INTRODUCTION
The right to life and liberty is a human right conferred by a universal declaration for all human beings so that all are born free and equal in dignity and rights. In India, it is a fundamental right that is guaranteed under Article 21 that consists in Part III of the Constitution of India and it says “No person shall be deprived of his life or personal liberty except according to procedure established by law." This right is inherent which denotes the presence of such right up to the end of the normal life of a human and it includes the right of a dying man to death with his dignity. However, the 'Right to die with dignity would not be obscured with the right to die an unnatural death which is diminishing the natural course of life. The question that the right to life may incorporate within its ambit the right to die and not to live has been debated in various cases.
The question that emerges in Article 21 of the Indian Constitution is the right to life involve the right to die? This question was brought up for thinking before the Hon'ble Bombay High Court in State of Punjab v. Kesari Chand[1] and the court laid down that the right to life ensured under Article 21 of the Indian Constitution which confers the right to die as well as the court abolished Section 309, IPC which conferred punishment for an attempt to execute suicide by an individual as unconstitutional. On the other side, contrary to this decision the Andhra Pradesh High Court in Chenna Jagadeesuwar v. the State of A.P.[2] laid down that within the purpose of Article 21 right to die is not a fundamental right and section 309, IPC was not unconstitutional. In 2018, the Hon'ble Supreme Court laid down in Common Cause vs Union of India[3] that passive euthanasia concept of living will whereby a patient can make an advance directive for withdrawal of medical treatment and any adult person with the conscious mind can express his wish in unambiguous and clear terms which based upon the informed consent.
JUDICIAL OBSERVATIONS
In Common Cause v. Union of India,[4] the petitioner was filed a writ petition in Article 32 of the Indian Constitution for striving a proclamation of the right to die with dignity as a fundamental right within the combination of right to live with dignity which is ensured in Article 21 of the Indian Constitution and allocated suggestions to the respondent would insert adequate method of consultation with the State Governments, wherein essential to guarantee that individuals of terminally ill or deteriorated health sufferers would be able to perform a statement titled which is "My Living Will and Attorney Authorisation" for submitting to the hospital for effective prosecution if the executant is admitted in the hospital with a serious illness which may endanger termination of his life and to appoint a committee of experts including lawyers, social scientists and doctors to review into the perspective of granting procedures as to the living will and to allocate such moreover adequate directions and guidelines as may be necessary. However, the petitioner contended that it was not claiming the right to die as a portion of the right to life however, acknowledging the stake that the right to die with dignity is an inextricable and inseparable point of the right to live with dignity. The petitioner contended that the execution of a Living Will or Advance Directive has become a necessity. The concept of sustenance of individual autonomy is inherent in the right to privacy and comes within the fundamental principle of liberty. The Union of India and some States in their counter-affidavits emphasized Articles 37, 39 and 47 requiring states to take appropriate steps for appropriate governance. Chief Justice Dipak Misra held the judgement for himself and Justice A.M. Khanwilkar. Justice A. K. Sikri, Justice Dr D.Y. Chandrachud and Justice Ashok Bhushan conferred separate judgments but concurred with the judgement of Chief Justice.
The petitioner's Counsel used the terminology "living will" but the Court used "Advance Medical Directive" terminology and referred to the law in foreign jurisdictions and Indian cases. The Court in the exercise of the power in Article 142 of the Indian Constitution and the law as stated in Vishaka v. the State of Rajasthan[5] laid down the principles relating to the procedure for execution of Advance Medical Directive and provided the guidelines to confer effect to passive euthanasia where there are advance directives and where there are none which would remain in force till the legislation by the Parliament in the field. In Gian Kaur v. the State of Punjab[6] summarised the law that evaluates the right of a dying individual to die with dignity when life is ebbing out and in this condition of a terminally ill sufferer or an individual in PVS where there is no possibility of bringing a move on or recovery the process of death for diminishing the duration of sustaining comprises a right to live with dignity.
The two Judge Bench in Aruna Ramchandra Shambaugh v. Union of India[7] has miscalculated in clasping the Court under Gian Kaur case has upheld the verdict in Airedale N.H.S. Trust v. Bland[8] and that euthanasia could be made lawful merely by legislation because in Gian Kaur there is merely a brief reference of Airedale case. Gian Kaur did not lay down that passive euthanasia can be introduced only by legislation. There is a fundamental difference between passive euthanasia and active euthanasia as the former involves a positive accession act while the latter concerns the isolation of life assistance norms or withholding of medical procedures denote artificially making longer life. In the context of active euthanasia, there is a certain overt act is done to demise the patient's existence because in passive euthanasia something is not committed which is compelled for saving a patient's life and due to this difference, most of the nations throughout the globe have allowed that passive euthanasia whether by judicial or by legislation translation with particular protections and circumstances.
After Aruna Ramchandra Shanbaug's case,[9] Passive Euthanasia has also been acknowledged by the 241st Report of the Law Commission of India however, no law has been legislated. Every adult can consent to the right of self-determination and autonomy and the rights have covered the route for the right to withhold medical procedure which has been praised by global prevailing acknowledgement. Therefore, a competent individual who has arrived at age would be the right to withhold certain medical treatment or entire medical treatment or option for another remedy even if such a determination comprises harm of demise. However, the Principle of Necessity or Emergency Principle would be conferred effect to merely when it is not practicable to acquire the patient's consent for treatment and his life within the problem, however, where a sufferer has already created a logical Advance Directive which is available from adequate suspicion and particularly he has no desire to take treatment, therefore, such declaration would be granted impact and Article 21 of the Indian Constitution incorporates under it that right to live with dignity as an essential ingredient of the right to life and the liberty.
Similarly, this right to live with dignity involves revealing the process of expiring in the matter of an individual under PVS with no wish of comeback or a terminally sick patient. However, a downfall to lawfully acknowledge advanced medical regulations may be proportional to non-facilitation of the right to live with dignity and the right to flatten the death procedure. Still, the virtue of life has to be kept on the high adulatory in the case of PVS patients and terminally sick patients when there would no possibility for revival and emphasis would be given to the advanced regulation and the right of self-determination. In the deficiency of Advance Directives that the procedure which conferred in the regulations and guidelines issued by the Court, in this case, would be acceptable and when passive euthanasia as a circumstance of relaxing method would be acceptable then a great concern of the sufferer would be overridden the State's interest.
CONCLUSION
In the Common Cause case, the Hon'ble Supreme Court laid down the application of the Doctrine of proportionality wherein it was considered the two aspects of the same right for instance the right to life in Article 21 of the Indian Constitution. However, the right to life makes a captivating state interest preserving of human life, on the other side, it also confers the individual autonomy to put decisions concerning his own body or life. Although, the recognition of the right to die with dignity for terminally ill patients is merely one side of the same coin. The question arises when this right shall be decided and interpreted for the people who are demanding to enfold death due to various pressing reasons such as destitution, old age, and lack of opportunity to die with dignity which remains unanswered in India yet.
[1] Cri. App, 618 of 1983.
[2] AIR 1988, Cri LJ 549.
[3] AIR 2018, SC 1665.
[4] Supra Note 3.
[5] AIR 1997, SC 3014.
[6] AIR 1996, SCC 648.
[7] AIR
2011, SC 1290.
[8] (1993)
1 AII ER 821.
[9] Supra
Note 7.
About the Author: This post is prepared by Subhajit Samanta, Law Student from Bikash Bharati Law College. He can be reached at samantasubhajit0@gmail.com
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