The debate: Waiting for a constitution bench, the right to die with dignity

According to the court’s 2011 order, active euthanasia entails the use of lethal substances or forces to kill a person, while passive euthanasia, which it allowed in specific cases.

Written by Ruhi Bhasin , Meghna Yelluru | Mumbai | Updated: May 19, 2015 3:21:15 am
Supreme court, SC, Indian express Common Cause Society had in 2005 approached the Supreme Court for declaring the “right to die with dignity” a fundamental right within the fold of “right to live with dignity”.

In March 2011, hearing a petition on behalf of Aruna Shanbaug, the Supreme Court ruled “passive euthanasia” may be allowed in specific cases but the larger issue remains unresolved until a constitution bench takes it up.

Common Cause Society had in 2005 approached the Supreme Court for declaring the “right to die with dignity” a fundamental right within the fold of “right to live with dignity”. This was referred last year to a constitution bench. “The bench has not been constituted yet to decide on this important matter,” said advocate T R Andhyarujina, who served as amicus curiae in Aruna’s case.

The petitioner has urged the court that terminally ill persons be allowed to execute a “living will” and attorney authorisation that can be presented to hospitals for appropriate action. As an alternative, the petitioner has sought that the court issue guidelines and appoint an expert committee consisting of doctors, social scientists and lawyers to study the aspect of such living wills.

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“Passive euthanasia cannot be faulted, nor can having a living will in case that situation arises. In passive euthanasia, you do not put a person on life support. In this case, no safeguards as mentioned by Justice Katju in the Aruna Shanbaug case are required,” said lawyer Prashant Bhushan who represented Common Cause.

According to the court’s 2011 order, active euthanasia entails the use of lethal substances or forces to kill a person, while passive euthanasia, which it allowed in specific cases, involves measures such as withholding of medical treatment or removing the heart-lung machine from a patient in coma. The petitioner’s counsel Shekhar Naphade, however, feels it is difficult to make a distinction between the two. “I feel there is no distinction. The issue is still at large and will be revisited by a constitution bench.”

Naphade said the aim of the petition was to get the legal and medical world to debate what was meant by human life and human death and if someone in a irreversible vegetative state could be described as having human life. “The purpose was to activate Parliament on this issue but there was no response,” Naphade said.

“Though Aruna did not get any relief from the case, her petition has been instrumental for the country to have an alternative such as passive euthanasia,” said advocate Shubangi Tuli, who assisted Naphade. Tuli said she has not come across any applications seeking to implement the SC order but is satisfied that the option now exists.

EUTHANASIA LAWS ELSEWHERE

Netherlands

Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 2002, states that euthanasia and physician-assisted suicide are not punishable if the physician acts in accordance with some criteria , such as the patient’s request, the patient’s suffering, information provided to the patient, the presence of reasonable alternatives, consultation of another physician and the applied method of ending life.

Switzerland

“Assisted suicide” is legal for doctors as well as non-doctors providing the assistance but “euthanasia” is illegal. In assisted suicide the patient self-administers the lethal injection, while in euthanasia a doctor or someone else does it. Article 115 of the Swiss penal code, which came into effect in 1942, counts assisted suicide as a crime only if the motive is selfish.

United States

Active euthanasia illegal; physician-assisted dying legal in Oregon, Washington, Montana.

Belgium

Legalised euthanasia in 2002 under certain conditions. Patients wishing to end their lives must be conscious when the demand is made and repeat their request for euthanasia. They have to be under “constant and unbearable physical or psychological pain”.

UK, Spain, Austria, Italy, Germany, France

Euthanasia and physician-assisted death illegal. In January 2011 the French Senate defeated by vote a bill seeking to legalise euthanasia. England blocked in May 2006 a bill allowing physician-assisted suicide.

Canada

Physician-assisted suicide is illegal under the Criminal Code of Canada.

SOURCE: Supreme Court order of March 7, 2011, in Aruna Shanbaug vs Union of India

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