Saturday 12 March 2011

Euthanasia Law In India

This is the opinion of Mr. Praveen Dalal, managing partner of techno legal law firm Perry4Law and a Supreme Court lawyers regarding permissibility of euthanasia in India. It has originally been written in the year 2005 and the issue has once again assumed importance after the recent judgment of Supreme Court of India. The central government is now considering if a new law is needed to allow passive euthanasia in light of the recent Supreme Court’s decision to permit the withdrawal of treatment in some circumstances.

The concept of euthanasia is often confused with the right to commit suicide. These two are different concepts and whenever the discussion on the concept of euthanasia is started people start pointing towards the Gian Kaur’s judgment of the Apex Court and argue that it is prohibited. It is very important to clear the mist of confusion surrounding the concept of euthanasia in India.

Firstly, euthanasia is a part and parcel of right to life which undoubtedly and unambiguously includes right to die as well when the natural span of life has already started depleting. The right to die is confined to the cases of euthanasia only and it cannot be extended as a general right.

Secondly, the apex court in Gian Kaur’s case did not held the concept of euthanasia as invalid or bad but what was held to be invalid was the right to commit suicide. The concept of euthanasia and suicide are totally different and any classification justifying a different treatment in favour of the former is not only protected under Article 14 of the Constitution of India but equally advanced by Article 21.

Thirdly, the P. Rathinam’s case was overruled not on the concept of euthanasia but on the ground that it held the provision concerning punishment of attempt to suicide as unconstitutional.

Thus, before arguing against euthanasia these facts must be kept in mind.

In India there is no specific law concerning “euthanasia” though it is much desirable. The need of the same arises when a person is suffering from a “terminally ill disease” that in not capable of a cure. The sufferings of the ill person need not be prolonged by forcefully keeping him alive, with all the pain and sufferings. That is definitely a violation of Article 21 that provides a “right to dignified life”.

The right to life, including the right to live with human dignity, would mean the existence of such a right up to the end of natural life. This also includes the right to a dignified life up to the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out.

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.

A question may arise, 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 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.

It is sufficient to reiterate that the argument to support the view of permitting termination of life in such cases to reduce the period of suffering during the process of certain natural death is not available to interpret Article 21 to include therein the right to curtail the natural span of life. Thus, the right to live with human dignity cannot be construed to include within its ambit the right to terminate natural life, at least before commencement of the natural process of certain death.

It must be noted that the Supreme Court of India has not only a duty but the power to interpret the provisions of the Constitution of India, including Article 21. Thus, if Article 21 is interpreted in the manner discussed above, then it will be binding on all by virtue of Article 141 of the Constitution of India.

Alternatively, it can be left for the “legislature” to decide the same but both the recourses are constitutionally valid. It cannot be said that a declaration by the Supreme Court on this issue would not be valid and binding.