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Grey areas in the right to live - and die

The argument of possible misuse cannot be grounds to oppose the legalization of euthanasia, says Rakesh Shukla in this comment on the Aruna Shanbaug judgment. If misuse were grounds to do away with laws, the first to go would be the power of the police to arrest. After all, the National Police Commission itself admits that two-thirds of detentions in the country are unjustified

Given moribund legislature and a barely functional executive, issues arising in society turn up, sooner or later, at the doors of the apex court. However, the present ruling legalising passive euthanasia in the Aruna Shanbaug case has to be seen in the context that in reality passive euthanasia has not been an uncommon practice. As Dr Sanjay Nagral, who has earlier worked in KEM and is associated with the Indian Journal of Medical Ethics puts it, “Many Indian doctors in India have been practicing a form of passive euthanasia for many years, although few are likely to admit it.” A view echoed by others like Dr Nagaraj Huilgol, a radiologist who is committed to the cause of ‘death with dignity’ and feels that the judgment only underlines what has been in practice. The judgment has also recommended the decriminalising of the attempt to suicide.

Aruna Shanbaug, a nurse at the KEM Hospital in Mumbai, has been lying in a vegetative state for 37 years, since an assault at the hospital in 1973. She has been looked after and cared for by the hospital staff ever since.

Euthanasia and the connected question of right to suicide raise complex issues in fields ranging from the material to the spiritual, covering the gamut of legal, financial, emotional, psychological and religious. There are no clear-cut answers in each of these spheres.

Even the black-and-white world of law is drawn into shades of grey. In terms of constitutional jurisprudence, euthanasia and suicide raise a vital issue –do fundamental rights guaranteed under the Constitution have positive as well as negative aspects? It seems difficult to quarrel with the proposition that the fundamental right to freedom of speech and expression can be said to include the right not to speak. Similarly, freedom of movement and association includes the freedom not to move or join an association. On a parity of reasoning, the freedom to live could be held to include the freedom not to live. In 1994, the Supreme Court in P Rathinam’s case, subscribing to the above view, struck down Section 309 of the Indian Penal Code (IPC) criminalising attempt to suicide as unconstitutional and violative of the fundamental right to life guaranteed under Article 21 of the Constitution. Citing examples from mythology of Lord Rama taking Jal Samadhi in the Sarayu to Buddha and Mahavira achieving death by seeking it, the court declared that suicide could not be termed an irreligious act. It observed that suicide-prone persons need soft words and wise counseling, not “stony dealing by a jailor following harsh treatment meted out by a heartless prosecutor”.  The decriminalising of attempt to suicide would automatically mean that an individual could at the least decide to discontinue unwanted medical treatment.

 However, rulings of the apex court are notoriously dependent on the predilections of the individual judges who constitute the bench dealing with the case. An attempt to suicide was not an offence in this country only for a period of two years.  In 1996, a Constitution Bench of the Supreme Court in Gyan Kaur’s case over-ruled the earlier decision and declared that the right to life did not include the right to die. Consequently, this had the police back in business, turning up at hospitals, threatening interrogation, implying abetment by other members and extorting money from the family of the hapless ‘accused’ who failed in his or her attempt to end life. The other fallout of the judgment is the force-feeding of persons on hunger strike on issues which have shocked their conscience, as in the case of Irom Sharmila who has been on protest fast for the repeal of the Armed Forces (Special Powers) Act in the northeast for the past 12 years.  

The Aruna Shanbaug judgment has appealed to Parliament to delete Section 309 from the IPC. The Law Commission had recommended the repeal of the provision as far back as 1971. Quoting Romilly Fedden -- “it seems a monstrous procedure to inflict further suffering on even a single individual who has already found life so unbearable, his chances of happiness so slender, that he has been willing to face pain and death in order to cease living” -- the Commission had declared the section harsh and unjustifiable. In fact, the Indian Penal Code (Amendment) Bill to repeal Section 309 was passed in the Rajya Sabha in 1978. It was pending in the sixth Lok Sabha when it was dissolved in 1979, bringing an end to its legislative career. In a Kafkaesque twist, the ‘criminal’ who ‘successfully’ commits suicide is outside the reach of the law. The person who fails to successfully commit the offence is righteously punished!

The present judgment legalising passive euthanasia for patients who are brain-dead or in a permanent vegetative state with no plausible possibility of recovery is welcome but has limited application. The court has devised the mechanism of high court benches and court-appointed expert panels of medical experts as safeguards in such cases. The argument of the possibility of misuse cannot be grounds to oppose legalising euthanasia. If misuse were to be the grounds to do away with laws, the first provision to go would be the power of the police to arrest, as according to the National Police Commission two-thirds of detentions in the country are unjustified. However, the anguished pleas by persons suffering from terminal debilitating diseases like muscular dystrophy seeking euthanasia and articulated as an issue of human dignity, remains outside the scope of the present judgment.

Even passive euthanasia sanctioned by the judgment in cases of persons who are brain-dead or in a permanent vegetative state, if performed on the plea of a conscious suffering patient, could under the present law in India lead to prosecution for abetment to suicide. Even in the event of decriminalisation of attempt to suicide by repeal of Section 309, abetment to suicide would remain an offence punishable with up to 10 years imprisonment under the IPC. The debate on withdrawal of life support system has also to be seen in the context of the extreme commercialisation of the healthcare industry which inflicts futile costly treatment and unnecessary interventions on patients.  

The vehement opposition by the government in the apex court to even passive euthanasia in India seems quite at odds with a view and practice in many communities that the departure of a person at a ripe old age is an occasion to celebrate a rich and full life. The practice of Santhara -- a voluntary fast to death -- among the Jain community is well-known. Viewed from the perspective of endlessly prolonging life, the spectacle of a person on the last journey being accompanied by musicians and a band would be a strange sight. At an emotional/ psychological level, there is need to pause and reflect whether care need be increasingly translated into forcing loved ones into hospital regardless of their wishes. It could be that at times our own anxieties about loss, fears about death, inability to cope with grief and apprehensions about descending into melancholia, play a role in a decision to forcefeed a dear one for years.

The task of the Society for the Right to Die with Dignity, founded by Minoo Masani in 1981to assert the right to choose to live or die, remains an uphill one. Jurisprudentially, a possible path for persons with terminal debilitating diseases is to try to expand the right to life to include the right to die with dignity, along with an assertion of a constitutional right to discontinue unwanted medical treatment.

(Rakesh Shukla is an advocate at the Supreme Court)

Infochange News & Features, March 2011