Legal brief in support of euthanasia
Statement of Issue
Force-feeding Aruna who has persistently been in vegetative state from past 36years violates her right to live with dignity as promised by Article 21 (right to Life) of the Constitution of India.
Issue 2 :
Why should Euthanasia be legalized?
Statement Of Facts
Aruna Ramachandra Shanbaug now 61 yrs old was sexually assaulted 36 yrs ago and has been lying in the vegetative state ever since.Aruna doesn't want to live any more, the Doctors have told her that there is no chance of any improvement. Pinki Virani her next friend on behalf of Aruna has moved to SC with a plea to “direct KEM Hospital not to force feed her.”The bench comprising of Chief Justice K G Balakrishnan, Justice A K Ganguly and B S Chauhan questioned if the plea was not akin to euthanasia? To this Arunas Counsel Shekhar Naphade argued that keeping Aruna in this persistent vegetative state by force-feeding violated her right to live with dignity guaranteed by Article 21 (right to life) of the Constitution. He stated that she is beyond cure and the court should inquire about what medical science has in store for her, he stated that there has been utter indifference of the medical world towards her and requested the SC to lay down some guidelines in such cases. The apex court asked Naphade that what he meant was right to life included right to die? As it had negated pleas of termination of pregnancy of the mentally retarded girl resulting from rape at a Nari Niketan in Chandigarh and a similar plea from a Mumbai Couple for terminating a diseased fetus. The SC bench agreed to examine the petition and sought responses from the Union government, Maharashtra, Municipal Corporation of Brihan Mumbai, Commissioner of Mumbai Police and Dean of KEM Hospital. Her next friend describes Shanbaug as: “Her bones are brittle. Her skin is like ‘papier mache' stretches over a skeleton. Her wrist are twisted inwards, her fingers are bent and fisted toward her palms, resulting in growing nails tearing into the flesh very often. Her teeth are decayed and giving her pain. Food is mashed and given to her in semi- solid form. She is in a persistent vegetative state.” The Supreme Court has admitted the Plea and sought responses.
Summary Of Argument
What is Euthanasia and what is the stand of India on this subject, difference between suicide and euthanasia.
Does right to die included in Article 21 Constitution of India, and hence providing impetus to the argument that Euthanasia should be legalized.
Why should Euthanasia be legalized?
Countries have legalized euthanasia. Some of the guidelines under which euthanasia must be legalized.
Issue 1:“Euthanasia is etymologically means good death. Euthanasia as defined by oxford dictionary means the painless killing of a patient suffering from an incurable disease or in an irreversible coma. It is called as mercy killing or Physician Assisted Suicide (PAS) and it can be described as bringing about of the gentle death of a patient suffering from painful, chronic and incurable disease. Chronic, painful and incurable disease can be discriminated in the following way, a painful disease is described as one in which the patient suffers unbearable and excruciating pain a chronic disease is described to be a long lasting one and an incurable disease is one whose cure has not been found till date.”
“Euthanasia is further divided into four categories Voluntary Involuntary Non-voluntary Active euthanasia and Passive euthanasia. Voluntary Euthanasia means in accordance with the authoritative consent of the dying person. Involuntary Euthanasia means contrary to an authoritative refusal of consent from the dying person. Non-voluntary Euthanasia is done without an authoritative consent or authoritative refusal of consent from the dying person. Active euthanasia is a case of killing and passive euthanasia a case of letting the patient die it natural death. It is permissible to withhold treatment in some cases but not permissible to take direct action designed to kill the Patient.”
According to this case Aruna was sexually assaulted and then due to the lack of oxygen to the brain has been in the vegetative state for 36 years in the care of KEM Hospital. Vegetative state as described by Bryan Jennett and Professor Plum of New York 1972 is the behavioural feature of the patient who has suffered a brain damage that has resulted in the cerebral cortex being out of action.
“Professor Plum further goes on to say that people in this state do not respond to their surroundings and are always in the unconscious state. The more primitive part of the brain responsible of the periodic wakefulness and for wide range of activities is still functioning giving paradox of the patient being wide awake. There is no evidence that pain or suffering is experienced by these people. Occasional smiling, yawning, weeping and laughing occur but these are unrelated to the appropriate stimuli. These observations depend on bed side observation over a period of time by a skilled doctor on appropriate patients. And it the medical conclusion is that in spite of the wide range of activities there is no evidence of working mind or of awareness. Euthanasia is practiced in other countries is passive Euthanasia and not active Euthanasia.”
“In India attempts have been made to include Right to die in the Right to Life and Liberty which is one of the most interpreted Fundamental Right in the Constitution. Article 21, though couched in negative Language, confers on every person the fundamental right to life and personal liberty which has become an inexhaustible source of many other rights.” “Article 21 of the constitution of India guarantees Protection of Life and personal Liberty it states “No person shall be deprived of his life or personal liberty except according to procedure established by law.” These rights are as much available to foreigners as to the citizens.” “ It has been argued that the negative aspect of the right to live would mean the end or extinction of the positive aspect, and so, it is not the suspension as such of the right as is in the case of 'silence' or 'non-association' and 'no movement'. It has also been stated that the right to life stands on different footing from other rights as all other rights are derivable from the right to live in Gian Kaur vs. State of Punjab”. The Two cases in the past that dealt with Right to die are Gian Kaur vs. State of Punjab and P.Ratinam v. Union of India.
“ In Gian Kaur vs. State of Punjab, a five judge Constitutional Bench held that the "right to life" is inherently inconsistent with the "right to die" as is "death" with "life". In furtherance, the right to life, which includes right to live with human dignity, would mean the existence of such a right up to the natural end of life. It may further include "death with dignity" but such existence should not be confused with unnatural extinction of life curtailing natural span of life.” In progression of the above, the constitutionality of Section 309 of the I.P.C, which makes "attempt to suicide" an offence, was upheld, overruling the judgment in P. Rathinam's case. The factor of immense significance to be noted here is that suicide, euthanasia, mercy killing and the like amount to unnatural ebbing of life. This decision thereby overruling P.Rathinam's case establishes that the "Right to life" not only precludes the "right to die" but also the right to kill."Interestingly in P.Rathinam's case, even when a Division bench affirmed the view in M.S Dubal v. State of Maharashtra that the "right to life" provided by the Constitution may be said to bring into its purview, the right not to live a forced life, the plea that euthanasia be legalized was discarded. It was held that as euthanasia involves the intervention of a third person, it would indirectly amount to a person aiding or abetting the killing of another, which would be inviting Section 306 of the I.P.C.In Naresh Marotrao Sakhre v. Union of India, Lodha J. affirmed that "Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is affected."(Emphasis added).””The above inferences lead to one irresistible conclusion i.e. any form that involves unnatural termination of life, whether an attempt to suicide, abetment to suicide/assisted suicide or euthanasia, is illegal. The fact that even an attempt to suicide is punishable goes to show the extent of credibility accorded to the sanctity of life and the right to life as a whole. This apart, the decriminalization of euthanasia is unworkable in the Indian perspective, even on humanitarian grounds, as it involves a third person.”
In Gian Kaur vs. State of Punjab, P.Ratinam v. Union of India. “Right to live of which Article 21 speaks of can be said to bring in its trail the right not to live a forced life."(Page 410The conclusion of the discussion was summarised as under "On the basis of what has been held and noted above, we state that Section 309 of the Penal Code deserves to be faced from the statute book to humanize our penal laws. It is a cruel and irrational provision, and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide. Then an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit it causes no harm to others because of which State's interference with the personal liberty of the persons concerned is not called for. We, therefore, hold that Section 309 violates Article21, and so, it is void. May it be said that the view taken by us would advance not only the cause of humanization, which is a need of the day, but of globalization also, as by effacing Section 309, we would be attuning this part of our criminal law to the global wavelength."(Page 429)<SLE> At this stage it may be mentioned that reference has-been made in P.Rathinam and the Bombay High Court decision to the debate relating to euthanasia, the sociological and psychological factors contributing to suicidal tendencies and the global debate on the desirability of not punishing The absence of provisions to punish attempted suicide in several jurisdictions has also been noticed. The desirability of attempted suicide not being made a penal offence and the recommendation of the Law Commission to delete Section 309 from the Indian Penal Code has also been adverted to. We may refer only to the recommendation contained in the 42nd Report (1971) of the Law Commission of India which contains the gist of this logic and was made taking into account all these aspects. The relevant extract is, as under:"16.31 Section 309 penalizes an attempt to commit suicide.
The Gian Kaur vs. State of Punjab overruled P.Ratinam v. Union of India in which right to die was recognised to be inclusive in right to life and liberty Article 21 of the constitution, and the constitutional validity of section 306, 309 that is abetment of suicide and suicide was questioned.
But the P.Ratinam v. Union of India cases death with the difference between suicide and Euthanasia is that suicide is ending of life in an abrupt manner when no terminal illness is known to have taken place while Euthanasia the patient is dying and has no brain activity whatsoever like in our case Aruna has shown no signs of awareness whatsoever for the past 36 years, her family has abandoned her and she has no decision making power, or in short is like a vegetation.
Religious Perspective To Euthanasia
It may be mentioned that suicide was regarded as permissible in some circumstances in ancient India. In the Chapter on “The hermit in the forest", Manu's Code (See: Laws of Manu, translated by George Buhler, Sacred Books of the East edited by F.Max Muller, (1967 Reprint) Vol.25, page 204, J Shlokas31 ad 32) says "Or let him walk, fully determined and going straight on, in a north-easterly direction, subsisting on water and air, until his body sinks to rest. A Brahman having got rid of his body by one of those modes (i.e. drowning, precipitating burning or starving) practised by the great sages, is exalted in the world of Brahman, free from sorrow and fear". Two commentators of Manu, Govardhana and Kulluka (SeeMedhatithi's commentary on Manu), say that a man may undertake the mahaprasthana (great departure) on a journey which ends in death, when he is incurably diseased or meets with a great misfortune, and that, because it is taught in the Sastras, it is not opposed to the Vedic rules which forbid suicide
"From the parallel passage of Apas tambha II, 23, 2, it is, however, evident that a voluntary death by starvation was considered the befitting conclusion of a hermit's life. The antiquity and general prevalence of the practice may be inferred from the fact that the Jaina ascetics, too, consider it particularly meritorious."Looking at the offence of attempting to commit Suicide, it has been observed by an English writer: "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. That those for whom life is altogether bitter should be subjected to f
Further bitterness and degradation seems perverse legislation."
Euthanasia Can Become A Means Of Health Care Cost Containment
"...drugs used in assisted suicide cost only about $40, but that it could take $40,000 to treat a patient properly so that they don't want the "choice" of assisted suicide..."
Savings to the government may also become a consideration.
Euthanasia should be legalised in India, since it is new to the subject India Supreme Court could take into consideration Policies in other countries on this subject for guidelines purposes. Stand of some of the countries is mentioned below.
The Supreme Court of Netherlands allows euthanasia. According to the penal code of the Netherlands killing a person on his request is punishable with twelve years of imprisonment or fine and also a assisting a person in committing suicide is punishable with three years of imprisonment or fine. But the law of Netherlands provides a defence of ‘necessity' to the offence of voluntary euthanasia and assisted suicide. This defence of necessity is twofold; one is that of ‘psychological compulsion' and the other is ‘emergency'.' The criteria lay down by the Courts to determine whether the defence of necessity applies in a given case of euthanasia, have been summarized by Mrs Borst-Eilers as follows:
1. the patient must consent for euthanasia voluntarily
3. The patient must be in the state in which he cannot tolerate anymore of pain not necessarily physical.
4. Euthanasia must be the last resort. Other alternatives to alleviate the patient's situation must be considered and found wanting.
5. Physician must perform the process of euthanasia.
6. The physician performing the process must consult more than one physicans.
The judicial Bill was passed in 2001 in Netherland allowing physician to take the life of its patients whose living is unbearable.
The Northern Territory of Australia became the first country to legalize euthanasia by passing the Rights of the Terminally Ill Act, 1996. It was held to be legal in the case Wake v. Northern Territory of Australia by the Supreme Court of Northern Territory of Australia. But later a subsequent legislation that was the Euthanasia Laws Act, 1997 made it again illegal.
Here, active euthanasia is prohibited but physicians are not held liable if they withhold or withdraw the life sustaining treatment of the patient either on his request or at the request of patient's authorized representative. Euthanasia has been made totally illegal by the United States Supreme Court in the cases Washington v. Gluck berg and Vacco v. Quill. In these cases, the ban on assisted suicide by the physicians has been held to be in consonance with the provisions of the constitution. In Oregon, a state in America, assisted suicide has been legalized in 1994. Twenty seven lives were ended in 1999 and that number is still expected to increase.
Patients in Canada have right to refuse life sustaining treatments but they can't ask for assisted suicide or active euthanasia. Supreme Court in various cases has held that in the case of assisted suicide the interest of the state will prevail over individual's interest.
Here, euthanasia was made legal in the year 2002.
in Switzerland, euthanasia is illegal but physician assisted suicide has been made legal.
Hence taking the above countries into consideration, India should also legalize Euthanasia but also set stringent guidelines so that such absolute Power to end Life is not misused and help Aruna who is going through torture of a Life, to rest in peace, for the reasons mentioned above.