| EUTHANASIA LAW IN INDIA
By PRAVEEN DALAL 12/05/2005 At 05:03 A WORK ANALYSING THE PERMISSIBILITY OF EUTHANASIA IN INDIA. 
PRAVEEN DALAL, CONSULTANT AND ADVOCATE, DELHI HIGH COURT, INDIA In India there is no specific law concerning “euthanasia” though it is much desirable. The need of the same arises when a person is suffering from a “terminally ill disease” that in not capable of a cure. The sufferings of the ill person need not be prolonged by forcefully keeping him alive, with all the pain and sufferings. That is definitely a violation of Article 21 that provides a “right to dignified life”. The right to life' including the right to live with human dignity would mean 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. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the 'right to die' with dignity at the end of life is not to be confused or equated with the right to die' an unnatural death curtailing the natural span of life.
A question may arise, in the context of a dying man, who is, terminally ill or in a persistent vegetative state that he may be permitted to terminate it by a premature extinction of his life in those circumstances. This category of cases may fall within the ambit of the 'right to die' with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced. It is sufficient to reiterate that the argument to support the view of permitting termination of life in such cases to reduce the period of suffering during the process of certain natural death is not available to interpret Article 21 to include therein the right to curtail the natural span of life. Thus, the right to live with human dignity' cannot be construed to include within its ambit the right to terminate natural life, at least before commencement of the natural process of certain death .
It must be noted that the Supreme Court of India has not only a duty but the power to interpret the provisions of the Constitution of India, including Article 21. Thus, if Article 21 is interpreted in the manner discussed above, then it will be binding on all by virtue of Article 141 of the Constitution of India. Alternatively, it can be left for the “legislature” to decide the same but both the recourses are constitutionally valid. It cannot be said that a declaration by the Supreme Court on this issue would not be valid and binding.
 Email:: pd37@rediffmail.com, perry4law@yaho.com
 URL:: http://praveen-dalal.blogspot.com/
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I equally agree with the author that the law on "euthanasia" is the need of an hour.We can not put a patient in unbearable pain and suffering when there is least hope of his recovery at present in the hope of scientific and medical development which might or might not turn into reality.
I support the need for right to a terminally ill person to refuse life support systems which prolong his sufferings. His right is equally justifiable as he is asking for Right To Refuse Treatment and not for right to commit suicide.
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Perhaps the most striking feature of these laws (or tendencies) is that their formulation refers to an institutional setting as being just, and in the last two, as being publicly known to be such. This principles of moral psychology have a place for a conception of justice; and different formulations of these principles result when different conceptions are used.
Thus some view of justice enters into the explanation of the development of the corresponding sentiment; hypotheses about this psychological process incorporate moral notions even if these are understood only as part of the psychological theory. This much seems straightforward, and assuming that ethical ideas can be stated clearly, there is no difficulty in seeing how there can be laws of this kind. The preceding outline of moral development indicates how these matters can be worked out. After all, the sense of justice is a settles disposition to adopt and to want to act from the moral point of view insofar at least as the principles should be involved in the formation of this regulative sentiment. Indeed, it seems likely that our understanding of moral learning cannot far exceed our grasp of the moral conceptions that are to be learned. Analogously, our understanding of how we learn out language is limited by what we know about its grammatical and semantic structure. Just as psycholinguistic depends upon linguistics, so the theory of moral learning depends upon an account of the nature of morality and its various forms. Our common sense ideas about these matters do not suffice for the aims of theory like Euthanasie/Eugenics....
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The concept of euthanasia is often confused with the right to commit suicide. These two are different concepts and whenever the discussion on the concept of euthanasia is started people start pointing towards the Gian Kaur’s judgment of the Apex Court and argue that it is prohibited. It is very important to clear the mist of confusion surrounding the concept of euthanasia in India.
Firstly, euthanasia is a part and parcel of right to life which undoubtedly and unambiguously includes right to die as well when the natural span of life has already started depleting. The right to die is confined to the cases of euthanasia only and it cannot be extended as a general right.
Secondly, the apex court in Gian Kaur’s case did not held the concept of euthanasia as invalid or bad but what was held to be invalid was the right to commit suicide. The concept of euthanasia and suicide are totally different and any classification justifying a different treatment in favour of the former is not only protected under Article 14 of the Constitution of India but equally advanced by Article 21.
Thirdly, the P. Rathinam’s case was overruled not on the concept of euthanasia but on the ground that it held the provision concerning punishment of attempt to suicide as unconstitutional.
Thus, before arguing against euthanasia these facts must be kept in mind.
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That seems reasonable in principle. But, as the Indian Court candidly acknowledged, the Court has assumed that dying patients have a constitutional right to terminate life support even when this means that they will die immedialtly and there is as much danger that such patients will be coaxed into a request to die in that way as by requesting lethal pills, particulary since life support techniques are typically very expensive. In any case, the question wether a factual issue is too difficult or uncertain for judges to decide, so that they ought to defer to legislative decisions for that reason, is itself a complex and difficult one, and the courts should answer it only after very careful review of the evidence, particulary when putatively fundamental rights of ID citizens are at stake. Careful review would seem particularly crucial, moreover, in the assisted suicide debate, because many of the social scientist who have compiled the relevant evidence have strong ethical opinions, including religious convictions or convictions about proper medical ethics, that might impair their scientific independence. The sovereign vitue should circumscribe the affiliation of heterodoxic transvulnerability, again!
Smash Racism and Neo-Fascist Euthanasie
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I don't hesitate to favour with the right of terminally ill patients to choose death (euthanasia) rather than undergoing unwarranted trauma waiting for death. Even the Supreme Court of India on wednesday i.e. 12.5.2005 has sought the centre's response to a PIL seeking a right for such patients to refuse essential medical support systems to prolong their life. The right to life under article 21 of the Constitution of India will be more meaningful if a step in favour of euthanasia is taken as by the term 'life' as used in the article, something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limits and faculties by which life is enjoyed.
As far as the distinction between the Right to Die and euthanasia is concerned the Supreme Court of India in Rathinaam V. UOI(1994) 2 SCALE VOL II No. 7674 opined a person can't be forced to enjoy right to life to his detriment, disadvantage or disliking. Right to life can be said to bring in its bail the right not to live a forced life. But, the court rejected the plea that euthanasia(mercy killing) should be permitted by law. There is a distinction between an attempt to take his life and action of some others to bring to an end the life of a third person. Later on invoking the provision of article 141, The Supreme Court of India in gian kaur's case declared the right to die as unconstitutional bringing in its purview the notions of suicide, as life is worth living. Suicide calls for help and counselling and not punishment.Thus it needs to be tackled socially and medically as suicide is a psycho-socio problem and not a manifestation of criminal instinct.
Whereas euthanasia acts as a catalyst to speed up the process of death and thereby reduces the period of immense pain and comes as a solace to the patient who is waiting for his death. The principle of euthanasia envelopes humanism and shows a care and concern for that human who is in utter pain and despicable state, nowhere it seems to hurt the moral or religious sentiments. So its high time a law in favour of euthanasia is enacted and judicial activism can cartainly be a favourable step and in interperating the provisions of part III of the Constitution of India the attempt of court should be to expand the reach and ambit of the fundamental rights rather than to attentuate their meaning and content.
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The refusal of the government to "legalise" euthanasia in India cannot be questioned as the same lies within the domain of "policy decision" that cannot be challenged in a court of law except on the ground of mala fide exercise of discretion. The present refusal is from no perspective mala fide in nature. The same, however, cannot take away the power of the High Courts U/A 226 or the power of the Supreme Court U/A 32, 136 or 141 of the Constituion of India. Thus, if the Constitutional Courts of India decides in favour of the same, that will be the law of the land.
The question presently before us is whether the government is confident or overconfident vis-a-vis its medical capabilities. In short, there are certain illnesses that have no cure in the world. Thus, either the government is claiming to have a solution for all the existing illnesses (including AIDS, Blood cancer) or it is optimist regarding their eradication.
Now the real purpose of euthanasia is to allow the terminally ill person to "die in peace and comfort". It is strange that the government is willing to keep a person alive in a physical painful state for him and extreme mental tension for his family in the "uncertain hope of revival".
The aim of government must be to keep the body and soul of "healthy" people together insted of showing an artificial respect for the life. In Indian we have many people living below the poverty line and many more devoid of any basic facilities. Thus, if the government is "conscious" of the "value of a human life" then it must acknowledge the "right to food" of its citizens that can help in preserving their lives.
It must, however, be noted that these decisions are "policy decisions" and only government can implement them. We can only form an opinion that may be or may not be accepted either by the courts or the government.
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