Euthanasia is the painless killing of oneself, voluntarily, due to suffering of terminal illness or like diseases. It is of two kinds: active and passive euthanasia. While active euthanasia allows a person to voluntarily kill himself through the directed use of lethal injections by medical professionals, passive euthanasia permits the doctor to pull the plug of the ventilator or any other life supporting system, and allow the patient, who has come to a point of no return, to undergo a natural death. In India, active euthanasia is illegal but passive euthanasia is legal to the extent that it meets with the guidelines of the Supreme Court, laid down in the case of Aruna Shanbaug vs. Union of India[1].

In order to understand euthanasia properly, we have to understand the law that prevails when someone tries to commit suicide and when someone abets such an act. Both are criminal offences under the IPC (Sec 309 & 306).

Sec 309 penalizes anyone who tries to commit suicide, with a term of simple imprisonment not exceeding 1 year or with fine, or with both.

Sec 306 penalizes anyone who abets such an act with a term of imprisonment which may extend to 10 years and fine.

The constitutional validity of these two sections was first discussed in the case of Gian Kaur vs. State of Punjab[2]. In this case, Gian Kaur and her husband abetted the suicide of their daughter-in-law by pouring kerosene on her and then lighting fire. They were both charged and convicted under Sec 306 by the trial court. Naturally, they appealed and failed as the high court upheld the conviction. Then by a Special Leave Petition, the couple approached the Supreme Court, where they challenged the validity of, both, sections 306 & 309. They contended that the right to live with dignity under Art. 21 also included the right to die with dignity, and therefore, committing suicide cannot be penalized and as such, someone who abets such suicide, cannot be penalized as well. They cited the case of P. Rathinam vs. Union of India[3], where it was held ‘that right to die’ came under the ambit of Art 21 and therefore Sec 309 was unconstitutional. However, since the judgement related to a substantial question of law, the Division Bench in P. Rathinam referred the matter to a constitutional bench which was thereafter formed to decide the matter in Gian Kaur.  The Supreme Court, in the Gian Kaur case, denied the existence of a right to die under Article 21. It said, “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 to be 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 protection of life’.” Thus, the apex court upheld the conviction of the lower courts, thereby retaining the constitutionality of sections 309 & 306.

About 17 years later came the Aruna Shanbaug vs. Union of India case. Aruna Shanbaug was a nurse working in the King Edward Memorial Hospital, Mumbai who was sexually assaulted on the night of 27th November 1973 by a sweeper of the Hospital. The assault was so horrific that it stopped her blood from flowing to the brain, making it virtually dead. When, at the time the writ petition came up to the Division Bench of the Supreme Court, it had been 36 years since the incident; Aruna was being looked after, by the same hospital where she worked as a nurse; her being in what is called a persistent vegetative state which meant that she was a virtually dead person, with no state of awareness. The writ petition was filed by Ms. Pinki Virani, claiming to be the next friend of Aruna, praying that any sort of life support be withdrawn to let Aruna die naturally and in peace.

The court dismissed the writ petition stating that Article 32, unlike Article 226, deals specifically with violation of fundamental rights and as there was no such violation of Article 21 or any other fundamental right, considering the judgment in Gian Kaur vs. State of Punjab, the petition failed. However, the court did not stop there. It delved farther into the merits of the case, nonetheless, and discussed at length, the legal issues regarding euthanasia and the various legislations which allow the use of euthanasia around the world. The court after taking into cognizance, the report of a team of three doctors it had set up to look into the condition of Aruna, and the fact that Aruna had been abandoned by her family long ago, held that the decision regarding the withdrawal of her life support would be taken by the dean of KEM Hospital as it was the hospital that had looked after her for 37 years. It then laid down guidelines the high court must follow when faced with petition praying for passive euthanasia:

  • Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. Before doing so, the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities / medical practitioners as it may deem fit. Preferably, one of the three doctors should be a neurologist, one should be a psychiatrist, and the third a physician. For this purpose, a panel of doctors in every city may be prepared by the High Court in consultation with the State Government/Union Territory and their fees for this purpose may be fixed.
  • The committee of three doctors nominated by the Bench should carefully examine the patient and consult the record of the patient as well as taking the views of the hospital staff and submit its report to the High Court Bench.
  • The High Court Bench shall also issue a notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence, his/her next friend, and supply a copy of the report of the doctor’s committee to them as soon as it is available. After hearing them, the High Court bench should give its verdict. The above procedure should be followed all over India until Parliament makes legislation on this subject.

Fast forward to 2017, the Supreme Court has now constituted a five judge bench to discuss the validity of a ‘living will’ in connection to euthanasia. “Living will is a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express informed consent.”[4] This came after an NGO petitioned in 2005 for the right of a terminally ill person, who had come to a point of no return, to decide if he or she wants to stay on life support or not. The central government, in 2017, has come up with a draft bill, following the Arun Shanbaug case, to give passive euthanasia statutory backing. This is yet to be passed by the parliament.

The Supreme Court has shown confidence in accepting the concept of ‘living will’. One of the main reasons why the court has opined in such a manner is due to the lack of clarity as to who will decide to pull the plug in the event passive euthanasia is allowed by the court? Due to such confusion, the court has indicated that it might recognize a ‘living will’ as then, the patient himself or herself will dictate how the plug will be pulled. However, it has also stated that there should be adequate safeguards in execution of the will.

Conclusions:Going by the opinions of the Supreme Court as well as various jurists, it seems that a law legalizing ‘living will’ is not far. However, the Central govt. has strongly opposed the concept of ‘living will’ as it thinks that there are many ways in which it can be misused and may become specifically detrimental to the elderly.

Another challenge that lies in front of the Court is that of Active Euthanasia. Active Euthanasia, as distinguished by Justice Markander Katju in Aruna Shanbaug’s case, is basically physician aided death or death by lethal injection. In most parts of the world, Active Euthanasia is illegal unless provided by legislation. It was held to be illegal in Aruna Shanbaug’s case as well. Only recently, an elderly couple in Mumbai has asked the President of India to permit active euthanasia for them. While such a request will necessarily be turned down by both the executive and the judiciary today, a time may come when such requests may have to be seriously discussed just like the way passive euthanasia was and still is.

[1] (2011) 4 SCC 454

[2] 1996 SCC (2) 648

[3] 1994 SCC 394

[4] https://www.ndtv.com/india-news/supreme-court-indicates-recognition-of-living-will-for-passive-euthanasia-1761874