The debate on euthanasia is a momentous one. It has been one of the controversial issues of all time. Euthanasia is seen as a conundrum due to the presence of many conducts justified on several grounds. It was difficult for a country like India to take a decision which is rational and morally acceptable for all. Not only the views on euthanasia differed based on religion but also on factors like education, age and gender. There has been a long history of multiple cases on this issue.

Finally, in the landmark case of Common Cause v. Union of India, the Apex Court pronounced to legalize passive euthanasia in the country. The judgement gave a robust interpretation of Article 21 of the constitution. The court held that passive euthanasia is not an offence under IPC.

Neither the patient is liable under Section 306 nor the doctors are liable under Section 309 of IPC. The judgement faced both approbation and criticism. Further, this article proposes to talk about euthanasia, its types, historical background and the legal aspect of it. It discusses the constitutionality of euthanasia and the present scenario of the country.
Keywords: Euthanasia, Right to life, Suicide, Living will, Right to Die, Doctors

Introduction
The progress and evolution in technology and medical science have not only improved the general human health by completely demolishing the epidemics, but have also found the cure for others. They have interfered with the natural life span of people by finding treatments and drugs for prolonging it.

Such dependence on medical treatments for artificially prolonging the lifespan is usually painful, undignified and against individual autonomy.[1] If a person is undergoing suffering due to the incurable illness, in such situations patient's autonomy should supersede everything.[2] A person has all the rights over his decision, be it regretting over the bad choices or rejoicing over the good ones. In such heart-wrenching situations, here comes the issue of euthanasia.

Euthanasia is defined as an intentional termination of a patient's life by an or omission of medical care.[3] The constitutionality of euthanasia has been a much-debated issue throughout the world.[4] As this controversy between legality and morality of euthanasia has been a significant phenomenon during the past decades, it can be much expected that this will continue further into the twenty-first century also.[5] The conundrum over this subject lies on the clashes between the principle of sanctity of life, dignity of an individual and the right of self-determination.
The constitutionality of euthanasia was always a subject of dispute.

The reason lies in the fact that the impact of granting euthanasia is not only at an individual level but at a larger level as well; which includes society, government, institutions etc.[6] The consequence of legalizing euthanasia affects both the present and the future. Each nation decides whether they should legalize euthanasia or not, and making this requires time as it is a complex process. An individual has a right to enjoy and power over his life till his death. The dignity of a person cannot be effaced by sickness or sufferings. Euthanasia is not an offence. It is an end to the excruciating sufferings and agony of a terminally ill patient.

Background Of Euthanasia

The Black's Law Dictionary[7] (8th edition) defines euthanasia as an act of killing a person or causing the death of a person who is in a permanent vegetative state or is suffering from an incurable disease. It is a way of ending the life of a person to provide relief from distress and unbearable conditions.[8] It is done to ensure painless death to a person when there are no hopes for improvement.[9] The word euthanasia is derived from the Greek word, eu and Thanatos which means good death and easy death respectively. Euthanasia is adopted in different countries to give patients a death in a painless way and to reduce the burden on their families. It is giving drugs to a patient to end his life after taking his consent.[10] Several countries across the world have legalized euthanasia.

The different types of euthanasia are:

1. Active or Positive Euthanasia
2. Passive or Negative Euthanasia
3. Voluntary Euthanasia
4. Involuntary Euthanasia
5. Non-voluntary Euthanasia

Active Or Passive Euthanasia

It involves giving lethal medicines to a patient suffering from an incurable disease to end his life painlessly.[11]

Passive Or Negative Euthanasia

Passive euthanasia involves removing the life-saving devices or to stop giving the medication. It is a way of ending life through a natural means. It means a process in which the doctor is not saving a patient.[12]

Voluntary Euthanasia

In this type, the consent of the patient matters. Euthanasia is performed only with the permission and the expressed desire of the patient. It is performed when it is in the best interest of the patient and also everyone else.

Involuntary Euthanasia

Euthanasia is performed without the consent of the patient. The patient is killed against his wish, and it amounts to an offence.[13]

Non-Voluntary Euthanasia

In non-voluntary euthanasia, the deceased or the patient is not competent to inform someone about his request to die or request to live. In addition to this, the patient also neither made a living will nor he has given any advance directives. The euthanasia is performed with the consent of his family members and their decision is respected.

Conflicting Concepts On Euthanasia

In several texts of Hindus and even ancient Greeks instances have been found where the killing of a person suffering from an incurable disease is favored. In epic pieces of literature like Mahabharata and Ramayana, there are several instances of religious suicides. The natural law thinker, Plato in his book 'The Republic of Plato' has stated that if a man has a sickly constitution and temperate habits, if his practices are nothing worth, then he should not be cured.

According to Hindu texts, ending a life of a person suffering from a painful disease, then you are performing a good deed. But on the other hand, there are some other Hindu texts which believe that by ending the life of a person, even a deceased person, one is disturbing the cycle of death and rebirth. So, it can be said that Hindus too carry different views on euthanasia.

Further, Muslims were against euthanasia. They considered life to be sacred and believed that no one has a right to interfere with the health of a person. Because life is given to a person by Allah. Similarly, Christians were also against euthanasia. They believed that life is a gift from God. Only God has the power to take away someone's life and end it.[14] Sikhs were also not in favor of euthanasia as they considered it to be an interruption in God's plan.

It has been found that opinions of people also differ on euthanasia on factors like religion, age, sex, education or status. It is the findings of many piece of research that people who are more religious as compared to others are often against euthanasia. Because they consider life as a gift of God. A college student will favor euthanasia more as compared to a non-educated person. Also, people with low income and women are likely to go against euthanasia as compared to the others.[15]

Several authors all across the world have written their opinions and views on euthanasia. A famous author, Stanley Leo in his article 'Dying with Dignity: Case for legalizing Physician-assisted Suicide' says that life is not only about surviving but also living a life with good health.[16] Different countries have different ideologies regarding euthanasia. India has legalized only passive euthanasia while active euthanasia is still illegal in the country.

There have always been deliberations on this subject for a few decades. Some people were against euthanasia, and some wanted to legalize it. There was a time when a layman used to consider suicide and euthanasia on the same footing and used them interchangeably. Later Supreme Court through judgments gave clear definitions of the terms and established a clear-cut difference between the two. Suicide is an act performed by the person himself to end his life but some other person performs euthanasia with the consent of the deceased person.

History Of Euthanasia

Indian Constitution has been made by referring to the various constitution of the other countries. While giving any judgment, the judges of a court take reference from many foreign decisions. There are only a few provisions and Articles in the Constitutions of India that have experienced the same level of judicial activism as Article 21.[17] Since the Maneka Gandhi[18] case, such activism has widened the scope of this Article. Inclusion of 'right to die' under this provision is yet another addition to the cap of Article 21.[19] The Supreme Court of India has passed a plethora of judgments before the legalization of Passive Euthanasia in the country. There have been an evolution and differences in the legality of euthanasia from one judgment to others.

Euthanasia is a dilemma due to the presence of more than one course of conduct justified on various grounds.[20] There are myriads of question which existed in India before the judgement of 2018. The Indian Constitution under Article 21[21] empowers citizens to enjoy right to life and personal liberty bringing within ambit the right to privacy, right of self-determination and right of autonomy.[22] The right to die is a negative right of right to life and have a subject of dispute since a long time in Indian judiciary. The legal barrier in recognizing the right to die are Section 306 and 309 of IPC.

The first judgement which dealt with the issue that whether the right to die is included under Article 21 of the constitution was Maruti Shripati Dubal v. State of Maharashtra.[23] The court in the case pronounced that the right to life under Article 21 could also be interpreted as the right not to live a forced life and Section 306[24] and Section 309[25] of Indian Penal Code should be held unconstitutional. Subsequently, the Apex Court in P Rathinam v Union of India[26] held that under Article 21, the right to life does not include the right to die.

It coincided with the judgment of the Bombay High Court in the case Maruti Shripati Dubal v. State of Maharashtra and held that Section 306 and 309 are unconstitutional, on the grounds of being violative of Art. 21, which includes the right to die. Thus, Section 309 of IPC was struck down. But the precedent set forth by of P Rathinam did not hold good for a long time. The Supreme Court in 1996 in Gian Kaur v. the State of Punjab,[27] pronounced the judgment that both active and passive euthanasia and assisted suicide is unlawful in India.

It was also challenged that as the court in the P Rathinam case has invalidated Section 309 of IPC, therefore the Section 306 which penalizes abetment of suicide should also be held unconstitutional ipso facto. But the court rejected this argument and held that both Section 306 and 309 of IPC are valid and constitutional.

Further in the year 2011, the Apex Court in Aruna Shanbaug v. Union of India[28] relying on the above judgment, held that passive euthanasia is legally valid in the country under exceptional circumstances which means the removal of life-supporting medical instruments and causing natural death of a person.

The Law Commission of India, in its 196th report, gave a clear definition and clarified the meaning of the terms related to euthanasia. Further, the report also recommended passive euthanasia in cases where the deceased is both capable and incapable of deciding things and are in critical condition. In a case where a person is not capable of determining or is not conscious, the medical practitioner who is operating him will take opinions of three medical experts and after that will inform the patient and his family members.

Common Cause V. Union Of India

Finally, the Supreme Court on 9th March 2018 in the case Common Cause v. Union of India[29] gave a landmark verdict by giving legal recognition to passive euthanasia and permitting the execution of a living will or advanced medical directives. This case is synonymous with different names like passive euthanasia case, euthanasia case or living will case. A living will is a document which is executed by a patient who is of sound mind and is capable of knowing the consequences.

It must be made willingly by a patient and without any force or coercion.
The Court in this judgment concluded that it is inhumane to force a person to live with such unbearable condition and he should have a right to decide whether medical treatment should be given or not.

Finally, there was a legal stand of India on this long battle of euthanasia. It was held that 'right to die' is a part of Article 21, [30] and a person has a right to live with dignity until his death. The Apex Court has introduced guidelines to be followed while performing euthanasia, and there are set of the procedure involved when a patient wants to execute a living will. They gave a vigorous interpretation of the on-going debate of right to life including right to die.

The judgement is constitutionally valid and favors the dignified end to human life. In cases of passive euthanasia, death of a person is certainly expected and by keeping such a person alive with the help of life-sustaining devices, it will not prolong his life but will prolong his death. [31]
In this judgment, the verdict of the judges revolved around the basics of morality, ethics, religion and legality. The judgment includes a reference from various other national and international cases. The judgment is a perfect example that nobody has authority over someone. A person is a master of his own rules. It must be on the discretion of the deceased whether he wants medical treatment for prolonging his life span or not.

The case of Common Cause v. Union of India includes religious text, reference from schools of jurisprudence, scholarly literature and the same suggests that ending a life of the terminally ill patient is a good deed. Keeping a person on a ventilator and providing him oxygen is just an artificial method of increasing life span which cases both pains, suffering and burden to the family. Now in India, in cases of passive euthanasia consent by a spouse, children and patient is sufficient but it requires approval from High Court if consented by any friend, near relative or doctor.[32]

In a nutshell, the judgment pronounced sets out to be a good legal precedent as it has given relief to an infinite number of people who were struggling with their stagnant health with no hopes for improvement. It is better to give a person a natural death rather than making his life span shorter and painful by delivering high doses of medicine and medical treatment. An adult human being with mental capacity has complete right to take decisions including refusal to medical treatment or complete withdrawal from a life-saving device.[33]

Even though the judgment was praised by the majority of the population but still it faced many criticisms. There was a bombardment of questions challenging the constitutionality of euthanasia. The inclusion of 'Right to die' as a part of Fundamental Right protected under Article 21 was being questioned on the grounds of religion, ethics, morals, societal norms and values. People were considering passive euthanasia as a form of suicide and an act of killing a person. Some people considered it as an inhumane act.

The legalization of Passive euthanasia is one of the landmark decisions taken by the Court as life is not just about surviving but living with excellent and wholesome health. The Court has considered multiple aspects while legalizing euthanasia, ranging from the possibility of abuse of euthanasia to its effect on the fabrics of society. Giving a medical treatment or keeping a patient on the ventilator for years only prolongs pain and sufferings. The right to avoid unbearable pain is seen as a legitimate argument in favor of preserving dignity.[34] So, a patient must have a right to request for extinguishing his life.

Present Scenario And Liability Of Doctors

In the last century, with the improvement and progress in science and technology, the surge in the economy of the country and with the change in present lifestyle of people, the concepts of life and death has been completely evolved. Now a person who is in critical condition or is in a permanent vegetative state can be kept alive by keeping on a ventilator for years. At the same time if there are no hopes for a patient's recovery, then the life-supporting system can be stopped.

But here the question arises that whether by doing this, can the medical practitioner be held guilty of abetment to suicide or murder? This issue has been a matter of concern in many countries. But the 'withdrawal of life-supporting device' is different from active euthanasia. Many countries have either legalized passive euthanasia, active euthanasia or both. Some have permitted the use of passive euthanasia but only on exceptional cases.

There is a principle at common law called principle of self-determination. This principle states that a patient has a complete right to refuse or accept medical treatment. Lord Goff of Chieveley in Airedale[35] stated that "it is established that the principle of self-determination requires respect must be given to the wishes of the patient, so that if any adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged," it shall be obeyed. The medical practitioner must take a decision which is in the best interest of the patient. If a competent patient who wants a life-supporting device to be removed, then the doctor is bind to do so.

On the other hand, if the patient is insane or is not competent, then a doctor can stop the medication if he considers it to be in the best interest for the patient. It is incredibly crucial to know the exact meaning of terms like 'competent', 'incompetent' and 'best interest'. So, the Law Commission of India in its 196th report annexed the drafted Bill named "Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill, 2006"[36] which emphasized on the laws that related to a deceased who wants a natural death, not through the consumption of lethal drugs or from life-supporting devices.

It was a matter of concern that can a patient be held liable under Section 309 of IPC if he is an adult, competent enough and refuses treatment. Section 309 of IPC talks about 'attempt to commit suicide'. The Court held that a competent patient has every right to decide what is good for him and what is wrong. A patient can decide for himself whether he wants medical treatment or allow the disease to continue. Many countries that are governed by common law do not consider this act of patient as any offence. Also, in Airedale[37]the House of Lords held that it is not suicide. Supreme Court had also declared that this is not an offence under Section 309 of IPC.

Similarly, if a doctor obeys the instruction of the patient of not giving him the medicines or medical treatment, then he is not committing any offence. There was another issue that if a doctor obeys his patient and removes the life-supporting devices, then whether he will be guilty of 'abetment of suicide' under Section 306 of IPC. The act of not giving the medicines is based on the patient's direction, and hence, the doctor is not guilty under Section 306 of IPC.

There were disputes related to the doctors being guilty under Section 299 of IPC[38], which talks about 'culpable homicide'. When a doctor is performing any act, which is with the consent of the patient, then he should not be held guilty. Further, the main requirement of Section 299 is the intention to cause death or bodily injury, which is lacking in this case. Hence the doctors are not guilty under Section 299 of IPC.

Conclusion
Technology is progressing at a high rate all over the world. India is also making progress in medical science as in the rest of the world. There are devices and instruments which can artificially prolong the life span of a patient.[39] There is no doubt that medical treatment is way too expensive and is not easily affordable. But in the last decade, India has witnessed a sizeable portion of upliftment in terms of economy. And this is one of the main reasons why people are relying on and using such expensive medical treatment. But not everyone in the country belongs to a wealthy family and so they are not able to afford it.

Hence, end-of-life issues are becoming primary ethical considerations in the modern-day medical science in India.[40]
Today in our society, the main concern for clinicians has become the quality of life of people suffering from critical diseases like AIDS and cancer. And on the parallel lines, the issue of euthanasia has also become a matter of concern.

Euthanasia is an incredibly disputable issue in a country like India, where even attempting to commit suicide is an offence.
It was a subject of discussion about whether a person has a right to die. Courts have pondered upon this issue in many judgments. In earlier judgment Courts believed that under Article 21, the right to life does not include the right to die with dignity.

Because life is a different concept and death is contrary to ethics and values. Life is a gift of God and one should take all possible measures to save it. But in later years, perception of people changed and they started accepting that life is something which includes both enjoying life and living with dignity till death. The Court in further judgments held that Article 21 includes both right to die with dignity and right to life. At this juncture of life, they started believing that the 'liberty to die' should not be studied in isolation rather it must be the part of Article 21 of the constitution.

So far as the India position on euthanasia is concerned, the Judiciary has taken an applaudable step by legalizing passive euthanasia and making illegal the active euthanasia. After profoundly studying and analyzing various aspects of euthanasia in detail, it can be concluded that passive euthanasia is constitutionally valid. Neither it is going against any fundamental right, nor it can be considered as an offence under the Indian Penal Code.

Passive euthanasia is based on the consent and the will of a patient. It is only performed in a case where the person is suffering from an incurable disease, and there are no hopes of improvement. It is a way of causing natural death and reduce pain, suffering and burden on the family. Concludingly it can be said that passive euthanasia is constitutionally valid, and the strict guidelines attached to it is protecting its misuse.

End-Notes:

1. Niraj Kumar & Akhilendra Pratab Singh, Favouring a Dignified End to Human Life: Common Cause v. Union of India, Journal of National Law University Delhi (2018).
2. Rateesh Sareen, India Decides on Euthanasia: Is the debate over?, Health Care Current Reviews, June 2019.
3. Dillman RJM & Legemaate J. Euthanasia in the Netherland: The state of the debate, Eur Health Law (1994).
4. Caesar Roy, Position of Euthanasia in India- An Analytical Study, Research Gate, July 2011.
5. Josef Kure, Everything Under Control: How and When to Die- A Critical Analysis of the Arguments for Euthanasia, IntechOpen, Sept. 15, 2011.
6. Margaret A. Somerville, Legalising Euthanasia: Why Now?,the australian quarterly, Vol. 68, No. 3, pp. 1-14.
7. Euthanasia, Black's Law Dictionary (8th ed. 2004).
8. supra note 3.
9. Dr. Parikh, Parikh's Textbook Of Medical Jurisprudences, Forensic Medicine And Toxicology (6th ed. 2006).
10. Brody And Baruch, Life And Death Decision Making, (Oxford University Press) (1998).
11. supra note 3.
12. Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 S.C.C. 454.
13. Chao DV et al., Euthanasia revisited, Fam Pract. (2002, 4:45).
14. Religion and Euthanasia, BBC available at: http://www.bbc.co.uk/ethics/euthanasia/religion/religion.shtml
15. Patricia K. Jennings & Clarence R. Talley, A Good Death?: White Privilege and Public Opinion, JEAN AIT BELKHIR, RACE, GENDER AND CLASS JOURNAL, (2003, 2:45), https://www.jstor.org/stable/41675087.
16. Stanley Yeo, Dying with Dignity: Case for Legalizing Physician- Assisted Suicide, INDIAN LAW INSTITUTES, (2008, 4:56), https://www.jstor.org/stable/43952159.
17. India Const. art. 21.
18. Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248.
19. Jamie Cassels, Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?, The American Journal of Comparitive Law (1989).
20. Rateesh Sareen, India Decides on Euthanasia: Is the debate over?,Health Care Current Reviews, June 2019.
21. India Const. art. 21.
22. M.P. Jain, INDIAN CONSTITUTION Law 1180 (6thed. 2010).
23. 1986 SCC Online Bom 278.
24. Section 306 of IPC, Abetment of Suicide- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
25. Section 309 of IPC, Attempt to commit Suicide- Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both.
26. (1994) 3 S.C.C. 394.
27. (1996) 2 S.C.C. 648.
28. (2011) 4 S.C.C. 454.
29. (2018) 5 S.C.C. 1
30. Article 21 No person shall be deprived of his life or personal liberty except according to procedure established by law
31. Carson Strong, The Neonatologist's duty to patients & parents, Hastings Centre Report, 8 10-16(1984)
32. Rateesh Sareen, India Decides on Euthanasia: Is the Debate Over?, Health Care: Current Reviews, Vol. 7 Iss. 3 (2018).
33. supra note 1.
34. Geetha Mani et al., Euthanasia: Right to Die with Dignity, Journal of Family Medicine and Primary Care (2014).
35. 1993 (1) All. E.R. 821 (HL).
36. id.
37. Available at: http://lawcommissionofindia.nic.in/reports/rep196.pdf (accessed on May 17, 2020)
38. Section 299 of IPC, Culpable Homicide- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
39. George Zdenkowski, Human Rights and Euthanasia, Occasional Paper of the Human Rights and Equal Oppurtunity Commission (1996).
40. Vinod K Sinha, Euthanasia: An Indian perspective, indian journal of psychiatry, 27th Feb, 2014.