CONSTITUTIONAL ASPECT OF RIGHT TO DIE WITH DIGNITY
INTRODUCTION
Right to die with dignity is an issue which has been centre to a lot of debates and quarrels among the legal fraternity . It is an issue which made headlines when the supreme court on 9th march 2018 passed a landmark judgement in the case of common cause vs union of india [1] . in which the constitutional bench of the supreme court comprising of CJI Dipak misra , justice Ak Sikri , justice ashok Bhushan , justice DY chandrachud and justice AM khanwilkar . The constitutional bench of the supreme court made passive euthanasia and living wills constitutional and made it a fundamental right . The bench opined that the right to life has an important associated peripheral too which is the right to die , the order allowed passive euthanasia which means that the person has the right to form a legal document giving the concerned authorities the power to take decisions on their behalf if their health condition deteriorates . Common cause NGO filed a petition in front of the supreme court while exercising their right under article 32 seeking to declare right to die as fundamental right under the ambit of article 21 and to ensure the issuance of directions to respondents which lead to adoption of suitable procedure in accordance with state government wherever required , to ensure that the patients whose health conditions are deteriorating should be allowed to execute a document with a title my living will and attorney authorization , which can be produced in the hospital for appropriate action in furtherance to any life threatening scenario . the petition also seeked the formation of a committee which will comprise of the doctors , scientists , and lawyers.
HISTORICAL BACKGROUND
Right to die first time came into the limelight when Bombay high court got the case Maruti sreepati dubal vs state of Maharashtra (1987) [2] which was filed for the inclusion of right to die as a fundamental right , result of which was that the Bombay high court strucked down the constitutionality of section 309 ( IPC) the high court opined that right to life includes right to die also .
In another case named P Rathinam vs union of india [3] it was decided that the article 21 of the constitution includes the right to die and strucked the constitutionality of the section 309(IPC)
The issue of right to die again came into the limelight with the case of Gian kaur vs State of Punjab [4] in this case the supreme court opined that the right to die can not be made a fundamental right , all sorts of euthanasia are illegal and can not be counted under the ambit of Indian constitution and also upholded the constitutionality of section 309(IPC) .
It was later in the case of aruna Ramchandra Shanbaug vs union of india where the condition of a woman aruna Ramchandra was in the vegetative state and she had lost the interest in living and there were no chances of betterment in her health condition. The court allowed passive euthanasia alonmg with some observations that” when such applications is filed then chief justice of the court should form a special bench who should decide the allowance of passive euthanasia “ .
STATUS QUO OF RIGHT TO DIE WITH DIGNITY
The common cause vs union of india case where dr DY chandrachud has given the differences between active an passive euthanasia , he has certainly supported the passive euthanasia which according to him is not a way of killing the patient rather it is just a mean to take away the life support of the patient who is either in the vegetative condition or sees no change in the condition to let the person live on his own without any artificial support to enhance his life rather to just let them be on the natural course of lifetime. In the case of active euthanasia Dr DY chandrachud illustrated about the legal aspect associated where the doctor is committing an intentional action which is a crime as mens rea is the basis for the conviction in the criminal case. Therefore in the case of common cause vs union of india it was held that passive euthanasia is legal because there is no legal penal provisions regarding it whereas on the contrary the active euthanasia is legally under question regarding the intention behind committing the action to let the patient die. Court has also advised and proposed advanced directives to commit passive euthanasia. The common cause case has also provided the incompetent patients for the right to living wills through which the patients can communicate their choices , it also gave the people a right to choose advance medical attorney which is a trusted person who will be appointed on behalf of the patient who can take decision on the patient’s behalf .
After the judgement in the case of Aruna ramchandran Shanbaug the law commission came with it’s 241st report , where the report has dealt with the concept of euthanasia the committee in the report has referred to the observations made by the chairman of law commission back in the year 2006 where he addressed the problem of the today’s patient who is ill should be provided with right to refuse to any medical procedure and allow the nature to take it’s own cause [5] . the law report was concerned that the right to not follow the medical procedure should be allowed and considering the condition of the patient who is suffering through such complex issue . the law report also points out to the fact that majority of developed nations have enacted laws to provide people with the right to passive euthanasia and making the right to die with dignity a fundamental right in their respective nations and a means to further humanity .
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