Beyond passive euthanasia: Reassuring the right to die withdignity under article 21 of the constitution of India

Authored By: Vanshdeep Kaur

Christ University

INTRODUCTION

Let us consider a situation where there is a girl who has gone through an attack leading to brain injury that makes it impossible for her to eat or even drink anything because of inability to swallow. She is in a coma state without any hope for recovery. The parents, observing the pain their daughter is going through, decide to allow her to die with dignity since they have no hope for her. But the stringent measures required for this end make it difficult.

The legal dilemma presented here is whether or not the State should protect life at any cost, or give people the right to die with dignity when there is no hope for recovery.

As the technology and science of medicine have progressed, it is possible for humans to extend their life artificially. This has resulted in saving several lives although the chances of recovery from such conditions might be bleak. But what is the main legal issue here? Whether the life of an individual must be extended irrespective of the desire of the individual towards a dignified death. There are four key factors involved in the discussion on euthanasia and they are medicine, law, ethics and moral dignity.

“Euthanasia” means good death as ‘EU’ means good in Greek language and ‘Thanatos’ means death. Hence, the literal meaning of euthanasia is “good death”. Euthanasia is also known by another name “Mercy Killing”. In this case, people who are in the condition of PVS (Persistent Vegetative State) or are dying are deprived of artificial life supporting system in order to let nature take its own course and bring about death. There are two kinds of euthanasia in general. They are active euthanasia and passive euthanasia. Passive euthanasia is legalized in India but active euthanasia is not.

The controversy regarding euthanasia can be seen in light of the areas of medicine, law, ethics and human dignity. The Indian constitution in article 21 has the right to life with dignity and this right has further been interpreted by courts as the right to die with dignity in certain exceptional circumstances.

This article therefore examines whether India’s existing legal framework truly protects this constitutional right or merely recognises it in theory.

EVALUTION OF EUTHNASIA LAW IN INDIA

Throughout human history, Indian civilisation and human philosophies have shaped the ideas of human life and death. In Indian philosophy, the Bhagavad Gita explains us about the Atman, which means the soul. It is written that the soul is never born, nor does it ever die. There is a belief in the immortality of the soul, not of the human body. People back then believed in natural death, as medical science was not advanced enough to artificially prolong life.

Further, if we compare Indian philosophy with Western philosophy, it is to be noted that Plato also believed that the soul was immortal but not the human body. Later came Immanuel Kant, who believed more in the moral duty to respect human life. According to the Kantian perspective, using the Categorical Imperative, his principle of universalizability applies to whether ending life to relieve suffering can be accepted as a universal principle while upholding the right to die with dignity.

One such case was Gian Kaur v. State of Punjab which was delivered in 1996. In this case, the constitutional validity of Article 21 (no person shall be deprived of his life or personal liberty except according to procedure established by law) as well as Section 306 and 309 of the Indian Penal Code was questioned. (While Article 14 of the Constitution does not define the word ‘state’, Article 12 does). According to the facts of the case, Gian Kaur and her husband Harbans Singh were found guilty for abetment of suicide of their daughter-in-law. It has been argued in this case that in a previous decision in P. Rathinam, the Supreme Court has already held that attempt to commit suicide in violation of Section 309 IPC is no offense. Therefore, the abetment of suicide cannot be an offense either.

Nevertheless, in the case of Gian Kaur v. State of Punjab, the court reversed its earlier judgment in P. Rathinam and observed that Article 21 does not grant any “right to die” in the domain of the right to life. Furthermore, it has also upheld the constitutional validity of Section 309 IPC. Hence, abetting someone’s suicide cannot also be an offense.

Moreover it should be noted here that in another case of Gian Kaur v. State of Punjab, the Court has taken an opposite view regarding Article 21 of the Indian Constitution, and held that there is no such right of “right to die” in any person under Article 21. The Court has also held the constitutional validity of Section 309 IPC. However, one thing needs to be mentioned here that even in this case, the court didn’t legalize euthanasia.

Aruna Shanbaug was a nurse who worked at the King Edward Memorial (KEM) Hospital, Parel, Mumbai. She was raped and severely tortured by a sweeper in the hospital on 27 November 1973, and Aruna stayed in a coma for 36 years. She later died at around 60 years of age. The only request made by the petitioner was to stop feeding Aruna artificially and allow her to die peacefully. However, the Hon’ble Supreme Court did not allow passive euthanasia for Aruna, as the staff at KEM Hospital wished to continue her treatment, even though recovery was impossible, and did not support withdrawing life support. This was the first landmark judgment to lay down the legal procedure for passive euthanasia in India. The Court held that a decision taken solely by family members or doctors would not be sufficient. Approval of the High Court was mandatory, and the High Court was required to appoint a committee of medical experts before granting permission. These safeguards were introduced to prevent any possible misuse. This case has also played an important role in widening the scope of Article 21, wherein the right to life was said to include the right to dignified life up to the end of life.

Influence of this case on the laws can be determined by one more landmark decision passed by the Court of Common Cause v. Union of India, in which the laws formulated by the Court in Aruna Ramachandra Shanbaug v. Union of India were drastically changed. The specific landmark decision is the fact that in this particular case, the Supreme Court of India held that the right to die with dignity was an integral part of Article 21 of the Indian Constitution. The court also went ahead and recognized the legality of advance directives.

Moreover, the 2023 judgment further helped in reducing the procedural hurdles involved in implementing passive euthanasia and modified the process relating to medical boards and certification. Earlier, a living will have to be signed before two witnesses and countersigned by a Judicial Magistrate First Class (JMFC). However, in 2023, the requirement of obtaining the JMFC’s countersignature was removed. Further, while the earlier procedure involved multiple approvals and made the process lengthy, the present framework requires the opinion of only two medical boards (a Primary Medical Board and a Secondary Medical Board) thereby making the implementation of passive euthanasia more practical while continuing to safeguard against misuse.

Comparative Analysis: India and the Netherlands

Dutch law allows both active and passive euthanasia, whereas in India, passive euthanasia has been allowed but there has not been any provision for active euthanasia. Legal provisions related to euthanasia have been provided under the Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 2002. As per Dutch law, the demand for euthanasia should be voluntary from the side of the patient, and if the demand is not made by the patient himself, then that request is not entertained as it could be forced by someone else. Euthanasia may also be provided to minors from the age of 12, subject to certain conditions. The child must be aware of their medical condition and capable of understanding the consequences of the decision. In the case of children between the ages of 12 and 15 years, parental consent is also required. A voluntary and well-considered oral request for euthanasia is considered legally sufficient under Dutch law.

Similar to the concept of a living will in India, the Netherlands identifies an advance directive. Where a person is mentally capable, he/she may execute an advance directive wherein he/she states that in case at some point in time he/she is not able to make his/her wishes known due to an illness or any other reason, this document can be taken into account while considering the application for euthanasia. The idea of a living will would be acknowledged in India in the Supreme Court Case of Common Cause v. Union of India.

Belgium and India

In 2002, euthanasia was legalized in Belgium. Later on, the law pertaining to euthanasia was amended in such a way that even minors were eligible for euthanasia, although subject to very stringent conditions. Similar to the Netherlands, the rule of thumb is that only the patient him/herself can ask for euthanasia; no other person is permitted to do so on his/her behalf.

Different from Belgium, there is no specific legislation governing euthanasia in India. India still depends upon the guidelines issued by the Hon’ble Supreme Court. The primary distinction is that, while Belgium recognizes active euthanasia, India allows only passive euthanasia.

United Kingdom and India

The debate on euthanasia dates back to Ancient Greece and Rome when philosophers engaged in the discussion on the nature of life and death. The contemporary debate began due to the discovery of ether as an anaesthetic and the discussion of alleviating the pain that comes with dying. Samuel Williams proposed in 1870 that the use of anaesthetics and morphine be used to terminate life deliberately among individuals suffering from intolerable pains and illnesses with no prospect of recovering. In the following decades, the debate on euthanasia persisted in various countries. Among the early efforts made for the legalization of euthanasia was the Ohio Bill of 1906 in America although this effort was unsuccessful.

The act of euthanasia is illegal in the United Kingdom and is criminal according to the laws of the land. However, the decision in Airedale NHS Trust v. Bland in 1993 became one of the landmarks in this issue because this decision made it possible to remove life-support treatment in some cases. This decision eventually influenced the decision of Aruna Ramachandra Shanbaug v. Union of India on passive euthanasia under judicial control.

CHALLENGES AND LOOPHOLES

India being a diversified and secular country implies that there are many different religions as well as moral values, based on the belief systems. Almost all the major religions, such as Islam, Judaism, Christianity, and Hinduism, forbid euthanasia. They regard life as something very precious and a divine gift, thus committing suicide is unacceptable for these religions. However, certain followers of the Hindu religion perform Prayopavesa, which means fasting till death spiritually. Thus, it complicates the issue. In the majority of religions, causing someone’s death is prohibited, and therefore, this influences the views and believes regarding euthanasia.

Another aspect to consider here is a low level of awareness among people. In India, especially in its rural regions, many people do not know about euthanasia and living will at all. Relatives and families usually learn about these issues when there is an emergency case with a patient. In most cases, when people learn about euthanasia, the patient in a vegetative state cannot express his desire to die anymore.. Due to this, very few people are able to execute living wills.

The hurdles of getting euthanasia do not stop here; they go beyond public awareness because there are still many legal complexities. Even after the 2023 judgment in Common Cause v. Union of India, the procedure remains lengthy. One of the main reasons for the delay in decisions is the requirement of multiple medical evaluations. Smaller hospitals struggle even more, as they are required to constitute the necessary medical boards before permission can be granted.

In addition to this, doctors are worried about prescribing euthanasia because that could be held against them in legal terms. It is said there is a vow known as the Hippocratic Oath that doctors have to take. In this oath, it says, “I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect.” This is why most of the doctors discourage euthanasia and support life-saving treatments. At the same time, when life is prolonged artificially despite there being no possibility of recovery, doctors themselves face an ethical dilemma.

In addition, one other issue that comes into focus is that of misuse. Elderly individuals who may have become dependent either physically or financially on their family members might sometimes be coerced to kill themselves. In such scenarios, an interesting question arises regarding whether the existing laws are adequate for ensuring that only qualified patients receive euthanasia. India still does not have a single independent legislation dealing with euthanasia or the complete procedure for medical assessment. Furthermore, India has very few palliative care centres. Palliative care centres refer to health centres that ease the pain of their patients both psychologically and medically. Based on a study done in the year 2024, India has only 526 operating palliative care centres, which implies that there are only 4 palliative care centres per 10 million population. It was also discovered that fewer than 4% of people in India requiring palliative care get any at all. In cases where individuals do not receive the right treatment from the palliative care centres, they exercise their right to die with dignity.

CONCLUSION

The principle of euthanasia has now developed from a mere matter of morality and philosophy to an issue of significance from a constitutional and legal perspective. In India, the judiciary has been very involved in identifying the right to die with dignity in accordance with Article 21 by way of several judgments such as Gian Kaur v. State of Punjab, Aruna Ramachandra Shanbaug v. Union of India, and Common Cause v. Union of India.

However, despite all the advancements witnessed through the judiciary, some problems are yet to be solved. In the absence of a complete legal framework, inadequate public knowledge, lack of access to palliative treatment, complexities involved, ethical dilemmas, and the potential misuse are some of the factors that hinder the proper application of the right to die with dignity. Comparison to countries like the Netherlands and Belgium further proves that India lacks an independent statutory law in this respect.

Thus, it is crucial that Parliament enacts a complete legislation governing euthanasia with due safeguards being provided to the weak. However, increased awareness among people, good availability of palliative care, and proper implementation of the guidelines currently existent should also be given equal importance. Not only does the right to life as mentioned in Article 21 mean protection of life but the ability of every citizen to lead a dignified life until death.

REFERENCE(S):

Table of Cases

Aruna Ramachandra Shanbaug v Union of India (2011) 4 SCC 454.
Common Cause (A Regd Society) v Union of India (2018) 5 SCC 1.
Gian Kaur v State of Punjab (1996) 2 SCC 648.
P Rathinam v Union of India (1994) 3 SCC 394.

Books

Dworkin R, Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (HarperCollins 1993).

Journal Articles

Geographic Accessibility of Palliative Care Services in India (2024) BMC Palliative Care https://pubmed.ncbi.nlm.nih.gov/41694154/
Tiwari N, ‘The Jurisprudence of Dignity: A Comprehensive Analysis of Passive Euthanasia in India’ (2026) 9(1) Indian Journal of Health and Medical Law https://lawjournals.celnet.in/index.php/ijhml/article/view/2046

Reports