जीस्त एहसास भी है , शौक भी है, दर्द भी है,
सिर्फ अनफात की तरतीब का अफसाना नहीं |
– साहिर लुधियानवी
Zeest ehsaas bhi hai, shauq bhi hai, dard bhi hai,
Sirf anfaas ki tarteeb ka afsaana nahin.
– Sahir Ludhiyanvi Common cause ruling: no ‘right’ recognized, no ‘dignity’ ensured
Much like, Sahir and many other poets, writers and thinkers, the Supreme Court of India has always looked at human life as far more in terms of depth, richness and dignity than merely the state of being alive. With the ruling in Common Cause v. Union of India [Writ Petition (Civil) No. 215 of 2005; decided on March 9, 2018], the Supreme Court once again recognized the ‘right to die with dignity’ and recognized, yet again, a mode of causing such death in certain circumstances, but carefully stopped short, once more, of conferring absoluteness on the choice and categorically refused to recognize ‘right to die’ as part of ‘Right to Life and Personal Liberty’ under Article 21 of the Constitution and went only so far as to recognize ‘right to die with dignity’ as part of Right to Life, which was what the petitioner-society had pressed for distinguishing it from ‘right to die’, which the petitioner-society had expressly stated to have not claimed or pressed for as part of ‘Right to Life’. So, ‘right to die with dignity’ without ‘right to die’, it is. And there lies a conceptual conundrum.
How possibly could one have ‘right to have A with B’ without having the right to ‘A’ where ‘B’ is a qualification attached to ‘A’ like ‘tea with sugar’ or ‘a car with automatic transmission’ or ‘a wife with a heart of gold’. In principle, one needs to have the tea, the car and a wife for the qualifications to be attached, for the denial of the possibility of the principal element to which the respective qualifications could be attached without nullifying the property that the qualifications seek to bring to the principal element is conceptually impossible.
Therefore, in granting ‘right to die with dignity’ without an absolute ‘right to die’, the Supreme Court, despite having expressly denied ‘right to die’ has not quite ‘denied’ it but has made ‘right to die’ subject to the existence of a set of necessary conditions. In other words, ‘right to die’ is available only when the denial of it would amount to a denial of dignity that a human being deserves in accordance with the settled reading of Article 21. The conceptual conundrum outlined above can only be resolved thus: one can only have ‘tea with sugar’, ‘a car with automatic transmission’ and ‘a wife with a heart of gold’, and tea without sugar, car with manual transmission and a wicked wife are simply off the table. Take it or leave it. However, it’s a little more complicated than that but the analogy, like all analogies, has its limits and cannot be stretched to reflect upon and effectively analyze the more complicated aspects of this newly recognized conditional right to die.
Right to die as a facet of Right to Life first came up for consideration in P. Rathinam v. Union of India, (1994) 3 SCC 394, when the Supreme Court was called upon to pronounce on the constitutionality of Section 309 of the Indian Penal Code, which penalizes ‘attempt to commit suicide’. The two-judge bench of the Supreme Court drew on the rationale of R.C. Cooper v. Union of India, AIR 1970 SC 1318, to conclude that what is true for one fundamental right is, in principle, true for the others all fundamental rights as well. Therefore, if ‘Right to Freedom of Speech and Expression’ includes right to remain silent and Right to the Freedom of Association and of Movement include the rights to ‘not to join any association’ and ‘not move anywhere’, it follows that Right to Life includes ‘right to not live’ or, differently put, ‘right to die’. The Supreme Court entertained the possibility of a conscious, rational choice to end one’s life without physical or mental distress coming into play, and observed:
“One may rightly think that having achieved all worldly pleasures or happiness, he has something to achieve beyond this life. This desire for communion with God may very rightly lead even a very healthy mind to think that he would forego his right to live and would rather choose not to live. In any case, a person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking.”
The Constitution Bench in the Common Cause case quite obviously did not agree with the cited rationale of P. Rathinam, but the observation was taken due note of by the Bench. The Supreme Court in P. Rathiman read ‘right to die’ into ‘Right to Life’ under Article 21 and set aside Section 309 of the IPC as unconstitutional. However, the ruling did not stand for long, and two years later, a five-judge Constitution Bench called upon to decide the constitutionality of Section 306 of the IPC in Gian Kaur v. State of Punjab, (1996) 2 SCC 648, overruled P. Rathinam and ruled in favour of the constitutionality of both Section 306 and Section 309 of the IPC. Rejecting the rationale of P. Rathinam, the Constitution Bench in Gian Kaur held that it was incorrect to see all fundamental rights as alike in all respects. Adverting to the decisions relied upon by P. Rathinam, the Constitution Bench said, “In those decisions it is the negative aspect of the right that was invoked for which no positive or overt act was required to be done by implication. This difference in the nature of rights has to be borne in mind when making the comparison for the application of this principle.” It further observed:
“When a man commits suicide he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to, or be included within the protection of the ‘right to life’ under Article 21. The significant aspect of ‘sanctity of life’ is also not to be overlooked… With respect and in all humility, we find no similarity in the nature of the other rights, such as the right to freedom of speech’ etc. to provide a comparable basis to hold that the ‘right to life’ also includes the ‘right to die.”
On the issue of euthanasia, the Bench in Gian Kaur observed that Right to Life means right to live with human dignity “upto the end of natural life” and includes “a dignified procedure of death”. However, to be sure, the Court added a caution: “But the ‘right to die’ with dignity at the end of life is not to be confused or equated with the right to die’ an unnatural death curtailing the natural span of life.”
With the Constitution Bench of equal strength in Common Cause approving Gian Kaur and rejecting the rationale of P. Rathinam, the law is that Right to Life includes ‘right to die with dignity’ but not ‘right to die’ per se, which is a slightly odd proposition from the very sound of it, and may be an incomplete — if not completely incorrect — enunciation of the law in this regard unless one adds ‘in certain circumstances’ as an additional qualification because the Supreme Court has also laid down the condition precedent for the ‘right to die with dignity’ to be available to a person — namely, Permanent Vegetative State (PVS). In other words, the Supreme Court has already set in stone as to what constitutes living as subhuman a life as to warrant termination because such a life is not ‘life’ at all in terms of Article 21.
Right to die with human dignity’, as recognized by the Supreme Court in Common cause, can only be exercised in a physical state in which an individual is incapable of making any choice or exercising any right whatsoever whereas the very idea of ‘right’ presupposes the ability to make a conscious choice. In this case, the choice — if it could be made at all — is between existing in a state that is not ‘life’ in terms of Article 21 and ceasing to ‘exist’ completely, which in terms of Article 21 translates into a choice between ‘not-life’ and ‘not-life’, and that is no ‘choice’ at all. There is, no doubt, the Advance Medical Directive or Advanced Directive or Living Will, as recognized by the Supreme Court in Common Cause, by way of which one can choose to direct one’s future caregivers in advance as to in which situation should the medical treatment be withheld or withdrawn and nominate a guardian or close relative to give consent one’s behalf to withhold or withdraw the treatment in terms of the Advance Medical Directive so as to hasten one’s death in the event one becomes incapable of communicating one’s consent. And there lurks another conceptual conundrum.
Every human being has ‘Right to Life’ under Article 21 and also ‘right to die with human dignity’ by virtue of Common Cause ruling, but since ‘right to die’ is itself not a right and ‘right to die with human dignity’ does not accrue to the person until and unless the condition precedent — Permanent Vegetative State — is met, how can one transfer the right to do something to oneself to another human being when one does not have the right to do the same to oneself? Alternatively, if ‘right to die with human dignity’ is available to an individual before he or she is in the PVS and the state of PVS is not a condition precedent for the exercise of the right, the individual concerned would be free to decide what is ‘life with human dignity’ to him or her because then the decision would be free of the additional necessary condition of the PVS. But that is nothing short of recognizing ‘right to die’ as part of Right to Life, which the Supreme Court has categorically declined to do in both Gian Kaur and Common Cause.
Therefore, in executing Advance Medical Directive, the executor would exercise a future ‘right to die with dignity’ in future, which is different from exercising a present right in future, like in the case of an ordinary will with respect to property. And the position is absurd and untenable because one is deemed to be exercising a right that one does not have yet, and when one would, in fact, have the right, one, by virtue of the condition precedent attached, would not be in the physical condition to exercise the right due to diminished capability to make an informed choice. This conceptual conundrum is the logical consequence of recognizing ‘right to die with human dignity’ without conferring validity on ‘right to die’ itself because one cannot obtain the validity of the whole without according validity to its core constituent part.
Gian Kaur made a distinction between ‘right to die with dignity at the end of life’ and ‘the right to die an unnatural death curtailing the natural span of life’ in declining ‘right to die’ as part of Right to Life. The ‘end of life’ is indistinguishable from actual physical death, and administering passive euthanasia would amount to ‘curtailing the natural span of life’, no less, because one cannot argue that the ‘natural span of life’ is only so far as one can stay alive without medical assistance or without any medical device, for that would make everybody living with the assistance of life saving drugs and/or medical devices, such as pacemakers, living beyond the ‘natural span of life’. A death caused on account of withdrawal of medical assistance is just as much a ‘natural death’ as any other and just as much a ‘caused death’ as, say, a homicide or suicide.
Gian Kaur further says that administering passive euthanasia is not the same as “extinguishing life” but only “accelerating conclusion of the process of natural death which has already commenced”. The “process of natural death” begins right at birth. Technically, with each passing day a human being progressively dies. Therefore, when one person murders another person or kills himself or herself, he or she only “accelerates the conclusion of the process of natural death which has already commenced.” So, that distinction between ‘causing death’ — one’s own or someone else’s — and ‘passive euthanasia’ administered to a person in the PVS is not sound enough to resolve the logical quagmire that ‘right to die with dignity’ sans ‘right to die’ lands one in.
Another distinction made in Giar Kaur that the Constitution Bench in Common Cause accepts and cites with approval is between ‘overt act’ and willful abstinence based on which Gian Kaur placed ‘right to remain silent’ on a different footing than ‘right to not live’ or ‘right to die’ and ruled against ‘right to die’. The difference between act and omission so long as they carry the choice of the actor is negligible, if not completely non-existent. The act or willful omission are merely means to accomplish an objective and do not by themselves alter the substantive component of the actor’s accountability, which is attached primarily to his or her intent, and for that reason one can be held morally and legally accountable for one’s acts as well as willful omissions. The same distinction is played up and is foundational to the Court’s allowing Passive Euthanasia as opposed to Active Euthanasia or Euthanasia.
Euthanasia: Active and Passive
Active Euthanasia is to kill and Passive Euthanasia is to let die, and the Supreme Court prefers the latter because while the former is an ‘act’, the latter is only a ‘willful omission’ even though the difference between the two is largely cosmetic. Like many other writers and thinkers, the present writer had also questioned the artificial distinction drawn between ‘killing’ and ‘letting die’ for the purpose of legalizing Passive Euthanasia in a Cover Story article titled ‘Passive Euthanasia: Judicial Spot-Running?’ (Lawyers Update, April 2011, Vol. XVII, Part 4) published in response to Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454, which was the judgment that originally legalized Passive Euthanasia in India. The logical difficulty involved in making a distinction between act and willful omission is not lost on the Supreme Court in Common Cause, which Justice Chandrachud acknowledges in his separate, concurring opinion and cites American philosopher and medical ethicist James Rachels, who said, “There is no morally important difference between killing and letting die; if one is permissible (or objectionable), then so is the other and to the same degree.”
However, Justice Chandrachud, after citing James Rachels, defends Passive Euthanasia by pointing out the distinction between “positive medical intervention (such as a lethal injection)” and “a decision to not put a patient on artificial life support,” and adds, “while the former brings a premature extinction of life. The latter does not delay the end of life beyond its natural end point.” As pointed out earlier in this article, this is a weak defense because just about any life saving medical treatment interferes with the “natural end point” because there is no “natural end point” other than the point when one actually dies or is made to die. Advances in medical science have prolonged average human life by what can only be described as an “artificially induced delay of the ‘natural end point’.” So, if Active Euthanasia is ‘premature extinction of life’, Passive Euthanasia is every bit the same.
While it is hard to disagree when James Rachels, as cited by Justice Chandrachud, says that “one of the reasons for the exculpation of omissions is based on the idea that our duty not to harm people is generally stricter than our duty to help them,” but it doesn’t apply when one has to choose between ‘killing by lethal injection’ and ‘killing by taking one off the ventilator’ because in both the cases both the intent and the outcome remain unchanged. The means is immaterial.
Furthermore, the stated objective of euthanasia is to bring a quicker end to a lifeless existence, which can be achieved promptly, efficiently and relatively painlessly by way of Active Euthanasia whereas Passive Euthanasia is a slow and arduous way of achieving the same objective. In gasping for life as the life ebbs away, where is the promised dignity?
The Common Cause ruling is doubtlessly a step in the direction of ensuring dignity in death, but it does not break new ground in terms of constitutional jurisprudence in that respect and stops at endorsing the view taken in Gian Kaur and Aruna Shanbaug. As demonstrated above, if ‘right’ is understood to presuppose the freedom to make a choice, Common Cause does not confer or recognize any such ‘right’. It merely puts together a detailed arrangement in furtherance of Aruna Shanbaug to ensure that those who are forced to go through what is not ‘life’ under Article 21 could be permitted to die with as much pain and as much dignity as Passive Euthanasia might allow.