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Thursday, June 30, 2022

Between life and death

On euthanasia, courts should step back, let Parliament decide.

Written by Jayna Kothari |
July 28, 2014 12:00:13 am
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.

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.

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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 in a PIL is highly problematic. As Justice Leonard Hoffmann said in the famous Anthony Bland case, “Modern medicine faces us with fundamental and painful decisions about life and death which cannot be answered on the basis of normal everyday assumptions.” Is it then possible for the court to take a decision in the abstract, based only on principles and constitutional values, without a real person claiming that right?

Third, it would be useful to have some empirical evidence on what happened after the Aruna Shanbaug judgment. We need to know how many applications were made to high courts seeking permission for the withdrawal of life support and how the courts decided. It is unclear if this has been done. Without such empirical reports, any decision on euthanasia would be premature.

And finally, are these issues not best left to Parliament to decide? All over the world, these issues are raising new questions about who decides when a person is beyond treatment. Two recent cases of June 2014 are important to consider. The European Court of Human Rights recently ordered French doctors to continue the treatment of a comatose patient in a complicated case in which his family’s views on his treatment and last wishes were divided. The UK Supreme Court similarly ruled last month in the landmark judgment of R (on the application of Nicklinson and another) vs Ministry of Justice, rejecting the request of three people who sought permission for assisted suicide. The court there held that assisted suicide was incompatible with human rights. The UK Supreme Court held that these issues raise sensitive and difficult moral questions, in which courts should take a cautious approach. It was felt that it should be left to parliament to take a democratic decision and frame such regulations and protective features as it feels appropriate.

In a 2012 report on euthanasia, the Law Commission of India had suggested a draft bill that would address this issue for Parliament to consider. Having usually taken a stand in favour of a strong judicial role, in this case it is perhaps best to let the legislature take over. We are not ready to have courts deal with the complicated issues of personal autonomy, religious and moral views about life and death, and assisted dying, over which our beliefs are so deeply divided.

The writer is an advocate, Karnataka High Court, and founder, Centre for Law and Policy Research

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