In behalf of Aruna shanbaug, a K.E.M.

In case euthanasia is decriminalised and made permissible under the law, a sixth exception to Section 300 of I.P.C. will have to be added stating that culpable homicide shall not be a crime if it is a case of euthanasia granted to a person under the rules framed by the State.

It must be stated that even the protagonists who are in favour of legalising euthanasia have expressed a view that it should be permitted in extreme exceptional cases where there is no chance of survival of a person or where his pain and suffering are incurable.

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They have suggested constitution of an expert committee consisting of medical experts, social workers headed by District Judge to consider whether the case before them is a fit case to be granted permission for euthanasia. This, in their view, will eliminate the possibility of abuse of legalisation of euthanasia.

However, the issue has been decided by the Supreme Court in its landmark decision handed down on March 7, 2011. Disposing of the petition filed by one Pinky Virani on behalf of Aruna shanbaug, a K.E.M. Hospital (Mumbai) nurse seeking permission for mercy killing as she was sexually assaulted by a ward boy of that hospital 37 years ago and was permanently in a vegetative state (PVS) throughout this period.

Court has finally settled the debate regarding the validity or otherwise of euthanasia once for all Dismissing the plea for subjecting to mercy killing of the nurse Aruna, the two Judge bench of the court (Justice Katju and Gyan Sudha Mishra) in its 141-page ruling allowed “passive euthanasia” for permanently vegetative patients or withdrawing life support but rejected outright active euthanasia of ending life through administration of lethal substances.

The court observed, “a person attempts suicide in a depression and hence needs help, rather than punishment. Justice Markandeya Katju, held that “though there is no statutory provision for withdrawing life support system from a person in a permanently vegetative state, passive euthanasia could be permissible in certain cases.”

The Apex Court laid down a set of tough guidelines under which passive euthanasia could be legalised through a High Court monitored mechanism. The Court asserted that these guidelines could now become the law of the land until the parliament enacts a suitable legislation to deal with the issue. The Bench also directed the Parliament to delete Section 309 which penalises attempt to commit suicide as an offence, as it has become ‘anachronistic’ though it is presently constitutionally valid.

Finally, disallowing mercy killing petition of Aruna Shanbaug, the Supreme Court held that it could be permitted if the Mumbai King Edward Hospital moves a petition to the High Court of Bombay on her behalf and the High Court accepts it.

Thus, distinguishing between passive and active euthanasia, the court left it for the High Courts to decide after hearing the family member’s plea and the medical panel’s opinion in case of terminally ill patients who have no hope of cure and who would welcome termination of their sufferings.

It may be noted that Netherlands was the first country in the world to legalise euthanasia (mercy killing) after the controversial law on euthanasia came into force on April, 2001. The legislation allows patients experiencing unbearable suffering to request for euthanasia and doctors who carry out such mercy killing to be free from the threat of prosecution provided they have followed strict procedures.

However, the U.N. Human Rights Committee is not convinced that the Netherland system can prevent abuses such as pressure being exerted on patients. One of the Dutch doctor’s commenting on legalisation of mercy killing said, “for many terminally ill people, the fact that they can choose to die is an immense consolation.”

In Australia, the Northern Territory had legalised euthanasia way back in 1996 but the legislation had to be overturned nine months later due to bitter opposition.

In U.S.A. euthanasia is decriminalised as is evident from the case of McKay v. Bergstedt, wherein a patient had filed a petition in the District Court of the Nevada State permitting disconnection of his respirator as he was totally fed up with life and wanted to survive no longer. The District Court granted him permission against which the State filed an appeal in the Supreme Court of Nevada.

The Court affirmed the majority decision of the District Court and held that every person has the constitutional and common right to discontinue unwanted medical treatment and therefore, withdrawal of respirator from the patient would not amount to suicide. Thus the Court recognised the act of mercy killing or euthanasia in extreme cases of unwanted survival.

Americans are engaged in an earnest debate on morality, legality and practicability of physician-assisted suicide (PAS). Although the Oregon Death with Dignity Act was passed in 1994 but it had to be withdrawn in 1997 due to legal conflicts. The other States also tried to bring such a law but have not succeeded due to public opposition. The main objection to physician-assisted suicide (PAS) is that it violates the Hippocratic Oath “do no harm”.

Secondly, it will carry an impression among the public mind that doctors will become part-time executioners. But those who favour euthanasia argue that helping a terminally ill patient to die is compatible with love, kindness and compassion. It will benefit the patient and not harm him.

For example, if a person donates his kidney to his sick brother, no one would accuse the surgeon of having harmed the donor by removing his vital organ. In fact, removal of kidney would give greater satisfaction to the donor than the physical harm caused to him. Therefore, it is fallacious to think that if a doctor helps a patient to end his life, it infringes his oath ‘do no harm’. Oath as such has lost all its credence in the present time.

Thus it would be seen that the global debate whether euthanasia should be legalised or not, has evoked great concern among law experts and social scientists. The protagonists who are in favour of legalisation of euthanasia argue that it will ‘enable dignified exit from the misery and misfortune of the deadly diseases’.

According to them, it would be noble act to get salvation from the slow and painful death. In support of their contention, they cite Gandhiji who preferred a cow suffering from some deadly and incurable disease to be killed rather than allowed to be left suffering.

There are instances when life ceases to have any meaning for patients awaiting death who reach a stage where life becomes worse than the death. For this reason, euthanasia should be legalised for the sake of humanity. The recent judgment of the Supreme Court of India in Arum Shanbaug’s case’ is indeed a welcome step in the right direction.

Those who are against legalisation of euthanasia contend that it will mean “legalisation of murder” hence criminals would abuse or misuse this and the police and the law would be of no relevance then. According to these critics, “merciless living is better than merciful killing”.

They argue that when you cannot give life to someone, you have no right to take away his life. Moreover, the serious dreaded diseases such as T.B. Small pox, Cancer and even Acquired Immune Deficiency Syndrome (AIDS), which were potential causes for euthanasia have no longer remained incurable therefore, there is no need to legalise euthanasia.