Updated: Jun 14
Author - Sai Harshita Kachhawaha, Indore Institute of Law.
Our Constitution provides us with a basic right that no person shall be deprived of his life on personal liberty except according to the procedure established by law. Right to life means the right to lead a meaningful, complete and a dignified life.[i] Right to life is a natural right of human beings. In India, all the citizens have a basic fundamental right which is guaranteed under Article 21 of our Constitution of India. All the fundamental rights are stated in the Part III of our Constitution. The Article 21 which states right to life states that:
“No person shall be deprived of his life or personal liberty except according to procedure established by law”[ii]
The right to life has been interpreted by the Indian judiciary in various ways so as to include within its purview several new rights such as the right to live with human dignity, right to livelihood, right to shelter, right to privacy, right to food, right to education, right to get pollution free air and water and some other rights which are quite essential to improve the condition of the life of the people, i.e. – for the true enjoyment of the right to life.
The question that right to life can include within its ambit the right not to live or the right to die is one that has been debated in several cases. Death can be defined as the termination of life. Death can be categorized basically into two kinds –
(i) Natural and
(ii) Unnatural death.
It can be caused by the action as well as the inaction of a person. Causing the extinction of a life unnaturally by the action of oneself over himself or over someone else is morally bad as well as legally punishable. Every living being in this world wants to live a long life and by every possible means wants to increase the longevity of their lives and promoting end of such life is not the intended result of this right.[iii]
For a common man, when life becomes far more painful and unbearable than death, then it is very normal for him to desire death. This voluntary embracing of death is known as euthanasia or mercy killing. Euthanasia is also termed as ‘dayamaran’. Some people as the great saints or heroic persons embrace ‘echchamaran’ or willful death, when they feel that they have achieved the purpose of their lives. There are different types of voluntary deaths in our country like the ‘sati’, ‘johars’, ‘samadhi’, ‘prayopaveshan’ (starving to death) etc.[iv] Every right has a corresponding duty. This means that if X has the right to die, then Y would have the duty to kill him. The IPC under section 300 and 302 punished killing or murder of another person. Displaying a rare unanimity of thought to weave a common constitutional principle, Hon’ble CJI Misra led his colleagues on the bench to harmonies the inevitable yet opposite facet life and death — and say in unison that “right to die with dignity” is an intrinsic facet of right to life guaranteed under Article 21.
With this ruling, the SC has recognized that an individual with terminal illness or in a state of irreversible vegetative condition has the agency to decide whether he/she would like to die a sphere which was so far constitutionally reserved for the state, which alone could deprive a Person of his/her, life in accordance with law. As in the case of committing suicide, though section 309 of IPC was recently held to be arbitrary, as well as the state withdrew the prior punishment for persons who attempted suicide, the state still does not promote suicide. The state merely abstains from criminalizing it understanding that such is a matter of mental health.
2. Landmark judgements related to Right to Die
The history of the legality of right to die in India starts from the case of State v. Sanjay Kumar Bhatia[v] where the Delhi High Court criticized section 309 of IPC as an ‘anachronism and a paradox’ and then is followed by varied views of different High Courts on section 309 of IPC. In the case of Naresh Marotrao Sakhre v. Union of India [vi]the court observed the difference between Euthanasia and suicide. It was discussed that suicide was an act of self-destruction, to terminate one’s own life without the aid or assistance of any other human agency whereas euthanasia being different as it involves the intervention of a human agency to end one’s life. This mercy killing is nowhere covered in Section 309 of Indian Penal Code, 1860 which states that:
“Attempt to commit suicide.—Whoever attempts to commit suicide and does any act towards the commission of such offence, shall he punished with simple imprisonment for a term which may extend to one year 1or with fine, or with both.”
In a landmark judgment of Common Cause (A Regd. Society) v. Union of India & Anr. [vii] delivered on 9th March, 2018, the Supreme Court of India held that a person in persistent vegetative state can opt for passive euthanasia, and that a person can execute a living will to refuse medical treatment in case of a terminal illness. In response to the apprehensions of misuse of advance directives (or living wills), such as those expressed by the Law Commission of India in its 241st Report, the court also issued comprehensive guidelines on the procedure for execution of an advance directive as well as for giving effect to passive euthanasia. The guidelines will remain in force until Parliament enacts legislation on the subject. The judgment is significant as it clears the air on passive euthanasia in India.
The Supreme Court previously in 2011 in Aruna Ramchandra Shanbaug v. Union of India[viii] had held that passive euthanasia can be allowed under exceptional circumstances. Soon, this was also overruled by the Supreme Court, had formulated an opinion on legality of suicide in Gian Kaur v. State of Punjab[ix], in which it had held that the right to life under Article 21 does not include the right to die. But suicide was unnatural termination or extinction of life and therefore, ‘incompatible and inconsistent’ with the concept of the right to life. The right to life includes right to live with human dignity would mean the existence of such a right up to the end of natural life. However, the court appears to approve passive euthanasia by holding that one may have the right to die with dignity as a part of the right to live with dignity.
Therefore those who are facing a terminal illness, who are in irremediable pain and suffering, and wish to exercise their right to die with dignity, a system should be available to them”. The sanctity of human life does not imply the forced continuation of existence in pain and suffering. Given that a person has the right to lead a dignified existence, he cannot be forced to live to his detriment. In fact, these are not cases of extinguishing life but only of accelerating the process of natural death, which has already commenced.
[i]Nikhil Kumar Nath, Article 21 and Constitutional validity of Right to Die, available at http://www.legalserviceindia.com/article/l374-Article-21-and-Constitutional-validity-of-Right-to-Die.html. [ii] Diganth Raj Sehgal, Does Right to Life include Right to Die?, available at https://blog.ipleaders.in/does-right-to-life-include-right-to-die/. [iii]Pyali Chatterjee, Right To Life With Dignity also Includes Right to Die with Dignity:- Time to Amend Article 21 of Indian Constitution and Law of Euthenesia, available at https://www.researchgate.net/publication/282293996_RIGHT_TO_LIFE_WITH_DIGNITY_ALSO_INCLUDES_RIGHT_TO_DIE_WITH_DIGNITY-_TIME_TO_AMEND_ARTICLE_21_OF_INDIAN_CONSTITUTION_AND_LAW_OF_EUTHENESIA. [iv] Dhananjay Mahapatra & Amit Anand Choudhary, The Times of India, available at https://timesofindia.indiatimes.com/india/right-to-live-includes-right-to-die-supreme-court/articleshow/63239760.cms. [v] 1986 (10) DRJ 31, Right to Die with Dignity: Euthanasia- Law and Case Laws, available at https://www.vakilno1.com/legal-news/right-to-die-with-dignity-euthanasia-law-and-case-laws.html. [vi] 1996 (1) BomCR 92. [vii] W.P. (Civil) 215 of 2005. [viii] (2011) 4 SCC 454, https://ohrh.law.ox.ac.uk/right-to-die-with-dignity-a-fundamental-right-indian-supreme-court-allows-passive-euthanasia-and-living-wills/. [ix]The Right to Die with Dignity: The Indian Supreme Court Allows Passive Euthanasia and Living Wills, Oxford Human Rights Hub, https://ohrh.law.ox.ac.uk/right-to-die-with-dignity-a-fundamental-right-indian-supreme-court-allows-passive-euthanasia-and-living-wills/.