Right to Die with Dignity: A Fundamental Right

Introduction “Death is our friend … he delivers us from agony. I do not want to die of a creeping paralysis of my faculties – a defeated man.”   -Mahatma Gandhi1  Survival is no doubt valuable to each and every individual on the earth but some time and in certain conditions, life becomes so painful and unbearable so that the survival in that situation seems like a curse or an abuse. Euthanasia – one of the most heated discussions these days, is nothing but a license or a permit to the doctors to provide an easy and painless death to the patients who are terminally ill and for whom survival becomes much more difficult than death itself. The ongoing debate on euthanasia is on the point that whether the medical professionals who are always supposed to save the life of their patient in any circumstance can be allowed to help the patients taking their own life. The legal position of the same for the first time was explored in India in the year 2006 through the 196th Law Commission Report. The result of this report is ‘The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill' which is still in progress. Another report i.e. the 241st Report of Law Commission recommended legislation on passive euthanasia and also drafted a Bill for the same. The main purpose behind writing this article is to examine all the questions pertaining to euthanasia, especially in the light of moral as well as legal points related to this issue and to suggest on the constitutional point that right to die with dignity can also be brought within the framework of light to live with dignity as provided in Article 21 of the Constitution.  Does Right to Life includes Right to Die
 While dealing with the question whether a person has the right to die, The Bombay High Court relying on R.C Cooper v.Union of India, Observed that: That is true for one fundamental right is also valid for another fundamental right and fundamental rights possess positive and negative aspect simultaneously. For Example, Freedom of Speech and expression includes freedom to keep mum, Freedom to form association and movement also the freedom not to join any association and move anywhere, Freedom of business and corporation also includes the freedom not to do any business.2 By following this logic, Article 21 which recognizes right to live as the positive right would also have the negative aspect of the right to not live or right to die.3  In the case of P. Rathinamv. Union of India & another while deciding the constitutional validity of Section 309 of IPC, the Court ruled that Right to life under Article 21 not merely meant for physical presence but also ensures the quality of life as understood in its richness and fullness within the ambit of the constitution.4 One may refuse to live his life, if he thinks that he has achieved all worldly pleasure and his desire of communion with God might lead a healthy mind to think that he would forego his right to live and rather chose not to live and that person cannot be compelled to complete his life is contrary to his desire.5 Eventually, it concluded that Article 21 which speaks of the right to live also includes not living a forced life and thereby declaring 309 of IPC constitutional.6  The precedent rendered in P. Rathinamv. Union of India & another didn’t sustain as precedent for so long and later it was overruled in the case of GianKaurv. State of Punjab where the constitutional validity of Section 306 of IPC was challenged on the ground that as Section 309 has been declared unconstitutional by the Court, any person abetting suicide by another is merely helping out another person in performing his fundamental right of not to live under Article 21.The Court scrutinized the Ambit of Article 21 and decision in P.Rathinam v.Union of India and other cases which ruled that Right to live also includes right to not live and decided that Right to live doesn't include right to die. The Court observed that decision rendered in the above cases dealt with the different situation and concerned others fundamental rights and thereby holding that right to include an act also includes right not to do an act in that manner.7  A fundamental right has both positive and negative aspects simultaneously. But the negative aspects of Article 21 hold subtle difference from the other fundamentals rights. Negative aspects of other fundamental right don't require any positive or overt act to be done but under the negative aspect of Article 21, the positive overt act of taking one's life has to be performed which cannot be inducted within the protection of ‘right to life' under Article 21. This is the basic difference which has to be borne in mind while applying the analogy of this principle.8 The constitution bench in the case ofGianKaur case observed that:9  "Right to life" is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of ? the right to life. 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.”   Therefore, Article 21, in its ambit and sweep, cannot include right to die as a part of fundamental right. Not even in a dearth of imagination, termination of life can be included in the protection of life as envisaged by the Article 21.Also, the sign of sanctity of life should not be overlooked.10  Right to Die with Dignity: A Part of Right to Live with Dignity under Article 21
 Article 21 of the Constitution of India mandates that no one shall be deprived of his life or personal liberty, except according to the procedure established by the law. This article has been interpreted many a times by the Court especially imputing a dynamic meaning to ‘Right to Life' after taking cognizance of the changing society and in consonance with the developing concepts.  Right to Life includes Right to Live with Dignity
 Recently in the case of K.S. Puttaswamy and another v. Union of India and others, expanding the spectrum of Article 21 reaffirmed dignity as an important component of the fundamental rights. Life within the meaning of Article 21 is not only confined to the integrity of the physical body. The right to life embraces life which is of worth living and comprehends one's being in the fullest sense. To live is to live with dignity. Human dignity is beyond the definition. Life without dignity is like a sound that is not heard. Dignity is a combination of thought and feeling and deserves respect even when the person is dead. Dignity acts as a bond between the fundamental rights because the fundamental rights seek to achieve the dignity of each individual. 11  Every human being has dignity by virtue of being a human being and it is the duty of the state not only to protect the human dignity but also facilitate it by taking positive steps in that direction.12 Dignity is the most sacred ornament of a man and it must not be whittled down neither in the process of dying nor when death occurs.13 Any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity if it violates the test of reasonableness and non-arbitrariness, then it would plainly be unconstitutional and void as being violative of Article 14 and 21 of the Constitution.14   The point of consideration came before the Court as to whether a terminally Ill or persistent vegetative state patient has the right to refuse the medical treatment under the Article 21 and has autonomy to take decision about the continuance or discontinuance of life when the death process has already commenced or reached an irreversible progressive permanent stage where death is not far away. With the advancement of the medical technologies capable of sustaining the life well past the point where natural death would have brought certain death in earlier times and prolonging the death of a patient for months and even years.  Right to Live with Dignity includes Right to Die with Dignity
 While dealing with the above issue in GianKaur case, the Court observed that existence of a person in a persistent vegetative state is not benefited to the person being unrelated to the principle of sanctity of life. The approval of passive euthanasia is not a right to die but come under the scope of Article 21 which guarantee the right to life therein includes right to live with dignity. The constitutional Bench observed that in the case of dying person who is terminally ill or in the persistent vegetative state, be allowed a premature death and this would come under the ambit of the right to live with dignity. It has been clarified by the Court that right to die with dignity is something different from the right to die an unnatural death curtailing a natural life but comes under the ambit of the right to live with dignity. Some excerpts of GianKaur case, which states that right to die with dignity is an integral part of the right to life with dignity:15  “in the context of a dying man who is terminally ill or in a persistent vegetative state that he may be permitted to terminate it by a premature extinction of his life in those circumstances. This category of cases may fall within the ambit of the right to die with dignity as a part of the right to live with dignity when death due to termination of natural life is certain and imminent and the process of natural death has commenced."  The Court in the case of Common Cause v.Union of India, reaffirmed that approval of the euthanasia to terminally Ill patient or a person in PVS, where there is no hope of recovery by accelerating the pace of death by not providing the external medical faculties for reducing the period of suffering constitutes right to live with dignity guaranteed under Article 21 of the Constitution.16  Passive Euthanasia
 Before going to the aspect of passive euthanasia, it is important to discuss the meaning of Euthanasia. Euthanasia or assisted suicide has its roots in the Greek word ‘Euthanatos' which means easy death. This process has opted in the case where a person is terminally ill and death of the person has already commenced. In this process, the patient's life is intentionally ended either by direct intervention i.e. active euthanasia or by stopping the life-prolonging measures or resources i.e. passive euthanasia which is done by either express or implied consent of that person.  Difference Between Active and Passive Euthanasia
 The case of ArunaShanbaug v. Union of Indiadiscussed the difference between active and passive euthanasia. Active euthanasia also called positive or affirmative euthanasia involves a positive or affirmative action to cause the death of another person by use of any lethal substance or force to intentionally cause the death of a person by direct intervention like administering a poisonous substance in the patient's body in order to cause death.17  Whereas passive euthanasia is also known as negative or non- aggressive euthanasia talks about the withdrawal of life support systems or stopping the medical treatment which is necessary for the further sustenance of life like the removal of any machine which is necessary for the patient for the continuance of his life.18  So, the main difference which lies between these two is the difference between ‘killing’ and ‘letting die’. As in case of active euthanasia some overt act is required to be done in order to stop the continuance of life, it can be referred as killing, passive euthanasia on the other hand is equated to letting the person dies as in this doctors are not actively causing the death of the person rather they are merely not doing anything so that the life of the patient could be saved which ultimately leads to accelerating the process of death of that person which is already in continuance.19  Therefore, active euthanasia is not permitted anywhere unless there is a specific legislation in that context but passive euthanasia is permitted in many countries keeping in mind the paramount aspect related to this which is ‘foreseeing the hastening of death’ and acting in a way which is the best interest of the patient.  International Approach on Passive Euthanasia
 The general legal position regarding euthanasia all over the world was that while active euthanasia is illegal unless there is any specific legislation permitting it, on the other hand, passive euthanasia is considered to be legal even without legislation provided that certain conditions and safeguards must be maintained.  Australia The North Australian Territory became the first country to legalize euthanasia by passing an act called ‘Rights of the Terminally Ill Act’, 1996. In the case of Wake v.Northern Territory of Australia, it was held to be legal.20 But later a subsequent legislation called the Euthanasia Laws Act, 1997 again made it illegal.  Netherlands In the Netherlands, it is regulated by an act called the ‘Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 2002. According to this act euthanasia and physician-assisted suicide are not punishable if the attending doctor acts in accordance with the criteria of due care.  Switzerland If the motive is selfish only then assisted suicide is a crime according to Article 115 of the Swiss Penal Code. Here, the physicians are not given any special status in assisting suicide and moreover, ethical guidelines are there to caution the physicians against prescribing deadly drugs.  USA Active Euthanasia is illegal in all states, but physician-assisted suicide is legal in the states of Oregon, Washington, and Montana. Countries like Belgium, Canada have also supported the legalization of the euthanasia.  Judicial Pronouncements giving Effect to Passive Euthanasia
Â

• GianKaurv.State of Punjab21
  Â

In the instant case, the 5 judge Constitutional bench distinguished between section 309and 306 of the Indian Penal Code held that the “right to life” iscompletely inconsistent with the “right to die”. Further, it alsoheld that the ‘right to live with dignity’ may include ‘right to die with dignity’ but suchexistence should not be confused with the unnatural extinction of life as it curtails the naturalspan of life. Â

• ArunaRamchandraShanbaug v. Union of India22
  Â

In this landmark judgment, Supreme Court discussed and clarified the issues revolving around Euthanasia and also laid down the guidelines in the same regard. Here the Supreme Court has for the first time allowed passive euthanasia but only in some specific conditions, which is subject to the approval of High Court by following the due procedure. The procedure laid down, in this case, was that when an application for passive euthanasia is filed, the Chief justice of the High Court should, first of all, constitute a Bench of at least two judges who should be vested with the power of granting or not granting the approval. Before giving its decision the Bench is required to seek the opinion of a committee consisting of three reputed doctors who are to be nominated by the Bench after consulting medical authorities/medical practitioners as it may deem fit. Simultaneously with the appointment of the committee of doctors, a notice should also be issued by the High Court to the state and close relatives such as parents, spouse, brothers/sisters etc. of the patient and in their absence to his/her next friend and also supply a copy of the doctor’s committee report to them as soon as it is available. And after hearing all of them, the High Court bench should give its verdict. The abovementioned procedure is required to be followed all over India until Parliament makes legislation on this subject. Â

• Common Cause v. Union of India and another23

This 2018 judgment by the Supreme Court finally decided on the much-debated issue of passive euthanasia in India. It gave its judgment in support of passive euthanasia in certain circumstances but that must comply with the procedure laid down by the court in this regard. This procedure is called ‘Living Will' in other countries but in this case, the court opted to term it as ‘Advance Medical Directive'.  Living Will / Advance Medical Directive
 In the case of Common Cause v.Union of India, It has been declared that as right to die with dignity is a fundamental right within the fold of right to live with dignity guaranteed under Article 21 of the Constitution issued directions to adopt the suitable procedure to ensure that persons of deteriorated health or terminally ill patient should be able to execute a document titled "Living Bill or Advance medical directive " which can be presented to hospital for the execution of the document when the patient is being admitted to hospital with some serious illness where chances of recovery of the patient is very rare. The advance medical directive would serve as effective means for achieving the sacrosanct right to live with dignity.  Definition According to Black's Law Dictionary, Advance Medical Directive is a legal document explaining one's wishes about medical treatment if one's become incompetent or unable to communicate and on the Other hand Living Will is a document which prescribes a person's wishes regarding the medical treatment the person would want if he is unable to share his wishes with the healthcare provider.  Advance Directive in Other Countries – Legal Position The advance medical directive has gained lawful recognition in various Countries jurisdictions. In the various states of America, The execution of the Advance Medical directive called as "Will to live" is mandatory on the part of doctor according to the wishes of the patient. In the UK, the patient has the right to appoint "lasting power of attorney" in order to take the decision of continuing or refusing the life-sustaining treatment on behalf of the terminally ill patient. In Australia by way of legislation, has well-established principles governing advance medical directive.  Legality of Advance Medical Directive
 Till the judicial pronounced guidelines in the recent case of Common Cause v Union of India, There was no legal framework in India to execute the wishes of the terminally ill patient in order to protect the right of the Citizens as enshrined in the Constitution. The said directive would not only be beneficial to the patient but will also reinforce the confidence of the doctor that they are not doing something against the Hippocratic oath and they are acting in a lawful manner.  Certain safeguard was necessary as many questions should be taken into consideration before laying down the guidelines as who will be considered to be the best consenting party on behalf of the patient who is unable to communicate his will, when it can be given effect etc and hasting up may lead to misuse of the Advance medical directive. As in ArunaRamchandraShanbaug case, pointed the same -24  …..This is an extremely important question in India because of the unfortunate low level of ethical standards to which our society has descended, its raw and widespread commercialization, and the rampant corruption, and hence, the Court has to be very cautious that unscrupulous persons who wish to inherit the property of someone may not get him eliminated by some crooked method.”  Therefore the Court took extreme care before underlining the guidelines for an advance medical directive and dealt with each topic in subcategories wise like Who can execute the Advance Directive and what it should it contain, when and by whom it can be given effect to it.  Execution of the Advance Medical Directive
 The Advance Directive must be executed voluntarily in a fit state of mind knowing the consequences of the executing document which must mention the circumstances in which withholding or withdrawal of the treatment can be resorted to. It must mention the name of the authorized person who shall give the consent to refuse or withdraw the treatment at the time when the executor would become unable to communicate his wishes.  If the Doctor being fully satisfied with the terminal illness of the patient and there seem no chances of revival of the patient and treating physician being sure of the veracity of the document then he shall inform the executor/close relatives about the nature of the illness and consequences of alternative forms of treatment and consequences of remaining untreated.  The consent for the withdrawal of treatment would be taken from the family members of the patient who has not himself executed the Advance Medical Directive. After acquiring the consent of the guardian, the Hospital shall constitute a Medical Board consisting of the head of the Training Department and at least three experts from the field of general medicine, cardiology, nephrology, oncology or psychiatry at least having experience of 20 years shall visit the patient in the presence of guardian/close relatives and form an opinion whether to certify or not carrying out the withdrawal/refusal of further medical treatment. This certification shall be treated as a preliminary opinion.  After the preliminary opinion from the Hospital Medical Boards, Hospital shall forthwith inform the jurisdictional collector about the proposal. The jurisdictional collector shall then immediately constitute a Medical Boards comprising the Chief District Medical Officer of the concerned district as the Chairman and three expert doctors from the fields of general medicine, cardiology, neurology, Psychiatryor oncology at least having experience of 20 years in their medical profession. Medical Board then conjointly will visit the Hospital and if they concur with the initial decision of the Medical Board of the Hospital, shall acquire the consent of executor and if executor won’t be in a condition to communicate his wish, then consent of the guardian who is nominated by the executor shall be considered for endorsing the certificate of execution of the Advance Medical Directive.  Chairman of the Medical Board nominated by the collector shall convey the decision of the Board to the Jurisdictional Judicial Magistrate of first class before giving effect to the decision of withdrawal of the treatment. The JMFC shall visit the Hospital at the earliest and after examining all the aspects would authorize the implementation of the decision of the Board.  Social Morality, Medical Ethicality, and State Interest Sanctity of Life It may be possible in society at large may feel that a patient should be treated till his last breathes. Many may argue that ‘Sanctity of Life' must be preserved anyhow and it mustn't be violated by the self-styled techniques of death. Protagonists of ‘SOL' principle believe that life should be preserved at all cost and no methods of deliberate destruction of life should be allowed.  But we have to understand that withdrawal of life-prolonging treatment is not against the principle of sanctity of Life but an embodiment of it. As we all know that death is an inevitable aliment of life, the right to life implies the right to have a natural course of life which includes the natural death. It doesn't include the artificially prolonging one's life by machines where the chances of revival of the patient are next to impossible. Sushila Rao while commenting on the paradox of Sanctity of Life described that there is the important moral difference between Killing a patient by administering say a Lethal Injection and withdrawing treatment which is just prolonging her life. Withdrawal of the treatment can mere described as the failure to prolong life eventually which is compatible with the best Interest of the patient. Thus SOL principle insidiously ensure certain types of death and only prohibits the doctor from acting to end the achieve quickly and more humanly by administering of a single lethal Injection and doesn’t prohibit death which is achieved by suffocation, dehydration, starvation and infection,through the withdrawal or withholding of, respectively,ventilation, ratification nutrition and hydration, andantibiotics.25 Denman gave the most secular Interpretation of the SOL doctrine and explicated thus-26  "in respect a person's death, we are also respecting their life-giving its sanctity...A view that life must be preserved at all costs does not sanctify life.,...To care for the dying, to love and cherish them, and to free them from suffering rather than simply to postpone death is to have a fundamental respect for the sanctity of life and its end."  Hippocratic Oath
 Hippocratic Oath coupled with the ethical norms of medical norms that the doctor should endeavor to their best to save the patient till their last breath may stand in the way of euthanasia.  The general common principle of the medical profession constitutes that execution of any medical treatment trespass to the person which must be justified in the circumstances of saving life where the person is unable to decide or give consent is permitted. Therefore taking consideration of the patient's right to privacy and to live with dignity; it is totally justifiable to allow passive euthanasia where a patient is in PVS or terminally ill and where the condition is irreversible.27  Conclusion
 As many substantial arguments in favor of euthanasia has been presented along with the rights of an individual to choose when to end their life if it is full of pain and miseries. The primary reason for being in favor of legalizing this practice is to alleviate the pain, suffering and mental agony of these people. For instance, if we take a patient who is terminally ill and reached to a condition from where it is known to them that he is never going to resuscitate, suffering from miserable pain each and every day of his life then for sure the patient has the autonomy in such a condition do assuage their life if they don’t wish to endure the unbearable pain. Therefore, in such a circumstance the patients will be considered of the most important and the same is supported by our Constitution as it provides every individual a right to live with dignity which includes right to end that life with dignity also. Ernest Hemingway in his book ‘The Old man and the Sea’, has rightly pointed out that life sans dignity is an unacceptable defeat and the life that meets death is a value to be aspired for and a moment for celebration.28 In our view euthanasia surely has a right to exist in our society and it should be considered not as a murder but as an absolute necessity in some urgent situations. Summarising in one sentence, it will be apt to say that: The emphasis of euthanasia needs to be placed on the purpose of the act, and not the nature of the act. Concluding with a statement which is most suitable here:29  “To insist on artificially maintaining existence without regard for its condition is a degradation of the meaning of life, not a promotion of it.” Â

Author Name: Anupam Shivam and Neha Pandey