ArticlePDF Available

The Current Status of Euthanasia in India

Authors:
  • All India Institute of Medical Sciences Bathinda
  • All India Institute of Medical Sciences (AIIMS) Nagpur

Abstract

Right to life is one of the basic Human Rights. It starts from the time of conception in the mother's womb till death of the individual. It means not only living with dignity, but also dying with dignity. This right has been recognised by many countries and they have taken steps to ease and preserve the dignity of a dying person. This question had come up many times in the Indian courts. In M S Dubal vs State of Maharahstra, where a police constable who met with a vehicular accident and suffered head injury leading to mental illness, tried to commit suicide by pouring kerosene over himself and setting himself on fire and hence, charged for attempt to suicide, the Bombay High Court held that "Right to Life" includes the "Right to death".
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134
Editorial
The Current Status of Euthanasia in India
1Dasari Harish, 2Amandeep Singh, 3Ajay Kumar, 4Mandar R Sane
Abstract:
Right to life is one of the basic Human Rights. It starts from the time of conception in the mother's
womb till death of the individual. It means not only living with dignity, but also dying with dignity. This right
has been recognised by many countries and they have taken steps to ease and preserve the dignity of a
dying person. This question had come up many times in the Indian courts. In M S Dubal vs State of
Maharahstra, where a police constable who met with a vehicular accident and suffered head injury
leading to mental illness, tried to commit suicide by pouring kerosene over himself and setting himself on
fire and hence, charged for attempt to suicide, the Bombay High Court held that "Right to Life" includes
the "Right to death".1 However, the Andhra Pradesh High Court, in Chenna Jagadeeswar & Anr. vs State
of Andhra Pradesh,2 wherein, the accused was convicted for killing his 4 children, along with his wife, and
then both trying to commit suicide; said that the Right to Life does not include the right to die, under
Article 21 of the Constitution of India.3
The Supreme Court dealt with this question in its various judgements from 1994 onwards, and
finally, acknowledged that the right to life does include, in some special circumstances, the right to die, in
its landmark judgement, this year.
In this editorial, we would be discussing the status of Euthanasia in our country, in the light of the
said judgement - popularly known as the Aruna Shanbaug Case.
Key words: Constitution of India, Euthanasia, Passive Euthanasia, Advance Directives, Right of life
Background:
Till date, we do not have any legislation
in India regarding Euthanasia. The law of the
land is operating through the various judgements
by the Hon'ble Supreme Court, right from
Rathiram's Case, way back in 1994, to the
present Aruna Shaunbag Case, in 2018.
Ironically, both the judgements are similar to
each other in the sense that, broadly speaking,
both have decreed that the Right to dignity of life
does include, in special cases, the Right to die.
Corresponding Author:
2Associate Professor,
1Professor & Head, Editor J Ind Acad For Med,
2Asscoiate Professor,
4Assistant Professor
Dept. Forensic Medicine & Toxicology,
Government Medical College & Hospital, Chandigarh
Email: dramandeep@gmail.com
LM no. IAFM/562/2004
DOI: 10.5958/0974-0848.2018.00023.4
In a landmark Judgment, the Five Judge
Constitution Bench of the Supreme Court of
India has held that the Right to "life and liberty"
as per Article 21 of our Constitution is
meaningless unless it encompasses within its
sphere individual dignity.4 With the
passage of time, this Court has expanded the
spectrum of Article 21 to include within it the
right to live with dignity as component of right to
life and liberty."
The Bench also held that the right to live
with dignity also includes the smoothening of the
process of dying in case of a terminally ill patient
or a person in Persistent Vegetative State with
no hope of recovery. A failure to legally
recognize Advance Medical Directives may
amount to non-facilitation of the right to
smoothen the dying process and the right to live
with dignity. Further, a study of the position in
other jurisdictions shows that Advance
Directives have gained lawful recognition in
several jurisdictions by way of legislation and in
certain countries through judicial
J Indian Acad Forensic Med. April - June 2018, Vol. 40, No. 2 ISSN 0971-0973
135
pronouncements. Though the sanctity of life has
to be kept on the high pedestal, yet in cases of
terminally ill persons or PVS patients where
there is no hope for revival, priority shall be
given to the Advance Directive and the right of
self-determination. In the absence of Advance
Directive, the procedure provided for the said
category hereinbefore shall be applicable. When
passive euthanasia as a situational palliative
measure becomes applicable, the best interest
of the patient shall override the State interest.
The Bench has laid down the principles relating
to the procedure for execution of Advance
Directive and provided the guidelines to give
effect to passive euthanasia in both
circumstances, namely, where there are
advance directives and where there are none, in
exercise of the power under Article 142 of the
Constitution.5
Introduction:
The word Euthanasia as per Oxford
English Dictionary6 is the painless killing of a
patient suffering from an incurable and painful
disease or in an irreversible coma. The word
appears to have come into usage in the early
17th century and was used in the sense of easy
death. The term is derived from the Greek
euthanatos, with eu meaning well, and
thanatos meaning death.6 In ancient Greece
and Rome, citizens were entitled to a good
death to end the suffering of a terminal illness.
To that end, the City Magistrates of Athens kept
a supply of poison to help the dying drink the
hemlock.7 The British House of Lords Select
Committee on Medical Ethics defines euthanasia
as "a deliberate intervention undertaken with the
express intention of ending a life, to relieve
intractable suffering.8 Euthanasia is usually
characterized in to: Voluntary (with the consent
of the patient whose life is being terminated),
involuntary (where the consent is obtained from
the guardian of the patient as he is incapable of
doing so); Active (Act of Commission by the
doctor), Passive (Act of Omission - withholding
of treatment) and physician Assisted (where
physician's prescribe the medicine and patient or
the third party administers the medication to
cause death).9
In India, the constitutional and legal
validity of S. 309 IPC was challenged in the the
Supreme Court through the Rathiram Case10
wherein the Supreme Court ruled that the
Section was unconstitutional. However, in 1996,
the Constitution Bench of the Supreme Court
reversed the 1994 ruling, stating that the right to
life under Article 21 of the Constitution does not
include the right to die.11 The accused in the
case were convicted by the trial court for
abetment to suicide U/S 306 IPC.12 The
conviction was upheld by the High Court. The
accused then approached the Supreme Court
pleading that the "Right to die" be included in
Article 21 of the Constitution of India and that
any one abetting suicide is merely enforcing that
right. The Hon'ble Supreme Court decided
otherwise.
The 5 judge Supreme Court Constitution
Bench on 9th March 2018 recognised that a
terminally ill patient or a person in 'persistent
vegetative state' has the right to seek
termination of his life by executing an "Advance
Directive" to refuse medical treatment. It
acknowledged that the right to live with dignity,
as enshrined in Article 21, also includes, in
certain circumstances, the right to die.13
The Aruna Shanbaug Case:4,14
On the evening of 27th November,
1973, Aruna Ramchandra Shanbaug, a Junior
Nurse at King Edward Memorial Hospital, was
attacked by a ward boy, Sohanlal B Walmiki, in
the hospital who wrapped a dog chain around
her neck and yanked her back with it. He tried to
rape her but finding that she was menstruating,
he sodomized her. During the act, to immobilize
her, he twisted the chain around her neck. The
next day at 7.45 a.m. a cleaner of the hospital
found her lying in an unconscious condition on
the floor with blood all over. It was alleged that
due to strangulation by the dog chain the supply
of oxygen to the brain stopped and her brain got
damaged.
On 24 January 2011, Pinky Virani, a
journalist, claiming to be her friend, approached
the Supreme Court with a plea that Aruna be
allowed to end her life, as she was in that state
for more than 36 years.13 In her writ petition, Ms
Pinki alleged that since the incident 36 years
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136
have passed and on that day Aruna Shanbaug
was about 60 years of age. She was
featherweight, and her brittle bones could break
if her hand or leg are awkwardly caught, even
accidentally, under her lighter body. She had
stopped menstruating and her skin was now like
papier mache' stretched over a skeleton. She
was prone to bed sores. Her wrists were twisted
inwards. Her teeth had decayed causing her
immense pain. She can only be given mashed
food, on which she survives. Thus, Aruna was in
a persistent vegetative state (P.V.S.) and
virtually a dead person, without any state of
awareness, and her brain virtually dead. She
can neither see, nor hear anything nor can she
express herself or communicate, in any manner
whatsoever. Mashed food was put in her mouth,
she was not able to chew or taste any food.4
She is not even aware that food has
been put in her mouth. She is not able to
swallow any liquid food, which shows that the
food goes down on its own and not because of
any effort on her part. The process of digestion
goes on in this way as the mashed food passes
through her system. Her excreta and the urine
was discharged on the bed itself. As per the Writ
Aruna, if Judged by any parameter, cannot be
said to be a living person. Further it was also
alleged that there was not the slightest
possibility of any improvement in her condition
and her body lies on the bed in the KEM
Hospital, Mumbai like a dead animal, and this
has been the position for the last 36 years. The
prayer of the petitioner is that KEM Doctors and
Staff be directed to stop feeding Aruna, and let
her die peacefully.4
To know about the details of the
condition of Aruna, a committee was set up by
the Hon'ble Court as the Court found some
variance between the allegations in the writ
petition filed by Ms. Pinki Virani on behalf of
Aruna Shanbaug and the counter affidavit of Dr.
Pazare, the Head of KEM hospital where Aruna
was being treated after the incident.4
The team of three doctors was
appointed to examine Aruna Ramachandra
Shanbaug thoroughly and give a report to the
Court about her physical and mental condition.
The committee gave their opinion thus:
· Ms. Aruna Ramachandra Shanbaug has
developed non-progressive but irreversible
brain damage secondary to hypoxic-
ischemic brain injury consistent with the
known effects of strangulation.
· She meets most of the criteria for being in a
permanent vegetative state (PVS
· While she has evidence of intact auditory,
visual, somatic and motor primary neural
pathways, no definitive evidence for
awareness of auditory, visual, somatic and
motor stimuli was observed during our
examinations.
The Supreme Court Judgement:4
After hearing the petition and perusal of
the records, the Hon'ble court detailed the facts
which need to be cleared before giving
Judgement:
1. In a person who is in a permanent
vegetative state (PVS), should withholding
or withdrawal of life sustaining therapies
(many authorities would include placement
of an artificial feeding tube as a life
sustaining intervention) be permissible or
`not unlawful' ?
2. If the patient has previously expressed a
wish not to have life-sustaining treatments in
case of futile care or a PVS, should his / her
wishes be respected when the situation
arises?
3. In case a person has not previously
expressed such a wish, if his family or next
of kin makes a request to withhold or
withdraw futile life-sustaining treatments,
should their wishes be respected?
4. As Aruna Shanbaug has been abandoned
by her family and is being looked after for
the last 37 years by the staff of KEM
Hospital. Who should take decisions on her
behalf?
It then outlined the Principles which can
help to guide the reply to these queries:
1. Autonomy means the right to self-
determination, where the informed patient
has a right to choose the manner of his
treatment.
2. Beneficence is acting in what is (or judged to
be) in patient's best interest. This is not to be
confused with euthanasia, which involves
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137
the doctor's deliberate and intentional act
through administering a lethal injection to
end the life of the patient which was in the
present case under consideration.
On 7 March 2011, the Supreme Court,
in a landmark judgment, issued a set of broad
guidelines legalizing passive euthanasia in
India. It however, rejected Pinky Virani's Plea.
Aruna Shanbaug died on 18th may 2015.14
The five-judge constitution bench
outlined the safeguards, saying such a directive
"cannot operate in abstraction". The safeguards
would remain in force till Parliament adopts a
legislation on the matter, it said. "The advance
directive can be executed only by an adult who
is of a sound and healthy state of mind and in a
position to communicate, relate and comprehend
the purpose and consequences of executing the
document." "It shall be in writing clearly stating
as to when medical treatment may be withdrawn
or no specific medical treatment shall be given
which will only have the effect of delaying the
process of death that may otherwise cause
him/her pain, anguish and suffering and further
put him/her in a state of indignity." the Bench,
headed by the CJI, Justice Deepak Misra, said.
The other three judges - Justices A K
Sikri, D Y Chandrachud and Ashok Bhushan -
agreed with the directives and safeguards
penned by the CJI.
The court said that the directives should clearly
indicate
· The decision relating to the circumstances in
which withholding or withdrawal of medical
treatment could be resorted to.
· It should mention that the executor may
revoke the instructions/authority at any time.
· It should disclose that the executor has
understood the consequences of executing
such a document.
· It should specify the name of a guardian or
close relative who, in the event of the
executor becoming incapable of taking
decision at the relevant time, will be
authorised to give consent to refuse or
withdraw medical treatment in a manner
consistent with the advance directive.
· In case where more than one advance
directive is valid, the most recently signed
directive would be considered as the "last
expression" of the patient's wishes.
· The advanced directive should be signed by
the executor in the presence of two attesting
witnesses, preferably independent, and
would be countersigned by a judicial
magistrate who shall preserve its copy along
with its digital format.
· The bench said the magistrate shall inform
the immediate family members of the
executor, if not present at the time of
execution, and make them aware about it
and hand over its copy to a competent
officer of local government.
"In the event the executor becomes
terminally-ill and is undergoing prolonged
medical treatment with no hope of recovery and
cure of the ailment, the treating physician, when
made aware about the advance directive, shall
ascertain the genuineness and authenticity
thereof from the jurisdictional JMFC (magistrate)
before acting upon the same."
The hospital where such patient is
admitted, would set up a medical board
consisting of the head of the treating department
and at least three experts from the fields of
general medicine, cardiology, neurology,
nephrology, psychiatry or oncology having at
least 20 years of experience. The Bench said
that "if the nod to withdraw medical treatment is
refused by the medical board, it would be open
to the executor of the advance directive or his
family members or doctor or hospital staff to
approach the High Court, where the Chief
Justice shall constitute a division bench to
decide it expeditiously after affording opportunity
to the state."
An individual may withdraw or alter the
advance directive at any time when he/she has
the capacity to do so and by following the same
procedure as provided for recording of advance
directive. The withdrawal or revocation of an
advance directive must be in writing.
Regarding cases where there are no
advance directive, the Hon'ble court laid down
the procedure which should be adopted, in
addition to the safeguards to be applied in cases
where there are advance directives. It said that
in cases where a patient is terminally-ill and
undergoing prolonged treatment for an ailment
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138
which is incurable or where there is no hope of
being cured, the doctor may inform the hospital
which would set up a medical board. If the board
certifies it, the hospital shall inform the Collector
who would then set up another medical board
comprising the Chief District Medical Officer as
the chairman and three experts from the fields of
general medicine, cardiology, neurology,
nephrology, psychiatry or oncology, with
minimum experience of 20 years. In the event of
difference of opinion, the patient's nominee, his
family member, treating doctor or hospital staff
can move the high court for permission to
withdraw life support, it said.15
Conclusion
A physician-patient relationship is
founded more on the rights of the latter and on
the freedom of self determination meaning
thereby that the complete autonomy of choices
vest with the patient. This is exemplified by
Justice Cardozo in the 1914 decision in
Schloendorff v Society of NY Hospital:16 Every
human being of adult years and sound mind has
a right to determine what shall be done with his
own body; and a surgeon who performs an
operation without his patients consent commits
an assault. The patient has full moral and legal
right to refuse or interrupt his physicians
therapeutic actions. However this does not mean
that he has the right to demand euthanasia.
Now, the Honble Supreme Court has paved way
for execution of passive euthanasia through
advance directives and has set stringent
procedural guidelines for it.
According to the Court, the legal
representative does not have an unconditional
power to decide on the health of the incompetent
patient, he has to decide neither in the place of
the patient nor for the patient, but with the
patient, and, hence the advanced directives of
an unconscious patient must be taken in account
considering patients constitution with regards to
his personality and his inclinations. The time has
come to respect the advance directives of the
patient and to respect the autonomy of the
person to make decisions regarding his/her own
life when he was in his compos mentis.
Legalising passive euthanasia will lessen the
cost of burden on the healthcare industry as well
as on the family members.
The judgement has further clarified that all other
forms of euthanasia, except the Passive
Euthanasia stand invalid till enactment of
legislation in this regard. Legislation in this
regard is in consideration by Law commission.
The issue, being highly sensitive, drafting the
legislation may not be an easy task. If it is
drafted too tightly it could impede, and perhaps
invalidate the existing advance directives; and, if
drafted too widely, it could lead to uncertainty.
The Legislation has to be in light of the fact that
Section 309 IPC has been recently
decriminalised by The Mental Healthcare Act,
2017.17
Funding: Nil
Conflict of Interest: None
References:
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Available from:
https://indiankanoon.org/doc/490515/. Retrieved
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https://indiankanoon.org/doc/146939/. Retrieved
on 4th May 2018.
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https://www.india.gov.in/my-
government/constitution-india/constitution-india-
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... 1 One of the examples of patients' preferences in autonomy is depicting tattoos on the body mentioning "DNR," which are recognized as advanced directives in cases where the person exercises Do Not Resuscitate in an unintentional event. 2 The Supreme court of India emphasized autonomy in the form of advanced directives in the case of ArunaShaunbagh vs. Union of India. 3,4 In another case, commonly referred to as the "Common cause judgment" delivered by the Supreme Court, it allowed the legality of passive euthanasia and laid guidelines to be followed for living wills in India. 5,6 In India, only a few articles have been published regarding advanced medical directives (AMDs), as the issues are complex and legal. ...
... 1 One of the examples of patients' preferences in autonomy is depicting tattoos on the body mentioning "DNR," which are recognized as advanced directives in cases where the person exercises Do Not Resuscitate in an unintentional event. 2 The Supreme court of India emphasized autonomy in the form of advanced directives in the case of ArunaShaunbagh vs. Union of India. 3,4 In another case, commonly referred to as the "Common cause judgment" delivered by the Supreme Court, it allowed the legality of passive euthanasia and laid guidelines to be followed for living wills in India. 5,6 In India, only a few articles have been published regarding advanced medical directives (AMDs), as the issues are complex and legal. ...
Article
Full-text available
Concept of advanced medical directives in the Indian scenario.
... 1 One of the examples of patients' preferences in autonomy is depicting tattoos on the body mentioning "DNR," which are recognized as advanced directives in cases where the person exercises Do Not Resuscitate in an unintentional event. 2 The Supreme court of India emphasized autonomy in the form of advanced directives in the case of ArunaShaunbagh vs. Union of India. 3,4 In another case, commonly referred to as the "Common cause judgment" delivered by the Supreme Court, it allowed the legality of passive euthanasia and laid guidelines to be followed for living wills in India. 5,6 In India, only a few articles have been published regarding advanced medical directives (AMDs), as the issues are complex and legal. ...
Article
Debates about the moral dilemmas of euthanasia date back to ancient times. Many of the historical arguments used for and against the practice remain vu I id today. Indeed, any form of discussion on the subject often provokes emotive responses, both from members of the medical profession and the general public. For this reason alone, the issue will continue to be debated at all levels of society. There are, however, other factors that ensure euthanasia will remain a subject of major controversy within medical, legal and governmental bodies. Firstly, the act of euthanasia itself is illegal, yet in its passive form occurs on a daily basis in many of our hospitals (1). Secondly, medical advances have made it possible to artificially prolong the life of an increasing number of patients far beyond what was possible only a few years ago. Furthermore, we must all contend with the reality that financial constraints are an important consideration in modern health care provision. Finally, there is an ethical difficulty in interpreting the concept of a patient’s right, or autonomy, versus the rights and duty of a doctor. Before attempting to answer the questions posed by these issues, it is important to have some accurate definitions of both euthanasia and of the concept of morality. According to the House of Lords Select Committee on Medical Ethics, the precise definition of euthanasia is “a deliberate intervention undertaken with the express intention of ending a life, to relieve intractable suffering” (2). The term can be further divided into voluntary and involuntary euthanasia. The former is said to occur if a competent patient makes an informed request for a life terminating event and the latter can be used if a patient does not give informed and specific consent for such treatment. It is the occurrence of involuntary euthanasia which forms one of the main arguments against legalisation. This is discussed in greater detail below. Euthanasia is frequently separated into active and passive forms. A number of authors consider these terms to be misleading and unhelpful. They are, however, used in the literature and in discussion and consequently should be understood. Active euthanasia takes place if deliberate steps are taken to end a patient’s life; this would include administration of potassium containing compounds to induce cardiac arrest, a practice that is illegal in this country. Passive euthanasia is the withholding of treatments necessary for the continuance of life. Whether the administration of increasingly necessary, albeit toxic doses of opioid analgesia is regarded as active or passive euthanasia is a matter of moral interpretation, but in order to pacify doctors’ consciences, it is usually regarded as a passive measure. Many people, therefore, regard it as an acceptable facet of good professional practice.
Death with dignity. The case for legalizing physician assisted dying and euthanasia
  • R Orfali
Orfali R. Death with dignity. The case for legalizing physician assisted dying and euthanasia. Mill City Press Inc.
Union of India, 1994(3) SCC 394
  • P Rathinam
P. Rathinam vs. Union of India, 1994(3) SCC 394. Available from: https://indiankanoon.org/doc/542988/. Retrieved on: 2nd June 2018.