A Law Without Parliament

Euthanasia verdict was not within the Supreme Court’s ambit to deliver

Written by D N Goburdhun | Updated: March 29, 2018 12:15:18 am
There is no mechanism to certify the reputation of the doctor nor has Union health ministry made any regulations regarding such a practice. (Image used for representational purpose)

Euthanasia (the passive killing of a suffering person) is prohibited in the US, England and France. Bills which were introduced in their legislatures were defeated. In the US, courts upheld the ban on medical-aided killing. In 1972, a bill was introduced in Parliament to amend the Indian Penal Code by deleting Section 309 (attempt to suicide) but it lapsed and no one has dared since then to introduce another. Also, no one has contemplated to implement the 42nd Report of the Law Commission, which suggested that attempt to suicide not be treated as a crime under Section 309.

A five-member Constitution Bench in the Gian Kaur case (1996) held that the right to life did not include the right to die. Thus, it overruled the two-judge decision in the Ratinam case, that an attempt to suicide would be treated as a crime under the penal code. The judges presided over by Justice Verma, after perusing the UK’s Airedale case, had held that “the desirability of bringing about such a change was considered to be the function of the legislature by enacting a suitable law providing therein adequate safeguards to prevent any possible abuse”. The bench unanimously held that even physician-assisted suicide had no rational basis to claim exclusion from the fundamental principles of sanction of life. It quoted, with approval, the English courts’ rationale that euthanasia was not lawful under common law and Parliament was the supreme authority to deal with it.

However, earlier this month, another five-judge bench has ruled for passive killing in cases of terminally ill patients. Why should suffering be “carried forward” when there is no cure? A person should, in advance, make a testamentary declaration, which is to be endorsed by a judicial magistrate (who are otherwise heavily loaded in their judicial work), wherein the person will unambiguously state that in case she/he becomes incurably ill, she/he would not like to be in a “vegetative state” and should be allowed to die with dignity.

This five-judge bench followed the two-judge bench’s direction in Aruna Shanbaug case, delivered by Justice Markandey Katju, which promoted the concept of euthanasia by carving out a novel path for medically-aided killing. This was fervently opposed by the then Attorney General of India, who argued for the government that euthanasia had not been accepted by Indians.

The SC was bound to follow judicial precedent from the Gian Kaur case — delivered by Justice Verma for five judges —which categorically held that Article 21 does not include the right to die. Unnatural termination of life is incompatible and incongruous with the concept of right to life. Thus, Article 21 guarantees protection of life “which cannot be construed so as to read therein right to die”. The right to life under Article 21 has to be construed as life with human dignity. This aspect — what makes life dignified — has to be read into and explored, but not to the degree of including that which extinguishes life, effacing the right itself.

Interestingly, the smaller bench in the Shanbaug case, taking note of the low ethical standards, raw and widespread commercialisation and the rampant corruption in the country, said courts needed to be cautious while deciding such matters. The SC judges have expressed, many times, that they are not experts in various fields, including medicine and healthcare. The guidelines in the current verdict pertain to how doctors will be assessed. But there is no mechanism to certify the reputation of the doctor nor has Union health ministry made any regulations regarding such a practice.

The Supreme Court took over the functions of Parliament and has made this a judicial legislation, which will prevail till Parliament legislates. Laws have to be made by Parliament and the courts strictly have to interpret the law, and not legislate. Should the apex court have sailed into uncharted waters and ruled where there is no Parliament-made legislation?

The writer is a lawyer practising in the Supreme Court of India

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