Right to Die: Court in Review
Tracing the history of the Supreme Courts stance on the right to die with dignity.
The Supreme Court has held that the right to life includes the right to die with dignity. We trace the jurisprudence on this issue.
P. Rathinam and Nagbhushan Patnaik had filed petitions challenging the constitutional validity of Section 309 of the Indian Penal Code. Section 309 punishes anyone who attempts to commit suicide with simple imprisonment for up to one year. The Supreme Court drew a parallel between the other fundamental rights – just as the right to freedom of speech under Article 19 gives the right to speak but also includes the right to not speak, the right to live under Article 21 includes the right to not live. Thus, Section 309 was held to be unconstitutional.
Gian Kaur and her husband Harbans Singh were convicted by a Trial Court under Section 306 of the Indian Penal Code. They were sentenced to six years imprisonment and fine of Rs. 2,000/- for abetting the suicide by Ms. Kulwant Kaur. Section 306 punishes anyone who abets the commission of suicide, while Section 309 punishes anyone who attempts to commit suicide. It was argued that, as held in P. Rathinam v Union of India, the Article 21 right to life includes the right to die. So, a person abetting suicide is merely assisting in the enforcement of Article 21. A five-judge bench of the Supreme Court overruled P. Rathinam. It held that P. Rathinam was wrong on the analogy that other fundamental rights include the “right not to” since the right not to speak (going by the illustration P. Rathinam used) is an omission, while a taking a life is an act. Although it included several extracts from Airedale N.H.S. Trust v Bland ((1993) 2 WLR 316: (1993) 1 All ER 821, HL) the Court clarified that it will not be looking into the issue of Euthanasia, and also distinguished between right to die (unnaturally) and right to die with dignity (naturally). The Court upheld the constitutional validity of Sections 306 and 309 IPC.
The Law Commission of India in its 196th Report recommended that there must be a law made to protect terminally ill patients who refuse medical treatment, artificial nutrition, or hydration from Section 309 of the Indian Penal Code. Further, doctors who obey such a decision of the patient, or who make the decision for incompetent patients in their best interests of such patients, must be protected from punishment under Section 306 of the IPC (abetment of suicide) or Section 299 (culpable homicide). Such actions of doctors must be declared ‘lawful’. Parliament can make such a law under Entry 26 of List III of the Seventh Schedule of the Constitution. The Law Commission suggested that the law be called ‘The Medical Treatment of Terminally Ill Patients (Protection of Patients, Medical Practitioners) Act. The Report clarified that the ‘patient’ must be suffering from a ‘terminal illness’. It is am such illness, injury or degeneration of a physical or mental condition which causes extreme pain and suffering, according to reasonable medical opinion will inevitably cause the untimely death of the patient. It can also be a persistent and irreversible vegetative condition of the patient. The Report also differentiated between a ‘competent patient’ and an ‘incompetent patient’. According to the report, an ‘incompetent patient’ is a minor, or a person of unsound mind, or a patient who is unable to understand the information relevant for making the decision, or is unable to communicate his or her decision. Next, it was recommended that the doctor must not withhold or withdraw treatment unless he has obtained the opinion of a board of three expert medical practitioners. If there is a difference of opinion among the three experts, the majority opinion must prevail. The doctor must also consult the family of the patient, but the doctor is the best person to take a clinical decision using his expert medical opinion. The Report recommended that the Medical Council of India must issue guidelines as to the circumstances under which withdrawal of medical treatment can be allowed. Before withholding or withdrawing medical treatment in case of incompetent patients and patients who have not taken an informed decision, the doctor must inform in writing to the patient (if he is conscious) and his/her parents or relatives about the decision. If they do not agree with the doctor, they may approach the High Court. In such circumstance, the doctor must postpone the decision by fifteen days. If no orders are received from the High Court within 15 days, the doctor can proceed with the decision. The High Court can be approached by the patient, parents, relatives, doctors or hospitals. The declaration given by the High Court must benefit the patient, the medical practitioner and the hospital. Once a petition is filed in the High Court it must soon pass an order to keep confidential the identity of all persons involved.
The Law Commission of India in its 210th Report found Section 309 of the IPC inhuman. It said that an attempt to commit suicide is a manifestation of a ‘diseased condition of the mind’. It deserved treatment and care, not punishment. Inflicting additional punishment on a person who is already suffering agony is unjust and unfair. It does not help in preventing suicides and improving the access to medical care to those who have attempted it.
The ‘next friend’ of Ms. Aruna Shanbaug had filed a petition before the Supreme Court asking it to direct the hospital to stop feeding the her and allow her to die peacefully. Ms. Shanbaug was in a Persistent Vegetative State (PVS) since she had been sexually assualted in 1973. The Court appointed a team of three doctors to examine Ms. Shanbaug and submit a report about her physical and mental condition. Although the court did not allow the withdrawal of medical treatment to Ms. Shanbaug, it discussed the issue of euthanasia at length and allowed passive euthanasia. It defined “passive euthanasia” as withdrawing treatment with a deliberate intention of causing the patient’s death. It held that passive euthanasia is allowed if the doctors act on the basis of notified medical opinion and withdraw life support in the patient’s best interest. Invoking the Parens Patriae principle (Latin for “parent of the nation”, where the Court can step in and serve as a guardian) it held that the Court is the ultimate decider of what is best for the patient. It extended this power to the High Courts under Article 226.
In 2002, Common Cause, a registered society had written to the Ministries of Law & Justice, Health & Family Welfare, and Company Affairs, also addressing the State Governments, on the issue of the right to die with dignity. In 2005, Common Cause approached the Supreme Court under Article 32, praying for the declaration that the right to die with dignity is a fundamental right under Article 21. It also prayed the Court to issue directions to the Union Government to allow terminally ill patients to execute ‘living wills’ for appropriate action in the event that they are admitted to hospitals. As an alternative, Common Cause sought guidelines from the Court on this issue, and the appointment of an expert committee comprising lawyers, doctors, and social scientists to determine the aspect of executing living wills. Common Cause argued that terminally ill persons or those suffering from chronic diseases must not be subjected to cruel treatments. Denying them the right to die in a dignified manner extends their suffering. It prayed the Court to secure the right to die with dignity by allowing such persons to make an informed choice through a living will. On 25th February 2014, a 3 Judge Bench of the Supreme Court comprising the then CJI P. Sathasiavn, Ranjan Gogoi and Shiva Kirti Singh JJ had referred the matter to a larger bench, to settle the issue in light of inconsistent opinions in Aruna Ramchandra Shanbaug v Union Of India & Ors (2011) and Gian Kaur v State of Punjab (1996). On March 9th 2018, a 5 Judge Bench comprising CJI Dipak Misra and A K Sikri, A. M. Khanvilkar, D Y Chandrachud and Ashok Bhushan JJ held that the right to die with dignity is a fundamental right. An individual’s right to execute advance medical directives is an assertion of the right to bodily integrity and self-determination and does not depend on any recognition or legislation by a State.