Sajida Syed

The term ‘Euthanasia’ which is also commonly known as mercy killing, comes from the Greek word ‘eu’- which means good or well and ‘thanatos’ which stands for death. Basically mercy killing is the practice of terminating a person’s life and putting him to death, in cases where he is suffering from ailments which are incurable in nature, or where the victim is in a vegetative state. It basically aims to end the life of the patient, with a sense of providing him with a dignified death. Many countries have recognised this concept. However, many religions and countries still consider this practice to be a form of murder and they term it to be unethical. In India, the act of mercy killing is not legally accepted as it goes against the provisions of Article 21 of the Constitution. Article 21 talks about ‘RIGHT TO LIFE’. Thus, in Indian context euthanasia is an illegal act, and is made punishable under section 300(5) of the India Penal Code as culpable homicide not amounting to murder. But, with the change in society there are many instances wherein experts, jurists and citizens have felt a need to have a proper law which shall look into such matters. There were many instances where matters relating to mercy killing were brought before the judiciary and the judiciary tried to resolve such issues considering the changes in the society. For instance, in the ‘Gian Kaur’ (1996) the Constitutional bench decided that mercy killing is not acceptable, because ‘right to life does not permit one to die’, later on, in the Aruna Shanbaug (2011), case the Constitutional bench permitted passive euthanasia under certain safeguards.

One of such matter was brought before the Apex Court on Tuesday (11/10/2017), the matter was placed before the Apex Court’s Bench which comprised of Chief Justice Dipak Misra and comprising Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan. The counsel for the case were Advocate Prashant Bhushan from the petitioner’s side (NGO ‘Common Cause’) and ASG PS Narasimha from the respondent’s side i.e. the Central Government.

While opposing the idea of a living will, Advocate Narasimha contended that living wills are not secure and it can be mishandled and misapplied. He also enlightened the Court the Centre has drafted a bill titled ‘The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill’. Whereas, the counsel for petitioner, stemmed out the judgment put down by the Apex Court in the famous and most highlighted case of Aruna Shanbagh which dealt with passive euthanasia, he stated that as per the present prevailing system legal guardian or the medical board has an authority to decide on whether to continue with the life support system, and nowhere the will of the patient is taken into consideration. He advocated active euthanasia, stating, that the person who is bearing all the pain and who is purely in a vegetative state shall be allowed to die with dignity which shall also relieve such a person from all his pains and sufferings. In his views, the final decision on passive euthanasia shall only be made by the medical board, and no other authority should have a say in such matters if the patient is unable to decide for himself. He also contended that, it is not reasonable to waste resources on a patient whose chances of survival are impossible.

The CJI orally observed that while deciding on such matters, there are moral issues which are to be taken into consideration. He also questioned that whether the concept of living wills is socially and morally secure? The Bench also recommended that it is the responsibility of the Centre to set up a functional medical board which would study and scrutinize the conditions of the patients. The Bench has further asked both the counsels to elucidate the legal and philosophical problems which would arise in the event of legalizing euthanasia. The Bench also enquired that in the absence of any legal guardian, who shall have the authority to decide on the implementation of passive euthanasia, and whether the intervention of Court is required in such scenarios. The matter will be next heard on 12/10/2017.

The concerned case is capable of further expanding the scope of Article 21, which is all set to give new dimensions to this Article.

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