Euthanasia Judgment: Introduction

Supreme Court of India in its recent euthanasia judgment has included the right to dignified death by withholding/withdrawing medical treatment in case of terminal illness as part of article 21 of the Indian constitution. The terminal illness should be such that requires prolonged treatment or subjection to life support systems with incurability or no hope of curability. The above exercise of choice to die is commonly known as passive euthanasia.

Further, the supreme court has issued directions/guidelines for recognition and exercise of this right through advance consent or through the consent of the next friend/close family. The directions/guidelines have been issued u/a 142 of the constitution r/w Vishakha judgment. In the past, when a similar judgment was rendered in Aruna Shaunbaug case, I had criticized the judgment as illegal. I can undertake a similar exercise again thereby reaching a similar conclusion but am not interested in obfuscating the momentous question of ethical validity of euthanasia in legal niceties.

I made a terse tweet yesterday commenting on the judgment. The same can be expanded to reach a conclusion similar to the one I reached in Aruna Shaunbaug. I am reproducing the tweet below, but, as already stated, I have no interest in legally analyzing this judgment.

Euthanasia Judgment: The Momentous Question

The momentous question is of course the ethical validity of passive euthanasia. I believe in manifestation of dignity through self-determination, not only in humans but also in animals, plants and even robots. I also believe privacy, as understood as a right to create and protect a zone of repose for making self-determining choices, as an essential ingredient of dignity and vice-versa.

Passive euthanasia giving a choice to an individual to make a decision about non-continuation of life is certainly part of dignity and privacy both, but the important question is whether appropriate information would be available to the individual making the choice. Is it possible for an individual to make a choice about withdrawing/withholding of treatment without experiencing the terminal illness himself in his own unique circumstances? Can such a choice be made in advance through a “living will” on the basis of academic knowledge of sufferings undergone in life support systems or prolonged treatments? Furthermore, is the academic knowledge sacrosanct? 

If the answer tot he questions above is in negative, the advance consent of an individual would be always subjected to the judgment of assumed guardians. It may be in the form of the judgment of the state, the physicians or the next friends/guardians. In the present context too, the supreme court has not recognized the concept of a “living will”. It has made the advance consent of an individual subject to the judgment of the physicians, the executive through the collector concerned, the judiciary through the judicial magistrate concerned, and the guardian/close relative/next friend.

In fact, the procedure laid down is so cumbersome and long-winded that the guardian/close relative/next friend would find it more convenient to withdraw consent — unless, of course, he has some vested interest in the death of the individual. I don’t think there is any exercise of a choice to die thorough such a cumbersome procedure. If at all, there is only one instance when an individual would be able to exercise this right himself, and that would be when, though terminally ill, he would be in a position to withdraw or confirm the consent at the time of the illness, without any prejudice emanating from his psychological condition, ignorance, etc.

The very concept of an individual precludes the exercise of his right through another person. The State can definitely not substitute for an individual with respect to the exercise of his right to life when it has no power to grant or deny life post the privacy judgment. It is unfortunate but the truth is that the precious right to life extending to right to die vide passive euthanasia, is but non-executable, except in one instance stated above.

The judgment also provides for instances where no advance consent has been formulated. I need not argue separately with respect to it, for all that is stated above will apply with full force in case of substitution of an individual’s consent by that of a guardian/close family/next friend.

The above situation has arisen because the supreme court has failed to understand the concept of death per se. Survival is a decision of a free conscious-mind, but extinction is forced by external factors. So, I don’t think there is a crystalized right of individuals to die as the decision to die is never made in a zone of repose. Of course, I have contradicted myself with respect to what I stated above earlier but only to a salutary effect.

Passive euthanasia to avoid suffering also emanate from the inability of the society of physicians to ameliorate the suffering of individuals. However, physicians can’t be punished for this inability by taking away their precious right to save lives. Yes, saving lives is not a duty but a right of physicians u/a 21 of the constitution, which right has been taken away by this judgment through unfortunate misinterpretation of death.