Passive euthanasia: In India, debate on 'living will' has seen many turns

On Jan 17, SC decided to 'tweak' its 2018 verdict to make passive euthanasia more workable

The topic of euthanasia is perhaps best remembered in Indian popular culture through the lens of Sanjay Leela Bhansali’s Guzaarish (2010). Starring Hrithik Roshan and Aishwarya Rai Bachchan, the film presents an emotional case for an individual’s right to choose death. The film also brought to attention the phrase “Living Will”.

According to the concept of ‘living will’, a patient can give consent that allows withdrawal of life support systems if the individual is reduced to a permanent vegetative state with no real chance of survival. Much of the Bhansali film is rooted in the protagonist Ethan Mascarenhas’s fight to establish the validity of ‘living will’.

Eight years after the release of the film, the Supreme Court had passed a landmark judgment in 2018, declaring ‘passive euthanasia’ permissible and legalising ‘living will’.

On Tuesday, January 17, 2023, the apex court decided to “tweak” its 2018 verdict to make the ‘living will’ procedure and guidelines for terminally ill patients more workable, less onerous and less time consuming.

The SC observed that the Right to Life cannot be devalued, while stressing that the right to die with dignity was also a part of Article 21 of the Constitution.

Passive euthanasia is the withdrawal of nutrition and water and withholding of life-saving treatment, thus facilitating the person’s end, and relieving them from suffering. Active euthanasia involves a physician, who actively assists suicide through an injection of lethal substances to accelerate death. Active euthanasia remains illegal in India.

Euthanasia became a point of discussion in 2011 after the Supreme Court turned down a plea of author and activist Pinki Virani for stopping life support to Aruna Shanbaug — a nurse who had spent nearly 42 years in a vegetative state after she was raped in 1973.

In a landmark judgment, the Supreme Court provided a set of guidelines to administer passive euthanasia to Shanbaug. However, Virani’s petition was declined because the apex court refused to count her as Shanbaug’s “next friend”. Instead, the court found Mumbai’s KEM hospital staffers, who had been tending to her all those years, as “next friend” – and they wanted Shanbaug to be alive. Shanbaug died in 2015, days after she was diagnosed with pneumonia.

The entire debate surrounding euthanasia is centred around the question: Does the right to live under Article 21 of the Indian Constitution include the right to die, too? The Supreme Court has changed its stance several times on the debate.

The question was first discussed in the case of “P Rathinam vs Union of India” in 1994. The judiciary debated whether the punishment for attempting suicide (Section 309 of the Indian Penal Code, or IPC) should invite criminal penalties or not. In this case, the Supreme Court upheld that the liberty to die comes under the liberty to live and had ruled that Section 309 of the IPC was, therefore, constitutionally invalid.

Two years later, the Supreme Court overruled this in the Gian Kaur V State of Punjab case. Gian Kaur and her husband Harbans Singh had been charged with abetting the suicide by one Kulwant Kaur under Section 306, which punishes anyone who abets suicide. It was argued that, as held in the P Rathinam case, right to life includes the right to die, and therefore someone abetting suicide is only assisting in Article 21’s enforcement. The top court overruled P Pathiman and stated that the right to life enshrined in the Constitution does not mandate the right to die because suicide or someone choosing to die is an unnatural way of putting an end to one’s life. It brought back the validity of Section 309, making an attempt of suicide an offence again.

This was again overturned in 2018, when the SC upheld that the right to die with dignity forms a part of the right to live with dignity under Article 21 of the Constitution. This judgment came up in a writ petition filed by Common Cause, a society that argued for making euthanasia legal.

And now, the SC has taken a further step in this direction, promising to make the process of passive euthanasia much more friendly for the patients and their families.

However, the apex court maintained that it was primarily the legislature’s responsibility to come up with a comprehensive Bill to address and smoothen the creases regarding this issue.

The court has also agreed, in principle, to keep judicial officers and district collectors out of the process.

Where does the world stand on euthanasia?

Globally, the debate on euthanasia has been on for centuries now.

Euthanasia was accepted in ancient Greece, Rome and parts of Asia. During the Enlightenment era, suicide and euthanasia became accepted practises in several European nations and places such as Japan, where suicide was utilised to maintain a person's honour and, thus, was never deemed immoral.

More recently, the Vatican declared that passive euthanasia was allowed under Catholic theology in a momentous pronouncement in 1957.

As a result, many countries have legalised either passive or aggressive euthanasia throughout time.

According to estimates, assisted dying accounts for roughly 1.5 per cent of Swiss mortality in Switzerland, where it is allowed. In the Netherlands, Luxembourg, and Belgium, euthanasia and assisted suicide are permitted in circumstances where somebody is suffering unbearably and there is no hope of recovery.

In March 2021, Spain made it lawful for individuals to take their life, though in only certain conditions, and Canada extended its assisted dying statute the same year. Colombia is the first and so far only Latin American nation to make euthanasia legal. Euthanasia is legal in some Australian jurisdictions, and equivalent legislation has been passed in New Zealand.