Verdict corner: Legalising mercy killing of terminally-ill patients

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Published: May 21, 2015 12:20:55 AM

All eyes are set on the Constitution bench of the Supreme Court which is hearing two petitions seeking legal sanction for active euthanasia

Despite the Supreme Court legalising passive euthanasia in India in 2011, the debate on the “right to die with dignity” has raged once again with the death of Aruna Shanbaug on Monday.

Shanbaug was in a near vegetative state for 42 years since 1973 in Mumbai’s King Edward Memorial (KEM) Hospital, after a ward boy raped her while strangulating her with a dog chain.

Though the landmark judgment by the bench headed by Justice Markandey Katju on a PIL filed by Pinki Virani, the journalist who first brought Shanbaug’s story to light, gave thousands of patients living in an irreversible vegetative state the right to end a life of misery, both the UPA and the NDA governments have been evasive over the issue and so far no law has been enacted.

Justice Katju, while legalising passive euthanasia, had also recommended scrapping of Section 309 (attempt to suicide) of the IPC, which is punishable with imprisonment of up to one year or fine or both.

The government has even failed to pay heed to the Law Commission’s recommendations that asked it to remove uncertainties and initiate measures to enact a comprehensive law on passive euthanasia, subject to various safeguards. “(It’s) desirable to enact a law on the lines suggested by the Commission at the earliest, so that uncertainty may be resolved and the procedure prescribed by the SC may be refined,” Justice PV Reddi, former chairman, had said in a communication to former law minister Salman Khurshid.

“A competent adult patient has the right to insist that there should be no invasive medical treatment by way of artificial life-sustaining measures or treatment and such decision is binding on the doctors/hospital attending on such a patient, provided that the doctor is satisfied that the patient has taken an ‘informed decision’ based on free exercise of his or her will,” the panel had stated.

According to senior lawyer Rana Mukherjee, “The government must allow active euthanasia by way of legislation to curb its misuse. There are instances where some family members might coerce the doctors to commit the act for oblique purposes. Therefore, there has to be some kind of check. Parliament must do it in the current situation where medical science has advanced from mere speculation to definite knowledge of a person’s life expectancy.”

Until now, only four European countries (Switzerland, Belgium, the Netherlands and Luxembourg) have allowed assisted suicide where patients having incurable illnesses are given lethal doses of killer drugs.

Both the legal fraternity and social activists have been demanding this right on the grounds that “right to die with dignity” was included in the “right to live with dignity” guaranteed under Article 21 of the Constitution. They want to legalise mercy killing of terminally-ill patients.

A 2005 petition filed by Common Cause in this regard is still pending before the apex court. The NGO has demanded amendment to Section 309 of the IPC (which makes attempt to suicide punishable) to exclude euthanasia. The petition has been referred last year to a Constitution bench.

Another petition filed by Society for the Right to Die with Dignity, an NGO, in February 2009 has been tagged with the Common Cause petition. The 2009 plea has also sought legalisation of voluntary euthanasia for terminally-ill patients, citing Indian cultural and religious traditions in Jainism and Hinduism.

During the hearing, the Centre has vehemently opposed such petitions and asked the judiciary to refrain from interfering in the matter as the issue entirely concerned the legislature. Stating that passive euthanasia was against public policy and a form of suicide which could not be allowed, Attorney General Mukul Rohatgi had argued that this would amount to abetment to suicide and attempt to commit suicide, which are criminal offences. Even former Additional Solicitor General Gopal Subramaniam (the law officer in the UPA government) had told the court that the Union health ministry had discussed the issue with the Law Commission in 2006 and was of the view that it could be “misused and abused.”

While the legislature has failed to do its bit of having a comprehensive law on the important issue, now all eyes are set on the Constitution bench of the Supreme Court which is hearing the two petitions seeking legal sanction for active euthanasia.

This is high time to legalise the issue and have clarity as to when it will be fair to consider euthanasia for patients in a vegetative state and who are the competent people to take this call for such patients, and if there can be an expert panel consisting of doctors, social scientists and lawyers to supervise active euthanasia.

Says senior lawyer Sanjay Hegde, “What the SC could do it has done by permitting passive euthanasia. But for active euthanasia, Parliament will have to come out with legislative enactments and also amendments to sections 302, 309 and 120B of the IPC. Law will be required to define incurable disease and vegetative state and under what circumstances active euthanasia can be allowed to end suffering.”

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