The (Non-existent) Right to Die in India

What I’d like to do with this post is explore the current legal position on the right to die in India and a little bit about why the issue is so controversial (biased, of course, to reflect personal opinion). To start out, the right to die as an absolute is not provided for under the Indian legal system. The right to life under our constitution does not expressly include the right to die, nor has it been interpreted to include the right to die, although an attempt was made to do so at one point of time by the Supreme Court in this case – the judgement was thereafter overruled in Gian Kaur v. State of Punjab. The judgement in the former argued that “a person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking”. In Gian Kaur, on the other hand, the Supreme Court ruled that suicide, as an unnatural termination of life was incompatible with the basic idea of the “right to life”. While the decision does contemplate the possibility of accelerating the death of a terminally ill patient, no substantial exception was carved out in the judgement to permit euthanasia under the Indian legal regime. Moreover, an attempt to commit suicide and abetment of such an attempt are both criminal acts under our penal code.

That being said, a little bit about euthanasia: euthanasia can be either active or

A euthanasia machine administers a lethal dose of drugs when a person answers "yes" to a series of questions on the lap-top screen. (Image links to source).

A euthanasia machine that administers a lethal dose of drugs when a person answers “yes” to a series of questions on a lap-top screen. (Image links to source).

passive, it can also be voluntary, involuntary or mandatory. Active euthanasia is when someone uses a lethal substance or active use of force to end the life of another or oneself. Passive euthanasia is where treatment is withheld from a terminally ill patient, thereby leading inevitably to the patient’s death. Voluntary euthanasia, as the name would suggest, involves euthanasia of a consenting person. Involuntary involves terminating the life of a person who is incapable of giving consent. Mandatory euthanasia involves termination of the life of a person who does not consent or whose consent has not been sought. Passive euthanasia is completely legal. I have the absolute right to refuse treatment for any medical condition and refuse to prolong my life if I so desire. Which takes us to the living wills question, but I’ll get to that in a bit.

While a substantial portion of the objections against euthanasia are based on religion, there are more secular arguments that find their way into the debate. One major argument is that of the slippery slope: Permitting voluntary and active euthanasia could easily lead us down the slippery slope of legalising involuntary and mandatory euthanasia as well. There are An oft cited example in support of this argument is Action T4– the euthanasia programme that was run in Nazi Germany under which those judged to be critically sick (this included mental and physical disabilities) were put to death in the eugenic hope of cleansing the citizenry (and future generations) of what were considered to be undesirable genetic flaws. Unfortunately for advocates of euthanasia today, this programme was based on ideas that slowly gathered momentum through the first half of the 20th century and eventually led down the slippery slope of mass killings under the head of euthanasia. There’s a paper dealing with this issue here for those who would like to read it. Indeed, these ideas of killing ‘useless eaters’ are not restricted to the last century but seem to have been retained in this century as well, with people being comfortable voicing (publicly in newspapers, no less) opinions that disabled children ought to be euthanised. The reality is that the slippery slope is a very real possibility. That not only holds true for places where euthanasia is legal, but with other countries as well – reports of deaths caused due to negligence of medical practitioners state that the negligence can be seen to be directly proportional to the extent of disability in the patient.

Another argument against euthanasia based on similar lines is the fact that most countries that permit voluntary active require a patient to be suffering from either a ‘terminal illness’ or an ‘incurable disability’ in addition to suffering unbearably and unrelievably for permitting active euthanasia. It has been argued that the inclusion of ‘incurable disability’ as a marker devalues the lives of people living with incurable disabilities by adjudging such lives as being “worthy of termination” and therefore, not worthy of being lived. This leads to the idea that disabilities and the lives of persons with disabilities are intrinsically undesirable, and less valuable than the lives of able bodied persons.The idea of promoting self-determination in cases of voluntary euthanasia due to severe disability has also been subject to substantial criticism, primarily from disability rights groups (further reading here). The social construct model of disability provides the explanation for this: that ableism (and the detrimental consequences of living in an overtly ableist world) is the primary reason for any disabled person to believe that life with disability is not worth living and therefore, determine that euthanasia is the solution. Further, since the legality of euthanasia (as seen in countries that permit it) is regulated to circumstances beyond the mere will of the persons seeking to terminate their lives, self determination is hardly an argument worth making: the regulations clearly indicate that other people ought not consider such a step, thereby imputing hat their lives are more “valuable”.

Moving on to the question of living wills: as mentioned earlier, every person has the right to refuse treatment of any kind. However, in the event of a person’s incapacity to communicate this to the medical care provider, there is no legal provision for a living will in India. Most states in the US, for instance, have a provision for living wills to be lodged with an online registry that keeps a database of these wills. Many people also appoint others to make their decisions for them in case of emergency. Medical practitioners are provided access to the living wills of their patients lodged in registries and are then legally bound to act in accordance with the patient’s express will. While a person is free to provide instructions for such an eventuality, the person will have to depend on the next of kin to uphold the patient’s wishes. Since there has been no authoritative legal source in India stating that living wills are binding, a living will may not actually work on its own. Ideally, the best way to ensure that your wishes are honoured is to let your next of kin and / or family know what you’d like done in such a situation, as long as you trust them enough to carry it out. When that isn’t possible, however, it may be possible to contract out the decision to a person you trust, an agency of sorts, and keep them as your emergency contact – though it’s still not certain to be enforceable, given the lack of legal clarity on the issue. While that’s far from being a comfortable solution, until lobbying pays off and a legislation is enacted on the subject, it’s the best we’ve got.