This blog has been authored by Rivanshi Dua, 4th year law student from Amity University, Noida.
According to the very prestigious Constitution of India, the Right to Life mentioned under Article 21 of the Constitution, is one of the most important rights given to a citizen of the country and is one of the six Fundamental Rights. As we know, the fundamental rights in our country have been given special importance, and a citizen can use these rights against the state as well. However, what if the citizen himself does not want to protect this fundamental right?
This is an unusual right and therefore, arises in abnormal situations. The pain of a person suffering from an unbearable disease is unmatched. The person suffering from such a disease faces a constant question of life, whether he must fight and suffer the pain or end his pain and suffer his life. Therefore, the question that arises here is whether a person in such a situation, living in a democratic country has the right to die. The right to die, also termed as Euthanasia, is a controversial topic of law within various countries, including India.
DIFFERENCE BETWEEN EUTHANASIA AND SUICIDE
Often, the right to die, or Euthanasia, is termed as an action of suicide or taking your life away at your own risk. However, it is pertinent to note that Euthanasia and suicide are two different concepts, where under euthanasia, the life taken is due to grave, unbearable medical conditions exclusively. However, suicide can be done by a person due to multiple factors, mostly mental conditions.
TYPES OF EUTHANASIA
Critically analyzing euthanasia, it is pertinent to note that it exists in various types, namely- Active and Passive euthanasia, Voluntary, involuntary, and non-voluntary euthanasia. Among the most prevalent forms of euthanasia, are the Active and Passive forms of it. Active euthanasia implies the active administration of a lethal substance, that is acting directly to cause the patient’s death. Passive Euthanasia, on the other hand, implies withholding or withdrawing of life-sustaining treatments that may prolong the patient’s life.
THE LEGALITY OF THE RIGHT TO DIE IN INDIA
The Right to die in India, for the longest time was not mentioned anywhere in the laws, despite being a matter of heated discussions among the medical laws. There have been deeply rooted controversies on account of the clash between the Right to die and the Right to life under Article 21 of the Constitution. The freedom to live fulfilling lives and the right to personal liberty, which includes the freedoms of privacy, autonomy, and self-determination, are granted to citizens of India under Article 21 of the Constitution. If someone’s right to life, which is fundamental to their existence, is restricted, life turns futile.
The protection from death at the hands of anything or anybody, including the state, is one facet of this right. The right to life is the only one that is guaranteed, regardless of other rights. This right comes into effect at the time of birth and lasts forever after that. Leading an honorable existence is also included in the notion of the right to life. Also, the Indian Penal Code, which is now not in force gave two more legal barriers, under Sections 306 and 309 that talk about suicide and the abetment of suicide and their respective punishments. Therefore, for most years, the right to die has been controversial in the realm of Indian laws.
In respect of the same, there have been several judgments given and treated as precedents for euthanasia, however, there has never been a concrete stand for the right. The most recent and landmark judgment was The Common Cause vs. UOI of 2023. The right to die with dignity and passive euthanasia was recognized by a Constitution Bench as fundamental rights under Article 21. The Court decided that “Advance Medical Directives,” which are orders to stop providing life-sustaining care when a patient is in a condition where they are unable to express their desires, could be used to perform passive euthanasia. These advance directions were intended to be codified in the 2018 standards.
The 2018 standards were deemed “cumbersome” by the Indian Society for Critical Care Medicine (ISCCM) in a miscellaneous application filed in July 2019. According to the 2018 standards, the advanced directives must be examined by a Judicial Magistrate First Class (JMFC) to ensure the patient signed them willingly. Alternatively, it was suggested by ISCCM that a notary verify an advance directive. The 2018 rules also established a two-phase medical board review process. “The Head of the treating department and at least three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care” with a minimum of 20 years of experience should make up the primary medical board, which is made up of the hospital. The district collector was then mandated to form an additional board, with the district’s chief district medical officer serving as chairman and three specialty physicians from the previously stated specialties.
The Bench issued an order amending the 2018 rules after accepting the petitioners’ and the Union’s joint suggestion. The primary and secondary boards remained in place under the revised standards. The 20-year experience requirement for doctors was lowered to five years. 48 hours was the ideal amount of time, as stipulated in the standards, for both boards to offer their opinions. They also eliminated the Chief District Medical Officer’s participation from the secondary board. The District Medical Officer may designate a substitute in their stead. Finally, just three members remain on both boards. Together with the close relatives or guardians’ approval, the primary and secondary boards must now notify the JMFC of their decision to stop therapy.
THE BHARTIYA NYAYA SANHITA (BNS) ON SUICIDE
The Bhartiya Nyaya Sanhita (BNS), which translates to “Indian Justice Code” in IAST, is India’s official criminal code. It came into effect on July 1, 2024, replacing the Indian Penal Code (IPC) of British India. The BNS was passed by parliament in December 2023.
In India, attempted suicide has long been considered a criminal offense under section 309 of the Indian Penal Code (IPC), which was written during the colonial era. Those who attempt suicide may face jail time or fines. The act of making suicide attempts illegal punishes people when they are at their most vulnerable and unhappy. Although attempted suicide is now considered a non-crime under the Mental Healthcare Act, 2017 (MHCA), section 309 of the IPC is still in effect. This has caused significant misunderstanding among relevant stakeholders regarding the relationship between the MHCA provision and section 309 in day-to-day clinical practice. But a revolutionary change is approaching with the Bhartiya Nyaya Sanhita 2023 (BNS), which, if approved by Parliament, will take the place of the IPC. There are no longer any clauses in this new statute that make attempting suicide illegal.
CONCLUSION
Several countries around the world, have laws supporting euthanasia. The Netherlands is the first country in the world to give legality to the status of the right die. However, critically analysing the position of euthanasia in India, we find that there is no such direct law in this regard. However, by way of precedents, passive euthanasia has been legalized in India.
Living in the contemporary era, where there is an established democratic society, it is pertinent to develop stringent laws in response to the growing circumstances and situations that demand the attention of the parliament. Just like the right to life, an individual living in a democratic country should have the right to die, under severe medical conditions where the percentage of the scope of improvement is more often less or perhaps not there. In such situations, the economic expenses, and mental agony of the patient and his will are at stake. Therefore, giving importance to the well-being of the patient the grant of such a right is an unanswered question to date.
Thus, is very well quoted by Marya Mannes that “Euthanasia is simply to be able to die to with dignity at a moment where life is devoid of it”.
