In the intricate realm of constitutional law in India, the right to life and personal liberty, enshrined under Article 21, stands as a cornerstone, emphasizing the essence of individual freedoms and dignity. One of the profound and contested dimensions that have emerged within the ambit of Article 21 is the Right to Die.

Article 21 states, "No person shall be deprived of his life or personal liberty except according to the procedure established by law."[1] This seemingly absolute declaration has prompted intense legal, ethical, and societal debates on whether it encompasses the right of an individual to decide the terms of their death.

In the present era, the right to die is not merely a philosophical abstraction but a subject of active legal scrutiny, with landmark cases, legislative developments, and evolving social attitudes shaping its contours.

This exploration aims to delve into the multifaceted layers of the right to die as it stands today, unravelling the complexities, legal precedents, and societal nuances that contribute to the ongoing narrative surrounding this deeply personal and ethically charged aspect of constitutional jurisprudence in India.

This exploration delves into the present status of the right to die under Article 21, shedding light on the evolving legal perspectives and societal considerations that shape this complex and sensitive aspect of constitutional jurisprudence in India.

Article 21 and Right to Die

Article 21 of the Indian Constitution grants individuals a fundamental right to life and personal liberty. Over time this article has been subject to the widest possible interpretation. The Indian Judiciary through its liberal and constructive approach has evolved several other rights such as the right to livelihood, right to food etc under the ambit of article 21.

This widest interpretation was subjected to a historical question before the Indian Judiciary whether the Right to life impliedly includes the Right to Die.

In Gian Kaur v. State of Punjab, the Supreme Court held that the right to life including the right to live with human dignity means the existence of such a right up to the end of natural life. This also includes the right to a dignified life up to the point of death including a dignified procedure of death. This may also include the right of a dying person to die with dignity when his life is going to end. The court also noted that the right to die with dignity should not be confused with the right to die. Article 21 even its widest interpretation does not grant an individual to end his life unnaturally.

Section 309 of the Indian Penal Code Vis-à-vis Decriminalising Suicide

Section 309 of the Indian Penal Code penalises attempt to suicide with imprisonment of up to 1 year. A long debate around this has aroused since a long time emphasising that is punishment the solution to stop suicides. Many Mental Health professionals believe that punishment for suicide may contribute to even more increase in the number of suicides, instead persons with mental health issues should be assisted with proper diagnosis and care. With that view, the Mental Health Act, 2017 was passed which aims to provide care, treatment, and rehabilitation to suicide survivors.

For decriminalising suicide and removing it from the list of punishable offence an amendment to the Indian Penal Code is required.

The amended bill (Bhartiya Nyaya Sanhita) which seeks to replace the Indian Penal Code does not make attempt to suicide a punishable offence. Under the act only abetment to suicide is a punishable offence.

Hence it may be correct to say that even though Section 309 which penalises attempt to suicide remains in the Indian Penal Code 'the punishment for the offence is not compulsory and is merely discretionary. This view was laid in Gian Kaur v. State of Punjab'.[2]

Euthanasia and the Right to Die

A long debate around legalising euthanasia has arisen. Several argue that euthanasia should be legal in India considering the suffering and the fact that persons with chronic or terminal illnesses after a time become a burden on the family and the caregiver. Whereas critics argue that it should not be legal in India considering that every individual has a right to life which cannot be taken away under any circumstances. Also, people with incurable and debilitating illnesses will be disposed of from our civilised society.

'Thus, a plea was raised before the Supreme Court that "euthanasia should be permitted by law". The Supreme Court after a prolonged discussion rejected this plea and held that – The Court will not decide this point as it is beyond the scope of the present petition and secondly also because in euthanasia a third person is either actively or passively involved about whom it may be said that he aids or abets the killing of another person. The court also emphasized that there is a distinction between an attempt of a person to take his life and an action of some other to bring an end to the life of a third person such as a distinction can be made on principle and is conceptually permissible'.[3]

Later in Aruna Ramchandra Shanbaugh v. Union of India[4], the court referred to the Gian Kaur case in which a brief reference to the Airedale case was taken in which it was held that euthanasia can be legalised only by way of legislation. However, the court in the present case emphasized that the Gian Kaur case did not lay that it can be legalised only by legislation.

The court also emphasized the distinction between active euthanasia and passive euthanasia wherein the former refers to active affirmative action which is done to end the life of the patient, it refers to administering or injecting a patient with a lethal dose of a drug whereas the latter refers withdrawal of life support measures such as a ventilator or feeding tube for a patient.

Global Status of Euthanasia

In India after the Aruna Shanbaugh case, the 241st Law Commission of India on Passive Euthanasia also recognised passive euthanasia but so far, no law has been enacted to legalise it. So The present status in India is that an adult can decide for himself concluding that a person who has attained the age of majority has a right to deny medical treatment or opt for alternative treatment even though it entails the risk of death.

'The court noted the legislations concerning active euthanasia and passive euthanasia are prevalent in the Netherlands, Switzerland, Belgium, the U.K., Spain, Austria, Italy, Germany, France and the United States of America. It also noted that active euthanasia is illegal in all States in USA, but physician-assisted death is legal in the States of Oregon, Washington and Montana. The Court also referred to the legal position in Canada.'[5]

End-Notes:

1. The Constitution of India, art 21
2. JT 1196(3) SC 339
3. P. Rathinam v. Union of India (1994) 3 SCC 394
4. 2011 SC 1290
5. Common Cause (Regd. Society) v. Union of India (2018) SC 1665