(Nurses gather to pay their respect for nurse Aruna Shanbaug in Mumbai hospital on May 18, 2015 - AFP image)
The March 9 verdict of the Supreme Court, permitting “passive euthanasia” under certain circumstances, has been received with much celebration from certain quarters and objections about possible misuse from others.
The common understanding of the verdict seems to be that someone who is not able to actively kill oneself can opt for assisted suicide. But this isnot quite
what the five-judge Constitution Bench said.
The judgement effectively states something which should have been worked into the legislative system of the country much earlier.
Now, a person who is of sound mind will be able to make an advance directive or “living will” stating that under the circumstances of his or her being terminally ill and dependent on life support at some point in the future, he or she asks that such life support be withdrawn and that he or she be allowed to “die with dignity”.
While the Court held that the right to die with dignity is a fundamental right, it has laid down rather stringent conditions under which passive euthanasia can be authorised. More importantly, it has not permitted active euthanasia, or “assisted suicide”.
The person concerned would have to have “reached an irreversible stage of terminal illness in the medical view” and also have made a provision in his or her will beforehand. The corollary of this is that the individual must be in a vegetative state in order for this will to be executed.
Moreover, the court wants a medical board to be set up to take a call on each case of euthanasia.
There are several roadblocks to actually dying with dignity under these conditions.
First, while a “mentally competent” person can decide to reject treatment for a terminal illness, or even reject palliative care, a person who is rendered irresponsive or in a vegetative state due to a sudden accident will not be considered mentally competent and hence cannot make such a decision. He or she would have had to have prepared a living will well in advance of an incident which could not have been foretold.
In some countries, a medical proxy might be permitted to make this decision for the person. But India does not have a system of medical proxy. I cannot make a provision saying that my parents, siblings, partner, or children will be able to make a decision about my medical treatment based on their knowledge of what I would have wanted in case I am rendered unable to articulate such a decision.
Second, for as long as one is not in a vegetative state or considered to be entirely without medical hope of recovery, one cannot choose to be euthanised. Only the withdrawal of life support is permitted, not the shutting down of life itself, irrespective of the pain one is undergoing and the bleakness of the prognosis.
Third, one can only imagine the sort of backlog a medical board which must decide on each individual appeal for passive euthanasia will have to deal with.
The only way even the provisions of this judgement could be implemented would be for them to be drafted into legislation. But the common notion, which has also been fostered by various religions, that “life is sacred” – though, seemingly, not where animals are concerned – has ensured that the House has unanimously voted against most forms of artificial termination.
It was only on August 8, 2016, that the Mental Healthcare Bill, which among other things decriminalises the attempt to commit suicide, was passed in the Rajya Sabha. Earlier, someone who had tried and failed to kill himself could be imprisoned for up to a year under Section 209 of the Indian Penal Code. It took the government decades – centuries, if we were to trace our current penal code back to its British origins – to figure out that depression and despair must be treated, not punished. However, Section 124 of the Mental Healthcare Bill also assumes that a person who attempts suicide will be deemed to be “suffering from mental illness” at the time of the attempt. What repercussions could this have on the person making a living will? It is not clear.
There have been various rulings by the Supreme Court on suicide attempts in the past.
In P. Rathinam v. Union of India, (1994), the court held that the state should not interfere with the personal liberty of those concerned, since a suicide attempt causes no harm to others, and cannot be said to be against religion, morality or public policy.
However, religious institutions have contested that suicide is against their respective religions, and the Court is not bound either by the previous verdict or by law to dismiss their contentions.
And so it was that in the case of Gian Kaur v. The State of Punjab (1996), where the petitioners had been sentenced to six years’ rigorous imprisonment and a fine for abetting suicide, the Court held that Section 309 was constitutionally valid and the petitioners could be punished under it.
In 2011, while delivering its verdict on the appeal for euthanising Aruna Shanbaug, the Supreme Court suggested Section 309 should be deleted from the Indian Penal Code by Parliament, since it had “become anachronistic”.
It was several years before Section 309 could be overridden by legislation.
How long will it be before citizens are effectively permitted to die with dignity, in a country where one’s right to live with dignity is barely recognised?
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