Table of contents

1. Introduction
2. Article 21 of the Indian constitution
3. Legal status of Right to die
 Background
4. Euthanasia and its legal position in context of
Article 21
 Active Euthanasia
 Passive Euthanasia
 Arguments against Euthanasia
 Counterarguments in support of
Euthanasia
5. Case: Common cause vs Union of India
6. Conclusion
Introduction
From the moment of his birth, a person is clothed with basic human rights. Right to life
is one of the basic as well as fundamental right without which all rights cannot be
enjoyed. Right to life means a human being has an essential right to live, particularly
that such human being has the right not to be killed by another human being. But the
question arises that if a person has a right to live, whether he has a right not to live i.e.,
whether he has a right to die? While giving this answer, the Indian courts expressed
different opinions.
The concept of Life and Death has invited many a thinker, philosopher, writer and
physician to define or describe them. Sometimes attempts had been made or efforts
had been undertaken to paint gloriously the pictures of both in many a colour and shade.
Swami Vivekananda expects one to understand that life is the lamp that is constantly
burning out and further suggests that if one wants to have life, one has to die every
moment for it.
The Supreme Court has interpreted right to life under Article 21 in a very vast manner
and has included various human rights under its purview. From right to life to right to
travel, right to dignity, right to dignity, right to privacy, right to pollution free environment
etc., Article 21 includes most of the basic human rights which are essential for a
dignified life. In its latest judgement on March 9, 2018 the Apex Court included Right to
Die with dignity as a part of right to life under Article 21.1

Article 21 of the Indian constitution

Article 21 of the Indian constitution reads as “No person shall be deprived of his life or
personal liberty except according to procedure established by law”
Life as envisaged under Article 21 has been very broadly understood by the Supreme
Court. In the case of Board of Trustees of the Port of Bombay v. Dilipkumar
Raghavendranath Nadkarni and others2, the Apex Court had held that the expression life
does not merely connote animal existence or a continued drudgery through life. The
expression life has a much wider meaning.
In State of Andhra Pradesh v. Challa Ramkrishna Reddy and others3, it was held by the
Supreme Court that right to life is one of the basic human rights and it is guaranteed to
every person by Article 21 of the Constitution and not even the State has the authority to
violate that right.

1
Common cause vs Union of India, (2018) 5 SCC 1
2
(1983) 1 SCC 124.
3
AIR 2000 SC 2083 : (2000) 5 SCC 712.
In Maneka Gandhi v. Union of India and another4, Krishna Iyer J., in his own inimitable
style, states that among all the great guaranteed rights by the Constitution , life and
liberty are the first among equals carrying a universal connotation cardinal to a decent
human order and protected by constitutional amour.
Article 21 has been interpreted by the Court in most expansive terms, particularly when
it comes to the meaning that is assigned to 'right to life'. In Kharak Singh v. State of U.P.
& Ors.5 it was held that the word 'life' in Article 21 means right to live with human dignity
and it does not merely connote continued drudgery. Right to life has been treated as
more than 'mere animal existence'.
Right to life and liberty as envisaged under Article 21 of the Constitution is meaningless
unless it encompasses within its sphere individual dignity. With the passage of time, the
Supreme Court through its various judgements has expanded the spectrum of Article 21
to include within it the right to live with dignity as component of right to life and liberty
Right to life including the right to live with human dignity would mean the existence of
such right up to the end of natural life. This may include the right of a dying man to die
with dignity. But the 'right to die with dignity' is not to be confused with the right to die
an unnatural death curtailing the natural span of life.

Legal status of Right to die

The right to die is not explicitly mentioned in the Indian Constitution. However, the
Indian Supreme Court has recognized the right to die with dignity as a fundamental right,
in the case of Common Cause v Union of India.

Background
The issue as to whether Right to Die formed a part of the Guarantee of Right to Life
Under Article 21 of the Constitution was first raised before the Apex Court in the case of
P. Rathinam v. Union of India6. The Challenge raised under this writ petition was with the
Constitutional validity of the Section 309 of the Indian Penal Code (IPC) contending that
the same was violative of Articles 14 and 21 of the Constitution. Section 309 of the IPC
reads as “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.].
The main question raised in this judgment was:
4
(1978) 1 SCC 248.
5
AIR 1963 SC 1295.
6
(1994) 3 SCC 394.
Has a person residing in India a Right to die?
Answering this question, the court referred to the decision of the Bombay High Court in
the case of Maruti Shripati Dubal v. State of Maharashtra7 which placed reliance on R.C.
Cooper v. Union of India8 wherein it was held that:
what was true of one fundamental right was also true of another fundamental right and
on the said premise, the Bombay High Court had opined that it cannot be seriously
disputed that fundamental rights had their positive as well as negative aspects. The
court held that, in any case, a person cannot be forced to enjoy the right to life to his
detriment, disadvantage or disliking. Eventually, it came to conclusion that the right to
live of which Article 21 speaks of can be said to bring in its trail the right not to live a
forced life. Answering all the questions, the Apex Court declared Section 309 of IPC
ultra vires and held that it deserved to be effaced from the statute book to humanize our
penal laws.
The Dictum which was laid down in P. Rathinam did not remain a precedent for a long.
The Constitution Bench considered the correctness of the decision rendered in P.
Rathinam in Gian Kaur v. State of Punjab9. In this case, the appellants were convicted by
the trial court under Section 306 of IPC. Section 306 of the IPC is related to abetment of
suicide and makes abetment a punishable offence.
The conviction was assailed on the ground that Section 306 IPC was unconstitutional
and to sustain their argument, they placed reliance on the authority in P. Rathinam
wherein Section 309 IPC was held to be unconstitutional. It was urged in this case that,
since Section 309 IPC had been held unconstitutional, any person abetting the suicide
was merely assisting in the enforcement of the Fundamental right under Article 21.
The court opined that all fundamental rights are not the same and hence the same
standard must not be applied to them. Therefore, while Article 19 had a negative
component in its guarantees, Article 21 cannot be read in a similar manner. Thus, an
unnatural termination of life could not be treated as a part of the right to life.
The Constitution Bench in this case held that the right to life including the right to live
with human dignity would mean the existence of such a right up to the end of natural
life. It further explained that the said conception also includes the right to a dignified life
up to the point of death including a dignified procedure of death or, in other words, it
may include the right of a dying man to also die with dignity when his life is ebbing out.
It was clarified by the court that the right to die with dignity at the end of life was not to
be confused or equated with the right to die an unnatural death curtailing the natural
span of life.

7
1987 Cri LJ 473 : (1986) 88 Bom LR 589.
8
(1970) 2 SCC 298 : AIR 1970 SC 1318.
9
(1996) 2 SCC 648
Thus, taking into consideration various aspects, the Constitution Bench declared
Section 309 IPC as constitutional. It then examined the question of validity of Section
306 and held it to be constitutional. Eventually, the Court in Gian Kaur overruled P.
Rathinam.
For the very first time, the Supreme Court dealt with the issue of permitting or legalising
Euthanasia in the case of Aruna Ramachandra Shanbaug v. Union of India and others10.
Aruna Ramachandra Shanbaug was a staff Nurse who worked in King Edward Memorial
Hospital, Mumbai when she was brutally and sustained serious injuries that left her in a
permanent vegetative state. She was cared for by the hospital staff and nurses over a
long period of thirty-six years, however there was no improvement in her conditions. A
writ petition was filed by the next friend of the petitioner seeking permission to stop
feeding the petitioner and to allow her to die peacefully.
The two judge Bench relying on Airedale N.H.S. Trust v. Bland11 (Airedale case) and
other international Jurisprudence held that passive euthanasia may be applied for
terminally ill patients or patients in a permanent vegetative state provided that certain
safeguards were followed. Recognising the autonomy of the patient, the Court held that
if the patient was conscious and capable of giving consent, his or her opinion must be
taken, otherwise at least the opinion of a next friend was required. After that , the matter
would then go to the respective High Court where a Division Bench would be required to
be constitute a Board of three competent doctors to fully examine the patient. The court
further held that these guidelines need to be followed till the Parliament brings a valid
legislation on this matter.

Euthanasia and its legal position in context of Article 21

The term Euthanasia comes from two ancient Greek words: 'Eu' which means 'Good'
and 'thantos' which means 'death' and it pertains to the practice of ending a life to
relieve pain and suffering. But, the issue of euthanasia is not as simple as its literal
translation of the term. The termination of life may either be by Direct intervention
(Active Euthanasia) or by may be by withholding life prolonging measures and
resources (passive euthanasia). Aruna Shanbaug case12 discussed the two categories
of euthanasia- Active and Passive.
Active Euthanasia
Also known as positive euthanasia or aggressive euthanasia. This type of euthanasia
entails a positive act or affirmative action or an act of commission entailing the use of

10
(2011) 4 SCC 454
11
(1993) 2 WLR 316: (1993) 1 All ER 821, HL
12
Supra note 25
lethal substances or forces to cause the intentional death of a person by direct
intervention. This type of euthanasia involves taking specific steps to cause the
patient's death such as injecting the patient with some lethal substance.
Passive Euthanasia
Also known as negative euthanasia or non-aggressive euthanasia. This type of
Euthanasia entails withdrawing of life support measures or withholding of medical
treatment for continuance of life. In active euthanasia a specific act is done to end the
patient's life while passive euthanasia is a situation where something is not done which
is necessary in preserving the patient's life.
The two Judge Bench in the case of Aruna Shanbaug had observed that the legal
position across the world seems to be that while active euthanasia is illegal unless
there is a legislation which permits it, passive euthanasia is legal even without any
legislation, provided certain conditions and safeguards are maintained. Most of the
countries today have legalised passive euthanasia either by way of legislations or
through the judicial interpretations, but there now also remains uncertainty whether
active euthanasia should be granted legal status. The court in this case held that
passive euthanasia would only be permissible when the patient is 'dead' in clinical sense.
Arguments against euthanasia
 Eliminating the invalid: Euthanasia opposers argue that if we embrace ‘the right
to death with dignity’, people with incurable and debilitating illnesses will be
disposed from our civilised society. The practice of palliative care counters this
view, as palliative care would provide relief from distressing symptoms and pain,
and support to the patient as well as the care giver. Palliative care is an active,
compassionate and creative care for the dying.
 Constitution of India: ‘Right to life’ is a natural right embodied in Article 21 but
suicide is an unnatural termination or extinction of life and, therefore,
incompatible and inconsistent with the concept of ‘right to life’. It is the duty of
the State to protect life and the physician's duty to provide care and not to harm
patients. If euthanasia is legalised, then there is a grave apprehension that the
State may refuse to invest in health (working towards Right to life). Legalised
euthanasia has led to a severe decline in the quality of care for terminally-ill
patients. Hence, in a welfare state there should not be any role of euthanasia in
any form.
 Symptom of mental illness: Attempts to suicide or completed suicide are
commonly seen in patients suffering from depression, schizophrenia and
substance users. It is also documented in patients suffering from obsessive
compulsive disorder. Hence, it is essential to assess the mental status of the
individual seeking for euthanasia. In classical teaching, attempt to suicide is a
psychiatric emergency and it is considered as a desperate call for help or
 assistance. Several guidelines have been formulated for management of suicidal
patients in psychiatry. Hence, attempted suicide is considered as a sign of
mental illness.
 Malafide intention: In the era of declining morality and justice, there is a
possibility of misusing euthanasia by family members or relatives for inheriting
the property of the patient. The Supreme Court has also raised this issue in the
recent judgement13. ‘Mercy killing’ should not lead to ‘killing mercy’ in the hands
of the noble medical professionals.

Counterarguments in support of euthanasia

 Caregivers burden: ‘Right-to-die’ supporters argue that people who have an

incurable, degenerative, disabling or debilitating condition should be allowed to
die in dignity. This argument is further defended for those, who have chronic
debilitating illness even though it is not terminal such as severe mental illness.
Majority of such petitions are filed by the sufferers or family members or their
caretakers. The caregiver's burden is huge and cuts across various domains
such as financial, emotional, time, physical, mental and social. Hence, it is
uncommon to hear requests from the family members of the person with
psychiatric illness to give some poison either to patient or else to them.
 Refusing care: Right to refuse medical treatment is well recognised in law,
including medical treatment that sustains or prolongs life. For example, a patient
suffering from blood cancer can refuse treatment or deny feeds through
nasogastric tube. Recognition of right to refuse treatment gives a way for
passive euthanasia. Many do argue that allowing medical termination of
pregnancy before 16 wk is also a form of active involuntary euthanasia. This
issue of mercy killing of deformed babies has already been in discussion.
 Right to die: Many patients in a persistent vegetative state or else in chronic
illness, do not want to be a burden on their family members. Euthanasia can be
considered as a way to upheld the ‘Right to life’ by honouring ‘Right to die’ with
dignity.
 Encouraging the organ transplantation: Euthanasia in terminally ill patients
provides an opportunity to advocate for organ donation. This in turn will help
many patients with organ failure waiting for transplantation. Not only euthanasia
gives ‘Right to die’ for the terminally ill, but also ‘Right to life’ for the organ needy
patients.

13
Aruna Ramchandra Shanbaug vs. Union of India & Ors.
Case : Common cause (A registered society) vs. Union of India and Anr.

Facts
In this case, the writ petition sought a decision that, in accordance with Article 21, the
‘right to live with dignity’ included the ‘right to die with dignity’ as well as a guarantee
that those in a vegetative state or who are terminally ill might sign a living will or an
Advance Medical Directive.
While this case was initially placed before a three Judge Bench, in light of contradictory
precedents in determining the law relating to the right to die in India, it was referred to a
Constitution Bench.
Issues
A total of 5 issues were framed in the case of Common Cause v. Union of India. These
issues are as follows
1. Whether passive euthanasia and active euthanasia are different from each other?
2. Whether the right to die in dignity falls under the umbrella of the right to live with
dignity protected by Article 21 of the Constitution?
3. Whether in India, individuals are allowed to include passive euthanasia in their
living will?
4. Whether there exists any recommendation by the Law Commission of India
concerning the use of euthanasia as a means to end the sufferings of patients?
5. Whether there exists any right provided to the individual for stopping the medical
treatment of the person or for removing the life-supporting equipment from the
individual leading to death?
Judgement
The Court reaffirmed that the right to die with dignity was a fundamental right, as
declared by a Constitution Bench of the Supreme Court in the case of Gian Kaur. The
Court also clarified that the ratio of Gian Kaur did not introduce the concept of passive
euthanasia. The Court discussed the distinction between active and passive euthanasia,
where active euthanasia requires an overt action, whereas passive euthanasia is the act
of withdrawal of life support. It held that the Court in Aruna Shanbaug had erred in
holding that passive euthanasia could only be introduced through a legislation.
In relation to the topic of living wills, the Court held that there was clear indication of the
acceptance of the concept of Advance Medical Directives in this country. It further
stated that the right to execute an Advance Medical Directive was a step towards the
protection of the right to self-determination and bodily integrity. In the case of patients
who were unable to take an informed position on the matter, a ‘best-interest’ position
could be applied, allowing a guardian to step in and take this decision on their behalf.
The case extensively discussed the right to privacy as explained in the case of Justice
K.S. Puttaswamy vs. Union of India14 and its relation to autonomy and liberty. The Court
relied on excerpts from all six judgments in this case. In addition to Indian cases, the
Court also examined judgments from foreign jurisdictions, and discussed the
relationship between the right to privacy and its implications for euthanasia.
The Court relied upon the judgement In re Quinlan15 where the New Jersey Supreme
Court held that as the prognosis of the patient dimmed, the state’s interest grew weaker,
and the right to privacy of the individual with respect to their bodily autonomy grew
stronger. If the individuals themselves were not in a position to assert their privacy, this
could be done by a guardian on their behalf. It also relied upon the judgement by the
European Court of Human Rights in the case of Pretty vs. The United Kingdom16 where
the Court concluded that an individual had a choice to avoid what they consider an
undignified and distressing end to their life, and that such a choice would be guaranteed
under the right to respect for private life under Article 8(1) of the European Convention
on Human Rights.
The Court opined that the right to privacy mandated safeguarding the integrity of
individual choice in the intimate sphere of decisions relating to death and held that the
protection of these rights was an emanation of the right to privacy, as they were related
to the fundamental right to life and personal liberty guaranteed by the Constitution.

Conclusion
It should be kept in mind that a dying man has the right to pass away with dignity when
his life is on the verge of ending. Also, speeding death in order to shorten the suffering
time for a person who is terminally sick or in a persistent vegetative state (PVS), when
there is no chance of recovery, is in accordance with the right to a dignified life. The
Supreme Court’s reconsideration of the issue is a welcome step. It’s highly likely that
even the recently updated rules may eventually need to be changed, but making things
simpler for consent providers without raising the possibility of abuse of this major
decision by the Apex Court, must be the guiding principle. As a result, I’ll sum up these
lines from the late Japanese author Haruki Murakami, “death is not the antithesis of life;
it is a part of it.”

14
2017 (10) SCC 1
15
70N.J.10; 355 A.2d 647 (1976)
16
Application No. 2346/02