subject to certain safeguards3.

In 2011, the Supreme Court considered the debate regarding passive euthanasia in the
landmark case of Aruna Ramchandra Shanbaug v. Union of India4, where it issued a broad
set of guidelines, legalizing passive euthanasia in India, although the same was denied to
Shanbaug. In 2012, Law Commission of India released the 241st report which, in light of the
recent developments in the Aruna Shanbaug case, suggested legalisation of passive
euthanasia5. The Court in the judgment accepted some of the prepositions of the earlier
196th Report, hence, this Report saw a relook into legalising passive euthanasia and revised
the proposed Bill to be presented before the Legislature. The present Report respecting the
views expressed by the Court in the case, recommended that a law is necessary in line of the
guidelines made out in Aruna Shanbaug case. However, the Report clarified that active
euthanasia and Physician Assisted Suicide shall be illegal.

In 2018, in the case of Common Cause v. Union of India6, the Supreme Court gave a
landmark verdict making the way for passive euthanasia. The Court reiterated that the right to
die with dignity is a fundamental right and declared that a person of competent mental faculty
is entitled to execute an advance medical directive.

3
Law Commission of India – Report No. 196 http://scc-nlul.refread.com/DocumentLink/Ror8AA79
4
(2011) 4 SCC 454
5
Law Commission of India – Report No. 241
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwizy-
S-
xc76AhWd2DgGHbQnARIQFnoECA4QAQ&url=https%3A%2F%2Flawcommissionofindia.nic.in%2Freports
%2Freport241.pdf&usg=AOvVaw2l38fkt8-vv5hdVAZ5CsK5
6
2014 AIR SC 1556
 9

LEGAL BASIS FOR EUTHANASIA

There is a view that Euthanasia ought to be legalized in the country as the patient is killed

with his own consent and their decision should be respected. Article 21 of the Constitution of

India states that “No person shall be deprived of his life or personal liberty except according

to procedure established by law.”7 Over time, Article 21 has been read in an expansive

manner encompassing various rights such as right to health, right to live a life with dignity,

etc; the right to live a life of dignity has also been understood to include, by some people, the

right to end one’s own life with dignity. The word ‘life’ in Article 21 means a life of dignity

and not a mere animal like existence. 8

Right to life including the right to live with human dignity would mean the existence of such

right up to the end of natural life and hence ought to include the right to die with dignity. This

view is perhaps the most legally sound and concerns an important legal and moral perspective

– the ability of an individual to decide how they live their own life, and consequently how

they end it as well. Analogous to two sides of the same coin, the ‘Right to Life’ guaranteed

by the Constitution of India, clearly implies the ‘Right to end one’s Life’ too.

An alternative method of comprehending this argument would be to look at the issue of

women’s reproductive rights. Article 21’s right to ‘personal liberty’ includes within it, a

woman’s right to make reproductive choices and reproductive choices means both to

procreate as well as to abstain from procreating. 9 In the aforementioned, the right to

reproductive choices includes both right to procreate as well as to abstain from procreation,

7
Article 21, The Constitution of India, 1950
8
Narendra Kumar v. State of Haryana, JT (1994) 2 SC 94
9
Pundlik Martandrao Yevatkar v/s Sau. Ujwala @ Shubhangi Pundlik Yevatkar, Family court appeal no.75 of
2018
 10

i.e., it guarantees both the positive and negative aspect of the right. And it can not be denied

that the right to live one’s life with human dignity should occupy at least as much

importance, in the legal sphere, as does women’s reproductive rights.

This relationship of ‘two sides of the same coin’ between life and death was further

illustrated by Justice DY Chandrachud in his judgement in the case of Common Cause v.

Union of India where he said – Life and death are inseparable. Every moment of our lives,

our bodies are involved in a process of continuous change. In a physiological sense, our being

is in a state of flux, change being the norm. Life is not disconnected from death. To be, is to

die. From a philosophical perspective, there is no antithesis between life and death. Both

constitute essential elements in the inexorable cycle of existence.

There is also a moral and empathetic view, favouring euthanasia, that ought to be considered.

For a patient, who is suffering from a terminal and incurable disease, one that leaves them

with debilitating pain and mental anguish; having to depend on others for performing even

the most basic of tasks like self-hygiene and more humiliating tasks such as defecation. For

such a person, knowing that there is no hope for a cure and death is unavoidable, it can not be

said that a peaceful and quick death would not be infinitely more humane and desirable, if the

patient so wishes.

No person wishes to prolong their suffering, and most definitely would not wish to extend

meaningless suffering in the face of death, if there were an alternative of peacefully passing

away. Not to mention, the suffering endured by the families and loved ones of the patient.

Having a terminal and incurable disease does not just affect the patient but also their families.

Constant hospital visits, financial burdens of providing expensive life support, medicine

costs; and to say nothing of the mental pain and agony that one goes through every time they

have to see a loved one lying in the hospital, helpless and frail.
 11

One of the main arguments that the advocates against euthanasia employ is that intentionally

taking a life and ending it prematurely is a barbaric act. However, it seems to be the case that

purposefully refusing euthanasia to someone who does not wish to suffer any longer and

forcing them to live, despite their wishes to the contrary, is an infinitely more barbarous act

than allowing them to end their lives in peace.

 12

LANDMARK JUDGEMENTS

Euthanasia has a long history in Indian law, having been outlawed in most of it. However,

there have been some landmark judgements in this field.

Perhaps the most important, and definitely the most popular, case in regard to euthanasia, was

Aruna Ramchandra Shanbaug v. Union of India & Ors 10.

Aruna Ramchandra Shanbaug v. Union of India & Ors

Aruna Shanbaug was an Indian nurse who was viciously attacked and raped, suffering a lack

of oxygen to her brain, which left her in a permanent vegetative state for the next 42 years,

until her death from pneumonia in 2015. The Supreme Court in 2010 allowed a plea by an

activist seeking euthanasia for Aruna Shanbaug which prompted the constitution of a 3

member medical panel which examined Shanbaug. They reported that she passed most

criteria of being in a permanent vegetative state. And in 2011, the Supreme Court legalized

passive euthanasia, issuing broad guidelines for its implementation. These guidelines for

passive euthanasia—i.e., the decision to withdraw treatment, nutrition, or water—establish

that the decision to discontinue life support must be taken by parents, spouse, or other close

relatives, or in the absence of them, by a "next friend". The decision would also require a

court approval.

However in the case of Aruna Shanbaug, the Court declined to allow passive euthanasia for

her and did not accept activist Pinki Virani, who had filed the plea, as her “next friend”; they

10
(2011) 4 SCC 454
 13

instead treated the nursing staff of the KEM hospital, in which Shanbaug was being cared for,

as the “next friend” citing that they had been caring for Aruna Shanbaug since more than

three decades and the nursing staff had opposed passive euthanasia for her.

P. Rathinam v. Union of India

This was the first case in India to deal with the constitutional validity of Section 309 of the

Indian Penal Code. Section 309, IPC states that “Whoever attempts to commit suicide and

does any act towards the commission of such offense, shall be punished with simple

imprisonment for a term which may extend to one year[or with fine or with both].11 In this

case, the Court opined that almost all rights have a positive connotation as well as a negative

one.

For example, right to freedom of speech under Article 19 gives the right to speak as well as

not to speak. Similarly, it was held that Right to life had an inherently implied the right to die.

The Court also said that a person cannot be forced to enjoy his/her right to life to their own

detriment, disadvantage or disliking, concluding that right to live would also include right not

to live a forced life. Opining as such, the Supreme Court declared Section 309

unconstitutional. 12 However, this judgment was not long lived.

11
Section 309, Indian Penal Code

12
P. Rathinam v. Union of India, 1994 AIR 1844
 14

Gian Kaur v. State of Punjab

Merely two years after P. Rathinam case, which had declared Section 309, IPC as

unconstitutional, a constitutional bench of the Supreme Court overruled the judgement. Gian

Kaur and her husband were charged under Section 306 for abetting the suicide of another.

Section 306 of Indian Penal Code states that “if any person commits suicide, whoever abets

the commission of such suicide, shall be punished with imprisonment of either description,

for a term which extend to ten years, and shall also be liable to fine.” 13 It was argued that

since P. Rathinam had declared Section 309 ultra vires, abetment to suicide was merely

assisting in the enforcement of Article 21.

The Apex Court opined that all fundamental rights are not the same and hence not all rights

have positive and negative connotations. It was held that right to live included right to live a

dignified life up until the point of death and could also include the right of a dying man to die

with dignity, including a dignified procedure of death but that it could not mean the right to

die an unnatural death curtailing the natural life span of a person. Keeping such

considerations in mind, the constitution bench declared Section 309 and Section 306 as

constitutional and overruled P. Rathinam. 14

13
Section 306, Indian Penal Code

14
Gian Kaur v. State of Punjab, 1996 AIR 946
 15

Common Cause (A Regd. Society) v. Union of India

The most recent case law in regard to euthanasia, Common Cause v. Union of India was

decided upon by a Constitution Bench. Common Cause argued that terminally ill persons or

those suffering from chronic diseases must not be subjected to cruel treatments. Denying

them the right to die in a dignified manner extends their suffering. It prayed the Court to

secure the right to die with dignity by allowing such persons to make an informed choice

through a living will. The Court in this case held that the right to die with dignity is a

fundamental right. An individual’s right to execute advance medical directives is an assertion

of the right to bodily integrity and self-determination and does not depend on any recognition

or legislation by a State.15

Justice DY Chandrachud made a distinction between active euthanasia and passive

euthanasia such that active euthanasia, he opined, involves an intention to cause death of a

patient by actively intervening to cause death whereas in passive euthanasia, there is no intent

to cause death and in fact, it is merely the decision to not artificially prolong the patient’s life

and let nature run its course. The Supreme Court in the case of Common Cause upheld the

legality of passive euthanasia and recognized the importance of the Constitutional values of

liberty, dignity, autonomy and privacy.

15
Common Cause(A Regd. Society) v. Union of India, 2014 AIR SC 1556
 16

ADVANCE MEDICAL DIRECTIVES

The judgement in the case of Common Cause v. Union of India gave recognition to Advance

Medical Directives, also known as ‘Living Will’ of a patient. It was contended that a failure

to recognize Advance Medical Directives would be tantamount to non-facilitation of the right

to have a smooth and dignified right to death. This provision of ‘living will’ allowed a patient

to communicate their wishes regarding what shall be done regarding their medical treatment

if in the future, they are rendered incompetent or unable to communicate said wishes. It also

gives the patient the power to entrust another person as their medical power of attorney, who

can take decisions on the patients behalf, in case of incompetency of the patient.

The Supreme Court, in its judgement, considered these directives as essential in order for the

Right to Die with dignity to be practically effected. Advance Medical Directives was

formulated in order to deliver efficient and timely medical care and treatment in case of

incompetency of the patient and would also allay any moral or ethical dilemmas that the

healthcare providers may have by giving legal legitimacy in form of these directives.

Advance Medical Directives encompasses various procedures, methods and legal formalities.

While discussing in detail all the relevant parts of Advanced Medical Directives is beyond the

scope of this project, following are some of the essential areas included in it. It elucidates, at

length, areas of interest such as who may execute Advanced Directives; The necessary and

extent of contents it may record; How it is to be recorded and preserved; When and by Whom

it may be given, etc. It also discusses procedure to be followed in case of rejection or

revocation by the medical board and what further legal remedies the patient or his

family/legal representatives may exercise. 16

16
Common Cause(A Regd. Society) v. Union of India, 2014 AIR SC 1556
 17

CONCLUSION

It is safe to say that euthanasia is not some social evil that must be eradicated and purged

from society. It is an age old phenomenon and a mere extension of man’s control over their

own limb and life. To deny one that, is to deny one of the most fundamental rights that we are

born with. No other right or freedom is as basic and intrinsic as the complete control over

one’s own body and if this is denied to people, then no other proclamation of constitutional

rights matters.

Although there have been substantial steps taken towards realization of this basic right, the

progress so far has not been awe-inspiring. It is high time for India to join the list of

developed nations and allow its citizens to exercise sovereignty over their own bodies. It may

not seem very humane to advocate for allowing someone to choose death and assist such

people in the realization of their wish, but it is certainly inhumane to force someone to

continue living a life of misery, that they do not wish to.