Saturday, 29 January 2022

LEGALITY OF PASSIVE EUTHANASIA IN INDIA

 


               LEGALITY OF PASSIVE EUTHANASIA IN INDIA


INTRODUCTION

Euthanasia means when a terminally ill patient wants to end their life. Euthanasia is of two type active euthanasia and passive euthanasia. Passive euthanasia is when you let a patient to die, a patient who is on complete life support or in vegetative state and cannot live without medical treatment, so you remove the medical support and let the person to die under this type of euthanasia. Wherein active euthanasia you actively end the life of a terminally ill patient. In India active euthanasia is not yet legal.

LEGALITY THROUGH CASE LAWS

In Gian Kaur vs. State of Punjab (1994), by a five judged bench held that both suicide and euthanasia were unlawful. And also held that right to life does not includes right to die, it overrules the judgement given in P. Rathinam vs. Union of India which struck down section 309 of IPC(attempt to suicide) as unconstitutional. Also in the case of Gian kaur case it was made clear by the court that Article 21 of the Indian constitution only says about right to life and personal dignity and does not includes right to die.

Later in Aruna Ramchandra Shanbaug vs. Union of India, the Supreme Court in March 2011 held that under exceptional circumstances by the order of court passive euthanasia can be given. The fact of the case was Aruna shanbaug who was a nurse in the King Edwards Memorial Hospital in Mumbai, in 1973 she was assaulted by a ward boy (Sohanlal Bhartha Valmiki), of the same hospital while changing her clothes in the hospital basement. Valmiki strangulated Arunas neck with a dog chain and because of the act she has been in vegetative state from 1973 for 42 years and on her behave a social activist Pinki Virani filed a writ petition challenging that the right to life of Aruna is violated. But the judgement in the Shanbaugs case it only admitted passive euthanasia only the order of the court (only legalized passive euthanasia in special circumstances).

In the case of common cause & another vs. Union of India & another, in march 9th 2018, the supreme court held that right to life and personal liberty under Article 21 of the Constitution also includes right to die, the court upheld right to die as a fundamental right.  The court also held a living will (it is a document that a person writes in his normal state of mind) valid. in earlier in the case of shanbaug case also if you need passive euthanasia you should apply for that but now, through living will you can write  for yourself for passive euthanasia and decide for yourself, it is now absolutely in your hands. The issues discussed in the common cause case was:

1) Whether Article 21 of the constitution, that is, right to life and personal liberty includes right to die also?

2) Whether passive euthanasia should be permitted on the living will of the patient?

3) Whether there is a difference between active and passive euthanasia?

4) Whether an individual has any right to refuse medical treatment including withdrawal from life saving devices?

CONCLUSION

Now in India passive euthanasia is valid. The concept of passive euthanasia is a controversial subject, because of the religious aspect and also in terms of the consent of the party. The religious group  believes life as divine and also says that only god have the right to take the life , it is right but the value of the person to live in dignity is curtailed by living in as a vegetative state. The consent of the required party is another issue, he is living in vegetative stage and he cannot give consent but no one like to live in vegetative state clears that part. The judgement in common cause case by five judged bench headed by former CJI Dipak misra in 2018 gives as a landmark judgement and made passive euthanasia as legal in India.


By,

Asha Sebastian.






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