The Right to Die: The Indian Experience

∗
Abhik Majumdar

The legality of suicide has radically gained in significance in recent years. Changing attitudes
towards suicide, and the legal legitimacy they have received, exemplify how legal systems have
sought to reconcile traditional legal paradigms with changing values. This is especially true of
nations that have only recently gained independence. Most such nations continue to rely on
laws and legal systems born of their colonial past. Some, and India is a case in point, are
presently striving to move beyond their colonial underpinnings. How such systems interpret
the right to die provide us with unparalleled insights into this process. This is because colonial
legal paradigms treated suicide as immoral or sinful. Consequently, any recognition given to
the right to die is necessarily in counterpoint to colonial doctrines. This article examines how
Indian courts have construed this right to die. It focuses on the strategies adopted in the course
of this construction, as well as its larger consequences.

Introduction
Suicide has customarily been the object of much opprobrium. Anglo-Saxon
legal traditions, with Christian theological underpinnings, treated it
variously as illegal, immoral, sinful, an act of cowardice or a repudiation of
the will of God. Only in the present era do we see legal paradigms accord-
ing any legitimacy to alternative perspectives.
Several alternative views have now gained prominence. Some per-
ceive suicide in terms of cultural values, such as the Japanese custom of
hara kiri or the ritual starvation practised in the Jain community of India
(see, for example, Bilimoria, 1995: 159–61). Others respond to the
demands of specific circumstances – euthanasia is a case in point. Still
others question the purpose behind criminalising suicide, holding that
rehabilitation or psychiatric treatment are more appropriate responses
than punishment. But by far the greatest challenge to tradition, both
legal and moral, comes from those who assert death to be a matter of
right. According to them, individuals must be free to decide whether to
live or not, and this is as fundamental a human right as the right to live.
Reconciling these perspectives with traditional paradigms poses a
challenge to jurists the world over. This is especially true of erstwhile
British colonies, whose legal systems were initially modelled on Anglo-
Saxon lines, but which have endeavoured to evolve identities of their own
158 Asian Law [Vol 6

after independence. In fact, the extent of their recognition of alternative

perspectives on suicide may even serve as an index of their efforts at
growing beyond their colonial provenance to the extent that they
represent a departure from the inherited Anglo-Saxon paradigm.
The foregoing also holds true for India. What sets it apart from many
other legal systems is that the development of alternative approaches to
suicide has taken place through a process of judicial interpretation, rather
than on the basis of any established legislative policy. As a result, a wide
variety of justifications – legal, ethical, theological, and even semantic –
have been adduced to read the right to die into the Fundamental Rights in
arts 12 to 35 of the Constitution. Specifically, judgments such as MS
Dubal v State of Maharashtra 1987 Cri LJ 743 (Dubal), and P Rathinam v
Union of India, AIR 1994 SC 1844 (Rathinam), have sought to bring the
right to die within the scope of the right to life contained in art 21.1
Inevitably, this singular mode of legal evolution begs a series of larger
questions. How suitable is it to achieving the ends of justice? Would a
more conventional method involving legislative change have yielded better
results? Specifically, is the strategy of reading the right to die as part of
the right to life a correct one? Does this actually bear legal scrutiny? And,
most importantly, what are the long-term outcomes of this development?
This article examines the manner in which Indian courts have
construed the right to die in respect of art 21, as well as the larger
consequences of such judicial activism. This article is, however, restricted
to a scrutiny of the judicial process. I therefore refrain from addressing
questions involving the ethical or social ramifications of suicide, such as
whether suicide should be permitted or not. Similarly, I also do not deal
with specialised situations such as euthanasia, except in so far as they are
relevant to the main topic.

Right to Die: Legal and Historical Background

India represents a classic instance of a formerly-colonial legal system
striving to establish an identity of its own. Its treatment of the right to die
illustrates this beautifully. Before independence, the matter was governed
solely by s 309 of the Indian Penal Code 1860,2 which made attempted
suicide a punishable offence.
After independence, however, several significant legal developments
took place. The new Constitution, which came into force in 1950, expressly
recognised in Part III (comprising arts 12 to 35) what it called the Funda-
mental Rights of the people. This included a right to life and personal
liberty, enshrined in art 21. In 1971, the Law Commission submitted its
42nd Report, where it recommended the deletion of s 309 (Law Com-
mission of India, 1971: 244). Consequent to this, the Indian Penal Code
2004] The Right to Die: The Indian Experience 159

(Amendment) Bill 1972, which sought to repeal s 309, was placed before
the Rajya Sabha, the upper house of the Parliament. After making
changes, the Rajya Sabha passed it in November 1978, after which it was
sent to the Lok Sabha (the lower house). In 1979, the Lok Sabha was
dissolved and the Bill ultimately lapsed. Since then, there has been no
legislative effort made to mitigate the harshness of s 309.
This continued colonial legacy sets apart Indian law from most other
common law traditions. Many legislatures have explicitly decriminalised
suicide (see, for example, Suicide Act 1961 (UK) s 1; Crimes Act 1900
(NSW) s 31A) or, at least, repealed provisions that penalise suicide per se.
The only suicide-related penal offences still in force pertain to aiding,
abetting or inciting suicide (see, for example, Suicide Act 1961 (UK) s 2(1);
Crimes Act 1900 (NSW) s 31C(1), (2); Criminal Code (Qld) s 311; and
Criminal Code (WA) s 288) and, specifically, euthanasia.3 Suicide pacts
and their consequences have also attracted some legislative attention (see,
for example, Crimes Act 1900 (NSW) s 31B), but, as mentioned, that is not
relevant to the present topic.
As a result, right-to-die debates have by and large shifted focus away
from a general discourse on whether an individual has the right to take
his or her own life. Specific concerns such as assisted suicide and eutha-
nasia have emerged as topics in their own right (van der Weyden, 1997).
However, this is not true of Indian law, given the continued presence of
s 309 in its statute books. Not only is the general debate on the right to die
still relevant, but also specific topics like assisted suicide and euthanasia
are treated in terms of (and as derivatives of) the former.
Another dimension has been added to the right-to-die debate in India
by the remarkable rise of judicial activism in its higher judiciary. Once
again, this bears distinctive features not commonly found in other
common law legal traditions.4 By and large, judicial activism and its
progeny, public-interest litigation, have come to involve two common
features. First, it seeks to widen existing rules of locus standi to ensure
that the interests of the public at large, and especially the underprivileged
sections of the general public, are given proper representation in courts.
And, secondly, it endeavours to enlarge the scope of relief granted in order
to more directly and tangibly benefit the interests of the public (Hurra,
1993: 4–5). It is in the course of this two-pronged development that deci-
sions such as Brown v Board of Education, 347 US 483 (1954) and Fri v
Sierra Club, 412 US 541 (1973) (to take but two examples from American
law) have emerged.
The foregoing holds true of India also. What makes it so distinctive is
the legal procedure that has brought this about. One of the most remark-
able features of the Indian Constitution is the writ jurisdiction it confers
160 Asian Law [Vol 6

on the higher judiciary. Under art 226, the litigant may petition the High
Court of competent jurisdiction to issue writs to redress any violation of a
public-law right. Moreover, if the wrong done to the litigant involves a
breach of a Fundamental Right in Chapter III, he or she may even directly
move the Supreme Court under art 32 for redress through appropriate
writs. In regard to this jurisdiction, arts 32(2) and 226(1) concentrate
enormous discretionary powers on the Supreme Court and High Courts
respectively. Small wonder, then, that much judicial activism in India has
derived from this writ jurisdiction.
A favourite strategy of Indian courts has been to interpret in the
widest and most liberal terms the fundamental right to life enshrined in
art 21 and read into it various other rights, thereby giving them a certain
constitutional legitimacy (Singh, 1995: 140). Sunil Batra v Delhi Adminis-
tration, AIR 1978 SC 1675 (Sunil Batra), held that ‘life’ here means more
than mere animal-like existence. Consequently, even though art 21 is wor-
ded in negative language, it imposes on the state a positive duty to protect
individuals’ rights over their person. Similarly, Olga Tellis v Bombay
Municipal Corporation, AIR 1986 SC 180 (Olga Tellis), stated that the
word ‘life’ should be interpreted in wide and far-reaching terms. In this
vein, the right to privacy (Govinda v State of Madhya Pradesh, AIR 1975
SC 1378); the right to a speedy trial (Hussainara Khatoon v Home Secre-
tary, Bihar, AIR 1979 SC 1360); the right to education (Mohini Jain v State
of Karnataka, AIR 1992 SC 1858; Unni Krishnan v State of Andhra Pra-
desh, AIR 1993 SC 2178); the right to information (RP Ltd v Proprietors,
Indian Express Newspapers, Bombay, Pty Ltd, AIR 1989 SC 190); and the
right to shelter (Shantistar Builders v NK Totame, AIR 1990 SC 630) have
been deemed aspects of the right to life. It is against this background that
the right to die has begun to be recognised in the eyes of the law.5

Emergence of the Right to Die

We may note that s 309 has received severe judicial criticism on more
than one occasion. In State v Sanjay Bhatia 1985 Cri LJ 931, the question
before the Delhi High Court was whether the investigation of a case
relating to s 309 should be allowed to continue beyond the time period
fixed by the Code of Criminal Procedure. Since the validity of s 309 was
not an issue here, no ruling was passed on that count. Sachar J,
nevertheless, criticised the provision in the most stringent terms, terming
it an ‘anachronism in society’ among other things. After he became Chief
Justice, he passed similar remarks in the unreported judgment of Court
on its Own Motion v Yogesh Sharma (Criminal Revision no 230/1985, cited
in Rathinam, AIR 1994 SC 1844 at 1848–9) in which the court quashed
119 proceedings pertaining to s 309 and acquitted all accused.
2004] The Right to Die: The Indian Experience 161

The relation between s 309 and the Constitution was first explored by
the Bombay High Court, in Dubal. The judgment is remarkable for the
innovative way it sought to interpret constitutional provisions. Indeed, it
not only foreshadowed, but also laid the groundwork for, the developments
introduced in later decisions like Rathinam.
The court (speaking through Sawant J) began by stating that the
desire to die was not intrinsically unnatural, and that no stigma should be
attached to it as such (1987 Cri LJ 743 at 748). In the same vein, it ruled
that the right to life guaranteed by art 21 included in its scope the right to
die. The rationale given for this is as follows. It is well established that
every positive right conferred by the Fundamental Rights chapter of the
Constitution includes within its scope a negative right as well. For
example, the court in Excel Wear v Union of India, AIR 1979 SC 25, ruled
that the right to freedom of trade contained in art 19(1)(g) includes the
right not to carry on a business. Furthermore, according to RC Cooper v
Union of India, AIR 1970 SC 1318, the three main fundamental rights,
namely the rights to freedom of equality, liberty and life, enshrined in
arts 14, 19 and 21 respectively, are to be read together. Hence what
applies to one must necessarily apply to the others as well. Accordingly, if
the right to trade includes within itself the right not to trade, the right to
life must contain the right to die. Consequently, s 309 is ultra vires art 21.
The court even ventured into an extensive discussion on how different
religions and cultures treated suicide differently (1987 Cri LJ 743 at
749–51). It enumerated five instances of suicide traditionally accorded a
degree of legitimacy in ancient India, namely johar (mass-suicide or self-
immolation); sati (self-immolation of a widow);6 samadhi (termination of
life by self-restraint on breathing); prayopaveshan (starving to death); and
atmarpan (self-sacrifice) (1987 Cri LJ 743 at 752).
It also observed that if s 309 is indeed unconstitutional, s 306 must
also be unconstitutional, as it deals with abetting suicide. Since the act of
suicide itself ceases to remain a crime, continuing to treat abetting suicide
as a criminal offence defies logic. For this reason, euthanasia and mercy-
killing cannot be treated as illegal any more (1987 Cri LJ 743 at 752).
Finally, the court noted that the wording of s 309 was ambiguous and
open to doubt. There was no precise definition of what acts constituted an
attempt to suicide. Moreover, the section treated all suicide attempts by
the same measure, regardless of the circumstances involved, and this
amounted to treating unequal cases equally. For these reasons, the court
held that s 309 also violated the right to equality contained in art 14 (1987
Cri LJ 743 at 753).
The Andhra Pradesh High Court took a different view in Chenna
Jagadeeswar v State of Andhra Pradesh 1988 Cri LJ 549 (Chenna Jaga-
162 Asian Law [Vol 6

deeswar). It summarily rejected the contention that the right to live

includes the right to die (1988 Cri LJ 549 at 557). This was because unless
individuals were assured of their physical existence, all other fundamental
rights would become meaningless. The state exists for the common good of
the people. For this reason, it has the implied positive duty to protect the
life of individuals, even though art 21 only imposes on it a negative duty
not to deprive them of their life. Consequently, the court found it difficult
to hold that the right to life enshrined in art 21 also includes the right to
die.
The court also held that s 309 does not violate art 14 either, because
even though the provision does not take into account the circumstances
behind the act, it gives judges enough leeway at the sentencing stage to
mitigate punishment according to the facts involved. Finally, it ruled that
ss 309 and 306 are inherently linked and if the former is struck down it is
very unlikely that the latter will survive (1988 Cri LJ 549 at 557).

Right to Die and the Supreme Court: Rathinam and Gian Kaur
The issue of right to die was first brought before the Supreme Court in
Rathinam. This two-judge bench decision constitutes an important mile-
stone in the evolution of this right, not only because it was the first such
case before the Supreme Court, but also because it undertook to examine
the issue from a range of legal, moral and philosophical perspectives
unprecedented in their diversity.
The court, speaking through Hansaria J, began by holding that
suicide and euthanasia were intrinsically dissimilar, even though in cer-
tain ways they resembled each other (AIR 1994 SC 1844 at 1849). It then
proceeded to uphold the Dubal principle that the right to life includes the
right to die (AIR 1994 SC 1844 at 1850). At the same time, it rejected the
ruling that s 309 is ultra vires art 14 as well. On this point, in fact, it
approved the logic given in Chenna Jagadeeswar (AIR 1994 SC 1844 at
1851).
Following this, the court framed a total of 16 questions, ranging from
‘How suicide-prone persons should be dealt with [sic]?’ to ‘Is suicide
immoral?’ to ‘Does suicide produce adverse sociological effects?’ (AIR 1994
SC 1844 at 1852). Of these, only a few need concern us, as the rest are
clearly beyond the scope of this article.
The court began by asking whether art 21 has any positive content or
whether it is only negative in its reach. It relied on Unni Krishnan v State
of Andhra Pradesh, AIR 1993 SC 2178, where a five-judge bench held that
art 21 had positive as well as negative content (AIR 1994 SC 1844 at
1852–3) and on this ground it rebutted criticisms of the analogy with
art 19 made in Dubal.
2004] The Right to Die: The Indian Experience 163

Following this, the court examined whether a person residing in India

has a right to die. Here also, it not only followed Dubal but also sought to
counter criticisms levelled against that case (AIR 1994 SC 1844 at 1854).
It noted that, according to some, the Dubal rationale of equating the right
to life with other fundamental rights was not correct, since in the others
the negative aspect does not ipso facto extinguish the positive aspect. For
example, the right not to trade may coexist harmoniously with the right to
trade. On the other hand, the right not to live takes away life itself, which
forms the basis of the right to life. For this reason, no harmonious
coexistence between the right to live and the right to die is possible (AIR
1994 SC 1844 at 1854).
The court, however, ruled that this reasoning is only partly correct, in
so far as the nature of the right to death precludes any coexistence with its
positive counterpart. At the same time, there is no reason to suppose that
such coexistence is necessary. One’s will to live may be weakened by so
many factors, such as desire for communion with God, the absence of
anything to look forward to in life and so on. ‘In any case, a person cannot
be forced to enjoy right [sic] to life to his detriment, disadvantage or
disliking [sic]’ (AIR 1994 SC 1844 at 1854, emphasis in original). As a
consequence, the court also held that contrary to what was stated in Olga
Tellis, one’s fundamental right could, indeed, be waived.
Another question dealt with by the court concerned whether suicide is
contrary to public policy. The court cited numerous references to demon-
strate that the notion of public policy is inherently ambiguous, variable
and indefinable (AIR 1994 SC 1844 at 1864–6). From this, it concluded
that no one could say for certain whether suicide goes against public policy
(AIR 1994 SC 1844 at 1866). Are we to infer, then, that suicide and public
policy are in fact not inconsistent? The judgment is silent on the point.
Last, the court examined the relationship between suicide and eutha-
nasia. It overruled the Chenna Jagadeeswar ruling that s 306 cannot
survive in the absence of s 309, holding that, on the contrary, the two
offences are conceptually distinct and stand on different footings (AIR
1994 SC 1844 at 1867). This begs the inevitable question of whether
euthanasia remains illegal, even after s 309 is struck down. The judgment
does not provide any direct answer. It only says that the right to die
should not be truncated merely because it encourages the proponents of
mercy killing (AIR 1994 SC 1844 at 1866).
Although many of its rulings had been anticipated in Dubal,
Rathinam nevertheless succeeded in sparking a furious, even acrimo-
nious, debate. The eminent scholar PM Bakshi, for example, welcomed the
rulings, since s 309 was cruel and barbaric in his opinion (1994: 522–3).
On the other hand, BB Pande (1994) and MP Singh (1995) separately
164 Asian Law [Vol 6

criticised the judgment in most severe terms. They both pointed out that
other rights read into the right to life – such as the right to privacy and
the right to a speedy trial – are intended to improve or enrich the quality
of life enjoyed by an individual. On the other hand, this right to die can
only lead to self-destruction and thus represents a retrograde step (Pande,
1994: 22; Singh, 1995: 135, 137).
In any case, a five-judge bench in Gian Kaur v State of Punjab, AIR
1996 SC 946 (Gian Kaur), ended the debate rather abruptly by overruling
Rathinam on most counts. In contrast to Rathinam, it eschewed lengthy
discussions on the moral, theological and other extra-legal aspects of
suicide. It even criticised Rathinam for having accorded these aspects
such significance as to treat them virtually as a reason for striking down
s 309 (AIR 1996 SC 946 at 951):
The desirability of retaining s 309 in the Statute is a different matter and
non sequitur in the context of constitutionality of that provision which has
to be tested with reference to some provision in the Constitution of India.

It interpreted the word ‘life’ as ‘life with human dignity’, and held that
‘[a]ny aspect of life which makes it dignified may be read into it but not
that which extinguishes it’ (AIR 1996 SC 946 at 952). Consequently, ‘[t]he
“right to die”, if any, is as inherently inconsistent with the “right to life” as
“death with life” [sic]’ (AIR 1996 SC 946 at 952). On this view, the right to
die cannot be read into the right to life.
As to the relation between the right to life and the right to die, the
court provided an interesting insight. According to it, the analogy drawn
with other fundamental rights to show that the right to life has negative,
as well as positive, content is essentially superfluous. In the case of other
rights, the exercise of their negative aspect requires the right holder to
merely abstain or refrain from certain positive acts. For example, if an
individual wants to exercise the right not to trade, all he or she has to do
is not indulge in trading. On the other hand, any exercise of the right to
die necessitates the commission of certain overt, positive acts, whose
performance cannot be protected under art 21, since they undermine the
sanctity and dignity of life. Hence the analogy with other fundamental
rights does not apply to art 21 (AIR 1996 SC 946 at 952).
On the basis of this logic, the court expressly overruled Rathinam by
holding that s 309 did not violate art 21 (AIR 1996 SC 946 at 953). On the
other hand, it concurred with the latter’s ruling that s 309 was not
inconsistent with art 14 either (AIR 1996 SC 946 at 954).
The court drew a distinction between suicide and euthanasia, holding
that instances involving the former ‘are not cases of extinguishing life but
only of accelerating conclusion [sic] of the process of natural death which
has already commenced’ (AIR 1996 SC 946 at 953). About the relationship
2004] The Right to Die: The Indian Experience 165

between s 309 and s 306, it held that the two pertain to subjects that are
distinct from each other. Section 306 deals with abetting suicide (that is,
its successful commission) while s 309 punishes only attempted suicide.
The punishment for abetting attempted suicide does not flow from s 306
but, rather, s 309, read with s 107 of the Indian Penal Code, which
contains the definition of abetting. As a result, ss 306 and 309 are so
distinct in their scope that striking down or deleting one will have no
affect whatsoever on the other’s survival (AIR 1996 SC 946 at 955).

Right to Die: Legal and Other Consequences

Is Gian Kaur Legally Binding?

I will now turn to the question of how legally binding the Gian Kaur
judgment actually is. We may note that its facts concern abetting suicide
under s 306 rather than suicide per se or its attempt (AIR 1996 SC 946 at
948). Hence, it would seem that the observations it makes about s 309 are,
in fact, irrelevant to the issue before it. Moreover, as we saw, this very
decision states that the two offences are distinct and separate: ‘It is signi-
ficant that s 306 enacts a distinct offence which is capable of existence
independent of s 309’ (AIR 1996 SC 946 at 954). We are thus forced to
conclude that the rulings laid down in Gian Kaur in respect of s 309 are in
the nature of obiter dicta, since they bear little relevance to the facts of the
case.
In such circumstances, what is the legal status of s 309? Several
decisions state that even obiter dicta by the Supreme Court are binding on
lower courts as long as they are well thought out and not in the nature of
casual observations (see, for example, Income Tax Commissioner v Vazir
Sultan, AIR 1959 SC 814; Municipal Committee v Hazara Singh, AIR
1975 SC 1087). Since this criterion is clearly satisfied in Gian Kaur, it
would seem to constitute binding law, notwithstanding its deviance from
involved facts. For this reason, however, it is rendered vulnerable to being
overruled by future judgments. To sum up, therefore, Gian Kaur com-
prises binding law as of now, but how long it will remain so is uncertain.

Right to Die and Right to Life

In the Indian scenario, the legal status of the right to die is a consequence
of three factors and their interrelation. They comprise the act of suicide;
its criminalisation under s 309 of the Penal Code; and the nature and
extent of art 21 of the Constitution.
From our perusal of judicial trends in the foregoing paragraphs, we
may discern broadly three possible positions of law.
166 Asian Law [Vol 6

(1) If the commission of suicide is held not to fall within the scope of
the right to life as guaranteed by art 21, then the state is under no
duty not to, and therefore at liberty to, criminalise the act of
attempted suicide. This was the position of law before the advent
of Rathinam.
(2) On the other hand, if suicide is deemed a part of right to life under
art 21, then naturally s 309 becomes unconstitutional. Such was
the state of law after Rathinam.
(3) Finally, Gian Kaur held that the right to life exists to uphold the
dignity and sanctity of human life. This differs from (1) in that it
casts on the state a positive duty to protect life, rather than
merely a negative duty not to interfere with the individual’s life.
Characteristic of all three positions, and indeed, the entire history of the
right to die, Dubal onwards, is the way this right has always been
understood or construed specifically in terms of the right to life. In fact,
jurists have generally assumed that if the right to die bears any relevance
at all to art 21, it is through the right to life rather than any personal
liberty enshrined in it. In my opinion, no grounds exist for this assump-
tion, and it needs to be examined must more closely. Otherwise, as I hope
to demonstrate, it will inevitably lead to paradoxes and inconsistencies. I
submit this is especially true of the Gian Kaur ruling that the right to life
is intended towards the protection and enhancement of life rather than its
extinction.
What exactly does the right to life entail? Its language indicates that
it is in the nature of a Hohfeldian claim-right simpliciter. Such claim-
rights are characterised by the imposition of a corresponding duty on the
party against whom the right is given (Hohfeld, 1919: 36). Moreover, it
has been established beyond doubt that the fundamental rights listed in
arts 12 to 35 are available only against the state and not private persons
(see, for example, PD Shamdasani v Central Bank of India Ltd, AIR 1952
SC 59; Vidya Verma v Shiv Narayan Verma, AIR 1956 SC 108). And
finally, the meaning of the word ‘life’ has been held to also include one’s
bodily members:
The provision equally follows the mutilation of the body by the ampu-
tation of an arm or leg, or the putting out of an eye, or the destruction of
any organ of the body through which the soul communicates with the
outside world. (Munn v Illinois 94 US 113 (1877) at 142)7

From the foregoing, we may conclude that the right to life under
art 21 casts on the state a duty not to interfere with the individual’s life or
any bodily member. Consequently, any such interference by the state or
its agents violates this duty, which gives rise to the individual’s claim to
2004] The Right to Die: The Indian Experience 167

have that wrong remedied. Cases involving, say, custodial deaths or

torture fall within the scope of this right.
So how does the right to life apply to suicide? As we recall, Gian Kaur
interprets art 21 to cast a positive duty on the state to protect and uphold
human life in all its sanctity and dignity. Secondly, the court expressly
stated that the right to die cannot be read into art 21, because suicide is
inconsistent with this sanctity and dignity. This leads us to a strange
inference. If suicide is indeed inconsistent with the sanctity and dignity of
human life, which the state has a positive duty to protect and uphold, then
surely it must mean that any time a person successfully commits suicide
the state fails in its positive duty?
Furthermore, several cases have held the state liable to pay monetary
compensation in respect of fundamental rights violations (see, for
example, Rudul Sah v State of Bihar, AIR 1983 SC 1086; Sebastian M
Hongray v Union of India, AIR 1984 SC 1026). Since the argument above
indicates that suicide amounts to a violation of the right to life, will suc-
cessful suicide cases make the state liable to the next of kin for damages?
Let us follow this reasoning to its even more absurd consequences. If
suicide is repugnant to the sanctity and dignity of human life, then surely
so is homicide in all its forms. So any time a person is murdered, or even
killed in an accident, his or her next of kin could theoretically claim
compensation from the state. And if suicide and homicide differ in that
only the first, and not the second, is inconsistent with art 21, then what is
the rationale for creating this distinction between prima facie similar
acts?
The Gian Kaur ruling leads to another paradox. There exist many
acts that private individuals may freely perpetrate upon themselves, but
which violate art 21 if the state imposes such acts on them. For example, a
person is at liberty to cut off a finger, or even a whole limb: no provision in
the Penal Code or any other statute imposes any duty not to do so. A man
may even have a vasectomy operation performed on himself. On the other
hand, it if the state forces any of these on an individual, it violates that
person’s right to life. The termination of life, however, seems to present an
exception. If we go to Gian Kaur, it seems to violate art 21 regardless of
whether the state or the individual is the perpetrator. Once again, no
rational justification is provided for such differential treatment.

Suicide and Personal Liberty

Apart from the consequences of Gian Kaur discussed above, one more
crucial question remains unexplored concerning the way courts have
characterised the right to die. Does this right bear any relation at all to
the right to life?
168 Asian Law [Vol 6

Article 21 incorporates two separate rights, namely the right to life

and the right to personal liberty. As we saw, the former is in the nature of a
claim-right, as it imposes on the state a corresponding duty not to interfere
with the individual’s life or bodily member. On the other hand, the right to
personal liberty is in the nature of a liberty protected by a right. The first
component, the liberty, implies the absence of duty and imposes on the
state what Hohfeld terms a ‘no-right’ (Hohfeld, 1919: 41 et seq). This bars
the state from making claims on individuals not to exercise their liberty.
Furthermore, this liberty is backed up by a right. In other words,
individuals can actually claim non-interference from the state, that is, they
can demand that the state desist from interfering with their enjoyment of
this liberty. To put it another way, the state becomes duty-bound not to
restrict the holders’ liberty under any circumstances. To take an example,
individuals are recognised as having the liberty to travel abroad (this has
been held to be an aspect of the right to personal liberty: see, for example,
Satwant Singh Sawhney v Assistant Passport Officer, New Delhi, AIR 1967
SC 1836 (Satwant Singh Sawhney); Maneka Gandhi v Union of India, AIR
1978 SC 597 (Maneka)). This means that the state cannot make a legal
claim that they have a duty not to do so. At the same time, individuals
enjoy a claim-right to this liberty, as a result of which the state is duty
bound not to interfere with this liberty in any manner, such as by illegally
declining to issue passports (Satwant Singh Sawhney; Maneka).
Stated simply, the difference between the two is that the right to
personal liberty protects not a person’s life or bodily members, but rather
actions; that is, what the person does or performs with his or her life and
bodily members is already protected by the right to life. In other words,
although one’s arms are protected by the right to life, one’s freedom to
wave them is secured by the right to personal liberty.
What lends further credence to the contention that the two rights are
separate entities is the observation that curtailing one does not affect the
other. For example, a law may take away individuals’ liberty to wave their
arms in certain situations or circumstances, such as inside parliament or
a courthouse. Such a step will not in any way affect their right to life, in so
far as it applies to their arms.
If we analyse the phrase ‘right to die’, we find that it is also in the
nature of a liberty rather than a claim-right. By its nature, such a right
seeks not to safeguard life itself or any bodily member, but rather to
protect the commission of an act (that is, suicide) from undue interference
by the state. In fact, killing oneself and waving one’s arms are formally
similar (notwithstanding the extreme consequences of one as compared to
the other), since they both stem from the same genus (namely, actions to
be performed).
2004] The Right to Die: The Indian Experience 169

In such circumstances, any attempt to associate the right to die with

the right to live necessarily suffers a logical inconsistency. This holds
equally true for the Rathinam argument of the right to die deriving from
the right to life, and the Gian Kaur ruling that the two rights are incon-
sistent. One right can be read into another only if both are of the same
type. No claim stricto sensu can include within its scope a liberty, or vice
versa. The right to life cannot contain the right to die any more than the
right to go abroad or wave one’s arms. On the other hand, neither can
the right to personal liberty be invoked to protect one’s right not to have
one’s arms chopped off or be forced to undergo a vasectomy.
We reach the same conclusions when we look at the manner in which
the link between the right to life and the right to die was forged. It first
finds mention in Dubal (1987 Cri LJ 743 at 748) in connection with the
analogy drawn between arts 21 and 19. This judgment does not, however,
use the term ‘right to life’ anywhere. Instead, the right to die is consis-
tently referred to as a derivative of the right to live. Where did this right
to live come from? No provision in the Constitution mentions such a right.
Nevertheless, the context in which the right was mentioned indicates that
it refers to the right to life rather than personal liberty. For example, it
draws support from Olga Tellis, which states that the right to life includes
the right to livelihood. Responding to certain submissions made on the
right to die, it says: ‘[T]he submission essentially arises out of the content
of art 21, which indisputably includes the right to life’ (1987 Cri LJ 743 at
747). Finally, speaking of the analogy with art 19, it says: ‘The funda-
mental rights enumerated in art 19 are only extensions of the right to life
and have no meaning without it’ (1987 Cri LJ 743 at 747).
Dubal even misled subsequent commentators on this point, as the
following instance indicates: ‘It [Dubal] held that under Art 21, the
positive right to live carries with it the negative right not to live’ (Kaushik,
1994: 375; see also Pande, 1994: 22).
Rathinam reveals a similar situation. It refers to a series of
judgments on art 21 and then concludes: ‘In these decisions it was held
that the word “life” in Art 21 means right [sic] to live with human dignity’
(AIR 1994 SC 1844 at 1853). From this inference it asserts: ‘Keeping in
view all the above, we state that the right to live of which art 21 speaks of
[sic] can be said to bring in its trail the right not to live a forced life’ (AIR
1994 SC 1844 at 1854). In Gian Kaur, on the other hand, the notion of the
right to live is dispensed with altogether (AIR 1996 SC 946 at 952):
‘Right to life’ is a natural right embodied in Art 21 but suicide is an
unnatural termination or extinction of life and, therefore, incompatible
and inconsistent with the concept of ‘right to life’.
170 Asian Law [Vol 6

I again contend that deriving the right to die from the right to life is
logically impossible. The word ‘life’ is in the nature of an abstract noun,
whose semantic opposite is not ‘die’ but ‘death’. Similarly, the verb ‘die’
finds its semantic opposite in ‘live’ rather than ‘life’. It is self-evident that
for one right to flow from the other, both have to be semantically similar.
If not, then the derivative right threatens to even alter the character of
the parent right. As we saw, the right to life is in the nature of a claim-
right, while the right to die is characterised as a liberty. If we seek to
derive the second from the first, we effectively imply that the right to life
is wide enough to accommodate a liberty like the right to die. The right to
life then no longer remains the claim-right stricto sensu it used to be and
so its very character thereby changes.
Logically, therefore, the right to die should flow from a right to live
instead of the right to life. Since both are liberties, deriving one from the
other does not alter the character of the parent right. Hence, to that
extent, Dubal and Rathinam are perfectly correct in so far as they assert
that the right to die flows from the right to live. However, this cannot be
said of their identifying the right to live with the right to life.
In fact, the right to live amounts to nothing but the right to personal
liberty. The right to live or, strictly speaking, the liberty to live, implies
the liberty to do what one wants with one’s life, which is nothing but
personal liberty. So, just as X’s right over his arms, an aspect of his right
to life, differs from his right to do what he wants with them (such as wave
them) which forms a part of his right to personal liberty, so can his right
to life in its entirety be distinguished from his right to live, which
comprises his right to personal liberty in its entirety.
Coming back to the issue of suicide, as mentioned above, it is clear
that the right to cut off one’s arms flows from the right to personal liberty
rather than the right to life. The latter is limited to protecting the arms
from state interference. But, on the other hand, the freedom to cut them
off surely stems from one’s liberty to do what one wants with them. Just
as, say, the freedom not to speak is implicit in the freedom to do what one
wants with one’s power of speech, that is, one’s freedom of speech,
similarly, one’s liberty to die must necessarily be derived from one’s
liberty to live, that is, the personal liberty guaranteed by art 21. For this
reason, I conclude that suicide is properly an aspect not of the right to
life, but the right to personal liberty. For this reason, the analysis followed
in most of the judgments described above is based on an inaccurate
appreciation of the issues involved.
This is not to make a positive assertion that the right to die is a
necessary consequence of the right to personal liberty. All I seek to
establish here that is that the former cannot under any circumstances be
2004] The Right to Die: The Indian Experience 171

derived from the right to life. Moreover, if it is at all to be read into art 21,
the only possible way of doing so is by reading it into the right to personal
liberty, not the right to life.
So what exactly is the relation between the right to die and the
right to personal liberty? Does the former flow from the latter? That will
depend on whether our legislatures and courts think s 309 constitutes a
reasonable limitation on the right to personal liberty. So far, neither
legislatures nor courts have addressed this issue, so it is difficult to draw a
conclusion either way. All that one can say here is that the right to die
cannot bear any relation whatsoever with the right to life,

Distinction between Right to Life and Personal Liberty: Practical

Implications
Doubtless, the distinction between the right to life and the right to
personal liberty is crucial: and the right to die properly flows from the
latter rather than the former. But does this distinction bear any practical
implications or does it amount simply to yet another piece of legal
sophistry?
We may make an interesting observation at this juncture. The
moment the right to die is acknowledged as flowing from the right to
personal liberty instead of the right to life, much of the controversy
associated with this issue becomes superfluous. Take, for example, the
Gian Kaur ruling that the right to life is intended to uphold the sanctity
and dignity of human life and is therefore inconsistent with the right to
die (AIR 1996 SC 946 at 952). If we derive the right to die from the right
to personal liberty, the inconsistency stands removed. The right to life
continues to uphold the sanctity and dignity of human life, while
individuals attempt suicide on the basis of the exercise of their personal
liberty.
Apprehensions have been voiced that recognition of the right to die
will undermine the seriousness of the right to life.
The logical conclusion of recognising the ‘right to die’ would mean that a
person can waive his ‘right to life’ . . . The [Rathinam] judgment has two
implications:- firstly, the recognition of the ‘right to die’ greatly waters
down this obligation (to preserve the right to live [sic]) and secondly, the
yardstick of measurement of the quality of life provided by the state ie the
extent of its obligation is made uncertain . . . (Kaushik, 1994: 377–8)

Once again, disengaging the right to die from the right to life seems to
solve these problems. Not only does suicide not waive one’s right to life
(that is, the claim-right against state interference with one’s body), but the
larger state obligations read into the right to life continue to exist unaba-
ted, even if the right to personal liberty grants the liberty to kill ourselves.
172 Asian Law [Vol 6

Strangely enough, the idea that the right to die stems from the right
to personal liberty seems to have been anticipated a number of times in
the past. VS Deshpande, a former judge of the Delhi High Court, men-
tioned in his criticism of s 309 that in certain circumstances s 309 ‘would
be unconstitutional as being contrary to art 12 and infringing the personal
liberty of the person’ (Deshpande, 1984: 13–14). This, of course, was said
before any of the judgments dealing with the right to die had been passed,
and was even cited in Rathinam (AIR 1994 SC 1844 at 1849). However, it
seems that the import of the statement was not realised in either that
judgment or, indeed, any of those that followed it.
Subsequently, Pande (1994: 24) sought to speculate on the juris-
prudential consequences of the right to die.
The jurisprudential import of a [sic] right to die is likely to be very far-
reaching. Is the right to die a fundamental right or merely a ‘liberty
interest’? Would the right create correlative duties on the State, the
community or the family? How would the conflicts between this right and
other rights be reconciled?

Regrettably, he chose not to examine the matter any further. Instead

he proceeded to examine euthanasia cases to see whether the right to
refuse medicine is a ‘liberty-interest’ or a ‘fundamental claim’ (Pande,
1994: 24).

Conclusion
Indian courts have consistently reiterated the need to interpret both the
Constitution and ordinary laws in such as way as to make them relevant
to the people. Speaking on the trend of relaxing the requirements of locus
standi in public interest matters, Krishna Iyer J observed:
Our current processual jurisprudence is not of individualistic [sic] Anglo-
Saxon mould. It is broad-based and people-oriented, and envisions access
to justice through ‘class actions’, ‘public interest litigation’, and ‘represen-
tative proceedings’. Indeed, little [sic] Indians in large numbers seeking
remedies in courts through collective proceeding, instead of being driven
to an expensive plurality of litigants [sic], is an affirmation of partici-
pative justice in our democracy. (Akhil Bharatiya Soshit Karamchari
Sangh v Union of India, AIR 1981 SC 298 at 317)

Indeed, most innovations introduced in the last few decades,

especially those crafted by the judiciary, have been dedicated to this very
end. And the right to die, together with its subsidiary issues like eutha-
nasia, is no exception to this rule.
Without doubt, this has been a welcome development. Had it not been
for the judicial attention the issue received, it might in all probability have
2004] The Right to Die: The Indian Experience 173

languished the way the Indian Penal Code (Amendment) Bill 1972 lapsed.
At the same time, our experience of the right to death also alerts us to
certain pitfalls that any form of judicial activism – particularly judicial
law-making – inevitably entails.
Judge-made laws are critically dependent on existing legislation. The
reason for this is that – officially – courts do not create, but only interpret,
laws. Hence, the only manner in which they can bring about legal innova-
tions is by construing interpretations of remarkably wide amplitude. This
is as it should be. Laying down legislative policy is the job of the
legislature, not the judiciary. Consequently, judges are obliged to conform
to the policies already laid down by the legislature. The process of
interpretation seems to constitute an acceptable compromise. It gives
judges ample scope to innovate, while at the same time it compels them to
conform to the broad outlines of policies already laid down.
The entire construct is imperilled when an interpretation turns out to
be so wide as to effectively sever connections with the parent statute itself.
In my discussion on the right to die, I identified two examples of this. The
first was when the right to life was held to confer on the state a positive
duty to uphold the sanctity and dignity of human life. Not only was such a
duty not contemplated when the provision was drafted, but also its
inevitable consequences tend towards the absurd. The second instance, of
course, pertains to interpreting the right to die in terms of the right to life.
As I demonstrated, if the former is evaluated instead in the light of the
right to personal liberty (with which it is formally consistent) much of the
debate surrounding it is automatically rendered irrelevant.
In my view, such interpretations are due to an incorrect under-
standing of both the parent legislative (or, in this case, constitutional)
provision, as well as the jurisprudential concepts involved. Had the proper
import of negative and positive duties, or indeed, the distinction between
claim-rights and liberties, been appreciated properly, much of the ensuing
controversy could have been avoided.
More seriously, interpretations of this type affect even the nature of
the parent provision. Originally, the right to life imposed on the state
merely a negative duty not to interfere with the individual’s life or bodily
members. But once it was interpreted to also prescribe a positive duty, its
very character changed. Similarly, the right to life originally entailed only
a claim-right. But when the right to die was read into it, it perforce
encompassed a liberty as well. Moreover, it did so to the exclusion of the
right to personal liberty, which was included in the Constitution precisely
to evaluate liberties of this type. We may note that altering or amending
constitutional provisions can never be, in itself, bad or undesirable. But
when such alterations are the result of an incorrect understanding of
174 Asian Law [Vol 6

underlying jurisprudential concepts, surely this cannot augur well for the
well-being of the Constitution.
To sum up, the Indian judicial experience with the right to die shows
us that after all the law is a system. For any innovation to be effective,
care has to be taken that the systemic values themselves are not com-
promised. If not, then at one level, the objective behind the entire exercise
remains unattained. But more seriously, the very underpinnings of the
system may also be compromised.

Notes
∗ BA, LLB (National Law School of Indian University), Advocate, New Delhi.
1 Article 21: No person shall be deprived of his life or personal liberty except according to
procedure established by law.
2 Section 309: Whoever attempts to commit suicide and does any act towards the
commission of such offence, shall be punished with simple imprisonment for a term
which may extend to one year or with fine, or with both.
3 Some legislatures have even legalised euthanasia under certain circumstances. See, for
example, Rights of the Terminally Ill Act 1995 (NT) (subsequently overruled by
Euthanasia Laws Act 1997 (Cth)).
4 Judicial activism in India is simply too vast a topic to be covered here in any but the
briefest of terms. For an excellent analysis of this phenomenon, its origins and its
consequences, see Sathe, 2002. Hurra, 1993 is also a useful contribution to the
literature on the topic.
5 Some commentators (eg Bilimoria, 1995: 160) have even tried to locate the right to die
in the right to freedom of religion embodied in art 25. This seems an extremely curious
argument. Article 25(1) explicitly states that the right to freedom of religion is subject to
public order, morality and health. Such a wide-ranging proviso considerably weakens
the scope for using it as a basis for striking down a penal provision of the nature of
s 309. It is to be noted that though several judgments (eg Dubal 1987 Cri LJ 743 at
749–51; Rathinam, AIR 1994 SC 1844 at 1861–2) have dwelt on the relation between
suicide and religion, no court has attempted to derive the right to die from art 25.
6 The practice of sati in its pristine form was intended as a voluntary act by the bereaved
widow. However, patriarchal incursions had added to it a strong coercive element,
which came to effectively supplant this voluntary aspect. As a result, it is today com-
monly (and justifiably) perceived as an example of the extreme forms of gender violence.
7 The Supreme Court of India has quoted this with approval in several decisions, such as
Kharak Singh v State of Uttar Pradesh, AIR 1963 SC 1295; Olga Tellis, AIR 1986 SC
180.

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Deshpande, VS (1984) ‘To Be or Not To Be’ (1984) 3 Supreme Court Cases (Journal Section)
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Hohfeld, WN (1919) Fundamental Legal Conceptions as Applied in Judicial Reasoning. New
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Hurra, S (1993) Public Interest Litigation. Ahmedabad: Mishra & Co.
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Kaushik, SS (1994) ‘The Suicide Judgement – An Analysis’ 18 Cochin University Law Review
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Cases
Akhil Bharatiya Soshit Karamchari Sangh v Union of India, AIR 1981 SC 298
Brown v Board of Education 347 US 483 (1954)
Chenna Jagadeeswar v State of Andhra Pradesh 1988 Cri LJ 549
Court on its Own Motion v Yogesh Sharma (Criminal Revision no 230/1985, cited in
Rathinam, AIR 1994 SC 1844 at 1848–9)
Excel Wear v Union of India, AIR 1979 SC 25
Fri v Sierra Club, 412 US 541 (1973)
Gian Kaur v State of Punjab, AIR 1996 SC 946
Govinda v State of Madhya Pradesh, AIR 1975 SC 1378
Hussainara Khatoon v Home Secretary, Bihar, AIR 1979 SC 1360
Income Tax Commissioner v Vazir Sultan, AIR 1959 SC 814
Maneka Gandhi v Union of India, AIR 1978 SC 597
Mohini Jain v State of Karnataka, AIR 1992 SC 1858
MS Dubal v State of Maharashtra 1987 Cri LJ 743.
Municipal Committee v Hazara Singh, AIR 1975 SC 1087
Munn v Illinois 94 US 113 (1877)
Olga Tellis v Bombay Municipal Corporation, AIR 1986 SC 180
PD Shamdasani v Central Bank of India Ltd, AIR 1952 SC 59
P Rathinam v Union of India, AIR 1994 SC 1844
RC Cooper v Union of India, AIR 1970 SC 1318,
RP Ltd v Proprietors, Indian Express Newspapers, Bombay, Pty Ltd, AIR 1989 SC 190
Rudul Sah v State of Bihar, AIR 1983 SC 1086
Satwant Singh Sawhney v Assistant Passport Officer, New Delhi, AIR 1967 SC 1836
Sebastian M Hongray v Union of India, AIR 1984 SC 1026
Shantistar Builders v NK Totame, AIR 1990 SC 630
State v Sanjay Bhatia 1985 Cri LJ 931
Sunil Batra v Delhi Administration, AIR 1978 SC 1675
Unni Krishnan v State of Andhra Pradesh, AIR 1993 SC 2178
Vidya Verma v Shiv Narayan Verma, AIR 1956 SC 108