RIGHT TO DIE VIS-À-VIS RIGHT TO LIFE
DR. RAM MANOHAR LOHIYA
NATIONAL LAW UNIVERSITY,
LUCKNOW
ACADEMIC SESSION: 2023-24
CONSTITUTIONAL LAW-I
‘RIGHT TO DIE VIS-À-VIS RIGHT TO LIFE: AN
ANALYSIS OF THE SUPREME COURT APPROACH
TOWARDS PASSIVE EUTHANASIA’
Submitted To: Submitted By:
Dr Atul Kumar Tiwari Sarvagya Agarwal
Professor (Law) B.A. L.L.B. (Hons.)
Dr. Ram Manohar Lohiya 3rd Semester
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RIGHT TO DIE VIS-À-VIS RIGHT TO LIFE
National Law University, 220101133
Lucknow Section: B
ACKNOWLEDGEMENT
It feels great pleasure in submitting this research project to Dr Atul Kumar Tiwari, Professor
(Law), without whose guidance this project would not have been completed successfully.
Secondly, I would like to express my gratitude towards Prof. Sanjay Singh, Vice Chancellor and
Prof. (Dr.) C. M. Jariwala, Professor, Dean Academics for their support and encouragement.
Next, I would like to sincerely thank my seniors, whose suggestions and guidance assisted me
throughout the entire tenure of making the project.
Last but not least, I would like to express my heartfelt gratitude towards my parents and friends
who guided me and helped me at every possible step.
Sarvagya Agarwal
B. A. LLB. (Hons.)
3rd semester
220101133
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OBJECTIVE OF THE STUDY
The present project is an attempt to critically analyse the Supreme Court judgements on passive
euthanasia. It argues that even though the Supreme Court has recognised that under Article 21 of
the Constitution, a terminally ill patient with no hope of recovery has the ‘right to die with
dignity’ through smoothening the process of dying. The position upheld by it, strictly in relation
to legalising passive euthanasia, is imbalanced as it has given more prominence to the principle
of ‘sanctity of life’ rather than, to the right of ‘autonomy and self-determination’ of the incurable
and terminally ill patients.
RESEARCH METHODOLOGY
The research methodology adopted for the research work is purely doctrinal, based on data
collection from various sources like books, articles, cases, journals, and online sources.
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INTRODUCTION
Death has always meant to be an inevitable extinction of human life. However, as medical
technology has become more advanced, it has achieved the capability both to prolong human life
beyond its natural endpoint and to better define when that endpoint will occur 1. Therefore, in this
light the present debate of euthanasia seeks to find an answer to the issue regarding, whether
individual patient shall be allowed to die peacefully when the process of natural death has
already commenced or that by use of artificial means the life of the patients shall be prolonged
due to compelling state interest and theological considerations.
Hence, taking into consideration the aforementioned issue of the debate this article seeks to
critically analyse the approach of the Indian judiciary while dealing with the concept of passive
euthanasia.
1
Christopher N. Manning, Live and Let Die: Physician-Assisted Suicide and the Right to Die, 9 HARV. J. L. &
TECH. 513, 513 (1996).
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RIGHT TO DIE VIS-À-VIS RIGHT TO LIFE
EUTHANASIA- DEFINED
The Oxford English Dictionary defines ‘euthanasia’ as “a gentle and easy death”2. Black’s Law
Dictionary defines it as “the act or practice of killing or bringing about the death of person who
suffers from an incurable disease or condition especially a painful one for reasons of mercy.”3
Out of these two definitions, Oxford’s definition is of a wider connotation whereas Black’s
definition is more precise and relevant to the present debate of euthanasia.
The term ‘euthanasia’ can be classified as voluntary, involuntary, and non-voluntary. Voluntary
euthanasia occurs when the patient's death is brought about at his or her own request. Non-
voluntary euthanasia may be used to describe the killing of a patient who does not have the
capacity to understand what euthanasia means and, therefore, cannot form a request or withhold
consent. Involuntary euthanasia has been used to describe the killing of a patient who is
competent to request or consent to the act but does not do so.
In legal parlance, an act of euthanasia is mainly referred to as either active or passive. In active
euthanasia, death is caused by the administration of a lethal injection or drugs. Active euthanasia
also includes physician-assisted suicide, where the injection or drugs are supplied by the
physician, but the act of administration is undertaken by the patient himself. 4 Passive euthanasia
occurs when medical practitioners do not provide life-sustaining treatment (that is, treatment
necessary to keep a patient alive) or remove patients from life-sustaining treatment. 5
For the purpose of this project, the term ‘euthanasia’ shall mean the same as construed by Black’s
Law Dictionary and all the other terms such as active euthanasia and passive euthanasia,
physician-assisted suicide, shall also bear the same meaning as referred above.
2
OXFORD ENGLISH DICTIONARY [7] 444 (2d ed. 1989).
3
BLACK’S LAW DICTIONARY554 (8th ed. 2004).
4
Common Cause v. Union of India, (2018) 5 SCC 1.
5
Id.
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THE APPROACH OF THE SUPREME COURT ON THE ISSUE OF
EUTHANASIA
In India the debate to legalise euthanasia, though not directly, but under the guise of amending
the Indian Penal Code, 1860 (“IPC”) to repeal Section 309, began in the early 1970s. The 42nd
report of the Law Commission in 1971 was the first attempt in this regard. The report suggested
that the attempt to commit suicide was harsh and unjustifiable and should be repealed 6. In this
regard, a bill was introduced in the parliament but failed due to procedural lapses 7. However,
later the issue came before the High Court of Bombay in the case of Maruti Shripati Dubal v.
State of Maharashtra,8 whereby the constitutionality of Section 309 was itself challenged. The
Court, in this case, held that Section 309 was ultra vires the Constitution being violative of Arts.
14 and 219. It was of the view that there was nothing unnatural with the ‘right to die,’ 10 Article 21
will include also a right not to live or not to be forced to live. It would include a right to die, or to
terminate one's life.11 The viewpoint in Maruti’s case was also supported by the Delhi High Court
in the case of State v. Sanjay Kumar Bhatia,12 by which it held that “the continuance of Section
309 Indian Penal Code is an anachronism unworthy of a humane society like ours.”
However, later in the case of Chenna Jagadeeswar and Anr. v. State of Andhra Pradesh 13 the
High Court of Andhra Pradesh held that Section 309 was not violative of the fundamental rights
under Article 19 and 21 of the Constitution. The Court was of the view that “To confer a right to
destroy one-self and to take it away from the purview of the Courts to enquire into the act would
be one step down in the scene of human distress and motivation. It may lead to several
incongruities and it is not desirable to permit them”.14
6
Law Commission of India, Indian Penal Code, Report No. 42, 243 (June 1971).
7
Rathinam v. Union of India (1994) 3 SCC 394, ¶104.
8
Maruti Shripati Dubal v. State of Maharashtra, 1986 SCC OnLineBom 278; 1987 Cri.L J 743.
9
Id., ¶20.
10
Id., ¶12.
11
Id., ¶11.
12
State v. Sanjay Kumar Bhatia, 1986 (10) DRJ 31.
13
Chenna Jagadeeswar and Anr. v. State of Andhra Pradesh, 1987 SCC OnLine AP 263; 1987 (1) APLJ (HC) 340.
14
Id., ¶37.
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RIGHT TO DIE VIS-À-VIS RIGHT TO LIFE
Hence, the contradiction with regard to, the decriminalizing attempt to suicide and content of
Article 21, continued till 1994, when it was finally settled by the Supreme Court in Rathinam’s
case.
A. PHASE I: RATHINAM
In P. Rathinam v. Union of India (“Rathinam”),15 the issue before the Supreme Court was
whether Section 309 of the IPC was violative of the Articles 14 and 21 of the Constitution. The
Court in this held that Section 309 of the IPC, though not in violation of Article 14, was in
violation of Article 21. In this regard, the Court observed that:
“One may refuse to live, if his life be not according to the person concerned worth living or if
the richness and fullness of life were not to demand living further. 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.”16
The Court also held that a right under Article 21 of the constitution can be waived 17 and that the
Right under Article 21 includes right not to live a forced life.18
It is argued that, that the decision in Rathinam was significant as it upheld the autonomous
choice of an individual, who after achieving all the worldly desires, wanted to die peacefully
with dignity. Further from the statement made by the Court that, “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.” It could be inferred that the approach of the Court to
decriminalize suicide was to open the avenues for ‘active euthanasia’ so that autonomous choices
with regard to ‘ending one’s life’ were not only limited to individuals, who were suffering from
15
P. Rathinam v. Union of India, 1994 AIR 1844.
16
Id., ¶33.
17
Id., ¶34.
18
Id., ¶35.
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incurable illness and were in permanent vegetative state, but to other individuals who did not
consider the life worth living or those who desired salvation.
Therefore, the judicial dialect in Rathinam was a clarion call to humanize the law of suicide in a
manner befitting the era of globalization.
B. PHASE II: GIAN KAUR
Owing to the decision in Rathinam which declared Section 309 of the IPC to be in violation of
Article 21. The issue that came before the Hon’ble Supreme Court in Gian Kaur v. State of
Punjab,19 was whether penalising ‘abetment to suicide’ under Article 306 was also in violation of
Article 21 of the Constitution. The Court by overruling the dictum in Rathinam held that under
Article 21, ‘right to life’ does not include ‘right to die’ and that Section 309 was not
unconstitutional. In this regard, it observed that:
“Whatever may be the philosophy of permitting a person to extinguish his life by committing
suicide, we find it difficult to construe Article 21 to include within it the ‘right to die’ as a part of
the fundamental right guaranteed therein. ‘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 ‘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’.”20
It is argued that the Court, in this case, was conscious of the overarching effect of Rathinam by
which, it gave an open license to the individuals to end their lives, by decriminalizing Section
309 and interpreting Article 21 to also include ‘right to die’. Therefore, the Court, in this case,
intended to curtail the autonomy of the individual to make a free ‘choice to die’, by putting forth
arguments that human life is sacred and natural and one cannot put an end to it by a positive
act.21 However, it can be safely assumed that the Court never intended to subvert the concept of
19
Gian Kaur v. State of Punjab, 1996 SCC (2) 648.
20
Id., ¶22.
21
Id.
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‘passive euthanasia’ for the individuals who were in a permanent vegetative state. Since the
Court was of the view that:
“this category of cases may fall within the ambit of the ‘right to die’ with dignity as a part of
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. These are not cases of extinguishing life but
only of accelerating conclusion of the process of natural death which has already commenced.”22
Furthermore, it can also be discerned that, by shifting focus from ‘right to die’ a facet of Article
21, to ‘right to die with dignity’ as a part of ‘right to live with dignity’, the Court asserted to keep
intact the negative aspect of Article 21 and at the same time to balance it with the right of
incurable to patients to die.
Thus, Phase II, witnessed a massive curtailment of the freedom of an individual to make a
‘choice to die’ by limiting it only to those patients who were in a permanent vegetative state and
for whom the process of natural death has already commenced.
C. PHASE III: ARUNA SHANBAUG AND COMMON CAUSE
a) Aruna Shanbaug Case
Although the controversy relating to an attempt to suicide or abetment of suicide was put to rest,
yet the issue of euthanasia remained alive. It again came before the Supreme Court in Aruna
Ramchandra Shanbaug v. Union of India & Ors. (“Aruna Shanbaug”)23. In this case, a writ
petition was filed by the petitioner’s friend before the Court to direct the respondent to stop
feeding the petitioner and to allow her to die peacefully. The Court held that the permission to
stop feeding the petitioner could not be granted since the petitioner could not be termed as
“dead” within medical terminology.24
22
Id., ¶25.
23
Aruna Ramchandra Shanbaug v. Union of India & Ors., (2011) 4 SCC 454.
24
Id., ¶121.
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RIGHT TO DIE VIS-À-VIS RIGHT TO LIFE
The Court observed that while an act of passive euthanasia is permissible, active euthanasia
which requires a positive to end the life of the patient will be an offence under either Section
302, Section 304, or Section306 of the IPC.25 In this regard, it observed that:
“The difference between ‘active’ and ‘passive’ euthanasia is that in active euthanasia, something
is done to end the patient's life while in passive euthanasia, something is not done that would
have preserved the patient's life.26 An important idea behind this distinction is that in ‘passive
euthanasia’ the doctors are not actively killing anyone; they are simply not saving him.”27
The Court also dictated that terminating the life of the patient can only be done, when he is only
kept alive mechanically and there is no plausible possibility for being able to come out of from
such stage.28 The Court was also of the view that in case where the incurable patient is not able to
give consent to terminate his/her own life. The act which is in the ‘best interest’ of the patient
needs to be committed as was held in the Airedale NHS Trust v. Bland.29 Further, it held that in
ascertaining the ‘best interest’ of the patient, the Court as parens patriae, must ultimately take
this decision under Article 226 of the Constitution.
Therefore, in Aruna Shanbaug the position that clearly emanated from the decision was that in
the Indian legal system, only passive euthanasia was permissible, and thus the possibility of
committing active euthanasia was completely ruled out. However, it is also pertinent to mention
that the Court was of the view that Section 309 of the IPC should be deleted by Parliament as it
had become anachronistic.30 Hence, it is needless to say that the Court never ruled the possibility
of physician-assisted suicide for those incurable patients for whom life had become a misery.
b) Common Cause Case
In Common Cause v. Union of India, (“Common Cause”)31 a writ petition was filed before the
Supreme Court seeking a declaration that right to die with dignity be declared a fundamental
25
Id., ¶41.
26
Id., ¶44.
27
Id., ¶45.
28
Id., ¶117.
29
Airedale NHS Trust v. Bland, (1993) All E.R. 82.
30
Aruna Shaunbag, supra note 23, ¶100.
31
Common Cause, supra note 4.
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right within the right to live with dignity under Article 21 of Constitution. The Court held in
affirmative that the ‘right to live with dignity’ includes the smoothening of the process of dying
in case of a terminally ill patient or a person in Permanent Vegetative State (“PVS”) with no
hope of recovery.32 The Court’s underlying rationale behind such a decision was that individual
patients have the autonomy and right of self-determination to refuse medical treatment when
they become incurable. Therefore, forcefully feeding the incurable patients against their wishes
and prolonging their life’s through artificial means of medical technology undermines their
dignity and violates their privacy by virtue of Article 21, which has been broadly interpreted time
and again to include both these concepts as part of the ‘right to life and liberty.’ 33 Further, in
order to strengthen the right to ‘die with dignity’, the Court sanctified the use of Advance
Medical Directives, by which incompetent patients can beforehand communicate their choices by
executing living wills, when competent.34
The Court reiterated the law declared in Aruna Shanbaug intending to merge the concept of
passive euthanasia with the Constitutional provisions by enhancing the right to ‘live with dignity’
under Article 21 to also include the right of smoothening the process of dying. It has further
envisaged to strengthen such right by way legalising the usage of Advanced Medical Directives
(“AMD”). It is also pertinent to mention that, by recognising the right to passive euthanasia as a
facet of Article 21, the Court has given rise to various intricacies and conclusions.
THE WAY FORWARD
32
Id., ¶202.10.
33
K.S. Puttaswamy and Anr. v. Union of India and Ors., (2017) 10 SCC 1.
34
Common Cause, supra note 4, ¶184.
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The present study reveals that the debate with regard to euthanasia is just not limited to the
criminal law concept of suicide, but has constitutional, moral and theological dimensions.
Traditionally, death was presumed to be a natural process of human life. However, today with
the advancement in medical technology, it has become possible to manipulate the natural process
of death by the use of artificial means, which could prolong human life for an indefinite period of
time. Therefore, it becomes pertinent to lay emphasis on the agony and pain suffered by the
incurable patients who are in a permanent vegetative state, for whom death has become an
uncertain event.
Today, many jurisdictions such as the USA and the UK recognize the right of the individual to
refuse treatment and to die with dignity. The position in these jurisdictions depicts the
predominance of the autonomy of the individual patient rather than state interest and other
theological considerations. However, in contrast to such dynamic position with regard to
individual autonomy, the Indian judiciary has laid more emphasis on the sanctity of life
principle, by limiting the right of passive euthanasia to a limited sect of patients. Hence, it is
proposed that since the judiciary has recognised the right to die with dignity as a fundamental
right under Article 21, it should look to amplify such right by placing greater importance on the
autonomous choice of the patients.
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