constitutional law

Exploring the Evolution of the Law Related to the Right to Die with Dignity in India

the law related to right to die in India
India has not yet passed a specific law directly following court directions regarding euthanasia and the right to die with dignity, but significant legal developments have occurred. In the Aruna Shanbaug case (2011), the Supreme Court recognized the right to die with dignity as part of the right to life under Article 21 of the Constitution.

 In 399 BCE in Athens, Socrates was sentenced to death by consuming poison. His calm acceptance of death and refusal to escape sparked debates about whether his death should be viewed as euthanasia or suicide. The modern concept of Medical Assistance in Dying (MAiD) reflects this timeless ethical dilemma, raising profound questions: Who holds ownership over life, and is it moral to hasten or prolong death?  This is legislatively uncharted territory across the countries. In India, discussions on euthanasia began with the landmark Aruna Shanbaug case before the Supreme Court. The Charaka Samhita, an ancient Indian text on Ayurveda, does not explicitly address euthanasia as understood today but delves into ethical considerations surrounding life, death, and the responsibilities of the physicians. It emphasizes the healer’s moral duty to preserve life and relieve suffering, a principle akin to the Hippocratic Oath. Laws surrounding this issue have no universal definitions and are handled with the utmost sensitivity. Today, we are tracing the growth of this law in India.

Does the Right to Life, under Article 21, include the right to die?

This question first came before the Constitution Bench of the Hon’ble Supreme Court in Gian Kaur vs. the State of Punjab, 1996(2) SCC 648 (paragraphs 22 and 23), who has explicitly ruled that the right to life under Article 21 of the Constitution does not encompass any right to die. This has so far not been overruled. Euthanasia remains one of the most complex and challenging issues confronting courts and legislatures worldwide.

From Gian Kaur to Aruna Shanbaug- Shaping the Right to Die with Dignity

In this case, Aruna Ramchandra Shanbaug v. Union of India (2011) 4 SCC 454, the Hon’ble Supreme Court led by Justice Markandey Katju found itself navigating uncharted waters, relying on the guidance provided by foreign legislation, judicial precedents, and the arguments presented by the learned counsel before the court. The petition could have been dismissed outright because, under Article 32 of the Constitution of India (unlike Article 226), the petitioner must demonstrate a violation of fundamental rights since the petitioner had not established any infringement of her fundamental rights. Nevertheless, given the issue’s significance, the court chose to delve deeper into the case’s merits. While upholding Gian Kaur’s core principle that the right to life does not include the right to die, the Court introduced the concept of passive euthanasia under strict safeguards. It ruled that passive euthanasia (withdrawing life support for terminally ill or vegetative patients) could be allowed if approved by a High Court after due process. The judgment expanded the “right to die with dignity” as part of Article 21.

Active and Passive Euthanasia

Euthanasia is classified into two types: active and passive. Active euthanasia involves using lethal substances or forces, such as a lethal injection, for a terminally ill patient in severe pain.  Passive euthanasia refers to withholding medical treatment that would prolong life, like stopping antibiotics or removing life support.  The difference between active and passive euthanasia lies in action: active euthanasia involves actions taken to end life, while passive euthanasia involves withholding life-sustaining treatment. The distinction suggests that in passive euthanasia, doctors are not actively killing the patient but instead not intervening to preserve life. The analogy compares this inaction to not intervening in a burning building — inaction, while not heroic, is typically not subject to legal penalty unless a person causes harm.

Additionally, euthanasia is further categorized into voluntary, where the patient consents, and non-voluntary, where consent is unavailable, such as in a coma. While voluntary euthanasia is legally straightforward, non-voluntary euthanasia presents more complex legal challenges.

The legality of passive euthanasia was affirmed, following principles from the English Airedale case, which recognized withdrawal of life support as permissible under strict judicial oversight. High Courts were tasked with ensuring such decisions align with the patient’s best interests.

Distinctions made in the UK:

    • Euthanasia vs. Withdrawal of Treatment:
      • Euthanasia involves an active intervention to end life and is unlawful.
      • Withdrawal of life-sustaining treatment is considered an omission and legally permissible.
    • Doctor’s Role:
      • Doctors discontinuing treatment are allowing the patient to die naturally from their condition.
      • The act must be rooted in medical ethics and align with accepted practices.

Role of Substituted Judgment where the patient is unable to convey

In Passive Euthanasia, challenges arise when the patient cannot express consent and has left no prior directive, as in Aruna’s case. In such situations, some American cases have adopted the “substituted judgment” approach, where a surrogate determines, based on available evidence, what the patient would have decided if competent. This method, however, is not favored under English law for incompetent adults. Senior Counsel for Amicus Curiae, Andhyarujina, in Aruna Shanbaug’s case, supported passive euthanasia, provided responsible medical professionals decided to withdraw life support.  He argued that when a doctor acts on the patient’s consent to decline life-prolonging treatment, it does not amount to suicide or abetment.

Illustration of difference:

  1. Passive Euthanasia: If a terminally ill patient in a vegetative state with no hope of recovery is taken off life support with proper legal and medical oversight, it is considered passive euthanasia. This does not involve criminal liability because it aligns with the right to die with dignity.
  2. Abetment of Suicide: If a person convinces or provides a means for another person to end their life (e.g., encouraging someone to take poison), it is abetment of suicide and punishable under Section 306 IPC.

In cases where an incompetent patient has provided no prior indication, courts adopt the “best interest” test to determine whether life support should continue. This does not involve deciding if it is in the patient’s best interest to die but rather whether prolonging life through life support is beneficial for the patient. A responsible and competent medical team in charge of the patient must form this opinion. Withdrawing life support is legally regarded as an omission, not an active measure to end life. The latter would constitute euthanasia, which is a criminal offense under current laws in the UK, USA, and India. While the patient’s immediate family’s wishes are given considerable weight, they are not decisive, as competent medical professionals determine the patient’s best interests. However, doctors and immediate family members often share similar views in practice.

Role of the Court

The Aruna Shanbaug judgment emphasizes that medical professionals decide to withdraw life support in the patient’s best interests, with the Court’s role limited to confirming that the action is lawful, not forming an independent opinion. In the UK, traditional parens patriae jurisdiction over mentally incompetent adults has been abolished and replaced by statutory frameworks like the Mental Capacity Act 2005 and the Children Act 1989. While the doctrine is no longer applied broadly, its core principles of protecting vulnerable individuals’ welfare and best interests remain central to modern UK law.

Legislation In Some Countries Relating to Euthanasia or Physician-Assisted Death

In the Netherlands, euthanasia and physician-assisted suicide are legal under the 2002 Termination of Life on Request and Assisted Suicide Act, provided strict criteria are met, including unbearable suffering, voluntary and informed requests, and independent medical consultation. Euthanasia for patients under 12 is illegal, though the Groningen Protocol allows exceptions under strict conditions. In Switzerland, assisted suicide is legal, including by non-physicians, but euthanasia (directly administering a lethal dose) is prohibited. Foreign nationals frequently seek assisted suicide there. In Spain, Austria, and Germany, euthanasia or assisted death is legal under specific conditions. Still, it remains illegal in the U.K., Italy, and France, aside from certain end-of-life care practices.

United States of America

Active euthanasia is illegal across the United States. However, physician-assisted dying (PAD) is legal in several states, including Oregon, Washington, Montana, Vermont, California, Colorado, Hawaii, New Jersey, Maine, New Mexico, and the District of Columbia. Oregon was the first state to legalize PAD in 1997 through the Death with Dignity Act, which imposes strict criteria, such as the patient being terminally ill, making repeated requests, and obtaining confirmation from two physicians. Michigan explicitly banned euthanasia and assisted suicide following Dr. Jack Kevorkian’s case, while Texas allows the withdrawal of life support under specific conditions but prohibits PAD. California legalized PAD in 2016 through the End-of-Life Options Act, though it had previously legalized living wills in 1977 to specify end-of-life preferences. PAD remains controversial, with many states continuing to criminalize the practice. Montana’s PAD legality is based on a 2009 Montana Supreme Court decision (Baxter v. Montana) rather than explicit legislation.

The U.S. Supreme Court has addressed significant cases regarding physician-assisted suicide and the right to refuse life-sustaining treatment. Two critical cases are Washington v. Glucksberg and Vacco v. Quill (both decided in 1997), which dealt with challenges brought by terminally ill patients to state laws banning physician-assisted suicide. In Glucksberg, the Court held that the right to assisted suicide is not a fundamental liberty protected by the Due Process Clause of the Fourteenth Amendment. The phrase “the Court held that the right to assisted suicide is not a fundamental liberty protected by the Due Process Clause of the Fourteenth Amendment” means that the U.S. Supreme Court decided that there is no constitutional right to physician-assisted suicide under the Due Process Clause of the Fourteenth Amendment. The Court distinguished between the decision to commit suicide with assistance, which was not a right historically protected by law, and the decision to refuse unwanted medical treatment, which had long been recognized as a constitutional right. The Court emphasized the government’s legitimate interests in protecting life, preventing suicide, maintaining the ethical integrity of the medical profession, and safeguarding vulnerable groups. The Court ultimately left the matter to individual states, allowing the debate over physician-assisted suicide to continue.

In Vacco v. Quill, the Court reinforced the distinction between refusing life-saving medical treatment and actively causing death, noting that ending life support is a passive act, whereas administering lethal medication is an active intervention. The Court upheld New York’s ban on assisted suicide, stating that while individuals can refuse treatment, they do not have the right to demand it to be administered to end their lives.

In Cruzan v. Director, MDH (1990), the Court addressed the issue of withdrawing life support from a patient in a persistent vegetative state (PVS). Nancy Cruzan had sustained severe brain damage and was in PVS. Her parents sought to terminate her life-sustaining treatment, but Missouri law required clear and convincing evidence that the patient would have wanted the treatment stopped. The U.S. Supreme Court, in a majority opinion, affirmed the state’s requirement, emphasizing that informed consent, including the right to refuse treatment, must be exercised by the patient or a legal guardian. This case highlighted the need for clear evidence of patients’ wishes when they cannot make decisions themselves. These cases reflect the ongoing tension between respecting a patient’s autonomy, protecting life, and making decisions in the best interests of patients unable to express their wishes directly, particularly in cases of PVS.

In In re Conroy (1985), the New Jersey Supreme Court ruled that a surrogate decision-maker could end life-sustaining treatment for an incompetent patient if clear evidence existed that the patient would have wanted it. If no such evidence was available, the Court applied an objective “best interest” standard. This standard could include withdrawing treatment if it was deemed inhumane, though the Court preferred preserving life when in doubt.

In Cruzan (1990), the U.S. Supreme Court upheld a Missouri law requiring clear and convincing evidence that a patient had expressed a desire to withdraw life support while competent. Chief Justice Rehnquist highlighted that erroneous decisions not to withdraw treatment could be corrected, while wrongful withdrawal could not be undone. This case differed from Airedale (1993), where no similar statute existed.

While foreign decisions are not binding, they offer persuasive value. The Airedale case is more applicable in the present case because a statute like the one in Cruzan does not exist.

Law In India

Active euthanasia in India is considered a crime under sections 302 or 304 of the IPC. Physician-assisted suicide is also illegal under Section 306 of the IPC (abetment to suicide). This provision criminalizes aiding or encouraging a person to end their life. However, passive euthanasia (withholding or withdrawing life-sustaining treatment under specific circumstances) has been legally permitted in India since the Supreme Court’s landmark judgments in Aruna Shanbaug (2011) and Common Cause v. Union of India (2018), provided strict guidelines and patient consent (or prior advance directives) are followed. Globally also, active euthanasia is illegal unless permitted by law, while passive euthanasia is generally legal if certain conditions and safeguards are met.

As it was argued in Aruna Shanbaug’s judgment, withdrawing nutrition via a nasogastric tube is different from disconnecting a ventilator, which results in immediate death by halting breathing. In contrast, discontinuing artificial feeding causes the patient to starve to death, with all the associated suffering, pain, and distress. This is particularly relevant for a patient in a persistent vegetative state (PVS) like Aruna, who was not wholly unconscious and still experiences sensations such as pain. In Aruna’s case, Mr. Andhyarujina, Amicus Curiae, questioned whether doctors could alleviate the distress using sedatives. He suggested it might be more humane to continue nasogastric feeding while refraining from other treatments that could prolong the patient’s suffering.

It is not illegal to refrain from doing something, even if it might be considered beneficial, as prosecuting inaction would lead to widespread arrests. Some argue against this distinction, citing the example of a child joking about not doing homework. However, many laws penalize inaction, such as failing to pay taxes, sending children to school, or disobeying a police order. In the Aruna Shanbaug case (2011), the Supreme Court differentiated between withdrawing a ventilator, which causes immediate death, and stopping nutrition through a feeding tube, which leads to a prolonged and distressing process of starvation. The judgment favored continuing nasogastric feeding while refraining from other life-prolonging treatments.

In India, both abetment of suicide (Section 306 IPC) and attempt to suicide (Section 309 IPC) are criminal offenses, which contrasts with countries like the USA, where attempting suicide is not a crime. In Gian Kaur v. State of Punjab (1996), the Indian Supreme Court ruled that euthanasia and assisted suicide are illegal, stating that the right to life under Article 21 of the Indian Constitution does not include the right to die. In P. Rathinam v. Union of India, the Supreme Court decriminalized attempted suicide under Section 309 of the IPC by interpreting the right to life as encompassing the right to die with dignity. However, the Court did not extend this right to include physician-assisted suicide or euthanasia, which remained a matter for further judicial consideration.

Although Gian Kaur referenced the Airedale case, it did not address who should decide whether life support should be discontinued for an incompetent person (e.g., in a coma or PVS). This issue is especially pertinent in India due to low ethical standards, rampant commercialization, and corruption, which could lead to potential exploitation. The Court emphasized that medical professionals, not the public, should determine whether there is hope for recovery, citing cases like Terry Wallis, who regained consciousness after 24 years in a coma, showing that medical advances can sometimes lead to unexpected recoveries. However, it was emphasized that only medical experts can assess the viability of such possibilities.

When can a person be declared dead?

The Aruna Shanbaug case raises the question of when a person can be considered legally dead, particularly in the context of persistent vegetative states. The key determinant of life is the brain, which controls critical functions like cognition, personality, and bodily functions. A person is considered dead when their brain is dead, precisely when both the brain and brain stem cease all functions. Brain cells, unlike other body cells, cannot regenerate, and the loss of oxygen for more than six minutes causes irreversible brain damage, known as anoxia, signaling death.

Historically, death was defined by the cessation of vital functions like breathing or circulation (cardiopulmonary perspective). However, medical advancements, such as ventilators and defibrillators, have made it possible to reverse the cessation of these functions, leading to a shift in the definition of death to brain death. In 1968, the Harvard Committee formally defined brain death as the irreversible loss of the ability to breathe and function, which was later refined by the President’s Committee on Bioethics in 1981 and again in 2008, specifying that brain death includes the loss of essential human functions such as responsiveness and basic drives.

Brain death is distinct from a persistent vegetative state, where the brain stem remains functional, allowing involuntary functions like breathing and digestion to continue but without consciousness. Legal definitions of death, like the American Uniform Definition of Death Act (1980) and India’s Transplantation of Human Organs Act (1994), both use the cessation of brain function, including the brain stem, to define death.

In the case of Aruna Shanbaug, who has been in a persistent vegetative state for 37 years, her brain stem remains active, allowing essential involuntary functions. Because of this, she is not considered brain dead, as her brain stem still performs critical functions, such as breathing and digestion. This distinction is crucial in debates surrounding euthanasia and life support, where decisions to withdraw treatment are typically made when there is no hope of recovery and the person is only alive due to medical intervention.

The withdrawal of life support for a person in a permanent vegetative state (PVS) or one who is unable to make decisions should be allowed under certain conditions. However, no specific statutory provision exists in India. Passive euthanasia, when done in the best interest of the patient, is supported, but the decision-making process should be carefully regulated.

Key points include:

  1. Decision Makers: The discontinuation of life support can be decided by close relatives, such as parents or spouses, or a person acting as a “next friend,” including medical staff caring for the patient. In the case of Aruna Shanbaug, the KEM hospital staff, who have cared for her for years, are deemed her “next friends.”
  2. Court Approval: Regardless of who makes the decision, approval from the High Court is required before withdrawing life support. This prevents misuse, as individuals or doctors risk acting dishonestly for personal gain, such as inheritance or property theft.
  3. Concerns of Misuse: Given potential unethical behavior and corruption, a judicial review is essential to ensure that the decision is made in the patient’s best interest and to prevent exploitation.

The legal process aims to protect the patient, the doctors, and the family, ensuring that decisions are made transparently and ethically.

The Doctrine of Parens Patriae (Latin for “father of the country”) originated in British law in the 13th century. It implies that the state (or sovereign) has a responsibility to protect those who cannot defend themselves, such as minors, the insane, or incompetent individuals. The state takes on a parental role to make decisions for those unable to do so. This doctrine was further explained in Indian jurisprudence in cases like Charan Lal Sahu vs. Union of India (1990) and State of Kerala vs. N.M. Thomas (1976), where it was emphasized that the state has an inherent duty to protect and make decisions for those with disability, such as those unable to make decisions about their health or life support. In the context of a person unable to decide about withdrawing life support, the court, acting as parens patriae, should ultimately make the decision. However, the opinions of relatives, friends, and doctors must be considered. The court assumes the state’s role in protecting the incompetent person’s interests.

Under Article 226 of the Indian Constitution, the High Court can approve withdrawing life support from an incompetent person. This article also grants the High Court the power to issue writs, orders, and directions to enforce rights under Part III of the Constitution and for other purposes.

In cases where life support withdrawal is considered, the High Court must:

  1. Constitute a Bench of at least two judges to decide on the case.
  2. Appoint a Committee of Three Doctors: The committee should include a neurologist, a psychiatrist, and a physician. The doctors will examine the patient, review medical records, and consult hospital staff. Their report must be submitted to the Court.
  3. Issue Notices to the state and close relatives (or next friend) of the patient, and share the doctors’ report with them.
  4. Hear all parties involved, including the relatives and medical staff.
  5. Decide based on the principle of the “best interest of the patient,” considering all views and ensuring a speedy resolution to avoid mental anguish for the patient’s family.

This process will continue until Parliament passes legislation on the matter. The High Court should provide a detailed judgment, not a summary, and ensure due weight is given to all opinions before making a final decision.

The Common Cause v. Union of India (2018) 5 SCC 1 built on the foundation laid by the Aruna Shanbaug case, significantly advancing the jurisprudence on the right to die with dignity. The Court held that the right to die with dignity is an inherent part of the right to life under Article 21. It legalized passive euthanasia and introduced the concept of Advance Medical Directives (AMDs), allowing individuals to specify their preferences for end-of-life care in advance. The judgment emphasized that refusing life support aligns with autonomy, privacy, and dignity. Notably, the Court established procedural safeguards, requiring the involvement of medical boards and judicial oversight to prevent misuse of this right.

The Role of the Draft Guidelines on Withdrawal of Life Support Systems

The draft guidelines on withdrawing life support systems are crucial in operationalizing the principles established in the Common Cause judgment. These guidelines provide a structured framework for withholding or withdrawing life support in terminally ill patients while ensuring compliance with ethical and legal norms. They define key concepts such as terminal illness, withdrawal, and withholding of treatment, aligning with beneficence, non-maleficence, and distributive justice principles. They also emphasize open communication, transparency, and documentation to protect all stakeholders.

The decision-making framework outlined in the guidelines involves two medical boards: a Primary Medical Board (PMB) and a Secondary Medical Board (SMB). The PMB, comprising the treating physician and subject experts, assesses the patient’s condition and recommends whether life support should be withdrawn. The SMB, constituted by independent experts, reviews the PMB’s decision to ensure objectivity. This dual-layered approach ensures accountability and minimizes the potential for bias or error. The guidelines also emphasize the validity of Advance Medical Directives, empowering individuals to exercise their autonomy even when they lose decision-making capacity. When Advance Medical Directives are unavailable, surrogates, typically next of kin, make decisions on behalf of the patient in their best interests.

In conclusion, recognizing the right to die with dignity reflects an evolving understanding of human rights, autonomy, and self-determination. In India, critical judgments like Aruna Shanbaug and Common Cause have laid a solid legal foundation, supported by draft guidelines for withdrawing life support. Globally, various jurisdictions have developed frameworks that balance individual autonomy with societal ethics. As medical advancements progress, legal systems must adapt to ensure the right to die with dignity is accessible, equitable, and protected against misuse. This right is not just a legal entitlement but a recognition of human dignity, honoring personal autonomy even in one’s final moments.

India has not yet passed a specific law directly following court directions regarding euthanasia and the right to die with dignity, but significant legal developments have occurred. In the Aruna Shanbaug case (2011), the Supreme Court recognized the right to die with dignity as part of the right to life under Article 21 of the Constitution. It allowed passive euthanasia under strict conditions, including judicial approval. Later, in the Common Cause case (2018), the Court further affirmed the validity of living wills (advance medical directives) and established guidelines for passive euthanasia, requiring medical certification and judicial oversight. Following these rulings, the Ministry of Health and Family Welfare drafted a bill on euthanasia and living wills, but it has not yet been enacted into law. As it stands, passive euthanasia is legal in India under judicial supervision, but active euthanasia remains prohibited. Although judicial rulings have set a legal framework for end-of-life decisions, the need for a comprehensive law on euthanasia continues to be discussed.

In conclusion, the lack of a comprehensive euthanasia law in India leaves individuals and families grappling with legal, emotional, and financial challenges while also raising concerns about fairness, autonomy, and potential misuse of the existing legal framework.

References

 

  1. Aruna Ramchandra Shaunbaug vs. Union of India WRIT PETITION (CRIMINAL) NO. 115 OF 2009
  2. Brenna C. T. A. (2021). Regulating Death: A Brief History of Medical Assistance in Dying. Indian journal of palliative care27(3), 448–451. https://doi.org/10.25259/IJPC_426_20

 

 

 

 

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About the author

AUTHOR: Jyoti Srivastava

Jyoti Srivastava, a practicing advocate with over 13 years of experience, established the legal updates website in 2013. She holds a Graduate Certificate in Advanced Study of Healthcare Compliance Law from the University of Pittsburgh. Initially focused on general legal updates, the website is now carving out a niche in the field of healthcare laws in India.

Legal Researcher: Chirayu Sharma

Chirayu is an advocate enrolled with the Bar Council of Delhi and a graduate from Guru Gobind Singh Indraprastha University. He has a strong passion for research and advocacy. He scored an impressive rank of 905 in the CLAT PG 2024 exam. His research paper titled “China's Business Perspective in the Age of Globalization” in the Indian Journal of Law and Legal Research (ISBS No. 2582- 8878) reflects his keen legal insight. Beyond academics, he is a supporter of consumer rights, assisting as activist in cases independently.