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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
COVER STORY

PASSIVE EUTHANASIA Time to Enact Law

Hemant Kumar, Advocate

"Marte hain aarzoo mein marne ki, Maut aati hai par nahin aati" - Mirza Ghalib

This couplet was the very first line of a recent verdict of Supreme Court delivered on March 7, 2011 by a Bench comprising Justices Markandey Katju and Gyan Sudha Mishra. The path-breaking judgment which tends to legalize what is commonly referred as "Passive Euthanasia ( PE ) " as distinct from commonly known "Mercy Killing" or "Active Euthanasia" was the result of a petition filed for grant of such permission by one writer-cum-social activist Pinky Virani on behalf of Aruna Ramachandra Shanbaug, a hapless comatose victim of sexual assault who has been in Persistent Vegetative State (PVS) for the past over 37 years at Mumbai's reputed KEM Hospital. Although the Apex Court declined such request in respect of Aruna, it permitted PE in appropriate cases albeit with stringent guidelines as till date there is no law in our country which governs the same.

PE is usually defined as withdrawing medical treatment with the deliberate intention of causing the death of terminally ill-patient. This form of euthanasia is different from active euthanasia or simply euthanasia, where such death is caused by the use of lethal substance(s). So the difference between active and passive euthanasia is that in the former something is done to end the patient's life while in latter something is not done that would have preserved the patient's life.

Next there is further categorization of euthanasia viz. voluntary and non-voluntary. Whereas in voluntary euthanasia, consent is taken from the patient while in respect of non-voluntary, consent cannot be obtained from the patient e.g. either the patient is in coma or otherwise unable to give due consent. Aruna's case was covered in the latter category.

Justice Katju, who in recent years, has successfully earned a distinct place for himself in judicial fraternity owing to usage of bold and daring remarks in rulings authored by him, has also been instrumental in discussing and duly incorporating leading decided cases of foreign jurisdictions in various judgments delivered by him. In Aruna's case too, he has discussed enormous global case law and legislations available on the subject.

In Netherlands, euthanasia is legal and regulated by Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 2002. Switzerland has an unusual position on assisted suicide: it is legally permitted and can be performed by non-physicians. However, euthanasia is illegal, the difference between assisted suicide and euthanasia being that while in the former the patient administers the legal injection himself, in the latter a doctor or some other person administers it. Belgium also legalized euthanasia in Septemeber, 2002. In France and England, the law legalizing euthanasia has been defeated by Senate and blocked respectively. In the USA, although euthanasia is illegal in all states, physician assisted dying is legal in Oregon, Washington and Montana. Noteworthy that it was the leading Airedale case [Airedale NHS Trust v. Bland (1993) ] decided by the House of Lords (UK) which weighed heavily in the minds of Supreme Court Judges while allowing PE in our country.

Welcoming the verdict in favour of conditional passive euthanasia for terminally-ill patients, Bollywood star, Hrithik Roshan, who played a paraplegic patient who also files a petition requesting euthanasia in noted Bollywood director Sanjay Leela Bansali's Guzaarish, says he can realize the pain of a patient who loses all mobility. He said that the verdict was a good beginning and with time it would become easier for the society to accept it.

Reacting on the subject, Union Law Minister M. Veerappa Moily said that the government is examining whether a fresh legislation is required to permit passive euthanasia." "There is no question of concurring or not with the judgement. In fact, they (Supreme Court) are right that without a law you cannot resort to this kind of a decision with a judicial order. Therefore, there is a need for a serious debate regarding the matter. It has to be examined, it has to be debated upon," he said. Moily said that there were a lot of humanitarian points to be looked into and such petitions cannot be used as 'an instrument' to kill somebody.

It must be recalled that the 17 th Law Commission of India then headed by Justice M Jagannadha Rao in its 196 th Report submitted in April, 2006 titled "Medical Treatment to Terminally Ill-patients (Protection of Patients and Medical Practitioners)" had also supported the concept of PE . Among other recommendations, this report also recommended a draft legislation on the subject.

During the course of judgment in Aruna's case, the learned judges also commented that time has come when Section 309 of Indian Penal Code (IPC) should be deleted as it has become anachronistic. Therefore, they recommended to Parliament to consider the feasibility of its deletion.

In P. Rathinam v. Union of India (1994) the Supreme Court held that Section 309 of the Penal Code deserves to be effaced from the statute book so as to humanise our penal laws. It was held that Section 309 IPC violates Article 21, and so, it is void. But in March, 1996, this case was overruled by a Constitutional Bench of the Apex Court in Gian Kaur v. State of Punjab wherein it was held that Article 21 of our Constitution guaranteeing the right to life did not include a right to die or right to be killed. It was further held that, right to life was a natural right embodied in Article 21 , but suicide was an unnatural termination or extinction of life and therefore, 'incompatible and inconsistent' with the concept of right to life.

However, the court approved passive euthanasia by holding that one may, in a given case, have the right to die with dignity as a part of right to live with dignity. It was observed that, these are not cases of extinguishing life but only of accelerating conclusions of the process of natural death which has already commenced.

After a thorough perusal of ruling in Aruna's case, it seems that while approving passive euthanasia, the SC judges were well aware of its above cited earlier observations in Gian Kaur's ruling. The only point which was not clarified in that verdict was who should decide whether life support system should be discontinued in the case of an incompetent person e.g. a person in coma or PVS.

Now it has been laid down in Aruna's case that such a decision has to be taken by family members or close relatives or in their absence, person acting as next friend or even doctors attending him/her but it should be taken bona fide in the best interest of the patient. However, such a decision requires approval from the concerned High Court. The Chief Justice of the High Court would have to constitute a bench of at least two judges for the purpose who would further have to seek the opinion of a panel of three reputed doctors (a neurologist, a psychiatrist and a physician).

Although on face apparent it seems appreciable that medical professionals have been included in decision making process of grant of requests for PE considering that they are best experts to examine the condition and viability of terminally ill-patients, at the same time, we must keep in mind that of late a large number of persons have also emerged in medical fraternity who can go to any extent of compromising with their ethics for the sake of earning easy money. The reported cases of misuse of Transplantation of Human Organs Act, 1994 and PNDT Act, 1994 by certain medical personnel substantiate this apprehension.

Further, the SC has reiterated that as High Courts under Article 226 of the Constitution of India in addition to issuing writs also possess power to issue directions or orders, they would be the final authority to grant approval for withdrawal of life support in respect of a terminally ill-person who is incompetent to take such a decision. Although no doubts can be raised over wisdom of HC judges in dealing with such requests, the need of the hour is to enact a suitable comprehensive legislation governing PE with sufficient checks and balances. The statutory enactment would also ensure avoidance of different viewpoints/conflicts within members of judiciary while adjudicating such hyper-sensitive matters.

At the outset, it can be concluded that although PE has been granted judicial endorsement by the Apex Court under certain exigent circumstances, there is indeed a need for wider public debate on this vexed subject. Our Parliament in its wisdom as also bound under Doctrine of Parens Patriae (Father of the Country) ought to deliberate thoroughly on this topic involving all stakeholders before legislating over the issue as it is a matter concerning the precious life of terminally-ill patients of the nation.


OPINION

Passive Euthanasia: Judicial Spot-Running?

Passive Euthanasia is not 'active' or 'positive' killing. And Passive Euthanasia is morally superior than, say, 'Active Euthanasia'. These are the two fundamental assumptions on which the recent Supreme Court judgment builds its tacit approval of a conditional 'inactively executed medical termination of life', which might sound like - and might also be - a contradiction in terms.

So, is 'letting die' better than 'killing'? More importantly, are the two different in all circumstances?

A man suffering from chronic asthma is hit by a sudden bout of intense asthma attack, and desperately reaches out for the lifesaving inhaler, which is now in the hands of someone who wants him dead. This angel of death grabs the inhaler, walks out of the room and closes the door behind him to 'let the fellow die' a painful death.

So, did he 'kill' or did he simply 'let die'? Actually, in 'letting' the person die he 'killed', or, to put it differently, he killed by letting die. The killer is as much a killer as he would be, had he put a knife through the man's heart or a bullet through his brain, for it is the intention which determines the nature of the act. In 'Passive Euthanasia' the intention is to kill, which makes it as active as 'active' can be. And if it is about interfering or not interfering with the 'impending death' or 'natural course of life', every single pill that you swallowed and every injection that you took did exactly that by standing between you and the natural consequences of the illness, which could as well be death.

The second premise that somehow 'letting die' is morally better off than 'killing' is equally ill-founded because when life is insufferable and death desirable, any delay in ending life is abjectly and indefensibly cruel. Among the martial communities in olden times, if a warrior was incurably injured and was dying a slow, painful death, he would be given a swift death unless he or she desired otherwise because delayed death meant prolonged suffering, which is cruel by all means. So, if death is better, terminate life immediately.

Thus, not only 'letting die' is much the same as 'killing', but is also morally inferior than the latter in cases fit for euthanasia. So, the very idea of and the whole talk surrounding 'Passive Euthanasia' is completely pointless, for it is unwise to look for a 'middle' or 'moderate' path where none exists.

The two central issues that cannot be left unaddressed are: One, whether or not the otherwise absolute Right to Life includes Right to Die in certain circumstances? If yes, what should be the distinctive nature of such circumstances? And, two, who has the 'right' - not the expertise or wisdom - to decide on behalf of the patient that his or her life is not worth living? Let's not forget that we are dealing with the most fundamental, inalienable right, and this is about someone else deciding to forego what even the person himself cannot in ordinary circumstances.

Therefore, the legal position of euthanasia cannot be conclusively determined until and unless these two questions are satisfactorily answered. And we have been skipping and spot-running so far.

 

 
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