EUTHANASIA AN ACT OF MAN SLAUGHTER OR AN ACT OF MERCY?

ABSTRACT

Euthanasia is one of the major issues that India is dealing with. India is also one of the major
countries who has not legalized Euthanasia by proper legislative means and consider being
positive crime committed by a person. Euthanasia is putting the life of the person to an end by
legal means or by prior permission from the legal authority. Euthanasia is granted in a case,
where a patient is suffering from a fatal or chronic disease and there is no scope for that patient
to revive to its normal position. Euthanasia was made part of Article 21 of the Indian
constitution as one of its various interpretations and held that Right to life might or might not
include Right to Die depends on circumstances. The Supreme Court of India has taken few
initiatives for legalizing Euthanasia (with some limitations) for the first time in Indian legal
history, by making guidelines in its landmark judgment of Aruna Shanbaug Case(AIR 2011
1290). But still the courts of India haven’t granted any patient the “Right to Die” under article
21 (by mode of Euthanasia), because somewhere they still feel grating Euthanasia is morally
and ethically incorrect. The act of Euthanasia is the Act Of Mercy Or Act Of Man Slaughter is
the major question in this era. The paper which is purely doctrinal in nature talks about,
Euthanasia is an Act of Mercy to reduce the sufferings of a patient. This article will also try to
justify that Euthanasia is morally and ethically correct with the help of Double Effect Rule and
it also prove that Euthanasia is only for the best interest of the patient to relieve him from his
sufferings and give the person the Right to Live With Human Dignity. Whether these patients
has a Right To Live Their Life With Full Dignity? Or Whether they are the puppets in the hands
of judiciary, who is not willing to let go its moral and ethical ego for grant of Euthanasia?

Key Words: Aruna Shanbaug Case, Right to Die, Constitutional validity, Double Effect Rule,
Human Dignity.
 1. INTRODUCTION

In India the major and most important question before law is how can one, who is not even the
creator of life determine its value? Can Right to Life be equated Right to Die under Article 21?
These are the very primary questions which our society and judges are facing. Euthanasia also
gives a paradox to the oath of medical ethics. The oath which includes protecting and
prolonging the life of the patient to his last breathe. Especially, when a patient is suffering from
a fatal disease from where there is no scope or hope for a normal life of a patient, in this case
to prong a life of the patient is to violate the promise to relive him from pain and suffering is
to violate the promise to prolong and protect life.1 It is equally difficult to define what constitute
of normal life? When this normal life comes to an end?

This paper is divided into four major parts; where in one part of my analysis talks about the
problem where the doctor suffers a dilemma of protecting and prolonging the life of the patient
there comes a solution call “The doctrine of double effect”2. This doctrine which clearly states
that the action which has primary obligation of relieving the patient suffering by causing death
with the use of essential drugs can be ethically or morally justified even if it is wrong in the
eye of law. The next question arise “Does our Indian constitution, 1949 allow a person a Right
to Die?”

The second part mostly talks about the legal position of Euthanasia. Where Euthanasia is
considered to be one of the biggest crimes in India and it is compared to Culpable Homicide
Not Amounting To Murder under Section 300 of Indian Penal Code; may also lead to abetment
to suicide u/s 306 of IPC if there exist consent of the patient and in case of no consent then it
leads to Culpable Homicide under section 299 of Indian Penal Code which has its respective
sections for punishment.3 Justice Hamsaria said once “A person cannot be forced to enjoy his
life to his detriment, disadvantage or disliking”4. No person should be deprived of his life or
person liberty except according to a procedure established by law5.

In the third part of my paper, I will discuss the difference between Euthanasia and Abetment
to Suicide, which are always confused with each other. There exists a lot of difference between
Euthanasia and abetment to Suicide.6 “Euthanasia or Mercy Killing is Homicide in whatever

1
G. Ramapriya and M. Roopa ,“Law and Euthanasia”; 1 student Advoc. 75 1988-1989.
2
Ibid.
3
G. Ramapriya and M. Roopa “Law And Euthanasia”; 1 Student Advoc. 75 1988-1989; See also H.T. Thejaswi,
J. Kumar, Gupta S.K, “Present Status Of Euthanasia In India From Medico-Legal Perspective And Update is
availed at < http://medind.nic.in/jbc/t14/i1/jbct14i1p59.pdf> last visited on 10.3.16.

4
P. Rathinam v. UOI, AIR 1994 SC 1844.
5
Article 21 of Indian Constitution, 1949.
6
Aruna Shanbaugh v. UOI AIR 2011 1290; see also G. Ramapriya and M. Roopa “Law And Euthanasia”; 1
Student Advoc. 75 1988-1989; See also H.T. Thejaswi, J. Kumar, Gupta S.K, “Present Status Of Euthanasia In
circumstances it has been executed”7 it is very easy for a Justice to make comment, that if there
exists no consent it will always lead to homicide but imagine a case where the patient is not in
the position to give his/her consent. If we say according to article 21, if a person has a Right
to life then that person should also has a Right to relieve himself from pain.

In the end of this paper, I would discuss about the various modes of interpretational aspects of
IPC and Constitution of India, 1949; and make a difference between persona and corpus; the
difference between social, real and biological death where the judges are lacking in their
interpretation of the given statute. This article will conclude by Human life is just not confined
to right to live, right to breathe free air, etc but it also include self- consciousness and
engagement as self-conscious being with the world. 8

India From Medico-Legal Perspective And Update is availed at < http://medind.nic.in/jbc/t14/i1/jbct14i1p59.pdf>

(last visited on 10.3.16).
7
Maruthi Sripathi Dubal v. State of Maharashtra 1987, Cri LJ 743.
8
P. Singer, “Political Ethics”, 2nd Edition Cambridge, CUP, 1993
 2. DOCTRINE OF DOUBLE OF EFFECT AND CONSTITUTION OF INDIA-
CRITICAL ANALYSIS

2.1 Euthanasia As Mercy Killing

Euthanasia is a Greek originated term which means, “Good and respected Death”. Euthanasia
by most of the judges and scholars is termed synonyms to Mercy Killing. But some of other
scholars call Euthanasia as act of Man Slaughter in the refined manner. Euthanasia or Physician
Assisted Suicide (PAS)9 or an Act of Man Slaughter or Mercy Killing will come into the scene
only when a person is suffering from incurable or fatal disease where there is no scope of that
person to revive in its normal or healthy form. Defining normality is not very easy, it is
subjective.

Saving life of a person, who is suffering from chronic disease, is different form reviving or
giving back the normal life like others. It is usually argued in the Court Of Law that Euthanatic
Patient life can be saved and the patient can survive for few more years if given proper
medication, but this is just a myth where the patient will never get into its normal zone or life.
The lawyers argue only from the perspective of saving the life of an individual, by neglecting
the pain and suffering of the patients.

2.2 Application of Principle of Double Effect

The Principle Of Double Effect10 is used in this paper is to justify the act of Euthanasia in moral
and ethical sense. According to the doctrine of double effect it is permissible to perform an act
which has both good and bad effects from morality perspective if four conditions are fulfilled:
Firstly, the act done should be good in itself without any defect in the act. Secondly, the good
effect of the act should have obtained by bad effect. Thirdly, the bad effect should not have
intended but have permitted. Fourth, there should be a big reason for that act done. There four
reasons forms part of the doctrine but the first two forms part of the morality aspect theory.
This doctrine is mainly justifies killing or relieving him from pain by giving him a smooth
death, as a part of treatment. This doctrine justifies the act of the doctor as morally and ethically
correct if he or she relieve the suffering of a person by killing him.

Legally Euthanasia is a crime under India law and is punishable under Indian Penal Code. It
doesn’t matter how much the patient is suffering from the incurable disease, if the patient is

9
Shukla Diwakar “Euthanasia (Mercy Killing): A Comparative Analysis Of UK And India Position”, Can be
availed at
https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwj
XvL2408XLAhWD1I4KHaLvD38QFggbMAA&url=http%3A%2F%2Fwww.internationalseminar.org%2FXIII
_AIS%2FTS%25204%2F9.%2520Mr.%2520Diwakar%2520Shukla.pdf&usg=AFQjCNHk2ljCx02buxDWVFy
U84CT2ws4DQ&sig2=_cjDh9lQyKRNocJevZtZaA&bvm=bv.116954456,d.c2E last visited on 10.3.16.
10
G. Ramapriya and M. Roopa “Law And Euthanasia”; 1 Student Advoc. 75 1988-1989.
killed without getting the permission from the authority or by not providing its aid of survival
will be held liable under Indian Penal Code.11

3. EUTHANASIA AND “LAWS” OF INDIA

3.1 Euthanasia and Indian Penal Code

Euthanasia done without the permission by the courts or the patients are considered to be crime
under Indian Penal Code. If the consent taken by the patient then it will form part of section
300 exception 5 of Indian Penal Code which talk about homicide not amounting to murder with
furtherance to this it will also amount to penalizing under section 306 which is abetment to
suicide.12 If the patient is not in the position to give consent then the liability fall under section
299 of Indian Penal Code which talks about culpable homicide. In India if there is consent
gather from the patient it will amount to culpable homicide which leads to imprisonment with
fine in Indian Penal Code. In the case of Maruti Shripati Dubal v. State of Maharashtra13 the
honourable judges J. Mr. Patil and J. Sawant held that “Euthanasia in any circumstance leads
to homicide. If there is consent obtained from the patient it will lead to abetment of suicide and
if no consent it is clear cut case of homicide.14”

3.1.1 Rationale Behind Categorizing as Suicide

The rationale behind categorising euthanasia as suicide is the person opts for suicide when he
feels that death is better and provides more relief than life. Same is the opinion of man who
gives its consent to Euthanasia. The doctor who helps the patient will be held for abetment of
suicide u/s 306 of IPC. Article 21 of our constitution which says that “A person shall be not be
deprived of his life and personal liberty except according the procedure established by law.”15
The main question which form part of Article 21 is, does “Right to Life” which on one gives
the individual a right to live his life with dignity, will include “Right to Die?” The answer to
this question can be given in a simpler manner by saying if a person has a right to life given by

11
ibid; see also, Shukla Diwakar “Euthanasia (Mercy Killing): A Comparative Analysis Of UK And India
Position”, Can be availed at
https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwj
XvL2408XLAhWD1I4KHaLvD38QFggbMAA&url=http%3A%2F%2Fwww.internationalseminar.org%2FXIII
_AIS%2FTS%25204%2F9.%2520Mr.%2520Diwakar%2520Shukla.pdf&usg=AFQjCNHk2ljCx02buxDWVFy
U84CT2ws4DQ&sig2=_cjDh9lQyKRNocJevZtZaA&bvm=bv.116954456,d.c2E last visited on 10.3.16; see also,
H.T. Thejaswi, J. Kumar, Gupta S.K, “Present Status Of Euthanasia In India From Medico-Legal Perspective
And Update is availed at < http://medind.nic.in/jbc/t14/i1/jbct14i1p59.pdf> last visited on 10.3.16.

12
G. Ramapriya and M. Roopa “Law And Euthanasia”; 1 Student Advoc. 75 1988-1989.
13
1987, Cri LJ 743.

14
Ibid .
15
Article 21, Constitution of India, 1949.
law then the person should have right to die also i.e. to relieve himself from pain and sufferings
to be given by law especially in Euthanasia cases.

To include Right to Die under article 21 solely depends how the word “Euthanasia” has been
constructed. The interpretation regarding this matter should be of liberal construction and not
literal ones. In case of literal construction of Article 21 for the grant of Euthanasia, the court
will stick to the provision for saving the life of the patient at any cost by not looking at his
sufferings. But liberal construction will give way to new dimension of law by making
Euthanasia valid in case where the person suffering or misery is weighed with his happiness.
Suicide is an offence, but Euthanasia is not, Euthanasia is applied when the person is suffering
from incurable disease, where there exists no purpose or reason to keep that patient alive except
to delay his determined or certain death.

4. CAN A COURT GRANT APPROVAL FOR WITHDRAWAL OF LIFE?

4. 1 Powers Of The Court

As of now there exists no legislation which can grant or deny Euthanasia in India, except for
the guidelines made by the courts of India. Under article 226 of Indian constitution can grant
approval to persons who are suffering from chronic or fatal disease or to person whose normal
life cannot be achieved. According to article 226 (1),

“Notwithstanding anything in Article 32 every High Court shall have powers,

throughout the territories in relation to which it exercise jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those territories directions,
orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo
warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by
Part III and for any other purpose”16

4.2 Judicial Interpretation Of Article 21 Of Indian Constitution

In case of Vikram Deo Singh Tomar v. State of Bihar17, the Court held that “we live in an age
when this court has demonstrated, while interpreting Article 21 of the constitution, that every
person is entitled to a quality of life consistent with his human personality. The right to live
with human dignity is a Fundamental Right of every citizen.”18 Thus, this clearly shows that
every incapable person has a right to live with dignity, the word dignity will include proper life
like any other normal humans, and he has a right over his life. The word “Dignity” is widely
interpreted to include Euthanasia in its purview. The judges of the court have interpreted Article
21 widely (golden rule of interpretation) to include all forms ‘Dignity’.

16
Article 226 (1) of Indian Constitution, 1949.

17
1988 AIR 1782; 1988 SCR Supl. (1) 755
18
1988 (Supp) SCC 734.
In P.Rathinam (Supra), division bench of Supreme Court held “Life is not mere living but living
in health. Health is not absence of illness but a glowing vitality.”19 But this decision was over
ruled in Smt. Gian Kaur case (Supra). Government of India did not accept the report of law
commission on Euthanasia. The reason behind rejecting the report was maybe the family
members may conspire with the doctors for the withdrawing the life of the patient.

4.3 Principle Of Common Law

One of the most important principles of common law states that every individual in the society
has a right to control themselves free from interference and restrain from others. And in case
of medical treatment when the patient is of sound mind the principle of informed consent or
self determination will apply. The same principle will apply to a patient who is suffering from
a fatal disease has given consent before getting unconscious. But in case where the patient is
of unsound mind, his life is on artificial life support, and not in his conscious stage to give his
consent, the decision of the court with the help of their immediate family members, which is
in best interest of the patient and the decision which is in favour of the patient to reduce its
sufferings.

4.4 Right To Life Doesn’t Not Include Right To Die In Comparison With UK

The courts of India has held, “right to life doesn’t include right to die” under article 21 of Indian
Constitution and attempt to suicide is crime under section 309 of Indian Penal Code, the court
also held right to life include right to live with dignity and in cases of those patient who is on
vegetative state or their life is on artificial life support and getting back to normal like any other
humans is not possible under any circumstances then he will be allowed to terminate its life
which will not be held as crime under any law of India.

In comparison with the developed countries like United Kingdom, parens patriae jurisdiction
over patient like mentally incapable person or person on vegetative state was abolished by the
statute and the court in present has no power to give its consent relating to above stated matters
on its own. But the courts has given just a declaration, that act done by doctors is not unlawful.
The Mental capacity Act, 2005 classified persons who are at vegetative stage and who lack
capacity to act by itself, in the best interest of the patient and the power is given to special
courts to make declaration in protection to the act done in connection to that patient.

The courts in India shall take decision regarding Euthanasia by having a panel of three
medical experts who give their opinions regarding the patient revival conditions. As “parens
patriae” the High Courts will take decision with the help of expert opinion and the decision
which is in best interest of the patient along with the consultation of patient close relative if
any.

5. CLASSIFICATION OF EUTHANASIA AND TERMINALLY ILL PATIENT

19
(1994) 3 SCC 394.
5.1 What Constitute Euthanasia?

Euthanasia is defined as the deliberate killing of the person for the betterment to that person
and relives his suffering and pains. This death involve painless killing of the patient. According
to the select committee set up by British House of Lords for medical ethics defined Euthanasia
as “deliberate intervention taken expressly for ending the life and to relieve the patient from its
sufferings”.

5.1.1 Euthanasia Can Be Divided Into Two For Clarification And Legalization Purposes:

5.1.1.1 Active Euthanasia and Physician Assisted Suicide

First, Active Euthanasia, when the person directly does some act which result in the death of
the patient. In this case the steps or precautions are taken by the third party to do the
administration of lethal drug. This is considering a crime in India under Indian Penal Code and
is a punishable offence under section 302 and 302(4).20 But there are few countries which has
permitted Physician Assisted Suicide and Active Euthanasia. There is a big difference between
Physician Assisted Suicide and Active Euthanasia. In former the patient himself give consent
and administers lethal medication but in the latter one either doctor or some other person as
instructed by the judge. Netherland is the first country to make Euthanasia legal and passed an
Act called “Termination of life on request and assisted suicide Act, 2002”21, this Act give
extensive guidelines for the same. Switzerland is another country who has legalized Physician
Assisted Suicide and Active Euthanasia.

5.1.1.2 Passive Euthanasia

Second, is Passive Euthanasia, it involves stopping or withholding of medical treatment given

to the patient or withdrawal of life support on which the patient is surviving.

196th Law commission report, which never spoke about the words “Euthanasia” but rather
called it as “withholding of life support” i.e. Passive Euthanasia which was held in Aruna
Shanbaug Case(Supra); the commission reporters tried to make distinction between
Withholding of life support from Euthanasia, but failed miserably.

5.2 Voluntary and Involuntary Euthanasia

This Euthanasia is further classified voluntary and non voluntary, in former case where the
patient gives consent to Euthanasia, and in the later where the patient is unable or not in the
condition to ask for Euthanasia. Legally speaking in India voluntary Euthanasia is illegal in
India it is interpreted by the courts as it illegal an attempt to suicide and is punishable under
section 309 of Indian Penal Code. The same contention was taken in the well known case of

20
Supra note 3.
21
H.T. Thejaswi, J. Kumar, Gupta S.K, “Present Status Of Euthanasia In India From Medico-Legal Perspective
And Update is availed at < http://medind.nic.in/jbc/t14/i1/jbct14i1p59.pdf>( last visited on 10.3.16).
Smt. Gian Kaur v. State of Punjab22 where the Supreme Court clearly stated that right to life
mentioned and guaranteed under Art 21 doesn’t include right to die. Whereas Passive
Euthanasia is legal in most part of the world including in India, provided certain guidelines are
followed strictly i.e. the guideline in the Aruna Shanbaug case (supra); should be followed in
the literal sense of interpretation.

4.3 Classification of Terminally Ill Person

Talking about Euthanasia from the beginning of the paper let us ask a clear question as to when
can you qualify a patient as terminally ill? As per Medical Treatment of Terminally Ill Patient
(Protection of Patients and Medical Practitioners) Bill, 2006 (which was suggested by 196th
Law Commission Report), Terminal illness is defined as “such illness, injury and degeneration
of physical or mental condition which is causing extreme pain and suffering to the patients and
which, according to the reasonable medical opinion, will inevitable cause the untimely death
of the patient concerned or which has caused a persistent or irreversible vegetative condition
under which no meaningful existence of life is possible for the patient.” This Act also defined
various other terms like, what constitute a “Patient”, “Competent Patient”, “Incompetent
Patient” and also talks about “Medical Treatment”, and “Best Interest” of that Patient and
“Informed Decisions”. Thus, a person should have incurable disease or stage from where it is
impossible for the patient to recover to its normal life as that person has slipped to Ir-Revertible
Permanent Vegetative Stage. Thus, the main object of Euthanasia is to lower down the pain
and suffering of the person and not keep the patient alive for the sake of keeping alive. But few
question arise in the mind of judge or public at large- what about its misuse? There can be made
strict guideline for its implementation.

5.4 Comparative Analysis Of UK And India

5.4.1 Position Of UK

Now I shall discuss about two important cases where the courts are giving fair idea about
Passive Euthanasia. First is the United Kingdom case named Airedale N.H.S. Trust v Bland23
and second is Aruna Shanbaug Case (Supra). In Airedale N.H.S. Trust v Bland 24 , there
happened a tragedy during a football match, the accident resulted in 94 deaths, the patient was
also a part of this crowd who suffered many serious injuries, which was inform of multiple rib
fracture followed by punctured .f]lungs and the oxygen supply to the brain also stopped which
made the patient to go in Permanent Vegetative State (PVS). House of Lords interpreted the
facts of the case harmoniously with the law and agreed that Mr. Bland must be allowed to
withdrawal of life and passed a judgment regarding the death and supported the doctor’s action
in consent with Euthanasia. But later in 1994, the appeal court held the doctors liable for murder
and held there can be no exists no harmonious construction.

22
1996 AIR 946, 1996 SCC (2) 648.
23
[1993] A.C. 789 House of Lords.

24
Ibid .
 5.4.2 Position In India

But in the subsequent case in India, Aruna Shanbaug case (Supra), where the patient was a
nurse in a hospital, and was raped by the ward boy of the hospital. The ward boy strangulates
her with the chain and sodomized her. This resulted in injury in Brain which was not curable
because lack of oxygen flow and the time of strangulation and causing PHI damage to her
brain, which made the patient in permanent vegetative state. The Supreme Court of India
rejected the petition of Mrs. Pinkie Virani for Euthanasia for Aruna Shanbaug but framed
guidelines regarding passive Euthanasia. The salient features of the guidelines include best
interest of the patient who is incompetent patient or the competent patients are those who are
incompetent. It also defined what will constitute an incompetency of a patient and under what
circumstances, patient or near relative can claim for Euthanasia, it also made it very clear
distinction between Active and Passive Euthanasia and its legalization theory. And lastly it
spoke about the informed decision, which means as to decision relating to the treatment on
which the patient is surviving and the patient should also be informed about the consequences
of withholding of treatment.

Our Indian Judiciary is blinded by this old culture where “Right To Life” means to sustain the
life of the individual to its last breathe immaterial of its conditions. Living with dignity doesn’t
only mean biological life, where an individual can just breathe with all his internal organs and
brain being dead, his life is decided by the external life support.
 6. CONCLUSION AND SUGGESTIONS

In India the value of life is considered to be sacred which is given by God and cannot be taken
by any human beings, but when that life becomes burden on others due to its incompetency
then the law should give patient or the legal representative the right to choose what is good and
better for the patient to relieve the person from permanent pain.

There exists huge difference between social and a biological death and maxim CorpusSine
Persona is just a human life in the ordinary sense. The word corpus means body and persona
means aspect of life which identifies personality.25 There is a difference between biographical
life and biological life and being human is not just having your respiratory or some parts of the
brain working. Life of a human include self-conscious and engagement of that self-
consciousness with the world.26Euthanasia is considered to be social death because revival of
the patient is not possible by any means of human technology.27

In present there is no Legislation regarding legality of Euthanasia. The legislature should also
look into the defence take by the doctors under Indian Penal Code and also when dealing with
the ethical and moral value they should consider Double Effect Rule. There exists Sections like
76, 81 and 88 of Indian Penal Code are sufficient for the doctors to conduct Euthanasia in a
good faith. While as I stated above in my paper there is no doubt for the permissibility of
Euthanasia (active and passive both), if they are the result to avoid greater harm to the patient
whose revival is not possible, would be legal and permissible under section 81 of Indian Penal
Code. On this topic of Euthanasia the position of Dutch is not very much dissimilar to that of
India. But in contrast with Netherland’s position which is very much clear relating to
Euthanasia, position of India remain doubtful because there is no clear legislation relating to
Euthanasia. In Aruna Shanbaug (Supra) the Supreme Court of India rejected the plea of Aruna
who was in a vegetative state but issued some guidelines which allow passive Euthanasia for
the patient by withholding its treatment.

Indian Judiciary is in confused state relating to the topic of Euthanasia. In Maruti Sripati Duba
case28 and P. Rathinam case29, the courts of India held suicide permissible (but later on over-
ruled) but Euthanasia in whatever circumstances cannot be permissible because it leads to
homicide which was according to them punishable under IPC. The judges should take into
consideration not only the literal meaning of life for grant of Euthanasia, but also living of life
with full dignity and respect and by not providing the right to Die (in the situation stated above)

25
Sayer Mark ,“Euthanasia : Moral Murder ”,; 4 Griffith L. Rev. 6 1995.
26
Supra.

27
Supra.

28
1987, Cri LJ 743.
29
Ibid 2.
in a dignify manner to a patient who is fighting for life and death is a Violation of its Fundament
Rights and Human Rights.