Passive euthanasia

Syed Qasim Ali Blog

Euthanasia means painless killing of a person in order to get rid of physical pains and sufferings which are of persistent character. Broadly it is divided into active and passive, where active euthanasia suggests killing of a person by doing some positive act i.e. by lethal injection or by strangulation etc. Whereas, passive euthanasia is killing of a person by not doing any positive act rather by restraining from doing any act i.e. removal of life support system, ventilator, dispensing with life saving drug. Passive euthanasia was legalized by Supreme Court in ARUNA RAMCHANDRA SHANBAUG VERSUS UNION OF INDIA in 2011 where it held that passive euthanasia can be only allowed to patients under persistent vegetative state (PVS) that too only on dead brain patients and also gave guidelines for execution i.e. the relative, spouse or friend of patient apply to Chief justice (CJ) of respective High court of the state. Thereafter, CJ will constitute 2 sitting High court judges who will constitute a medical board of 3 doctors having 20 yrs of experience in general medicine, neurology, nephrology, cardiology, these doctors will examine the patient and if found no chances of recovery in future then passive euthanasia will be allowed. However, Supreme Court refused to allow passive euthanasia to Aruna Ramchandra Shanbaug. The rationality behind refusal lies in Airedale case (decided by House of Lords) on which Supreme Court of India relied heavily. The House of Lords allowed passive euthanasia to brain dead patients, however in case of Aruna, her brain was not dead. She used to smile and make gestures when she is served with her favourite food.

Recent (progressive) view of supreme court on passive euthanasia:

However, recently Supreme Court in the case of COMMON CAUSE VERSUS UNION OF INDIA has taken a progressive view and gave concept of living will, its guide lines and legalized passive euthanasia resulting into din on constitutional validity of Section 309 of Indian Penal Code, 1860 which punishes a person who attempts to commit suicide. The remarkable lines by Justice Dhananjaya Y. Chandrachud “I HAVE LIVED MY LIFE I DO NOT WANT TO PROLONG MY LIFE ON MEDICAL SUPPORT, DOES NOT MEAN THAT I WANT TO DIE”. The reasoning of this judgment was based on Justice K.S. PUTTUSWAMY’S (Retd.) judgment where 9 judges bench of Supreme Court unanimously held that Right to privacy is Right to life under article 21 of constitution of India.

Possible prospective developments based on euthanasia and living will judgments:

Right to die with dignity is now also envisaged in article 21 of constitution of India which may be a cause of challenging the constitutional validity of section 354(5) and IInd Para of from no. 42 of IInd schedule of the code of criminal procedure, 1973 where execution of death penalty is by “to be hanged by neck until he is dead”, which takes approximately 20 minutes to extract the last breath from the convict. Rational behind common cause judgment is that the convict has right to live with human dignity even till 19 minutes and 59 seconds, therefore in PIL by Rishi Malhotra it has been contested that hanging by neck in case of death penalty should be repealed and other methods should be incorporated i.e. lethal injection, electrocution etc.