family law

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Death solves all problems

"Death Solves All Problems...No Man, No Problem." - Joseph Stalin

Introduction :

The tendency to commit suicide has been termed differently during the various stages of world history and as such there has been no concrete reason to explain why people have the tendency to commit suicide. However from a general point of view it has been considered an unnatural cowardly or at times sinful behaviour. Though the society condemn it and ostracize the people of attempted and failed very rarely do they look at the problems of the victim or what compelled him to do such an act.

The author in this paper will give a brief legislative history regarding the ‘crime' of committing suicide along side the upcoming issue of euthanasia in India.

Indian Perspective :

History testifies that India have been one of the very few countries which have tried to develop alternate approaches to suicide and bring it under the legislature and also the commitment shown by the Supreme Court of India through the judgements in P. Rathinam v Union of India , AIR 1994 SC 1844 and have sought to bring the right to die under fundamental rights. And as such a favourite practice by the courts in India has been to expand the scope of article 21 of the Indian Constitution as much as possible and read it into various other rights such as in Suni Batra v Delhi Administration wherein it was held that the state should safeguard the individuals right over their person.

Under the Indian Penal Code 1860 under section 309 attempt to commit suicide is punishable. However the Law Commission of India in its 42nd report made recommendations to delete the said section and consequently an amendment was sought , but however due to various political reasons it attempt to suicide still stands as a punishable offence.

Section 309 And The Indian Constitution :

The judgement in MS Dubal v State of Maharashtra has been remarkable for its innovative way of interpreting the constitutional provisions. The court said that “the right to die was not intrinsically unnatural and that no stigman should be attached to it as such”. It ruled that the right to life guaranteed by article 21 includes the right to die.

The debate on whether article 21 should include the right to die and if so whether it is justified has been going on for many years in the Indian courts but it has not been able to make any remarkable progress.

Extending The Scope Of Article 21 :

According to the author article 21 of the Indian constitution gives the right to personal liberty and the right to life as such in its widest interpretation it can be stated that the liberty which is given implies an absence of duty and it characterises the actions of the individual. And deriving a right from a parent right does not in any sense reduce the credibility of the parent right. The constitution gives the right to live life with dignity and not an animal existence. If so a person living a miserable life or is suffering from an incurable disease is incapable of living a peaceful right.

The statute and the laws are more like guidelines and as such they should arbitrarily impose duty on individuals. A matter of taking one's life and giving a heavy punishment for a failed attempt will only add to the mental trauma of the person and in no way is justified. The state as its responsibility should safe guard the interests of its citizens , and in a large society not only should there be positive rights but also the recognition of negative rights. Drawing support from the recommendation of the Law Commission the author believes that S.309 of the Indian Penal Code should be removed as it inflicts a greater harm which is contrary to the principle so of human dignity as upheld by the constitution and safe guarded by the state.

And the author finds it assuming , the state is only able to give a punishment of a lesser degree than what the ‘suicide-prone' person wanted. And the state is incapable of providing more than what the person wanted to do and as such the law doesn't really serve its purpose.

Euthanasia : Affirmative Arguments :

"I can understand at the individual level that in some cases you wish it was all over with, but the problem is as a society you have to choose what's going to be your norm." ... "We have this idea that what happens to me is nobody's business. The problem with euthanasia is it requires another person to do it, and it requires a complicit society to authorize it."

  • Margaret Somerville, founding director of the McGill Centre for Medicine, Ethics and Law

Euthanasia or mercy killing as it is commonly known is taking the life support system of critically ill patients through consent or in some cases without consent. It is usually done in cases wherein the purpose of giving life support system is far less than the value of the remaining life in the patient.

The law concerning euthanasia is well debated as it can have far reaching consequences. There are various reasons to it. And one of the primary being , prosecutors might feel reluctant to bring proceedings against a doctor of good repute who had to do euthanasia under difficult circumstances and in some cases the amount of dosage to be given to a patient is difficult to estimate and there are various other issues concerning treatment which cannot be defined precisely.

One of the major constraints in legalising euthanasia or in practicing euthanasia is the fear of criminal liability by the doctors , especially if the concerned law is absent.

Determining The Fault Line :

Its commonly understood in legal circle's that while a physician or a doctor can let a patient die , he cannot take active steps to end the life of the person . In Bouvia v Superior Court it was held that , “it is a crime to aid suicide” or do an “assertive , positive, and , direct conduct such as furnishing a gun , poison , knife , or other usable instrumentality or means by which another could physically and immediately inflict some death producing injury upon himself”.

What law usually tries to take into consideration while punishing a doctor is whether the doctor had knowledge that his actions would result in the death of the patient and over looks the motives of the doctor.

Many countries punish abatement to suicide and in India it is a punishable offence under section 306 of the Indian Penal Code. However there is a thin line between abetting suicide and mercy killing in its actual sense. Whether a patient consents to treatment which will shorten his life or if the doctor acts under his discretion , the concern is how and when the doctor was forced to make such a decision. In medical profession it was often difficult to demarcate lines on what is justifiable and what is not. Taking away the life of a person whether by his consent or not is never justified in the law books or in the religious texts. However as far as euthanasia is concerned compassion has to be given whether positively or negatively. The life of a person is of value and of dignity and in cases where dignity ceases to exist, there remains a moral obligation on the doctor to acts in his discretion.

As such in the year 2007 a bill to legalise euthanasia , ‘Euthanasia Permission and Regulation Bill' by an MP. However it faced severe criticism from various religious groups and doctors unions fearing misuse.

Conclusion :

There has been and there will be numerous debates on whether mercy killing is justifiable or not and it is not possible to arrive at a consensus. However the society and the state should work together to bring out affirmative legislation which safeguards the rights of the doctors as well as looking after the interests of the patients.

The author believes that euthanasia is justified as long as the circumstances in which it is done is justifiable and there should always be a constant vigil as to its misuse and make sure justice is served on both sides.