DOES THE RIGHT TO LIFE INCLUDE THE RIGHT TO DIE…??

–Animesh Kumar, Amity Law School, Lucknow.

“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.”[1] ‘Many patients on respirators are not conscious and so cannot say whether they want to live or die. But Piergiorgio Welby is still full of words, hard and touching ones, that may be changing the way Italy thinks about euthanasia and other choices for the sick to end their own lives.’[2]

Almost everyone would agree that life is the most precious gift that human beings have been given.

Yet, despite this, there are times when life becomes so difficult or unbearable that many have, at one time or another wished they were dead or had never been born. For some, these feelings linger–and if they linger long enough, suicide seems to be the only escape. Under jurisdiction of living world the right to life is regarded as most prominent right among all the basic rights. India is not exception to it. Under the Indian constitution right to life is regarded as most important fundamental right that no derogation from it is permitted even in the time when the country is suffering from emergency.[3] It is equally true that howsoever important the right to life may be it is the death which is the end of the process. One cannot ignore this fact. Therefore the question arises that ‘Does the right to life include the right to die’? If the death is an integral part of life, should the individual’s decision to die, its time and manner, be protected from state intrusion? This question is still unsettled despite a long term debate and discussion on this issue, going on at the judicial and extra judicial review regime.

The Law Commission of India reports have also paid their attention taking into account the national and international laws and practices and taking into consideration, the increasing demand of the society have given their recommendation on this issue. In its 196th Report the Law Commission of India is in favour of permitting right to die or passive euthanasia in a limited number of cases under the strict supervision of panel of experts with a well-established procedure.

The issue of ‘right to die’ first came before a two judge bench of the Supreme Court of India in the case of P.Rathinam v. Union of India.[4] In this case, section 309 IPC which penalizes attempt to suicide was held to be unconstitutional and violative of Article 21. In P.Rathinam’s case, the scope of life was broadened. It was held that ‘right to life and liberty’ under Article 21 also includes ‘right to die’. However, the debates over the issues didn’t stop. The question again came up for consideration before the Supreme Court in the case of Gian Kaur v. State of Punjab.[5]

[quote]It is prominent to note here that suicide was regarded as permissible in some circumstances in ancient India. According to the Hindu Vedantic philosophy, death is not the end of the life. It is only the sthula sharira (physical body), that dies. It is the Shukshma sarira (the astral body), that does not perish with the death of the body. The past karmas (thoughts and deeds) remain on the ‘shukshma sarira’ or astral body, and are retained even after death and goes to bhuvarloka. The astral body then disintegrates and the components are merged in the ocean of energy with the eternal Parma Brahma (the supreme creator). Thereafter, they return by the will of god to another physical body and the individual is reborn on this earth in accordance with that person’s deeds and karmas births and deaths. We all are droplets or lumps of or only parts of the great ocean of energy. When the body becomes unfit to live, the droplet of energy leaves the body and enters to another body. This is called “transmigration of the soul”. It is a continuous process[6], the Lord Krishna says, “just as a person casts off worn out garments and put on others that are new, even so does the embodied soul cast off worn out bodies and take on others that are new”[7][/quote]

According to Vedantic philosophy, the Parma Brahma created the human being.

God is the material cause and instrumentality of all joys, happiness, woes, sorrows, deeds and karmas of humanity. Just as he gave life to us, he takes it away from us as well. He is the creator as well as the doer and the destroyer of this body.[8] Committing suicide one never gained anything in life. Committing suicide was an offence as per Bhagavad Gita. Our soul atman after death of mortal body in present life (resulted from committing suicide) again manifests a lower life form than present. What of sin incurred by committing suicide? By committing suicide we again suffered in life as our soul atman would manifest a lower form of life in next manifestation.

Section 309 of IPC deserves to be effaced from the Statute book to humanize our penal laws. It is a cruel and irrational provision and it may result in punishing a person again who has suffered agony and would be undergoing ignominy because of his failure to commit suicide. Hon’ble Supreme Court has also expressed similar view in Aruna Ramchandra Shanbaug v. Union of India & Ors.[9] An act of suicide cannot be said to be against religion. Morality or public policy, and an act of attempted suicide have no baneful effect on society. Further, suicide or attempt to commit suicide causes no harm to others; therefore the state’s interference with the personal liberty of the concerned persons is not called for. Thus section 309 violates Article 21, and so void.

In words of Bible, ‘Suicide is a grievous sin that seriously hurts both the heart of God, and those who loved the deceased. The pain of losing a loved one who took their own life is not easily healed, and often isn’t fully healed until Heaven.’ It is directly counter to the power of life that God has put so strongly into His creation. Everywhere we look we see life growing, even in the most hostile environments. This “survival instinct” is a gift from God. In fact, if He didn’t bestow this gift upon His creation there probably wouldn’t be any life on this planet at all! Suicide, then, is directly contrary to the will of God, and originated in the realm of the demonic host, who come only to “steal, and to kill, and to destroy”[10]

If a person has right to live Article 21 of the Constitution, the question is whether he has a right not to live. Logically, it must follow that the right to live will include the right not to live, say, the right to die or to terminate one’s life, Right to live of which art 21 speaks of can be said to bring in its trail the right not to live a forced life. If a person, because of family discord, distraction, loss of a dear relation or other cause of a like nature overcomes the instinct of self-preservation and decides to take his life, he should not be held for an attempt to suicide. In such case the unfortunate man deserves indulgence, sympathy and consolation instead of punishment.[11]

Morality has no define boundary and it would be too hazardous to make a bold and bald statement that commission of suicide is per se an immoral act. “If the purpose of the prescribed punishment is to prevent the prospective suicides by deterrence, it is difficult to understand how the same can be achieved by punishing those who have made the attempts. Those who make the suicide attempt on account of mental disorder requires psychiatric treatment and not confinement in the prison cells where their condition is bound to be worsen leading to further mental derangement. Those on the other hand, who makes a suicide attempt on account of actual physical ailments, incurable disease, torture (broken down by illness), and deceit physical state induced by old age or disablement, need nursing home and not prison to prevent them from making the attempts again. No deterrence is going to hold back those who want to die for a special or political cause or to leave the world either because of the loss of interest in life or for self- deliverance. Thus in no case does the punishment serve the purpose and in some cases it is bound to prove self-defeating and counterproductive.”[12]

When a man commits suicide, he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to or be included within the protection of the right to life under Article 21. The significant aspect of sanctity of life is also not being overlooked. Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can extinction of life be read to be included in the protection of life. Whatever may be the philosophy of permitting a person to extinguish his life by committing suicide, the court reiterated that it is difficult to construe Article 21 to include within it the right to die as a part of fundamental right guaranteed therein. Right to life is a natural right embodied in Part III of constitution, but suicide is an unnatural termination or extinction of life and therefore, incompatible and inconsistent with the concept of right to life. Section 306 enacts a distinct offence, which is capable of existence independent of section 309 IPC. Section 306 prescribes punishment for abetment to suicide, while section 309 punishes attempt to commit suicide. Abetment of attempt to commit suicide is outside the preview of section 306 and is punishable only under section 309 read with section 107, IPC., In certain other jurisdictions, even though attempt to commit suicide is not a penal offence, yet the abettor is made punishable. The provision there provides for the punishment of abetment of suicide as well as abetment of attempt to commit suicide. Thus, even where the punishment for attempt to commit suicide is not considered desirable, its abetment is made a penal offence. In other words, assisted suicide and assisted attempt to commit suicide are made punishable for cogent reasons in the interest of society.

The Indian constitution under Article 21 confers the right to Life as the fundamental right of every citizen. The Right to Life enriched in Article 21 have been liberally interpreted so as to mean something more than mere survival and mere animal existence. The Supreme Court has asserted that Article 21 is the heart of the fundamental Rights provided under part III of the constitution.[13] The Supreme Court has clearly stated that in order to treat a right as a fundamental it is not mandatory that it should be expressly stated as a fundamental right.[14]

‘The right to life’ under Article 21 of the Constitution has received the widest possible interpretation under the able hands of the judiciary and rightly so. On the grounds as mentioned, Article 21 does not have a restrictive meaning and needs to be interpreted broadly. This affirms that if Article 21 confers on a person the right to live a dignified life, it should bestows the “Right to Die” also, but the inclusion of Right to die under Article 21 contradict the provision of Indian Penal Code under Section 309. As according to Section 309 of the Indian Penal Code ‘Whoever attempts to commit suicide and does any act toward the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year (or with fine, or with both)’. This section is based on the principle that lives of men are not only valuable to them but also to the state which protects them. By considering both the laws the provision of IPC under section 309 is contradictory to the fundamental right guaranteed under Article 21 of the Indian Constitution. The state’s power under section 309, IPC to punish a man for attempt to commit a suicide is questioned not only on the grounds of morality, but also on the constitutionality of the said provision. A lot of conflicting opinions have been given on desirability of retaining or abolishing section 309 of Indian Penal Code because of some contrasting judgement given by various courts.

[quote]A question may arise, in case of a dying man, who is, seriously ill or has been suffering from virulent and incurable form of disease 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 ‘Right to Die’ with dignity as a part of life with dignity. According to the court these are not cases of extinguishing life but only of accelerating the process of natural death which has already commenced. In as much as the Supreme Court in Gian Kaur specifically stated that Euthanasia and Assisted Suicide are not lawful, it is obvious that so far as Euthanasia and Assisted Suicide are concerned, they will fall within one or other of penal provisions and continue to be unlawful thus the court did not proposed going to Euthanasia and Assisted Suicide. In Gyan Kaur the Supreme Court had declared it to be the duty of the doctor to keep his patient alive as long as possible even in case of terminal illness (except in case of persistent vegetative state) even if the patient and/or his family members request him to stop the treatment. Under common law a patient has to give his consent (informed consent) to medical treatment, including invasive treatment. When the patient is competent and wants withholding or withdrawal of treatment, that decision is also binding on the doctors provided the doctor is satisfied that the patient is competent and that this decision of the patient is an informed one then the doctor can ignore the patient’s decision and decide what is in the best interests of the patient according to the view of a body of medical experts. There is, however, too much confusion and uncertainty in respect of criminal liability of the doctor in cases of passive euthanasia. In this section ‘suicide’ has not been separately defined but generally means ‘a deliberate termination of one’s own physical existence’.[/quote]

So for the applicability of Section 309 as this issue is concerned, the Law Commission of India has given opinion that once a competent patient decides not to take medicines and allows the nature to take its own course, the doctor has to obey the instructions of the patients, since this omission of this doctor is based on the patients direction, therefore, it is not an offence under Section 306 of IPC.

On the basis of above discussion it can be inferred that since the withholding or withdrawal of life supporting equipment (which amounts to euthanasia) has been permitted by the Court in cases where a patient is in persistent vegetative state, doing so is neither illegal criminal in India.

Conclusion:

Laws are made for the people and it should be change to meet the aims and aspiration of the changing society. Legislation is duty bound to walk with the society.

Ultimately, the aim should be to evolve a consensual and conceptual model effectively handling the evils without sacrificing human rights. Section 309 should be deleted from the Indian Penal Code as it doesn’t meet the present needs of human being. No deterrence is going to hold back those who want to die for a special or political cause or to leave the world either because of the loss of interest in life or for self- deliverance. Thus in no case does the punishment serve the purpose and in some cases it is bound to prove self-defeating and counterproductive. In any case a person should not be forced to enjoy the right to live to his detriment, disadvantage, and disliking. Further, ‘Right to life’ under Article 21 should not include “right to die” because this provision might increase the rates of suicides in the country and moreover the “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”. Instead of criminalizing people who attempt to commit suicide under section 309 IPC, they should be provided with Societal and State Support and be offered counselling and other help depending upon their cause of attempt to commit suicide.

In United States, Canada, Britain and almost all western countries attempt to commit suicide is decriminalized including attempt to commit suicide by a critically and terminally ill persons. However, it may not be possible for a critically ill man to commit suicide in India, Pakistan, Bangladesh, Sri Lanka, Myanmar and countries of south East Asia, such as Malaysia, Singapore, Thailand etc. where the very attempt to commit suicide is considered an offence that is punishable under their respective state laws. Similarly, India should recognize execution of Living Wills by persons, as is prevalent in US and other western countries. A living will is a written directive to the family, physician, health care provider’s to stop medical care if the person becomes terminally ill and is unable to express his or her wishes about stopping treatment. It is made when a man is capable of understanding the nature and consequences of his act. It may include instructions to limit, withhold or withdraw treatment. A person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking. The ‘right to live’ in Article 21 of the Constitution includes the ‘right not to live. The court went on to say that person who attempts to commit suicide does not deserve prosecution because he has failed. There can be no justification to prosecute sacrifice of life. It exempts the physician from civil and criminal liability for withholding treatment or removing artificial respirator etc. and in case, the attending physician does not want to follow instructions, he has to remove himself from the case.