By:- Rishi Saraf
|IN THE SUPREME COURT OF||INDIA|
|CITATION||CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 215 OF 2005|
|APPELLANT||Common Cause (A Regd. Society)|
Union of India and Another
|JUDGMENT DATE||9 March, 2018|
|STATUTES/CONSTITUTION INVOLVED/RELEVANT PROVISIONS||Article 21 Section 306 of the Indian Penal Code|
|ISSUES RAISED||Whether Article 21 of the Constitution which guarantees the Right to Life includes the Right to Die? Whether passive euthanasia should be permitted on the living will of patient? Whether there is any difference in passive euthanasia and active euthanasia? Whether an individual has any right to refuse medical treatment including withdrawal from life saving devices|
This is a significant case in terms of euthanasia in India. Common Cause, a registered organization dedicated to the common good, filed a writ petition under Article 32 of the Indian Constitution in 2005 to legalize passive euthanasia and validate living wills. The Supreme Court of India ruled in this case that the right to die with dignity is a fundamental right protected by Art. 21. Passive euthanasia and a living will are also allowed, according to the Bench. In this context, the Court provided specific recommendations. The present case analysis aims to scrutinize the background, facts, issues raised, and arguments on both sides and highlights concepts made in the case.
FACTS OF THE CASE
The writ petition was filed under Article 32 by a registered society named COMMON CAUSE to declare the right to die with dignity is a fundamental right. And it is intrinsic in article 21(right to life). It was initially for patients with incurable illness where no chances of recovery pertain. Petitioner want that patient with no hope of recovery or in brain dead condition should be left by withdrawing medical support of prolonged life by using their will when they were conscious or adults, able to make decisions. Petitioner wants advance directives so that they will be executed properly in such a situation. Right to die with pain and without pain is one’s bodily autonomy and nobody is entitled to prolonged their painful journey. It is stated by petitioners that for this court should appoint a committee of doctors, social scientists, advocates to explore the idea of a living will, to advise appropriate guidelines and directives which are necessary.
- Whether Article 21 of the Constitution which guarantees the Right to Life includes the Right to Die?
- Whether passive euthanasia should be permitted on the living will of a patient?
- Whether there is any difference in passive euthanasia and active euthanasia?
- Whether an individual has any right to refuse medical treatment including withdrawal from life-saving devices?
Talks about active and passive euthanasia
Section 306 of the I.P.C. takes care of the abetment of suicide; inasmuch as if any person commits suicide, whoever abets commission of such suicide shall be punished.
Article 21 – Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law , this article is widely interpreted and includes many more things like right to shelter, health, education, clean environment, life with dignity.
ARGUMENTS OF THE PETITIONERS
1. Every Individual has the right to make decisions regarding his /her own life. When suppose he is in a dead situation or suffering from an incurable illness and there are no chances of recovery. Is it morally valid to use medical technology and prolonged his suffering by slowing the pace of the death process?
2. Right to die with dignity is a fundamental right guaranteed under right to life and also intrinsic in it.
3. Right to die with pain and without is fundamental to one’s bodily autonomy and integrity.
4. It is stated by petitioners that the concept of individual autonomy is sustained under the right to privacy and also comes within the fundamental conception of liberty. To sustain this they used KHARAK SINGH v STATE of UP and OTHERS, GOVIND v STATE of MADHYA PRADESH, and another.
5. Reference has been made to various laws of the different country like the United States, United Kingdom, Australia, Singapore, Canada, etc.
6. In today time keeping in view of the prolonged treatment in spite of irreversible prognosis and owing to the penal laws in this field it creates a dilemma in doctors’ minds whether to use modern techniques in case or not.
7. They took reference to 241st Law Commission of India in Passive Euthanasia-
After the judgment of Aruna Shanbaug was given, a detailed report was filed by a commission named “Passive Euthanasia a Relook”.This report explored the term Euthanasia. It is derived from the Greek word EU and Thanatos which means good death or mercy killing. The term euthanasia was used by Francis Bacon in 17th century to refer to an easy and painless happy death.
The report also expresses meaning to the term or viewpoint of Britishers.The selection committee on Medical Ethics in England express Euthanasia as deliberate action taken with the intention of ending life and relieve from pain and suffering. The report backed the view of the Armidale case that any forced medical support amounted to assault and battery.
ARGUMENTS BY THE RESPONDENTS
The counter arguments had been filed by the Union of India. And states that a private member bill and 241st law commission report has submitted its report on terminally ill patients(Protection of Patients and Medical Practitioner) Bill 2006, but the Ministry of Family and Health Welfare was not in support due to following reasons-
1. Hippocratic oath is against voluntary intentional killing of patients. It is the oath taken by Doctors formerly taken before beginning medical practice.
2. Progression of medical science to give relief from pain, suffering, rehabilitation, and treatment of so-called disease will suffer a setback.
3. An individual may think of die at a certain point in time, his/her wish may not last long and the possibility of a u-turn is always present. So it can be taken as depressing mental stress and nothing else.
4. Suffering is a state of mind which varies from person to person and place to place.As we all know that every person is unique in its nature so it varies.
5. Improvements in medical science has made many impossible, possible for cancer and other terminal illness.
6. It can’t be neglected that a person suffering from mental illness wishes euthanasia may be treated by good psychiatrists.
7. A serious question arises in this scenario can a doctor declare whether a patient’s disease is incurable by their experience or academic expertise.
8. Medical officers who will conduct euthanasia could suffer from various serious psychological mental pressure and trauma. So this solution creates or provides another big problem.
Bench comprises Chief Justice Deepak Mishra and Dr A. K. Sikri,A.M. Khanwilkar,Dr. D.Y. Chandrachud,And Ashok Bhushan.
The question of the right to die with dignity was raised by common cause through a writ petition, which wanted advance directives and attorney authorization to enable people with incurable illnesses, die with dignity. The matter was referred to 3 judge bench to 5 judge bench-
The bench derived the right to die with dignity under Article 21 and also an express distinction between a right to die and the right to die with dignity in due process. This bench declared that an individual, who is capable of making a decision, can write a living will for advance directives in case of critical illness to withdraw medical support when death is nearer and recovery is impossible. The bench also issued directives to prevent misuse and to make a balance between law and bioethics.
As per C.J. Deepak MISHRA and Khanwilkar(concurring)-They first tried to define euthanasia in various contexts of life and quotes various poets and philosophers. They also described euthanasia as active and passive. In active euthanasia, an act is done to end prolonged artificial life. Whereas in passive, simply we omit to do what is necessary to save patients’ life. And most countries have legalized passive euthanasia.
They also deal with the Hippocratic oath mentioned by the state said that withdrawal of treatment in terminal illness or a vegetative state is different from not attending patients and once passive euthanasia will legalize then there will be no place of social stigma, neither social morality nor dilemma in any place. It is necessary to protect the dignity and integrity of any individual guaranteed under Article 21 of the constitution. they also interpreted the Gian Kaur case, it should be understood that it wants legislation for passive euthanasia.
As per J. Sikri(concurring)-relied on Gandhian principles and using religious text and teachings. He classifies it as a hard case as various legal choices are present and judicial discretion seeks larger public interest. He declared that life is not worth living if it did not have dignity and proper respect. He classified euthanasia as follows:
1. Voluntary Euthanasia- In these type patient wishes for euthanasia suffering from terminal illness and it should not be under pressure from relatives or those who have patients in their care.
2. Non- voluntary Euthanasia-it involves death for the own good of someone who can’t express his views.
3. Involuntary Euthanasia- involves a paternalistic decision, what is best for the victim of the disease.
J.Chandrachud- He examined the tern in every perspective like voluntary, non-voluntary, involuntary and active, passive, and in the interrelationship between science, medicine, ethics, and constitutional principles of individual dignity and autonomy. He investigated it with a futuristic outlook. He also takes reference of Aruna handbag and ariedale3 case. The court in this case observed that actively causing the death of patients only be made by legislation
As per J. Bhushan(concurring)-He especially takes note Hippocratic oath and by using Plato and religious writing answered all the doubts. He said the court is not a legislative body or competent to act as a moral or ethical arbiter. The task of the court does not weigh and evaluate religious belief but to ascertain and make law of land as understood by all. This decision does not have any intention to give messages to poor and disable people to encourage them to seek death; it only wants to encourage care and support for them.
All the members of the bench examined the case very positively and tried to make a distinction between the right to die and the right to die with dignity.
This case was not about life and death, this case was about a person sufferings and intolerable pain that making his living totally negligible without any dignity and integrity. And the Hippocratic Oath that is mentioned by the union on his behalf was just an excuse to hide these sufferings under oath. The bench takes this point in positive the manner that is it fair to say a person should suffer as usual in case of terminal illness due to their oath. And court pointed out that not attending patients and relieving patients from pain is different.
As we all are aware that many patients are living or suffering in our society and they seek euthanasia due to their intolerable pain, this judgment will be a boon for them. They are living miserably without dignity and integrity. Many great thinkers said that to live in society dignity and integrity is the first and foremost thing to achieve and always have it. Even the sacred text of Hindu named as Gita has made some points on dignity, said that losing dignity and integrity is very bad alternatively, before losing dignity and integrity you must lose your life.
There are many perceptions of euthanasia but the court only legalize passive euthanasia, a method of ending anyone life by omitting necessary steps that are needed to sustain life. It means that death should be in a natural way without any interference by medical support and techniques. Before these judgments, society has seen many examples of brain-dead patients in the vegetative states living artificial life on beds on the support of medical devices and technology.
The bench wants to point out that it is the state responsibility to protect its people’s dignity and integrity in their helpless situation. Right to life is fundamental right but to live a dignified life there are many things which are essential for their living like food, shelter and clothes are basic but to live in civilized society, dignity and integrity are a must.At last, I like to take note Father of Nation Mahatama Gandhi,said that “it is beneath human dignity to lose one’s individuality and become a mere cog in a machine”