RAJIV GANDHI NATIONAL UNIVERSITY OF LAW,

PUNJAB

CONSTITUTION LAW PROJECT

TOPIC: RIGHT TO DIE AND PASSIVE EUTHANASIA

SUBMITTED BY: SUBMITTED TO:

MUSKAN JAIN DR. LAKHWINDER SINGH

ROLL NO: 22047 ASS. PROFESSOR OF LAW,

SEMESTER: 3 RGNUL, PUNJAB

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 BONAFIDE CERTIFICATE

This certificate is to declare that this project is based on “RIGHT TO DIE AND PASSIVE
EUTHANASIA” is an original work of Muskan Jain who is a bonafide student of the Rajiv Gandhi
National University of Law, Punjab.

Signature:

Muskan Jain

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 ACKNOWLEDGEMET

The accomplishment of this project is owed to the constant support and guidance of people whom
I’d like to convey my sincerest gratitude. Lakhwinder Sir and Sidhartha Sir, our Constitutional law
teachers, who helped me to complete this project, with their constant encouragement. Theirs
valuable help and guidance were instrumental in the project and resolving all the doubts
encountered during the making of this project. The Library staff, who aided me in my research for
the project through the usage of the online databases and journal collections available in the library.

Lastly, I would like to sincerely appreciate my parents and friends for their constant
encouragement and moral support to enable me to complete this project.

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 TABLE OF CONTENT

1. INTODUCTION ....................................................................................................................
2. A GLANCE AT THE GLOBAL LEGAL SCENARIO ........................................................
2.1. Netherlands: ....................................................................................................................
2.2. Switzerland .....................................................................................................................
2.3. Belgium ..........................................................................................................................
3. PASSIVE EUTHANASIA AND INDIAN LAW..................................................................
3.1. When is a person said to be dead .......................................................................................
4. DRAWBACKS IN INDIAN LAWS OF EUTHANASIA ....................................................
5. IMPORTANT TO NOTE ......................................................................................................
6. MENTAL HEALTH CARE ACT 2017 ................................................................................
6.1. Reasons preventing active euthanasia ............................................................................
6.2. The Doctrine Of Parens Patriae

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 ABSTRACT

A person has fundamental human rights from the moment of his birth. One basic and fundamental
right that is necessary for the enjoyment of all other rights is the right to life. The term "right to
life" refers to a person's fundamental freedom to exist, notably the freedom from being slain by
another person. But if someone has the right to live, does that mean they also have the right to die,
or is that even a question? The Indian courts voiced various perspectives while providing this
response. In M.S. Dubal v. State of Maharastra, the Bombay High Court ruled that article 21 of
the Indian Constitution's right to life also includes the "right to die." In contrast, the AP High
Court ruled in Chenna Jagadeeswar v. State of AP that the right to die is not a basic freedom
protected by Article 21 of the Constitution. Though in P. The Supreme Court of India stated in
Rathinam's case that the "right to live" includes the "right not to live," or the right to die or end
one's life. However, a five-member bench in Gain Kaur v. State of Punjab overturned P.
Rathainam's argument and concluded that Article 21's right to life does not include the right to
death or to be slain.

1. INTODUCTION
Active euthanasia would consist, for instance, of giving a terminally sick cancer patient who is in
unbearable suffering a deadly injection. One kind of passive euthanasia is the refusal to give a
terminally ill patient with life-sustaining medical treatment, such as withholding antibiotics when
the patient is likely to die without them or turning off a heart-lung machine for a comatose patient1.
The general consensus around the globe is that passive euthanasia should be allowed regardless of
laws, if certain conditions and safeguards are in place2, but active euthanasia should be banned
unless legislation is in place to authorise it. To further categorise euthanasia, we might classify it
as either voluntary or involuntary. In contrast to voluntary euthanasia, in which the patient's
consent is sought and acquired, nonvoluntary euthanasia occurs when a patient is unable to grant
permission, such as when they are in a coma. In the first case, there are no legal barriers to
overcome; in the latter, we will discuss how to do it. As was previously stated, the practise of

1
https://www.bbc.co.uk/ethics/euthanasia/overview/forms.shtml
2
Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454

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active euthanasia is unlawful in all jurisdictions where it is not guaranteed by statute. The word
"euthanasia" is used to describe the act of intentionally and voluntarily terminating a human life
in order to relieve the person's physical or mental pain. The English term "euthanasia" derives from
the Greek phrase "good death" (Eu= Good; Thanatos=Death). The term was used by the great
historian Suetonius to describe King Augustus' choice to choose for a painful but quick death.
Euthanasia is the practise of assisted suicide in which a third party gives lethal drugs to a terminally
sick person in order to terminate their life and alleviate their excruciating, incurable misery. The
first concern of every doctor is to alleviate their patients' discomfort3.

According to Articles 302 and 304 of the Indian Penal Code, those who commit acts of active
euthanasia face the death penalty. In India, physician-assisted suicide is prohibited by law (Indian
Penal Code Section 306) (abetment to suicide)4. Active euthanasia involves taking proactive
measures to expedite a person's death; this might include injecting them with a lethal substance
like sodium pentothal, which causes them to go into a deep sleep in a matter of seconds and
subsequently to die instantly and painlessly. One common way to tell the difference between
euthanasia and medically assisted death is who administers the lethal dose of medication. Doctor-
assisted suicide is when a patient kills himself with the help of a doctor, whereas euthanasia is
when the doctor or another person kills the patient. The former is generally forbidden whereas the
latter is lawful everywhere. What sets "active" euthanasia apart from "passive" euthanasia is
whether or not the patient's life is actively terminated, as opposed to whether or not attempts were
made to delay or prevent the patient's death. Medical professionals engaging in "passive
euthanasia" do not knowingly cause their patients' deaths; rather, they just stop attempting to
rescue them. Most people are applauded when they save someone's life, but seldom held
responsible when they don't. Anyone who braves a burning building to save others is likely to be
hailed as a hero. But if someone sees a burning building with people inside yelling for help but
does nothing, whether out of fear for his own safety or the belief that an inexperienced and ill-
equipped person like himself would only get in the way of the professional firefighters, few would
judge him for his inaction. It's quite unlikely that somebody would be charged with murder if they
committed a homicide. (Well, not unless you threw gasoline on it.)

3
'all about euthanasia in India' by Team Latest Laws. Latest Laws. (n.d.).
https://www.latestlaws.com/articles/euthanasia-india-team-latest-laws/
4
IPC Section 306 - abetment of suicide. A Lawyers Reference. (n.d.). https://devgan.in/ipc/section/306/

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So, those who support euthanasia say that whereas active euthanasia's legality may be debated,
passive euthanasia cannot. Refusing to do CPR is not a criminal offence. Even if you think it's a
great idea, you can't make it illegal to not do it today. Otherwise, every individual in the country
will end up in prison. Several people have said that they think the distinction is completely
fictitious5. They make a humorous allusion to the age-old story of the boy who asks his teacher
whether it's fair to have him pay for something he didn't do. The professor chimes in with a "Why,
of course not." The youngster replies, "Good, since I haven't done my homework." So many of our
laws have the unintended consequence of punishing people for actions they did not commit. If it's
the law that you have to pay income taxes, enrol your children in school, or put down your firearm
when a police officer orders you to, you have no choice but to comply.

2. OVERVIEW OF THE INTERNATIONAL LEGAL ENVIRONMENT

1.1. Netherlands
The Netherlands have a statute in place that defines the legal position of euthanasia. Euthanasia
and physician-assisted suicide are lawful if the treating physician fulfils the standard of "proper
care." Considerations include the patient's wishes, the intensity of their suffering (both now and in
the future), the availability of alternatives, the chance to get a second opinion from a doctor, and
the chosen method of suicide6. If a doctor performs an assisted suicide, they must submit it to an
oversight committee to prove they followed the law. When a doctor helped a lady murder her
mother in the notorious 1973 "Postma case7," it triggered significant debate in the Netherlands
regarding the legality of euthanasia. Although the doctor was found guilty, the verdict did clarify
when doctors and nurses are not required to go against their conscience and keep a patient alive.
The standards were developed via several legal battles during the 1980s. 10

Els Borst, the minister of health, advocated the change. Borst first worked at the Academic Medical
Center as a researcher from 1958 to 1962, and then as a physician from 1962 until 19768. The

5
https://www.medicinenet.com/physician-assisted_suicide/definition.htm
6
"Termination of Life on Request and Assisted Suicide (Review Procedures) Act", 2002.
7
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1796690/
8
Termination of Life on Request and Assisted Suicide (Review Procedures) Act took effect on April 1, 2002.

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techniques enshrined in Dutch legislation were common practise for twenty years prior to that. A
medical review board is not allowed to prosecute doctors for euthanasia if certain conditions are
satisfied. It's hopeless, and the patient's suffering is awful. A request for euthanasia may only be
approved if it is made consciously and freely by the patient, and if it is maintained over time (a
request cannot be granted if the patient is under the influence of another person's mental illness or
drugs). There must be consultation with at least one other independent doctor who has to confirm
the above requirements; the patient must be at least 12 years old; the death must be carried out in
a medically suitable manner by the doctor or patient, in which case the doctor must be present; and
the patient must be at least 12 years old (patients between 12 and 16 years of age require the
consent of their parents) If a patient dies under a doctor's care, the doctor must tell the local coroner
and report the cause and circumstances of death in accordance with the Burial and Cremation Act.
A regional review committee decides whether a case of physician-assisted suicide or physician-
ordered euthanasia satisfies the due care criteria. Depending on the findings of the inquiry, the
subject will either be dropped or brought to the attention of the Public Prosecutor. Finally, a
patient's written expression of their own decision about euthanasia is explicitly acknowledged as
lawful under the law (a "euthanasia directive"). These may be used if the patient wants to die but
is in a coma or otherwise unable to express their wishes.

It is still against the law to engage in euthanasia unless certain conditions are met; nevertheless,
there are certain circumstances in which it is not illegal since it is considered conventional medical
practise. One of them is deciding not to continue or abandoning unsuccessful medical treatment.
Despite being necessary to alleviate the patient's acute pain, the patient's want to cease or postpone
therapy has the unintended effect of hastening the death of the patient. Euthanizing a child under
the age of 12 is still technically illegal.

1.2. Switzerland

Switzerland's assisted suicide statute is unusual in that it permits the participation of people who
are not medical professionals. One key difference between euthanasia and assisted suicide is who
administers the lethal injection: the patient or a trusted third party in the event of assisted suicide9.

9
Article 115 of the Swiss penal code, which came into effect in 1942.

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Despite physicians' prime position as holders of deadly amounts of drugs, the law does not provide
them any special authority to aid in suicide. Moral principles forbid administering potentially lethal
drugs to patients. Only in Switzerland do laws seem to limit the circumstances in which assisted
suicide is unlawful, thus decriminalising the act when a medical professional is not present.
Consequently, non-medical personnel have assisted patients in taking their own lives. However,
under Swiss law, active euthanasia is prohibited, including the administration of a lethal injection
to a patient by a doctor or other person (unlike in Holland where it is legal under certain
conditions). In contrast to the regulations of certain other countries, (1) the recipient need not be a
Swiss citizen, and (2) medical intervention is not necessary. Many individuals, especially
Germans, go to Switzerland to have euthanasia administered there.

1.3. Belgium
Following the Netherlands' lead in September 2002, Belgium legalised euthanasia becoming the
second European country to do so. There are limited instances in which assisted suicide is
authorised in Belgium, although doctors are not permitted to provide direct assistance. Patients
who seek euthanasia must be conscious and must state their intention twice. Someone must be in
"incurable physical or mental misery" due to an accident or terminal illness for them to qualify.
To discourage financially or socially disadvantaged patients from desiring death, the government
must cover the cost of continuing opioid therapy.

Unlike in the Netherlands, where assisted suicide is lawful for minors, the United States now
prohibits such behaviour. All patients who are not in their last days of life need a third medical
opinion. Doctors suspected of mercy killing will have to take their cases to a separate tribunal.
Countries in Europe including the UK, Spain, Austria, Italy, Germany, France, etc. None of these
countries enable euthanasia or physician-assisted suicide in any form. In January 2011, the French
Senate voted 170-142 against legalising euthanasia. In May 2006, the English government blocked
a bill that would have legalised physician-assisted suicide.

3. PASSIVE EUTHANASIA AND INDIAN LAW:

Passive euthanasia often refers to the withholding of medical treatment with the intent to accelerate
death. An instance of passive euthanasia would be the forced use of a dialysis equipment on a
patient who desperately needs it but refuses to use it. Passive euthanasia often involves the removal
of life support from a vegetative patient or one who is reliant on a heart-lung machine. Similarly,

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refusing to provide essential care like antibiotics might amount to a kind of passive euthanasia.
Withholding food and water from a person in a coma or PVS can be considered passive euthanasia.
12

You can have a euthanasia operation done whether you want to or not. Passive euthanasia occurs
when a mentally capable patient makes the choice that he would prefer die than take any treatments
that may prolong his life (possibly because of severe pain or because he believes that the money
being spent on his treatment could be better used by his family). In India, it is not illegal to refuse
treatment that may save a person's life. If it is shown that the offender knew or should have known
that the victim was going to take his or her own life, then the criminal is subject to fines and
imprisonment of any sort for a period of time that may run up to 10 years for "abetting of suicide.

Attempted suicide is punishable by up to a year in prison and a $1,000 fine. Anyone who takes
even the smallest step toward suicide commits a violation of Section 309.

3.1. What constitutes death in the eyes of the law

One's brain is where one's mind and identity are formed first. It's an essential organ, and
unfortunately, it can't be replaced. Someone who has lost an arm or leg in an accident, for instance,
may choose to have a prosthesis. Kidneys, hearts, and livers are just few of the organs that may be
replaced if the original fails. As of now, brain transplantation is unfortunately not a viable option.
If one were to have a brain transplant, one's personality would take on that of the donor. The
functions of the brain determine who we are and how we function as a whole: our personalities,
levels of knowledge and understanding, memories, sensory processing capacities, modes of
expression, modes of interaction with the rest of our bodies, etc. This means that one's brain
essentially serves as one's identity. A person is considered dead if brain activity ceases.

Brain cells normally do not multiply throughout the first few years of infancy, in contrast to other
kinds of cells like skin cells, which continually perish and are replaced by new cells formed by
multiplication (save in the area called hippocampus). That's because brain cells are too specialised
to divide. as a result, injured or destroyed brain cells are usually irreplaceable (though sometimes
one part of the brain can take over the function of another part in certain situations where the other
part has been irreversibly damaged).

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Continually, oxygen-rich red blood cells transport oxygen to the brain. After around six minutes
without oxygen, brain cells die. Hypoxia is a medical term for this condition. As a result, when
someone's brain stops functioning, we say that they're dead.

4. CONSEQUENCES OF INDIAN EUTHANASIA LAW

In fact, there are times when it is appropriate to take another man's life, such as during justified
acts of self-defense or (during the times when death punishment was accepted in our culture)
during justified executions. However, situations like those are outside of our scope of interest. We
are interested in whether it may be ethical to refuse to provide a patient with life-sustaining medical
care. At the outset, it must be established that the principle of self-determination mandates respect
for the wishes of the patient, such that if an adult patient of sound mind refuses, however
unreasonably, to consent to treatment or care by which his life would or might be prolonged, the
doctors responsible for his care must give effect to his wishes even if they do not believe it to be
in his best interests. Since this is the case, the concept of self-determination must take precedence
over the value of the sanctity of human life10.

Even if the patient's refusal to consent was made before he became unconscious or otherwise
unable to communicate it, the same principle applies; however, extra precautions may need to be
taken to make sure the prior refusal of consent is still properly to be regarded as applicable in the
circumstances. Such an action would represent a crossing of the Rubicon separating the treatment
of a live patient from euthanasia, the intentional hastening of a person's death in order to prevent
or end their suffering. Common law does not permit euthanasia. It's common knowledge that many
upstanding citizens think euthanasia should be legalised. However, I believe this goal could only
be attained through legislation that expresses the democratic will that such a fundamental change
should be made in our law and can, if enacted, guarantee that such legalised killing can only be
carried out subject to appropriate supervision and control. It's true that distinguishing between the
two can be seen as hypocritical, since it raises the question of why, if the doctor is entitled to let
his patient die because he stopped treating him, a lethal injection shouldn't be legalised instead so
the patient doesn't have to suffer needlessly in the interim. However, the law does not believe it

10
Common Cause (A Regd. Society) V. Union of India and Anr., (2009) 7 SCC 561

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can authorise euthanasia, even in such cases; for once euthanasia has occurred, it cannot be undone.
acknowledged as lawful in these situations, it's hard to fathom why it shouldn't be in others. There
is a theoretical issue at the core of this differentiation. Why is it that a doctor who administers a
lethal injection to a patient and that injection causes the patient's death commits an unlawful act
and is guilty of murder, but a doctor who withdraws life support and allows the patient to die may
not act unlawfully and will not if he does not breach his duty to the patient?

It should be made clear that foreign judgements are simply persuasive in our nation and do not
become binding authority on our Courts. As a result, we may choose to either adhere to a foreign
judgement that was later reversed or to adhere to a foreign decision that was supported by a
minority rather than a majority.

4.1. Important Note

Since medical research is developing rapidly, physicians shouldn't label a patient as hopeless until
there's absolutely no chance they'll get well thanks to a breakthrough in treatment. Consider the
case of Terry Wallis, a 19-year-old truck driver from Arkansas who lost his life and his wife and
infant daughter when their vehicle crashed through a guard barrier and fell 25 feet in 1984. He lost
consciousness in the collision in 1984, but now, 24 years later, he has recovered. It's possible that
his brain rewired itself after the accident, forming minuscule new nerve connections to replace
those that were severed. I must emphasise, however, that only trained professionals, such as
doctors, are capable of determining whether or not a new medical discovery offers a realistic
chance of a patient's recovery.

The sensitive nature of dealing with mental health problems quickly became a topic of discussion
after the death of actor Sushant Singh Rajput. Despite widespread belief to the contrary, Section
309 of the Indian Penal Code (IPC), which criminalises attempts at suicide, remains on the books
and, as reports imply, is often abused. It is possible to press charges under Section 309 IPC for
"Attempt to commit suicide" against anybody who is found alive after an unsuccessful suicide
attempt. Whoever tries suicide and undertakes any act towards the commission of such crime will
be punished with simple imprisonment for a duration which may exceed to one year (or with fine,
or with both). The rule was a product of 19th-century British thought, when it was regarded a crime
against the state and against religion to murder or try to kill oneself.

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The provision is still included in the IPC. However, since July 2018, when the Mental Healthcare
Act (MHCA) 2017 took effect, the application of Section 309 IPC has been severely limited, and
only the attempt at suicide is now punished. Any individual who tries suicide must be deemed,
until shown otherwise, to have extreme stress and shall not be prosecuted and punished under the
said Code, as per Section 115(1) of the MHCA11.

"The relevant Government shall have a responsibility to offer care, therapy, and rehabilitation to a
person, having significant stress and who tried to comm. suicide to limit the likelihood of
recurrence of attempt to comm. suicide," it reads in Section 115(2). Continued reports of its usage
by police forces throughout the nation suggest that the constraints placed on its use under the
provisions of the MHCA — as opposed to its removal from the law altogether — are not sufficient.
For instance, on June 8 they said a fugitive couple tried to commit suicide by ingesting hair colour
at the Ashoknagar police station in Bengaluru. According to local media, they were arrested and
charged with a Section 309 offence. Again, on May 20 it was reported that a prisoner at the Bhondsi
jail in Gurgaon had been charged under Section 309 IPC after he had attempted suicide with a pair
of scissors.

There is a dearth of knowledge of the new MHCA, according to some senior police officers, and
officers at the police station level often default to using the older IPC instead. Harsh Poddar, the
Superintendent of Police in Beed, said that after discussions with higher-ranking authorities, the
Section 309 allegation is generally dismissed. According to Dr. Laxmi Vijaykumar, a psychiatrist
in Chennai and participant in the World Health Organization's Network on Suicide Research and
Prevention, the use of this Section could result in a victim not receiving treatment during the
"golden hour" while hospitals await approval from police in what would be considered a "medico-
legal case." Some hospitals may try to take advantage of the situation by charging more money in
exchange for keeping the police in the dark, and corrupt police officers may try to do the same.

The person and those close to them would be going through a great deal of anguish and harassment
already, and this would just add to their suffering. As far as specialists can tell, just 24 nations
have such a provision in their laws. Perhaps, and here is where the case for Section 309 IPC's
continued existence alongside the MHCA, 2017's provisions comes into play. A retired police

11
Duffy, R.M., Kelly, B.D. (2020). India’s Mental Healthcare Act, 2017. In: India’s Mental Healthcare Act, 2017.
https://link.springer.com/chapter/10.1007/978-981-15-5009-6_6 - citeas

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officer who requested anonymity noted that there were times when individuals threatened suicide
if their demands were not satisfied in government buildings. Such a provision is used "where we
think that the individual does not intend to commit suicide but is using the threat as a tactic to
unjustly pressure or blackmail the system."

According to a high-ranking IPS official, "if 309 is repealed, there will be no mechanism to take
action against people who plan to cause disturbance of this nature." According to SP Poddar,
"Section 309 IPC may be r defined in such a fashion that it can still be used in law and order
circumstances and not used against individuals who are suffering from real mental health
difficulties." For years, Dr. Vijaykumar has been working to get the clause repealed, as he has been
a vocal proponent for its removal. Section 309 of the Indian Penal Code was proposed for
elimination by the Law Commission in its 42nd Report that year. The Indian Penal Code
(Amendment) Bill, 1978, had already passed the Rajya Sabha when Parliament was dissolved,
rendering the bill null and void.

The Supreme Court's Constitution Bench affirmed Section 309 in the 1996 case Gian Kaur v. State
of Punjab12. But in its 210th Report from 2008, the Law Commission said that those who attempt
suicide should get medical and psychological assistance rather than punishment. The Supreme
Court concurred in March 2011 and urged Parliament to examine the possibility of repealing the
provision. 16 During an answer to a question in the Rajya Sabha in 2014, then-Minister of State
for Home Haribhai Parthibhai Chaudhary said that the government had decided to remove Section
309 from the IPC after 18 states and 4 Union Territories supported the suggestion of the Law
Commission. But the issue was not taken to its natural conclusion13.

5. MIND HEALTH ACCESS AND CARE ACT OF 2017

On April 7, 2017, India's Parliament passed the Mental Health Care Act, which went into effect
on July 7, 2018. It had the consequence of abolishing the penalty for attempted suicide under
Section 309 of the Indian Penal Code. In the first paragraph, the law was described as "An Act to

12
Gian Kaur v. State of Punjab, 1996 AIR 946
13
Mohamed Thaver, Sec 309 IPC: Questions and issues around an archaic Section of the law, Indian exp., June 23,
2020. https://indianexpress.com/article/explained/sec-309-ipc-questions-and-issues-around-an-archaic-section-of-
the-law-6468338/

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provide for mental healthcare and services for persons with mental illness, and to protect, promote,
and fulfil the rights of such persons during delivery of mental healthcare and services, and for
matters connected therewith or incidental thereto." The Mental Health Act, 1987, which had been
in effect since its passage on May 22, 1987, has been repealed and replaced with this new law14.

To quote: "in accordance with nationally and globally recognized medical standards (including the
current version of the International Classification of Disease of the World Health Organization) as
may be declared by the Central Government." The Act further states that no individual or authority
may label somebody as having a mental disorder unless doing so is directly related to providing
care for that individual. It had the consequence of abolishing the penalty for attempted suicide
under Section 309 of the Indian Penal Code. The purpose of the Mental Healthcare Act of 2017 is
to decriminalize the act of attempting suicide by making it such that those who have attempted
suicide are provided with alternatives for rehabilitation rather than being prosecuted or penalized.
India has a responsibility under the Convention on the Rights of Persons with Disabilities and its
Optional Protocol, and this Act is an attempt to meet that commitment. It's a break from the Mental
Health Act of 1987 in that it aims to provide people with mental illness more control over their
own lives. Individuals diagnosed with mental illness are allowed the right to make choices about
their care under the Mental Health Act of 2017, provided they have the requisite level of
understanding to do so. The purpose of the law is to ensure that persons with mental illness have
equal access to healthcare and treatment, as well as protections against discrimination. In addition,
medical health insurance coverage for the treatment of mental illness must be made accessible on
the same basis as coverage for the treatment of physical disorders. Provisions for the registration
of mental health related institutions and the regulation of the industry are included in the Mental
Health Care Act of 2017. Among these steps is the building of a national network of mental health
facilities so that no one in need need travel long distances to get care, and the formation of a mental
health review board to serve as a regulatory authority. Electroconvulsive treatment (ECT) is now
only permitted to be administered in emergency situations with the use of muscle relaxants and
anaesthesia. The use of ECT as a therapeutic option for kids is also now illegal.

14
https://www.scribd.com/document/343369115/MHC-Act-2017-Parliament-Debates

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The Act of 2017 lays forth the responsibility of various authorities such as the police in regards to
persons with mental illness. Additionally, the Mental Health Care Act of 2017 has pledged to
combat stigma of mental illness and has established specific strategies to do so.

5.1. The Barriers to Active Euthanasia

Here in the States I believe that there is always a risk in our country that this will be misused by
some unscrupulous persons who wish to inherit or otherwise grab the property of the patient if we
leave it solely up to the patient's relatives or to the doctors or next friend to decide whether to
withdraw life support of an incompetent person. We cannot rule out the possibility that
unscrupulous people, with the assistance of some unscrupulous doctors, may fabricate material to
show that it is a terminal case with no chance of recovery, given the low ethical levels prevailing
in our society today and the rampant commercialization and corruption. Doctors come in many
shapes and sizes. Many physicians have strong moral convictions, yet others would do everything
to make a buck (as shown in George Bernard Shaw's play, "The Doctors Dilemma"). The extent
to which our culture has been commercialised is unprecedented. Therefore, we must take
precautions to prevent its abuse (for an example of this, read Robin Cook's book "Coma"). The
wishes of the patient's parents, spouse, or other close relatives or next friend should be given great
weight, as should the opinion of the attending doctors, but I do not think we can leave it entirely
up to their discretion to decide whether or not to discontinue life support for an incompetent
patient. with Lord Keith's ruling in Airedale's case (above) dictating that the High Court's blessing
be sought in this matter. This is for the patient's safety as well as the safety of the treating
physicians, family members, and next of kin, as well as the comfort of the patient's loved ones and
the general public. This is also consistent with the well-established legal notion of parens patriae.

5.2. The Doctrine of Parens Patriae (or Parental Authority)

Despite the fact that the words parens patriae, meaning thereby 'the father of the country,' were
originally applied to the King, they are now used to designate the State when referring to its
sovereign power of guardianship over persons under disability, as is the case with the concept of
parens patriae. It has been established that the sovereign possesses parens patriae jurisdiction, and
that this jurisdiction puts a responsibility on the sovereign to protect incapacitated individuals who

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have no other appropriate protectors in the public interest15. The phrase parens patriae has different
meanings in different countries; in England, it refers to the monarchy, in the United States, it refers
to the people, etc. The government has the right to monitor and defend the welfare of those who
are disabled. The role of parens patriae (father of the nation), formerly played by the King in feudal
times, has been assumed by the State14 in the contemporary era.

CONCLUSION

Euthanasia might therefore be allowed, although very strict legal requirements would be necessary.
Each case will need to be closely watched while taking the patient's, family members', and medical
professionals' perspectives into account. It remains to be seen, however, whether Indian culture
would be capable of handling this given that it is a life-or-death situation. If we carefully consider
the arguments against the legalisation of euthanasia, we can come to the conclusion that the most
significant argument against it is that doctors will abuse it as a result. So, it is said, why can't a
doctor be given the freedom to make decisions that will be in the best interests of his patients if a
patient or his family can freely place their life in his hands while trusting him? Another question
that is sometimes questioned is whether allowing doctors to use their discretion in performing
voluntary euthanasia won't eventually lead to requests for involuntary or non-voluntary euthanasia.
However, it is respectfully suggested that a separate piece of legislation be created that solely
permits voluntary euthanasia, excluding involuntary or non-voluntary methods. We also need to
take into account the large number of patients as well as the restricted quantity of medical facilities
in India, as was already mentioned earlier. Who should receive these facilities—a terminally ill
patient or a patient with reasonable recovery prospects—remains an unanswered subject. The
doctor shouldn't make the patient's pain worse by allowing euthanasia because the patient is
already asking for death because of his pain and suffering. The Supreme Court held in the Gian
Kaur case that Article 21 did not encompass the right to die. One could, however, attempt to
interpret it in light of the rights to privacy, autonomy, and self-determination, as the courts of
England and the United States have done. As a result, it is clear that this right can be incorporated
in Article 21 as the aforementioned right has already been covered by it. This query was not posed

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earlier in the case. The question of how doctors exploit this right is still open for discussion.
However, this privilege can be given appropriate protections, which will help prevent abuse. One
of the safeguards might be the appointment of an appropriate quasi-judicial body with expertise in
the medical sector to review the patient's request and the actions taken by the physician. A lawyer
can also be nominated as one of the two to three assistant officials to further ensure its validity. By
doing this, any misuse of the patients' right to be allowed this privilege will be prevented. Here,
we must take into consideration the patient's terrible circumstances, and relieving his suffering
should be our main goal. It makes no sense to deny him the right to at least spend a life with a
minimal amount of dignity and willingly when we already know that he will die today or tomorrow
and that he is asking to die. Otherwise, the condition will not improve his quality of life. The topic
of whether it will be preferable to permit euthanasia or not to permit euthanasia is therefore still
debatable when taking into account financial and medical resources.

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 BIBLIOGRAPHY

Statues Cited

1. Article 115 of the Swiss penal code.

2. Termination of Life on Request and Assisted Suicide (Review Procedures) Act took effect
on April 1, 2002.
3. "Termination of Life on Request and Assisted Suicide (Review Procedures) Act", 2002.

Cases Cited

1. Aruna Ramchandra Shanbaug V. Union Of India (2011) 4 SCC 454

2. Gian Kaur v. State of Punjab, 1996 AIR 946
3. Common Cause (A Regd. Society) V. Union of India and Anr., (2009) 7 SCC 561

Articles Cited

1. Mohamed Thaver, Sec 309 IPC: Questions and issues around an archaic Section of the
law, Indian exp., June 23, 2020. https://indianexpress.com/article/explained/sec-309-ipc-
questions-and-issues-around-an-archaic-section-of-the-law-6468338/
2. Duffy, R.M., Kelly, B.D. (2020). India’s Mental Healthcare Act, 2017. In: India’s Mental
Healthcare Act, 2017. https://link.springer.com/chapter/10.1007/978-981-15-5009-6_6 -
citeas
3. IPC Section 306 - abetment of suicide. A Lawyers Reference. (n.d.).
https://devgan.in/ipc/section/306/
4. 'all about euthanasia in India' by Team Latest Laws. Latest Laws. (n.d.).
https://www.latestlaws.com/articles/euthanasia-india-team-latest-laws/

Webliography

1. https://www.bbc.co.uk/ethics/euthanasia/overview/forms.shtml
2. https://www.scribd.com/document/343369115/MHC-Act-2017-Parliament-Debates
3. https://www.medicinenet.com/physician-assisted_suicide/definition.htm

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4. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1796690/

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