ALIGARH MUSLIM

UNIVERSITY MURSHIDABAD
CENTRE

STUDY OF BASIC CASES OF LAW

EUTHANASIA IN INDIA :FROM EYES OF
ARUNAS CASE

Submitted to:-
Submitted by:-

Mr. SHEKHABAT HUSSAIN

VISHAL SINGH
Asst.Professor (SOCIOLOGY)
GG-0293

Semester-II

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my

teacher Mr. SHEKHABAT HUSSAIN SIR ,who gave me the
golden opportunity to do this wonderful project on the topic-
EUTHANASIA, which also helped me in doing a lot of
Research and I came to know about so many new things, I am
really thankful to him.
Secondly I would also like to thank my seniors and friends who
helped me a lot in finishing this project within the limited time.
CONTENTS

Introduction
What is Euthanasia?
Indian approach towards
Euthanasia-constitutional and
legal provisions
Position in other countries
Arguments against legalizing
Euthanasia
Arguments for legalizing
Euthanasia
Settling the debate
Introduction

Like his right to life, does a man have a right to death also? Is physician-aid-in-dying a crime?
The legal aspects of Euthanasia are understood by few people.

This project deals with one of the most debated topics in the world and that is Euthanasia.
Euthanasia literally means good death but in this context it means mercy killing. The debate is
regarding the legalization of euthanasia. This debate is a continuing one as some people are of
the view that life is sacred and no one has got the right to end it whereas on the other hand some
say that life belongs to oneself and so each person has got the right to decide what he wants to do
with it even if it amounts to dyeing.

Most often in our day to day life, we generally come across such patients who are helpless and
cannot be cured through any medicine that the medical science has yet developed. Seeing them it
might be an overwhelming thought that Euthanasia must be made legal in our country. But we
must not forget that each good thing has a dark side too. In countries in which Euthanasia is
already legal, we can get a lot of examples which would show you its dark aspect. If we look at
the Netherlands where Euthanasia is made legal, we will see that how it is abused there. So
following its example no one wants Euthanasia to be legalized in India. But the question that lies
before us is which will be a better option. In this project, some basic points regarding Euthanasia
are discussed and then it is totally on the reader to decide which will be better: legalizing or not
legalizing Euthanasia. Although the Supreme Court has already given its decision on this point
but still some doubts arise in our point which we need to analyze carefully and conclude that
whether it should be legalized or not?
What is Euthanasia?

The word Euthanasia is derived from the Greek word Euthanatos meaning well death and
originally referred to intentional mercy killing. In the modern context Euthanasia is limited to the
killing of patients by doctors at the request of the patient in order to free him of excruciating pain
or from terminal illness. When medical advances made prolonging of the lives of dying or
comatose patients possible, the term Euthanasia was also applied to omission to prevent death.
The basic intention behind Euthanasia is to ensure a less painful death to a person who is in any
case going to die after a long period of suffering.

On broadly speaking, euthenesia can be divided into following way, on the basis of opinions put
forward by various legal scholars.

Legal Issues: Active and Passive Euthanasia

Coming now to the legal issues in this case, it may be noted that euthanasia is of two types:
active and passive. Active euthanasia entails the use of lethal substances or forces to kill a person
e.g. a lethal injection given to a person with terminal cancer who is in terrible agony. Passive
euthanasia entails withholding of medical treatment for continuance of life, e.g. withholding of
antibiotics where without giving it a patient is likely to die, or removing the heart lung machine,
from a patient in coma.

The general legal position all over the world seems to be that while active euthanasia is illegal
unless there is legislation permitting it, passive euthanasia is legal even without legislation
provided certain conditions and safeguards are maintained.

A further categorization of euthanasia is between voluntary euthanasia and non voluntary

euthanasia. Voluntary euthanasia is where the consent is taken from the patient, whereas non
voluntary euthanasia is where the consent is unavailable e.g. when the patient is in coma, or is
otherwise unable to give consent. While there is no legal difficulty in the case of the former, the
latter poses several problems.

ACTIVE EUTHANASIA

As already stated above active euthanasia is a crime all over the world except where permitted
by legislation. In India active euthanasia is illegal and a crime under Section 302 or at least
Section 304 IPC.

Physician assisted suicide is a crime under Section 306 IPC (abetment to suicide).

Active euthanasia is taking specific steps to cause the patient's death, such as injecting the
patient with some lethal substance, e.g. sodium pentothal which causes a person deep sleep in
a few seconds, and the person instantaneously and painlessly dies in this deep sleep.43. A
distinction is sometimes drawn between euthanasia and physician assisted dying, the
difference being in who administers the lethal medication. In euthanasia, a physician or third
party administers it, while in physician assisted suicide it is the patient himself who does it,
though on the advice of the doctor. In many countries/States the latter is legal while the former
is not.

The difference between "active" and "passive" euthanasia is that in active euthanasia,
something is done to end the patient's life' while in passive euthanasia, something is not done
that would have preserved the patient's life.

An important idea behind this distinction is that in "passive euthanasia" the doctors are not
actively killing anyone; they are simply not saving him. While we usually applaud someone
who saves another person's life, we do not normally condemn someone for failing to do so. If
one rushes into a burning building and carries someone out to safety, he will probably be
called a hero. But if one sees a burning building and people screaming for help, and he stands
on the sidelines -- whether out of fear for his own safety, or the belief that an inexperienced
and ill-equipped person like himself would only get in the way of the professional firefighters,
or whatever -- if one does nothing, few would judge him for his inaction. One would surely
not be prosecuted for homicide. (At least, not unless one started the fire in the first place.)

Thus, proponents of euthanasia say that while we can debate whether active euthanasia should
be legal, there can be no debate about passive euthanasia: You cannot prosecute someone for
failing to save a life. Even if you think it would be good for people to do X, you cannot make
it illegal for people to not do X, or everyone in the country who did not do X today would
have to be arrested.

In fact we have many laws that penalize people for what they did not do. A person cannot
simply decide not to pay his income taxes, or not bother to send his/her children to school
(where the law requires sending them), or not to obey a policeman's order to put down one's
gun.

However, we are of the opinion that the distinction is valid, as has been explained in some details
by Lord Goff in Airedale's case (infra) which we shall presently discuss Euthanasia can be
classified into active and passive or alternatively into voluntary, involuntary and non-voluntary.
Active euthanasia means putting an end to the life of an individual for merciful reason by a
medical practitioner by giving a lethal dose of medication to the patient. Passive euthanasia takes
place where methods such as removing artificial life support systems such as ventilators,
hydration, etc are resorted to. In voluntary euthanasia, a person asks for death (by either active
or passive euthanasia). Non-voluntary euthanasia refers to ending the life of a person who is not
mentally competent, such as a comatose patient, to make an informed request for death. In
addition there is another category of involuntary euthanasia. This is said to occur when a patient
is killed against his express will.
There are various ways for euthanasia. The most popular methods include -
1) Lethal injection - Injection of a lethal dose of a drug, such as a known poison, KCl, etc.
2) Asphyxiation - The most popular gas used is Carbon monoxide (CO). Nerve gases like sarin &
tabun etc. are also added in small amounts to fully ensure death.
3) One of the methods is also Dr. Jack Kevorkians death machine (mercitron, thanatron). He is
also known as Dr.Death. Its a unique method in which a person can end his life himself. With
the use of this machine a person can end his life himself painlessly at the time chosen by the
patient

It is important that euthanasia is not confused with assisted suicide. The latter involves a patients
voluntarily bringing about his or her own death with the assistance of another person, typically a
physician. In this case, the act is a suicide (intentional self-inflicted death), because the patient
actually causes his or her own death. Thus, while in assisted suicide the doctor makes available
to the patient the means by which he can kill himself, in euthanasia the doctor himself (by act or
omission) kills the patient. The issue of assisted suicide is closely related to that of euthanasia
because it also involves questions of similar nature. Furthermore, some countries have preferred
to legalize assisted suicide though they remain averse to permitting euthanasia.

Indian Approach towards Euthanasia - Constitutional and Legal Provisions:

Ours is a democracy which means that it is by the people, of the people and for the
people. Constitution locates power that resides in the people. It is the people's power for people's
benefit. Constitution creates rights and duties. All most all our demands get converted into rights-
even our feelings, emotions is governed by the rights and duties we have. The society is
changing from time to time along with that the constitution should be changed to meet the
current needs and to promote the common good of the people.

The Constitution of India provides a long list of fundamental rights under Part-III. Article
21 of our Constitution is one of the important fundamental rights among those rights. The article
21 of our constitution deals with Protection of Life and Personal Liberty.

The Article 21 reads as follows: No person shall be deprived of his life or personal liberty
except according to procedure established by law.

According to this article right to life means the right to lead meaningful, complete and
dignified life. It does not have restricted meaning. The object of the fundamental right under
Article 21 is to prevent any restriction by the State to a person upon his personal liberty and
deprivation of life except according to procedure established by law.

The meaning of the words personal liberty came up for consideration of the Supreme
1
Court for the first time in A.K. Gopalan vs. Union of India . The scope of Article 21 was a bit
narrow at that time. In this case the Supreme Court held that the word deprivation was construed
in a narrow sense and it was held that the deprivation does not restrict upon the right to move
freely which came under Article 19 (1) (d).
2
Finally, in Maneka Gandhi vs. Union of India , the Supreme Court has overruled
Gopalans case and widens the scope of the words personal liberty, which is as follows:

The expression personal liberty in Article 21 is of widest in nature and it covers a bundle
of rights which go to constitute the personal liberty of man and some of them have raised to the
status of distinct fundamental rights and given additional protection under Article 19.

Under sec-309 of the Indian penal code 1860 an attempt to commit suicide is a punishable
offence. But the question of whether right to life included the right to die and whether attempt to
commit suicide should be criminalized or not was arisen for the first time in India.
3
In state of Maharashtra vs. Maruti Sripati Dubal a Bombay police constable who was
mentally deranged was refused permission to setup a shop and earn a living. Out of the
frustration he tried to set himself a fire in the corporations office room. In this case the Bombay
high court held that the right to life guaranteed by art 21 of the Indian constitution includes the
right to die and consequently the court struck down sec 309 of the Indian penal code as
unconstitutional. The judge felt that the desire to die is not unnatural, but merely abnormal and
uncommon. They listed several circumstances in which people may wish to end their life,
including diseases, cruel or unbearable condition of life, a sense of shame or disenchantment
with life. They held that everyone should have the freedom to end his life as and when he
desires.

On the other hand the Bombay high court held that the said section is violative of article 14 and
21 of the Indian constitution. In the same case the court declared the section unconstitutional on
the following grounds:

Firstly, Article 21 also included the negative right not to live, secondly, suicide is generally
committed for reasons, inter alia, mental disease, decrepit physical ailments, affliction by social
performing normal functions , the lost of all senses or the desire for the pleasure of any of the
senses or a need to defend ones honour, and lastly the Bombay high court also took into

3
cognizance the existing customs in India of johary, sati, Samadhi, prayapaveshan, atmarpana
4

Finally the court held that fundamental right have both positive as well as negative aspect and
therefore, stated logically it must follow that right to live will include right not to live i.e., the
right to die or to terminate ones own life.

In this case the court tried to make the distinction between the euthanasia and suicide. According
to the court the suicide by its very nature is an act of self killing or termination of ones own life
by ones at without assistance from others. But Euthanasia means the Intervention of other human
agency to end the life. Mercy killing therefore cannot be considered on the same footing as
suicide. Mercy killing is nothing but a homicide, whatever be the circumstances in which it is
committed. [8]Hence the court cleared the position of Euthanasia in Indian laws as follows:

Mercy killing is nothing but homicide, whatever the circumstances in which it is effected.
Unless it is specifically expected it cannot but be an offence. Out penal code further punishes not
only abetment of homicide, but also abetment of suicide.

Later again the dispute came into consideration in the Andhra Pradesh high court .the division
bench of the Andhra Pradesh high court in Chenna Jagadeeswar vs. State of Andhra Pradesh
[9]rejected the challenge to the challenge to the right to die and the court came to a different
conclusion and held that right to die is not a fundamental right within the meaning of art 21 and
hence, section 309 of the Indian penal code 1860 is not unconstitutional.

Justice Amrareswari opened that there could be any number of reasons for attempting to commit
suicide, and poverty was not the only reason. Under the law, sati is an offence and any woman
who attempts to commit sati should be punishable under section 309 of the Indian penal code.
The court further held that right to live cannot include right to die because by exercising the right
5
to die one would be extinguished the very Fundamental right to live to oneself.
6
Again the Supreme Court in P .Rathinam vs. union of India rejected the constitutional
validity of sec 309, IPC.based on art 14 but upheld the challenge on the basis of art 21 of the
constitution. The Supreme Court expressed agreement with the view taken by the Andhra
Pradesh high court. The Supreme Court then proceeded to consider the challenge with reference
to art 21 of the constitution. The court was held that art 21 has enough positive content in it so
that is also includes the right to die which inevitable leads to the right to commit suicide. The
right to life in art 21 speaks of can be said to bring in its trial the right not to live a forced live.

6
The Supreme Court concluded that sec 309, of the Indian penal code deserves to be effaced form
the statue book to humanise our penal laws. It is a crucial and irrenatioanl provision, and it may
result in punishing a person again who has suffered agony and would be undergoing ignominy
because of his failure to commit suicide. Then an act of suicide cannot be said to be against
religion, morality and public policy and an act of attempted suicide has no baleful effect on
society. Further the court held that suicide or attempt to commit suicide it causes no harm to
others, because of which states interference with the personal liberty of the persons concerned is
not called for.
7
The supreme court in Gian Kaur vs. State of Punjab considered the question as to whether
the right to life would include the right not to live, that is, the right to put an end to ,or to
terminate, ones own life. That was the basis on which the earlier decision in P. Rathinams case
proceeded. The supreme court distinguished the nature of rights under art 21 dealing with the
rights to life, against the nauret of rights under other articles, such as freedom of speech and
expression art 19(a)(1), which includes the freedom not to speek;freedom of movement in art
19(a)(d) which includes the freedom not to move an where; the freedom of practising any
profession or to carry on any occupation , trade or business under art 19(1) (g) which includes
the freedom not to do any business. The Supreme Court came to the conclusion as under:

when a man commits suicide he has to undertake certain positive over act and the genesis of
those acts cannot be traced to, or be included within the protection of the right to life under
article 21. The significant aspect of sanctity of life is also not to be overlooked. Art 21 is a
8
provision guaranteeing protection of life be read to be included in the Protection to Life
The supreme court emphasised that the right to life under art 21 would include the right to live
with human dignity upto the end of natural life, which includes the right to a dignified life upto
the point of death including a dignified procedure of death. But the right to die with dignity at
the end of life is not to be confused or equated with the right to die an unnatural death curtailing
the natural span of life. In this view of the matter, the supreme court disagreed with the view
expressed earlier in P. Rathinams case and came to the conclusion that the reason for which sec
309 of the IPC was held to violative of art 21 did not withstand legal scrutiny. It was, therefore,
held that sec 309 of IPC was not violative of art 21 of the constitution.

Euthanasia and suicide are different. Distinguishing euthanasia from suicide, Lodha J. in Naresh
9
Marotrao Sakhre v. Union of India, observed:

Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating one's
own act and without the aid or assistance of any other human agency. Euthanasia or mercy
killing, on the other hand, means and implies the intervention of other human agency to end the
life. Mercy killing thus is not suicide and an attempt at mercy killing is not covered by the

9
provisions of Section 309. The two concepts are both factually and legally distinct. Euthanasia or
mercy killing is nothing but homicide whatever the circumstances in which it is effected.

Moreover, it is argued that when a healthy person is not allowed to commit suicide then why a
diseased person should be allowed to do so. It is pointed out that suicide in a person who is
diagnosed with terminal illness is no different than suicide for someone who is not considered
terminally ill.
10
n an another case which was happened in 2007 an Andhra youth , K.Ventakesh case ,
wanted to allow him to allow for Euthanasia which he wants to donate his organs to others and
also filed a case through his mother in the Andhra Pradesh high court. But the Andhra Pradesh
high court rejected his mother plea. Again the discussion on euthanasia came for discussion in
India through this case.

The Society for Right to Die with Dignity and the All-India Body of Medical Practitioners in
Critical Care Medicine filed a petition before the Supreme Court urging that the right to die be
made legal in the country. Recently, the Law Commission of India and the law reforms panel in
Kerala had suggested that euthanasia, or mercy killing, be made legal.

After senior advocate V A Mohta filed the application seeking urgent directions, the Bench
headed by Justice B N Agrawal agreed to examine it. But the Bench, also comprising Justices G
S Singhvi and Aftab Alam, tagged the case along with a pending petition filed by NGO Common
Cause which also raises similar questions of law.

Every individual has a fundamental freedom to choose not to live and particularly so under
distressing conditions of ill-health which lead to an irremediable state, this is the new issue
raised by the petitioners. Like the earlier PIL, it has also named Union ministries of Health and
Law and Justice as parties to decide whether the right to refuse essential medical support systems
to prolong the life of a person afflicted with terminal disease can be legalised.

The Position In Other Countries:

Netherlands:

The Supreme Court of Netherlands allows euthanasia. According to the penal code of the
Netherlands killing a person on his request is punishable with twelve years of imprisonment or
10
fine and also a assisting a person in committing suicide is punishable with three years of
imprisonment or fine. But the law of Netherlands provides a defense of necessity to the offence
of voluntary euthanasia and assisted suicide. This defense of necessity is two fold; one is that of
psychological compulsion and the other is emergency'.' The criteria laid down by the Courts to
determine whether the defense of necessity applies in a given case of euthanasia, have been
summarized by Mrs Borst-Eilers as follows:
1. The request for euthanasia must come only from the patient and must be entirely free and
voluntary.
2. The patients request must be well considered, durable and persistent.
3. The patient must be experiencing intolerable (not necessarily physical) suffering, with no
prospect of improvement.
4. Euthanasia must be the last resort. Other alternatives to alleviate the patients situation must be
considered and found wanting.
5. Euthanasia must be performed by a physician.
6. The physician must consult with an independent physician colleague who has experience in
this field.
Thus, following these judicial guidelines a Bill has been passed in Netherlands in 2001 legalizing
this practice. It allows a doctor to end the life of a patient which is unbearable.

Australia:
The Northern Territory of Australia became the first country to legalize euthanasia by passing the
Rights of the Terminally Ill Act, 1996. It was held to be legal in the case Wake v. Northern
Territory of Australia by the Supreme Court of Northern Territory of Australia. But later a
subsequent legislation that was the Euthanasia Laws Act, 1997 made it again illegal.

United States:
Here, active euthanasia is prohibited but physicians are not held liable if they withhold or
withdraw the life sustaining treatment of the patient either on his request or at the request of
patients authorized representative. Euthanasia has been made totally illegal by the United States
Supreme Court in the cases Washington v. Glucksberg and Vacco v. Quill. In these cases, the ban
on assisted suicide by the physicians has been held to be in consonance with the provisions of the
constitution. In Oregon, a state in America, assisted suicide has been legalized in 1994. Twenty
seven lives were ended in 1999 and that number is still expected to increase.

Canada:
Patients in Canada have right to refuse life sustaining treatments but they cant ask for assisted
suicide or active euthanasia. Supreme Court in various cases has held that in the case of assisted
suicide the interest of the state will prevail over individuals interest.

Belgium:
Here, euthanasia was made legal in the year 2002.
 Switzerland:
In Switzerland, euthanasia is illegal but physician assisted suicide has been made legal since
1918.

Country Euthanasia and Physician-Assisted Suicide Status

Euthanasia: Illegal (legalized in the Northern Territory in 1995 an

1 Australia
Physician-Assisted Suicide: Illegal

Euthanasia: Legal since

2 Belgium
Physician-Assisted Suicide: Legal since 2002

Euthanasia:
3 Canada
Physician-Assisted Suicide: Illegal

Euthanasia: Unclear (approved by the Constitutional Court in 1997 but ne

4 Colombia
Physician-Assisted Suicide: Illegal

Euthanasia:
5 Germany
Physician-Assisted Suicie: Legal since 1751

Euthanasia:
6 India
Physician-Assisted Suicide: Illegal

Euthanasia:
7 Israel
Physician-Assisted Suicide: Illegal

Euthanasia:
8 Italy
Physician-Assisted Suicide: Illegal

Euthanasia: Unclear (Illegal in the Japanese criminal code, but a 1962 court case, the "Na
9 Japan 1962," ruled that one can legally end a patient's life if 6 specific
Physician-Assisted Suicide: Illegal

The Euthanasia: Legal since

10
Netherlands Physician-Assisted Suicide: Legal since 2001

Euthanasia:
11 Russia
Physician-Assisted Suicide: Illegal

Euthanasia:
12 Spain
Physician-Assisted Suicide: Illegal
In Switzerland, there is an unusual position regarding assisted suicide. Even non- physicians can
perform it. It is legally condoned although euthanasia is illegal. There was much discussion
regarding assisted suicide in United Kingdom and United States of America but it was not so in
Switzerland in the 1900s. There motive is most important while considering the cases of assisted
suicide. It is punishable only if the motive is bad otherwise it is condoned. Article 115 of the
Swiss Penal Code considers assisting suicide a crime if and only if the motive is selfish. It
condones assisting suicide for altruistic reasons. In most cases the permissibility of altruistic
assisted suicide cannot be overridden by a duty to save life. Article 115 does not require the
involvement of a physician nor that the patient is terminally ill. It only requires that the motive
be unselfish. Swiss law does not recognize the concept of euthanasia. Murder upon request by
the victim (article 114 of the Swiss penal code) is considered less severely than murder without
the victim's request, but it remains illegal. Following a proposal to the Swiss parliament to
decriminalize euthanasia, in 1997 the federal government commissioned a working group which
included specialists in law, medicine, and ethics to examine the issue. This group recommended
that euthanasia remain illegal. Most of the group, however, proposed decriminalizing cases in
which a judge was satisfied that euthanasia followed the insistent request of a competent,
incurable, and terminally ill patient in unbearable and intractable suffering.

Arguments against legalizing Euthanasia:

1. Euthanasia would not only be for people who are "terminally ill." There are two problems
here -- the definition of "terminal" and the changes that have already taken place to extend
euthanasia to those who aren't "terminally ill." There are many definitions for the word
"terminal." For example, when he spoke to the National Press Club in 1992, Jack Kevorkian said
that a terminal illness was "any disease that curtails life even for a day." The co-founder of the
Hemlock Society often refers to "terminal old age." Some laws define "terminal" condition as
one from which death will occur in a "relatively short time." Others state that "terminal" means
that death is expected within six months or less.

Even where a specific life expectancy (like six months) is referred to, medical experts
acknowledge that it is virtually impossible to predict the life expectancy of a particular patient.
Some people diagnosed as terminally ill don't die for years, if at all, from the diagnosed
condition. Increasingly, however, euthanasia activists have dropped references to terminal illness,
replacing them with such phrases as "hopelessly ill," "desperately ill," "incurably ill," "hopeless
condition," and "meaningless life."

An article in the journal, Suicide and Life-Threatening Behavior, described assisted suicide
guidelines for those with a hopeless condition. "Hopeless condition" was defined to include
terminal illness, severe physical or psychological pain, physical or mental debilitation or
deterioration, or a quality of life that is no longer acceptable to the individual. That means just
about anybody who has a suicidal impulse .
2. Euthanasia can become a means of health care cost containment

"...physician-assisted suicide, if it became widespread, could become a profit-enhancing tool

for big HMOs. "

"...drugs used in assisted suicide cost only about $40, but that it could take $40,000 to treat a
patient properly so that they don't want the "choice" of assisted suicide..." ... Wesley J. Smith,
senior fellow at the Discovery Institute.

Perhaps one of the most important developments in recent years is the increasing emphasis
placed on health care providers to contain costs. In such a climate, euthanasia certainly could
become a means of cost containment.

In the United States, thousands of people have no medical insurance; studies have shown that the
poor and minorities generally are not given access to available pain control, and managed-care
facilities are offering physicians cash bonuses if they don't provide care for patients. With greater
and greater emphasis being placed on managed care, many doctors are at financial risk when
they provide treatment for their patients. Legalized euthanasia raises the potential for a
profoundly dangerous situation in which doctors could find themselves far better off financially
if a seriously ill or disabled person "chooses" to die rather than receive long-term care.

Savings to the government may also become a consideration. This could take place if
governments cut back on paying for treatment and care and replace them with the "treatment" of
death. For example, immediately after the passage of Measure 16, Oregon's law permitting
assisted suicide, Jean Thorne, the state's Medicaid Director, announced that physician-assisted
suicide would be paid for as "comfort care" under the Oregon Health Plan which provides
medical coverage for about 345,000 poor Oregonians. Within eighteen months of Measure 16's
passage, the State of Oregon announced plans to cut back on health care coverage for poor state
residents. In Canada, hospital stays are being shortened while, at the same time, funds have not
been made available for home care for the sick and elderly. Registered nurses are being replaced
with less expensive practical nurses. Patients are forced to endure long waits for many types of
needed surgery. 1

3. Euthanasia will only be voluntary, they say Emotional and psychological pressures could
become overpowering for depressed or dependent people. If the choice of euthanasia is
considered as good as a decision to receive care, many people will feel guilty for not choosing
death. Financial considerations, added to the concern about "being a burden," could serve as
powerful forces that would lead a person to "choose" euthanasia or assisted suicide.

People for euthanasia say that voluntary euthanasia will not lead to involuntary
euthanasia. They look at things as simply black and white. In real life there would be
millions of situations each year where cases would not fall clearly into either category. Here
are two:

Example 1: an elderly person in a nursing home, who can barely understand a breakfast menu,
is asked to sign a form consenting to be killed. Is this voluntary or involuntary? Will they be
protected by the law? How? Right now the overall prohibition on killing stands in the way. Once
one signature can sign away a person's life, what can be as strong a protection as the current
absolute prohibition on direct killing? Answer: nothing.

Example 2: a woman is suffering from depresssion and asks to be helped to commit suicide. One
doctor sets up a practice to "help" such people. She and anyone who wants to die knows he will
approve any such request. He does thousands a year for $200 each. How does the law protect
people from him? Does it specify that a doctor can only approve 50 requests a year? 100? 150? If
you don't think there are such doctors, just look at recent stories of doctors and nurses who are
charged with murder for killing dozens or hundreds of patients.

Legalized euthanasia would most likely progress to the stage where people, at a certain point,
would be expected to volunteer to be killed. Think about this: What if your veternarian said that
your ill dog would be better of "put out of her misery" by being "put to sleep" and you refused to
consent. What would the vet and his assistants think? What would your friends think? Ten years
from now, if a doctor told you your mother's "quality of life" was not worth living for and asked
you, as the closest family member, to approve a "quick, painless ending of her life" and you
refused how would doctors, nurses and others, conditioned to accept euthanasia as normal and
right, treat you and your mother. Or, what if the approval was sought from your mother, who was
depressed by her illness? Would she have the strength to refuse what everyone in the nursing
home "expected" from seriously ill elderly people?

The movement from voluntary to involuntary euthanasia would be like the movement of
abortion from "only for the life or health of the mother" as was proclaimed by advocates 30
years ago to today's "abortion on demand even if the baby is half born". Euthanasia people state
that abortion is something people choose - it is not forced on them and that voluntary euthanasia
will not be forced on them either. They are missing the main point - it is not an issue of force - it
is an issue of the way laws against an action can be broadened and expanded once
something is declared legal. You don't need to be against abortion to appreciate the way the
laws on abortion have changed and to see how it could well happen the same way with
euthanasia/assisted suicide as soon as the door is opened to make it legal.

4. Euthanasia is a rejection of the importance and value of human life. People who support
euthanasia often say that it is already considered permissable to take human life under some
circumstances such as self defense - but they miss the point that when one kills for self defense
they are saving innocent life - either their own or someone else's. With euthanasia no one's life is
being saved - life is only taken.

History has taught us the dangers of euthanasia and that is why there are only two countries in
the world today where it is legal. That is why almost all societies - even non-religious ones - for
thousands of years have made euthanasia a crime. It is remarkable that euthanasia advocates
today think they know better than the billions of people throughout history who have outlawed
euthanasia - what makes the 50 year old euthanasia supporters in 2005 so wise that they think
they can discard the accumulated wisdom of almost all societies of all time and open the door to
the killing of innocent people? Have things changed? If they have, they are changes that should
logically reduce the call for euthanasia - pain control medicines and procedure are far better than
they have ever been any time in history

Arguments for legalizing euthanasia:

1. Unbearable pain as the reason for euthanasia:-

Probably the major argument in favor of euthanasia is that the person involved is in great pain.
Today, advances are constantly being made in the treatment of pain and, as they advance, the
case for euthanasia/assisted-suicide is proportionally weakened. Euthanasia advocates stress
the cases of unbearable pain as reasons for euthanasia, but then they soon include
a "drugged" state. I guess that is in case virtually no uncontrolled pain cases can be found -
then they can say those people are drugged into a no-pain state but they need to be euthanasiaed
from such a state because it is not dignified. See the opening for the slippery slope? How do you
measure "dignity"? No - it will be euthanasia "on demand". The pro-euthanasia folks have
already started down the slope. They are even now not stopping with "unbearable pain" - they are
already including this "drugged state" and other circumstances.

Nearly all pain can be eliminated and - in those rare cases where it can't be eliminated - it can
still be reduced significantly if proper treatment is provided. It is a national and international
scandal that so many people do not get adequate pain control. But killing is not the answer to that
scandal. The solution is to mandate better education of health care professionals on these crucial
issues, to expand access to health care, and to inform patients about their rights as consumers.
Everyone - whether it be a person with a life-threatening illness or a chronic condition - has the
right to pain relief. With modern advances in pain control, no patient should ever be in
excruciating pain. However, most doctors have never had a course in pain management so they're
unaware of what to do. If a patient who is under a doctor's care is in excruciating pain, there's
definitely a need to find a different doctor. But that doctor should be one who will control the
pain, not one who will kill the patient. There are board certified specialists in pain management
who will not only help alleviate physical pain but are skilled in providing necessary support to
deal with emotional suffering and depression that often accompanies physical pain.

2. Demanding a "right to commit suicide":- Probably the second most common point pro-
euthanasia people bring up is this so-called "right." But what we are talking about is not giving a
right to the person who is killed, but to the person who does the killing. In other words,
euthanasia is not about the right to die. It's about the right to kill. Euthanasia is not about giving
rights to the person who dies but, instead, is about changing the law and public policy so that
doctors, relatives and others can directly and intentionally end another person's life. People do
have the power to commit suicide. Suicide and attempted suicide are not criminalized. Suicide is
a tragic, individual act. Euthanasia is not about a private act. It's about letting one person
facilitate the death of another. That is a matter of very public concern since it can lead to
tremendous abuse, exploitation and erosion of care for the most vulnerable people among us.
3. Should people be forced to stay alive? No. And neither the law nor medical ethics requires
that "everything be done" to keep a person alive. Insistence, against the patient's wishes, that
death be postponed by every means available is contrary to law and practice. It would also be
cruel and inhumane. There comes a time when continued attempts to cure are not compassionate,
wise, or medically sound. That's where hospice, including in-home hospice care, can be of such
help. That is the time when all efforts should be placed on making the patient's remaining time
comfortable. Then, all interventions should be directed to alleviating pain and other symptoms as
well as to the provision of emotional and spiritual support for both the patient and the patient's
loved ones.

Settling the debate:

A close perusal of the arguments against euthanasia that have been summarised above tends to
indicate that all the talk about sanctity of life notwithstanding, the opposition to euthanasia
breeds from the fear of misuse of the right if it is permitted. It is feared that placing the discretion
in the hands of the doctor would be placing too much power in his hands and he may misuse
such power. This fear stems largely from the fact that the discretionary power is placed in the
hands of non-judicial personnel (a doctor in this case). This is so because we do not shirk from
placing the same kind of power in the hands of a judge (for example, when we give the judge the
power to decide whether to award a death sentence or a sentence of imprisonment for life). But
what is surprising is that the fear is of the very person (the doctor) in whos hands we would
otherwise not be afraid of placing our lives. A doctor with a scalpel in his hands is acceptable but
not a doctor with a fatal injection. What is even more surprising is that ordinarily the law does
not readily accept negligence on the part of a doctor. The courts tread with great caution when
examining the decision of a doctor and yet his decision in the cases of euthanasia is not
considered reliable.

It is felt that a terminally ill patient who suffers from unbearable pain should be allowed to die.
Indeed, spending valuable time, money, and facilities on a person who has neither the desire nor
the hope of recovery is nothing but a waste of the same. At this juncture it would not be out of
place to mention that the liberty to die, if not right strictu sensu, may be read as part of the
right to life guaranteed by Article 21 of the Constitution of India. True that the Supreme Court
has held that such an interpretation of Article 21 is incorrect, but it is submitted that one may try
to read the freedom to die as flowing from the rights of privacy, autonomy and self-
determination, which is what has been done by the Courts of United State and England (refer to
the Section dealing with position of euthanasia in other countries). Since the said rights in turn
have been held to be included within the ambit of Article 21, the freedom to die too would
logically be covered by Article 21. This argument is put forward as a possible solution since such
questions were not put before the Apex Court in Gian Kaur case3.
Here it is sought only to argue for the legalization of voluntary (both active and passive)
euthanasia. This is because though there may be some cases of non-voluntary or involuntary
euthanasia where one may sympathise with the patient and in which one may agree that letting
the patient die was the best possible option, yet it is believed that it would be very difficult to
separate such cases from the other cases of non-voluntary or involuntary euthanasia. Thus, it is
believed that the potential of misuse of provisions allowing non-voluntary and involuntary
euthanasia is far greater than that of the misuse of provisions seeking to permit voluntary
euthanasia.

It is submitted that in the present scheme of criminal law it is not possible to construe the
provisions so as to include voluntary euthanasia without including non-voluntary and involuntary
euthanasia. Parliament should therefore, by a special legislation legalize voluntary euthanasia
while expressly prohibiting non-voluntary and involuntary euthanasia. Legalizing euthanasia
would not have any effect on the provisions relating to suicide and abetment thereof as
euthanasia and suicide are two completely different acts.

Coming back to the argument of the opponents of euthanasia that any legislation legalising
voluntary euthanasia would lead to a misuse of the provisions, there could be a scheme by which
such misuse could be minimised. It may be true that in Netherlands the provisions justifying
voluntary active euthanasia may have been grossly misused but such misuse was possible
because the procedure for investigating the validity of the death begins only after the death has
taken place.

So a fairly practical scheme under which the investigation procedure would begin before the
death is suggested and it is only after the investigation is complete that the doctor would be
allowed to let the patient die.

A quasi-judicial officer be appointed by the appropriate authority under the proposed statute to
supervise all cases of euthanasia within a feasible territory. Such officer must be reasonably well
versed with the nuances of medical science. Any doctor who feels that his patients request to die
should be fulfilled would report such a case to the said supervising officer. The supervisor would
then interview the patient to satisfy himself whether the request is free, voluntary and persistent.
The supervisor would also then refer the case to a minimum of two other experienced doctors to
get their opinion on the case. If both the doctors so referred feel that the patient is beyond
recovery, that there is no alternate treatment available and that death would be a more suitable
option for him then the supervisor would inform the patients relatives about the patients request
and the doctors opinion. Finally, the supervisor would issue a certificate allowing the doctor to
let the patient die. Such certificate would also have to bear the signatures of the two doctors to
whom the case was referred and of the legal guardian of the patient who would, after a talk with
the patient, certify that the consent of the patient was not obtained by force.
It is only once that such a certificate is obtained that the doctor would be allowed to let the
patient die.

Though the procedure outlined above may seem cumbersome, it is believed that such safeguards
are necessary to minimise the chances of misuse of the right of euthanasia.

The only problematic issue that could arise is regarding the requirement that no other alternative
to reduce the pain should be available. Problems could arise when required to decide what is an
alternative. Thus would a Rs 5 lakh treatment be an alternative for a person who earns Rs 5000 a
year? Similarly, would a treatment available only in Delhi be an alternative for a person living in
Port Blair and who cannot afford the passage to Delhi, even if he can afford the treatment? Also,
would a doctor be held liable if he is ignorant of any new advancement in medical science?
These are problematic issues and would require further extensive discussion. But one should not
forget that in a country like India where there is tremendous pressure on the available medical
facilities, euthanasia is all the more necessary for the maximum utilisation of the limited
facilities.

In the end, we also would do well to remember the following words of Mahatma Gandhi:

Death is our friend, the truest of friends. He delivers us from agony. I do not want to die
of a creeping paralysis of my faculties a defeated man.
 Bibliography

To make this wonderful project I sought for help from the following
sources:-

Digital source:
www.google.com
www.wikipedia.com
www.legalservicesindia.com
http://www.bbc.co.uk

I also took help from following articles:-

Euthanasia and human rights
International Perspectives on Euthanasia and Assisted
Suicide
.