Right to Die

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right to die

Life is one of the most precious gifts of God to the lucky ones. Every human being in this universe has a right to live with dignity. The right to life is the first among human rights.[1] The right to life does not depend, and must not be contingent, on the pleasure of anyone else, not even a parent or sovereign.[2]

Now here the question arises that what is a ‘right to die’? According to the Cambridge dictionary, the belief that a person should be allowed to die naturally rather than being kept alive by medical methods when they are suffering and unlikely to get well. It is a concept based on the belief that a human being is entitled to end their own life or to undergo voluntary euthanasia. Right to die means, “Every person shall have the right to die with dignity; this right shall include the right to choose the time of one’s death and to receive medical and pharmaceutical assistance to die painlessly. No physician, nurse or pharmacist shall be held criminally or civilly liable for assisting a person in the free exercise of this right.”[3]This right is applied in cases of terminal illness or life-threatening medical conditions where the person has no scope of living even with the medical treatment of the doctors.

Lindgren listed fourteen situations where a presumption of non- treatment of patients by the doctor would apply, among them were

1. Permanently unconscious patients;

2. Terminally ill but conscious patients;

3. Patients suffering a great deal of physical pain; and

4. Patients with an illness that makes them totally dependent on a family member or other person for their care.[4]

Right to die can be used to denote the concepts of Euthanasia, mercy killing, Physician-Assisted Suicide (PAS), Suicide, etc.

Right to Die and Suicide

Suicide is the act or an instance of taking once own life voluntarily and intentionally.[5] People commit suicide because of depression or there is no motivation and hope left to live their life. People live for a reason, hope, and motivation and when this is destroyed, suicide is the only option for them.

Whether Right to die includes suicide? According to the author right to die must not include suicide (due to depression etc.) within its ambit. People believe that they have a right to die, hence they can commit suicide. Hence right to die should be restricted to cases where a person is suffering from terminal illness or serious type of cancer or any other medical condition which is so painful that there is no hope for the patient to survive. The Supreme Court has held, “the right to live with dignity cannot be construed to include within its ambit the right to terminate natural life, at least before the commencement of the natural process of certain death.” Hence in certain circumstances where the condition of the patient is such that the natural process of death is not reached, right to die should be given an option to terminate the life.

Suicide is the only crime where the commission is not punishable but the attempt is. Hence in the case of Gian Kaur v. State of Punjab[6], the Hon’ble Supreme Court held that there is no ground to hold Section 309 of IPC[7] as constitutionally invalid.

Santhara

Santhara is an age-old custom which is practiced by Jains even today. It is a religious practice of reducing the intake of food and water gradually in order to end one’s life and attain “Moksha”. Santhara/Sallekhana is an ancient practice aimed at self-purification. The vow of Santhara is taken when all purpose of life has been served, or when all the obligations towards the family are fulfilled, or when the person is suffering from terminal illness, or when the person wants to attain moksha etc. according to Jain Munis, it is not giving up of life, but taking death in their stride.

Some people argue that Santhara is a suicide. But according to the Jain Community, suicide is an act that is done in the sudden passion of emotions or where the person is in depression. Santhara is a slow and gradual process of submitting oneself to God which is different from suicide.

Some people also argue that Santhara is same as ‘active euthanasia’. The Supreme Court of India is against the practice of Active euthanasia[8] then why it is supporting the practice of santhara. This is the question that is being debated for a decade.

Hence in 2006[9], a Public Interest Litigation was filed before the Rajasthan High Court by Jaipur based Lawyer Nikhil Soni to ban the practice of santhara[10]. The PIL argued that death by Santhara was not a fundamental right under Article 25 (freedom of conscience and free profession, practice and propagation of religion), because it violated the right to life guaranteed under Article 21. It argued that religious freedom is subject to public order, morality, and health.

The Bench of the Rajasthan High Court said that it was not established that Santhara or Sallekhana is an essential practice of the Jain religion. Jain scriptures or texts don’t say that moksha (salvation) can be achieved only by Santhara/Sallekhana. According to the judges, it was one thing to argue that Santhara is not suicide, and quite another to say that it is a permissible religious practice protected by Articles 25 and 26. The court asked the state to stop the practice in any form and directed that any complaint made in this regard be registered as a criminal offense in accordance with Section 309 (attempted suicide) or Section 306 (abetment to suicide) of the IPC.

The Supreme Court stayed the Rajasthan High Court order which had declared the Jain ritual of Santhara a penal offense. A bench led by Chief Justice H L Dattu ordered a stay on the High Court order and issued notices to the state government and others.

The constitutional validity of Right to Die

The Constitution of India is a supreme law of the land. It guarantees various fundamental rights among which ‘right to life’ is considered the most important fundamental right. It is enshrined under Article 21. An important question which arose before the Indian court is whether Right to die is included under Article 21 of the Indian Constitution. This question came for consideration for the first time before the High Court of Bombay in State of Maharashtra V. M.S. Dubal[11]. The Court held that the right to life includes the right to die. Consequently, the Court struck down section 309 of IPC, which provides punishment for the attempt to commit suicide as unconstitutional. The judges felt that the desire to die is not unnatural, but merely abnormal and uncommon.

In P Rathinam v. Union of India[12], a Division Bench of the Supreme Court upheld the decision of the Bombay High Court but a five-judge constitutional bench of the Supreme Court overruled this decision in the case of Gian Kaur v. State of Punjab[13]. The court held that Article 21 i.e. ‘Right to life’ does not include ‘Right to Die’ or ‘Right to be Killed’ and there is no ground to hold the section 309 of the Indian Penal Code as constitutionally invalid. The Court held that the right to life is a natural right, embodied in Articles 21. It means right to live with human dignity.

In the case of Aruna Shanbaug V. Union of India[14], Euthanasia in its passive form has taken legal root in India. The Supreme Court on 7th March 2011 broke new ground with a judgment in the Aruna Shangbaug’s case, sanctioning passive Euthanasia or withdrawal of life support systems on patients who are brain dead or in a permanent vegetative state (PVS).

Conclusion

Our constitution guarantees ‘right to life’ which should also include ‘right to die’ within its ambit. Right to die must be restricted to the person

  • who are suffering from terminal illness, or
  • where the person is not responding to medical treatment, or
  • where the person is totally dependent on family members and the hospital staff for care, etc.

It is to be made clear that suicide does not come within the ambit of Right to Die. People attempting suicide must be sent to the Rehabilitation Center rather than penalizing them.

A concept of “living will” which is virtually nonexistent in India but quite common in the United States should be introduced. A living will is an advance directive and a legal document in which a person makes known his or her wishes regarding life-prolonging medical treatments.

Hence it is rightly said that right to die is associated with the idea that one’s body and one’s life are one’s own, to dispose of as one sees fit.

Frequently Asked Questions(FAQs)

1. Is right to die legal?

No, right to life can’t be considered as legal. As in many of the cases like State of Maharashtra V. M.S. Dubai where the Bombay High Court gave the order regarding declaring right to die legal as according to the Fundamental Right under article 21 it gives its citizens right to life, therefore there has been earlier confusion regarding this point, but the judgment of Supreme Court in the case of Gian Kaur v. the State of Punjab that it can’t be declared legal.

However, there are situations when this can be given legal sanction. That is, when there is a case of urgent need, that is when there is no chance for the patient to be cured, or where there no chance of survivor in such cases right to die on the wish of the person can be given legal sanction.

2. What right to die with dignity states?

Right to die with dignity refers to physically assisting someone to die with full respect and on his own wish, without any criminal charge. As in normal parlance right to die can’t be given legal sanction, but where the circumstances so demand then the person can be physically assisted to die by going against the natural process, this can be done by Euthanasia etc.

3. What are the conditions where Right to Die can’t be granted?

A person usually prefers to die on his own wish, when either he is suffering from any temporary physical or mental trauma or where he is suffering from any depression. Such types of cases can’t be granted legal sanction for die, as these are all the case of temporary illness, which can be cured. Such legal sanctions for the right to die can be given permission only when the case so desires i.e. when the patient has no hope to survive or where there is more pain than the chances of being cured, at these circumstances the permission can be granted to die without pain.

Edited by Ankita Jha

References:

[1] As said by Pope Francis.

[2] As said by Mother Teresa.

[3] As defined in an essay in the International Herald Tribune.

[4]James Lindgren, a professor of law at Northwestern University, Death by Default, 56 Law and Contemporary Problems 185-254 (Summer 1993).

[5]As defined by Merriam-Webster.

[6] 1996(2) SCC 648.

[7]Article 309 of the Constitution of India, 1950 postulates for the ‘Attempt to commit suicide.’

[8]When death is brought about by an act – for example when a person is killed by being given an overdose of pain-

Killers.

[9] Nikhil Soni v. UOI and Ors. AIR(2006) Raj. 7414.

[10] Indian Express, ‘the Jain Religion and Right to die by Santhara’ by Milind Ghatwai.

[11] A.I.R. 1977 SC 411.

[12] 1994(3) SCC 394.

[13] 1996(2) SCC 648.

[14] (2011) 4 SCC 454.