Last week, after hearing arguments on the legal and the moral permissibility of euthanasia and the living will, a Constitution Bench of the Supreme Court reserved the matter for judgment. Interestingly enough, the question whether individuals have the right to die, let alone have the right to make a living will, has always troubled legal philosophy.
Broadly speaking, euthanasia, also known as mercy killing, can be either active or passive. The former refers to the deliberate use of lethal substances, such as injections, to terminate life. The latter means withdrawal of the medical support from the patient, so as to lead to her death. For obvious reasons, involuntary euthanasia is much more controversial than voluntary euthanasia. In the Indian context, the living will is an advanced documentary expression for a future passive euthanasia.
It was in P. Rathinam v. Union of India (1994) that the Supreme Court was, for the first time, seriously confronted with the issue of permissibility of the right to die, though in the context of suicide. The court held in quite unequivocal terms that section 309 of the Indian Penal Code, which lays down the punishment for attempted suicide violated fundamental rights and was unconstitutional. The right to life most certainly includes the right to die, it was held. However, in 1996, a larger Bench of the Supreme Court in Gian Kaur v. State of Punjab held the reverse. Through Gian Kaur, it was asserted by the court that “Right to Life was 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.” By excessively relying on the importance of sanctity of life and following a strict textual approach to the Constitution, the court overruled Rathinam.
Aruna Shanbaug v. Union Of India (2011) was the first authoritative pronouncement in the country on passive euthanasia. Aruna was a staff nurse working at King Edward Memorial Hospital, Mumbai, and was the victim of a brutal rape and physical assault. Since she was subjected to strangulation during the attack, she suffered from brain damage and was living in a vegetative condition.
Affirming that sanctity of life was not absolute, the court laid down certain guidelines conditionally permitting passive euthanasia, in theory. As regarding Aruna, however, it was concluded that the test of complete brain death was not satisfactory. In Shanbaug, the court also cautioned against involuntary euthanasia since the possibility of misuse could not be entirely ruled out.
In the Indian context, active euthanasia has not been given legal endorsement whereas passive euthanasia has been given conditional legal recognition in terms of the principles laid down in Shanbaug. The present case in the Supreme Court, in a way, pursues a logical extension of the law laid down in Shanbaug in support of passive euthanasia. It seeks legitimisation of an advance documentary request for a future passive euthanasia.
At the time of hearing, the court has expressed its willingness to prescribe guidelines for drafting and authenticating the living will. The Bench also indicated framing of guidelines for the formation of medical boards, the approval of which might become a precondition for honouring a living will. Deliberations in the court reflect an enthusiastic judiciary trying to enter into a legislative exercise in the above terms. If so, it is slightly upsetting. There are matters which could only be legislatively prescribed and accomplished.
The Supreme Court itself has acknowledged that the issue of living will is complex and multi-dimensional. Various contingencies and situational peculiarities in connection with a living will are apparently a matter for the expert bodies and lawmakers to determine. True, the court can very well address the legal, ethical and even the philosophical facets of the issue. But it should not try to suppress a legislative process nor should it substitute its wisdom while addressing the situational requirements relating to a living will.
In the given case, two aspects are noteworthy. The first is that a prominent relief sought by the petitioner was to promulgate an enactment analogical to the Patient Self-Determination Act in the United States (LiveLaw, October 10, 2017). Secondly, on behalf of the Centre, the Additional Solicitor General had informed the court that a draft bill, namely, the Medical Treatment of Terminally Ill Patients Bill trying to address the issue of passive euthanasia in tune with Shanbaug guidelines and the law commission report is pending consideration. In this context, an attempt for a judicial legislation could be termed as an instance of judicial excessiveness.
During the hearing, Justice Chandrachud asked if the state has an overriding interest on the individual not to take his own life. (LiveLaw, October 10, 2017). A liberal would answer this question in the negative. Whatever questions it might encounter, one would hope that the Supreme Court will decide the issue of euthanasia in the correct way. Among other important legal principles and legally relevant factors, one would further hope that the court will be guided by what Joseph Raz famously said: “the autonomous person is (part) author of his own life.”
(Kaleeswaram Raj is a lawyer at the Supreme Court and Kerala High Court. Thulasi K. Raj is a lawyer at the Kerala High Court and an alumna of University College London)
