Shubham Mehta
It happened in the year 1973. Aruna Shanbaug couldn’t speak no more nor could she move. She was completely unaware that she was still breathing life. She had reached the stage of terminal illness or persistent vegetative state, as it is called. What led to her being found in such a state now, was a sexual assault on her by her fellow ward boy. Aruna was a nurse and was working in King Edward Memorial Hospital, Mumbai.
When every available medical intervention had lost all the hope to spring her back to life from the state of terminal illness, she was kept on life support system by doctors, only to prolong the number of breaths of this unconscious mind and soul. An activist-journalist Pinki Virani had supported her family in every possible manner in the hope of resurrecting this soul back to life, one fine day. But in vain. Pinki Virani approached the Supreme Court in 2010 with a plea to ask if Aruna could be administered with drugs paving way for euthanasia, citing her special medical condition(vegetative state) and ensuring her the ‘Right to die with dignity’. The PIL was based on the premise that any analytical mind would perceive that Right to die with dignity should form part of the ‘Right to life and personal liberty’ under Article 21 of the Indian Constitution.
This was one of its kind case to be heard by the apex court in its Constitutional history. After long marathons of arguments, patient listening and counter arguments, Supreme Court arrived at the conclusion, in 2011, that Aruna Shanbaug could be administered ‘passive euthanasia'(because of her special medical condition), under the supervision of a medical board who would be apprised of her condition after every stage in the process of removing her life support system. But this judgement failed to make any dent on the emotional psyche of Aruna’s family members and they refused to administer her euthanasia.
And hence active or passive euthanasia (assisted suicide), still, has never been implemented in practice in India. Doctors remain skeptical to administer it and about the process that entails it since they have commenced practicing medicine after taking oath of protecting their patient to their last breath. But their skepticism and denial to administer euthanasia and the societal pressure on family memebers, on the other hand, invited flurry of litigations at the doorstep of SC to ascertain if Aruna Shanbaug’s judgement could be utilised for other similar cases or does the permission to enforce it come with some rider? Whether the Right to die with dignity constitutionally and legally forms part of the Right to life and personal liberty under Article 21 of the Indian Constitution? Whether Active euthanasia is also allowed? Who would determine if the patient should be administered euthanasia or not when s/he herself/himself is lying down in terminally ill state unable to express his/her autonomous choice? Does the Right to die with dignity applies only to patients in terminally ill state or does this equally apply to any other ordinary citizen who might foresee in his/her old age, the critical medical illness and sufferings that s/he might be faced with during the last days of his/her life(if s/he has insufficient financial resources and no offspring to take care of)? And last but most importantly, would it not amount to a conflict with sections 305, 306 and 309(in case of active euthanasia) of IPC?
This was definitely a hard nut to crack. Lately, SC took its time and utilised the services of its constitutional bench to arrive at the conclusion, a few days back. The judgement has explicitly stated that Right to die with dignity forms part of the right to life and personal liberty. It also said that only ‘passive euthanasia’ would be allowed to be administered and that too, only to those patients who have reached the ‘terminally ill or persistent vegetative state’. It further said that patients can provide ‘advance directive’ or a ‘living will’ or nominate a relative or acquaintance who would be authorised to take decisions on their behalf when they themselves turn incompetent(transfer the power of attorney). This complete process would be carried out under the supervision and monitoring of a medical board. The judgement has resulted in maelstrom of reactions whereby while the doctors have hailed the judgement as a step in the right direction, many have cautioned on its susceptibility to be ‘misused’.
Breaking down the medical jargons
At the outset, it is important to know that terminally ill or persistent vegetative state is a disorder of consciousness in which patients with severe brain damage are in a state of partial arousal rather than true awareness. Next up, Active euthanasia occurs when the medical professionals, or another person, deliberately do something that causes the patient to die. Passive euthanasia occurs when the patient dies because the medical professionals either don’t do something necessary to keep the patient alive, or when they stop doing something that is keeping the patient alive which includes switching off life-support machines or disconnecting a feeding tube et al. Former involves deliberately ending the life a person(healthy citizens included) or committing suicide while the latter calls for a mere acceleration of the inevitable conclusion. Living wills and advance directives describe your preferences for end-of-life care. These documents speak for you when you’re not able to speak for yourself. Advance directives guide choices for doctors and caregivers if you’re terminally ill, seriously injured, in a coma, in the late stages of dementia or near the end of life.
Supreme Court treads a meticulous path
It is to be noted that SC has penned down its judgement along with some riders taking account of the conditions prevailing in the Indian Society. Foremost, it has not allowed active euthanasia. Being well aware of the Indian societal conditions, SC stated that Active euthanasia is liable to be misused. Or perhaps the judges took note of the words of Niccolo Machiavelli, that a person might forget the death of his/her father but can never forget the loss of patriarchal property. In addition, the procedure could be kicked into action only when the treating physicians and the family members know fully well that the treatment is administered only to procrastinate the continuum of breath with no hope of recovery and the patient is not even aware that s/he is breathing. Justice Chandrachud was of the opinion that the quest for prolonging life is as important as the quality of life. Unequivocally, One is meaningless without the other. He further asserted that advancement in medical treatment should not deprive the person of his/her right to self-autonomy. The SC judgement on Right to privacy in KS Puttaswamy case is a case in point to further the narrative on the right to technological self-autonomy.
Albeit the constitution bench allowed for ‘living wills’ but not without adequate safeguards. It described who can make it, its contents and procedure to approve of its authenticity. SC ruled that only an ‘adult with a sound and healthy mind’ should ‘execute it voluntarily based on informed consent’ in ‘clear and unambiguous terms’. The contents must specify the circumstances in which the treatment should be withdrawn and name the guardian who will give the go-ahead to initiate passive euthanasia. Furthermore, the will shall be attested by two witnesses and counter-signed by a first class judicial magistrate. The magistrate shall preserve one hard copy and one soft copy each and forward them to the district court registry. A copy shall also be given to a local govt. official who shall nominate a custodian for the will.
Marching Ahead
This complete exercise can be considered as yet another act of judicial activism and utilisation of SC’s powers under Article 142 to broaden the jurisprudence on the subject by giving legal recognition to ‘living will’. Meanwhile, till the time the legislature comes up with a definite law on the subject, this judgement would fill the lacunae in determining the conception of meaningful existence providing for the Right to die with dignity. The government says that it is already in the process of drafting the provisions of the Passive Euthanasia bill but at the same time is wary of the idea of ‘living will’.
Since the time this judgement has been passed, many old couples with no offsprings have snubbed this judgement for its lack of utility in their own respective cases. This is so because passive euthanasia kicks in only when the person is suffering and the judgement does little to prevent the end-of-life sufferings which many elderly believe is inevitable in their case citing lack of finance or guardianship to take care of their treatment. The idea of palliative care centres or hospices might augur well for such citizens. Because what a person definitely needs during the last days of his/her life is not assisted suicide but a little care and someone to ask for their well-being when they have already transmitted their cultural values to the new generation.
(The author is a graduate of Birla Institute of Technology and Sciences, Pilani)
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