Thursday, Oct 23, 2014

Between life and death

This is not the first time that the Supreme Court is hearing a case on the right to die. This is not the first time that the Supreme Court is hearing a case on the right to die.
Written by Jayna Kothari | Posted: July 28, 2014 12:00 am

A constitutional bench of the Supreme Court is presently hearing a petition relating to questions of assisted dying, withdrawal of life support and euthanasia, which have been deeply controversial for a long time. This is not the first time that the Supreme Court is hearing a case on the right to die. In the 2011 case of Aruna Shanbaug, the court allowed for passive euthanasia under some conditions. This was a petition in which a friend of Shanbaug, who was in a permanent vegetative state, sought the permission of the court to withdraw her life support. This particular request was rejected, but the Supreme Court permitted passive euthanasia and laid down guidelines for applications to be made to high courts for permission to withdraw life support of terminally ill people and those in a permanent vegetative state. Detailed directions on how high courts would have to consider each application were given.

Now a public interest litigation in the Supreme Court raises the issue of “active euthanasia” —  in which a person in her right frame of mind can make a “living will”, or the wish to end her life if she becomes terminally ill. In the process, the Aruna Shanbaug decision is also being reconsidered. I would put forth four arguments as to why the court should not be going into this question at all.

First, the basis for this PIL is itself rather vague. The Supreme Court preliminarily found that the Aruna Shanbaug judgment wrongly interpreted an earlier decision of the court in the Gian Kaur case, which, in fact, held that the right to life does not include a right to die. Therefore, a correct reliance on Gian Kaur could not have led to a decision permitting passive euthanasia. If this is indeed the argument, then surely a reconsideration of Aruna Shanbaug cannot lead the court to decide even more far-reaching issues of active euthanasia.

Second, the Aruna Shanbaug case was a moving story of a woman who was in a permanent vegetative state because of a brutal rape and was being looked after by hospital staff for several years. The court could take a decision looking at the circumstances surrounding that case. Questions relating to end-of-life decisions, withdrawal of life support, who has the right to decide for the patient, whether the patient’s consent was given freely, are extremely difficult and can only be decided by courts when there are real cases with evidence before them. Each case is different and would have its own facts based on which the court’s decisions could differ.

For the Supreme Court to take a decision on assisted suicide and termination of medical treatment in the absence of a live case of a real person continued…

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