The five-judge Constitutional bench of Supreme Court on 15 July 2014 issued notice to the State governments and Union Territories (UTs) to submit their responses over legalizing passive euthanasia.
The five-judge Constitution bench comprising of Chief Justice of India R.M. Lodha, and Justice J.S. Khehar, J. Chelameswar, A.K. Sikri and Rohinton F. Nariman reasoned that States and UTs must also be heard because the issue not only involves the Constitutionality of euthanasia but also involves morality, religion and medical science.
The notice was issued by the SC bench on a PIL filed by Non-Governmental Organization (NGO) Common Cause. In the PIL Common Cause had reasoned that, if there is medical expert opinion that a person treatment is beyond from being curable has reached the point of no return, then the person should be given the right to refuse the treatment and die, if the person gives a living will.
However, Attorney General of India contented that the issue of legality involved host of issues which needs to looked from multiple angle and hence it would be appropriate that legislature address the issue of legality of euthanasia. He further contended that legalizing euthanasia may give rise to misuse of it.
Tracing the debate over euthanasia
The notice issued by the SC bench was a follow up of the 25 February 2014 judgement of three-judge SC bench headed by the then Chief Justice P Sathasivam wherein the bench had referred the issue of legalising euthanasia to the Constitution bench for further hearing. The three-judge bench of SC had relied on earlier cases of the SC.
P Rathinam Case of 1994: The SC bench struck down Section 309 of the Indian Penal Code relating to attempt to suicide terming it as unconstitutional.
Naresh Marotrao Sakhre Case of 1995: Bombay High Court ruled that euthanasia is homicide.
Gian Kaur Case of 1996: In 1996 Gian Kaur Case the Constitution Bench upheld that the right to live with dignity under Article 21 of the Constitution will be inclusive of right to die with dignity. However, the decision did not arrive at a conclusion for validity of euthanasia, be it active or passive.
Aruna Ramachandra Shanbaug Case of 2011: The Supreme Court rejected the plea for mercy killing of Aruna Shanbaug who has been in a persistent vegetative state for the past 37 years and had laid down elaborate guideline for carrying out passive euthanasia. It rejected the issue of active euthanasia and moots decriminalisation of attempt to suicide.
Passive euthanasia entails the withholding of common treatments, such as antibiotics, necessary for the continuance of life. On the other hand, active euthanasia entails the use of lethal substances or forces, such as administering a lethal injection, to kill and is the most controversial means.
Guidelines laid down by SC in Aruna Shanbaug Case:
A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.
Even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned.
When such an application is filled the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not.
A committee of three reputed doctors to be nominated by the Bench, who will give report regarding the condition of the patient. Before giving the verdict a notice regarding the report should be given to the close relatives and the State. After hearing the parties, the High Court can give its verdict.
As India has no law about euthanasia, the Supreme Court's guidelines are law until and unless Parliament passes legislation.
Euthanasia across the World
The Netherlands: Issued rules for passive or involuntary euthanasia called Groningen guidelines in 2004. Rules were expanded in 2006 after reports that doctors were killing newborns if found ill. Netherlands was the first country to pass such guidelines.
Switzerland: Article 115 of the penal code does not consider assisting suicide for an honourable motive illegal. Lethal drugs can be taken with assistance.
Germany: In June 2010 Federal Court allowed passive euthanasia with applicant’s consent.
United Kingdom: The bill on euthanasia was rejected by the House of Commons in 2004 and House of Lords in 2007.
France: Under the end of life law of 2009, doctors are advised not to take extreme measures to keep dying or brain dead patients alive.
Albania: Passive euthanasia was allowed in 1995 through a law if 3 or members agree to withdraw life support systems.
Luxembourg: Permits active euthanasia for over 18 years in age
Quebec province of Canada: On 5 June 2014 adopted legislation Right-to-Die allowing terminally ill patients to kill themselves with a doctor’s help
US states of Oregon, Washington and Vermont: Euthanasia is allowed if doctor assisted
The five-judge Constitution bench comprising of Chief Justice of India R.M. Lodha, and Justice J.S. Khehar, J. Chelameswar, A.K. Sikri and Rohinton F. Nariman reasoned that States and UTs must also be heard because the issue not only involves the Constitutionality of euthanasia but also involves morality, religion and medical science.
The notice was issued by the SC bench on a PIL filed by Non-Governmental Organization (NGO) Common Cause. In the PIL Common Cause had reasoned that, if there is medical expert opinion that a person treatment is beyond from being curable has reached the point of no return, then the person should be given the right to refuse the treatment and die, if the person gives a living will.
However, Attorney General of India contented that the issue of legality involved host of issues which needs to looked from multiple angle and hence it would be appropriate that legislature address the issue of legality of euthanasia. He further contended that legalizing euthanasia may give rise to misuse of it.
Tracing the debate over euthanasia
The notice issued by the SC bench was a follow up of the 25 February 2014 judgement of three-judge SC bench headed by the then Chief Justice P Sathasivam wherein the bench had referred the issue of legalising euthanasia to the Constitution bench for further hearing. The three-judge bench of SC had relied on earlier cases of the SC.
P Rathinam Case of 1994: The SC bench struck down Section 309 of the Indian Penal Code relating to attempt to suicide terming it as unconstitutional.
Naresh Marotrao Sakhre Case of 1995: Bombay High Court ruled that euthanasia is homicide.
Gian Kaur Case of 1996: In 1996 Gian Kaur Case the Constitution Bench upheld that the right to live with dignity under Article 21 of the Constitution will be inclusive of right to die with dignity. However, the decision did not arrive at a conclusion for validity of euthanasia, be it active or passive.
Aruna Ramachandra Shanbaug Case of 2011: The Supreme Court rejected the plea for mercy killing of Aruna Shanbaug who has been in a persistent vegetative state for the past 37 years and had laid down elaborate guideline for carrying out passive euthanasia. It rejected the issue of active euthanasia and moots decriminalisation of attempt to suicide.
Passive euthanasia entails the withholding of common treatments, such as antibiotics, necessary for the continuance of life. On the other hand, active euthanasia entails the use of lethal substances or forces, such as administering a lethal injection, to kill and is the most controversial means.
Guidelines laid down by SC in Aruna Shanbaug Case:
A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.
Even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned.
When such an application is filled the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not.
A committee of three reputed doctors to be nominated by the Bench, who will give report regarding the condition of the patient. Before giving the verdict a notice regarding the report should be given to the close relatives and the State. After hearing the parties, the High Court can give its verdict.
As India has no law about euthanasia, the Supreme Court's guidelines are law until and unless Parliament passes legislation.
Euthanasia across the World
The Netherlands: Issued rules for passive or involuntary euthanasia called Groningen guidelines in 2004. Rules were expanded in 2006 after reports that doctors were killing newborns if found ill. Netherlands was the first country to pass such guidelines.
Switzerland: Article 115 of the penal code does not consider assisting suicide for an honourable motive illegal. Lethal drugs can be taken with assistance.
Germany: In June 2010 Federal Court allowed passive euthanasia with applicant’s consent.
United Kingdom: The bill on euthanasia was rejected by the House of Commons in 2004 and House of Lords in 2007.
France: Under the end of life law of 2009, doctors are advised not to take extreme measures to keep dying or brain dead patients alive.
Albania: Passive euthanasia was allowed in 1995 through a law if 3 or members agree to withdraw life support systems.
Luxembourg: Permits active euthanasia for over 18 years in age
Quebec province of Canada: On 5 June 2014 adopted legislation Right-to-Die allowing terminally ill patients to kill themselves with a doctor’s help
US states of Oregon, Washington and Vermont: Euthanasia is allowed if doctor assisted
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