2.
3. Right to die- " To be or not to be?"
In the advent of delving into what has unfurled into one of the most controversial issues that could have tremendous ramifications on basic ethical concepts and most importantly, the sanctity of life…. The precious words of Thomas Jefferson strike a chord.
"The care of human life and happiness and not their destruction is the first and only legitimate object of good governance."
In juxtaposition, the words "Right to Die" evoke an exactly opposite sentiment. How can it be a right if you are using it to give up your rights? The above right has been used as a guise or a camouflage to include various concepts that are opposed to preservation of life. Euthanasia, Physician Assisted Suicide (PAS), Suicide, though conceptually different, are species of the same genre.
The Indian Perspective:
In India, the sanctity of life has been placed on the highest pedestal. " The right to life" under Article 21 of the Constitution has received the widest possible interpretation under the able hands of the judiciary and rightly so. This right is inalienable and is inherent in us. It cannot and is not conferred upon us. This vital point seems to elude all those who keep on clamoring for the "Right to Die".
The stance taken by the judiciary in this regard is unquestionable.
In Gian Kaur vs. State of Punjab, a five judge Constitutional Bench held that the "right to life" is inherently inconsistent with the "right to die" as is "death" with "life". In furtherance, the right to life, which includes right to live with human dignity, would mean the existence of such a right up to the natural end of life. It may further include "death with dignity" but such existence should not be confused with unnatural extinction of life curtailing natural span of life. In progression of the above, the constitutionality of Section 309 of the I.P.C, which makes "attempt to suicide" an offence, was upheld, overruling the judgment in P. Rathinam's case.
The factor of immense significance to be noted here is that suicide, euthanasia, mercy killing and the like amount to unnatural ebbing of life. This decision thereby overruling P.Rathinam's case establishes that the "Right to life" not only precludes the "right to die" but also the right to kill."
Interestingly in P.Rathinam's case, even when a Division bench affirmed the view in M.S Dubal v. State of Maharashtra that the "right to life" provided by the Constitution may be said to bring into its purview, the right not to live a forced life, the plea that euthanasia be legalized was discarded. It was held that as euthanasia involves the intervention of a third person, it would indirectly amount to a person aiding or abetting the killing of another, which would be inviting Section 306 of the I.P.C.
In Naresh Marotrao Sakhre v. Union of India, Lodha J. affirmed that "Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is effected."(Emphasis added).
The above inferences lead to one irresistible conclusion i.e. any form that involves unnatural termination of life, whether an attempt to suicide, abetment to suicide/assisted suicide or euthanasia, is illegal. The fact that even an attempt to suicide is punishable goes to show the extent of credibility accorded to the sanctity of life and the right to life as a whole. This apart, the decriminalization of euthanasia is unworkable in the Indian perspective, even on humanitarian grounds, as it involves a third person.
Though, there has been no legislation pertaining to euthanasia in India, the term keeps on coming back for public approval like a recurring decimal.
An impracticable solution:
The implication of the term "euthanasia" is itself shrouded in ambiguity. Derived from the Greek word "euthanatos" meaning "good death". To reiterate the judicial pronouncements in the Indian context, good or happy death would imply the ebbing of life the natural way.
In its earlier form, it was used as an omnibus term to signify a painless death. In its modern context, the term is used a deliberate euphemism to reduce the culpability of an act". an act which is a subset of murder, by injecting the term "mercy". The fact remains" Euthanasia/ Mercy killing is about giving license for the right to kill.
Euthanasia is defined as an "intentional killing by an act/ omission of person whose life is felt is not to be worth living." The above attribution consequentially includes just about any one who has a suicidal impulse. Moreover the term "person" is inclusive of any and everybody and is not solely restricted to "patients." The legalization of the above would result in nothing but pandemonium.
There have been views propagating the practice of passive euthanasia (letting some one die) to be morally permissible and active euthanasia (killing someone), morally impermissible. It is submitted that these distinctions are irrelevant and unnecessary as t of both acts inevitably center around a single element- an intention to kill.
The above premise has been aptly summed up by Professor James Rachels5 who believes…. The active and passive dichotomy is a distinction without a difference.
Proponents and "Right to die" groups argue that, a patient in unbearable agony and excruciating pain or "terminally ill", the saving- grace is euthanasia on compassionate grounds.
It is submitted that the problem here is" the term "terminally ill" has no precise definition. For instance, Jack Kervorkian, a famous proponent of euthanasia, defined "terminal illness" as "any disease that curtails life even for a day". Some laws define "terminal" as one from which death will occur in a "relatively short time" or "within a span of six months".
The nub of the point is that all these definitions scream ambiguity and medical experts have acknowledged that it is virtually impossible to predict the life expectancy of a particular individual.
Interestingly, euthanasia activists have dropped references to terminal illness, replacing them with such phrases as "gentle landing", "hopelessly ill"' desperately ill" and "meaningless life."
It is reinforced that this issue hovers around an invaluable asset called "life". Just as a mistaken diagnosis is possible, so is a mistaken prognosis. It must be remembered that death is final and a chance of error too great to approve the practice of euthanasia.
Technology has come of age:
On the flip side of the coin, an undeniable transition is evidenced in the augmentation of medicine and technology. What was excessive in medicine fifty years ago may be ordinary and routine today. The idea here is that what is excessively burdensome and offers little hope for one may be less burdensome and more hopeful for a second patient in a different state of health.
A startling revelation...... Research has shown that ninety-percent of the pain can be alleviated by proper pain control methods. Appropriate care can make a huge difference. This goes to show that medicine and technological breakthroughs have a fitting reply to almost every problem and the extent of medical commitment is unassailable.
In contradistinction, if every terminal patient were prodded to a "gentle landing", impetus to research, which is the answer to curative medicine, would be foiled. If legalized, doctors would be forced to perform such acts against their consent that would amount to a violation of the Hippocratic Oath. Incidentally, it was as early as 400 B.C., when the renowned Greek physician stipulated in his Oath ........" I will give no deadly medicine to anyone if asked, nor suggest any such course."
The fact remains that the practice of euthanasia has been ostracized since time immemorial and Oregon, Belgium and The Netherlands are the only jurisdictions in the world where laws specifically permit euthanasia or assisted suicide.
It may be pertinent to mention that the most vital point is the repercussions that could take place once something as controversial is legalized. The matter is not an issue of force but an issue of the way laws can be expanded once something is declared legal. In India, where abuse of the law is the rule rather than the exception and where conniving relatives clamor to lap up an heirloom, the abovementioned argument holds great weight age.
To elucidate, in England, the House of Lords in Airedale NHS Trust v. Bland permitted non-voluntary euthanasia in case of patients in a persistent vegetative state. Subsequently, the Supreme Court of Ireland in Re A Ward of Court expanded the persistent vegetative state to include cases where the patient possessed limited cognitive faculties.
In Netherlands, the Supreme Court in a 1984 ruling held that euthanasia could be lawful only in cases of physical illness. However, a decade down the line, the Supreme Court in Chabot's case held that it could even extend to cases of mental illness.
Thus, there is evidenced a conceptual degradation of the right to live with dignity.
The sole qualitative argument in favor of euthanasia, is the fact that if procedures are stringent and foolproof and with proper mechanisms in place, then the legalization of the same could be effected in India. For instance, in The Netherlands the request for euthanasia should come only from the patient and be free, voluntary, and persistent; it should be the last resort and should be performed by a physician in consultation with an independent physician colleague who has experience in the field.
Poles Apart:
It is humbly submitted that the implementation of the above mechanism in India is utopian and thus the two situations incomparable. It is ironical to note that ninety percent of the patients succumb to death without receiving any primary health care. Thus the logical derivation of this aspect would be that India does not have an appropriate health-care mechanism in place, let alone foolproof procedures for euthanasia.
In the presence of the above bottlenecks and policing rampant in our country, the appropriate course of action would be to develop proper "care ethics", ensuring a "dignified existence and termination" of life. Let us augment the above and resultantly, the concept of euthanasia will be nothing but a distant reality.
All in all....... "No life that breathes with human breath has ever truly longed for death."
4. Right to Die - Legal and Moral Aspects Introduction:-
In my project I do not intend to give only the legal side of the right to die. I want to probe into the emotional side too. Because that is what it actually is. All the fundamental rights guaranteed to the citizens of India reflects our needs, our aspirations, our right to be able to do something and by defining its boundaries this right is curtailed which in turn curtails our desires.
What I do intend to tell you through this project is something which is my personal opinion. I consider myself as just any other person expressing my opinion on a burning issue and what I want to analyse is how will legalizing �right to die� affect me and the society I live in?For, at the end of the project I will have to admit that I am not in a state where I would want to die or ask for assistance for terminating my life so I can only empathies with those unfortunate people who are in that state and since I represent the masses I would be in a better position to paint the larger perspective-the common good which needs to be considerd before legalizing the right to die. But then again to understand the picture one has to know about the history, the whole reason why right to die and euthanasia suddenly emerged in India and why is it that till date the court refuses to legitimize it and the legislature refuses to legalize it. But my project's main focus is on: what will happen if right to die is legalized in India?
� We the people of India
Ours is a democracy which means that it is by the people, of the people and for the people. Constitution locates power that resides in the people. It is the people's power for people's benefit. Constitution creates rights and duties. All most all our demands get converted into rights-even our feelings, emotions is governed by the rights and duties we have.
Constitution is a social document. It is the society in its political aspect. We can't understand its nature without understanding the chief characteristics of the society. If the constitution is such that it has taken into its consideration, the social set up, then only will it stand the test of time. constitution and society grows, develops together and gets intertwined in each other. The constitution takes into account change and developments in the society. Instances of them are:-
a) Right to education: below the age of 14yrs has been guaranteed by Article 21-A. recent developments are about guaranteeing education in the technical, higher educational institutions.
b) Right to clean environment
c) Right to life : is widely interpreted to include the right to dignified living-this includes rights guaranteed to prisoners, inmates of protective homes, right to release and rehabilitation of bonded labourers , right to legal aid, and the right to know.
d) Right to go abroad.
e) Right to privacy.
f) Right against solitary confinement.
The aforesaid is enough to state that Article 21 has enough of positive content in it. the originating idea in this regard is the view expressed by Field J. in Munn v. Illnois, (1876) 94 US 113, in which it was held that the term 'life' (as appearing in the 5th and 14th amendments to the United States Constitution) means something more than 'mere animal existence'. This view was accepted by a Constitution Bench of this Court in Kharak Singh v. State of U.P., MANU/SC/0085/1962 to which further leaves were added in Board of Trustees Port of Bombay v. Dilip Kumar, MANU/SC/0184/1982 Vikram Dev Singh v. State of Bihar, MANU/SC/0572/1988; and Ram Sharan v. Union of India, MANU/SC/0406/1988. In these decisions it was held that the word 'life' in Article 21 means right to live with human dignity and the same does not merely connote continued drudgery. It takes within its fold "some of the finer graces of human civilization, which makes life worth living", and that the expanded concept of life would mean the "tradition, culture and heritage" of the concerned person.
It would be relevant to note the decision in State of Himachal Pradesh v. Umed Ram, MANU/SC/0125/1986. It was observed (here in paragraph 11 that the right to life embraces not only physical existence but the quality of life as understood in its richness and fullness by the ambit of the Constitution; and for residents of hilly areas access to road was held to be access to life itself, and so necessity of road communication in a reasonable condition was held to be a part of constitutional imperatives, because of which the direction given by the Himachal Pradesh High Court to build road in the hilly areas to enable its residents to earn livelihood was upheld. What can be more positive and kicking?
We may also refer to the article of Dr. M. Indira and Dr. Alka Dhal under the caption: "Meaning of life, suffering and death" as read in the International Conference on Health Policy, Ethics and Human Values held at New Delhi in 1986. This is what the learned authors stated about life in their article;--
"Life is not mere living but living in health. Health is not the absence of illness but a glowing vitality the feeling of wholeness with a capacity for continuous intellectual and spiritual growth. Physical, social, spiritual and psychological well being are intrinsically inter woven into the fabric of life. According to Indian philosophy that which is born must die. Death is the only certain thing in life."
Going by the above it is clear that this human dignity will be lost if on is left to suffer in old age, crippled and abandoned or in any point in our lives when we are suffering from a incurable disease. If Article 21 can be interpreted as has been done in many cases above, then why can right to die not be included? After all every one has the right to live with dignity. But in India things are not that simple. One has to take into consideration not the interest of a few but that of the 1 billion people whose lives will positively or negatively be affected by such a decision.
To draw out a definite conclusion, one has to analyse the pros and cons of legalizing �right to die�.
�I have the right to die
As we have already seen, no country's Constitution can be an enduring Constitution if it does not take into cognizance the interest of the people for whom this Constitution has been framed. And so there are various arguments given by people who believe that one should have the right to die. Their arguments go as follows:
1. If I have been guaranteed right to life, I should be guaranteed the right to die as well
C A Thomas, 86-year-old retired school teacher of Thrissur, who was the first one in India to demand the right for voluntary death had argued that Article 21 indeed bestowed on every citizen a right to life and method of death. Our Constitution guarantees the right to life. The right to life is incomplete without the right to death. The karma of life is a wheel that is completed only when birth is complemented by death. The right to die is built into the right to live.
Supreme Court in Gian Kaur v. State of Punjab3, said that it is well settled that the right to life guaranteed by Article 21 of the Constitution does not include the right to die. The Court held that Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of the imagination can extinction of life be read into it. To give meaning and content to the word 'life' in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself.
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. This also includes the right to a dignified life up to the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the 'right to die' with dignity at the end of life is not to be confused or equaled with the 'right to die' an un-natural death curtailing the natural span of life.
It is argued that right to die respects the individual's right to self-determination or his right of privacy. Interference with that right can only be justified if it is to protect essential social values, which is not the case where patients suffering unbearably at the end of their lives request to die when no alternatives exist. Not allowing the right to die would come down to forcing people to suffer against their will, which would be cruel and a negation of their human rights and dignity. Every person has a right to live with at least a minimum dignity and when the state of his existence falls below even that minimum level then he must be allowed to end such tortuous existence. In such cases relief from suffering (rather than preserving life) should be the primary objective.
At this juncture it would not be out of place to mention that the liberty to die, if not right strictu sensu, may be read as part of the right to life guaranteed by Article 21 of the Constitution of India. True that the Supreme Court has held that such an interpretation of Article 21 is incorrect18, but it is submitted that one may try to read the freedom to die as flowing from the rights of privacy, autonomy and self-determination, which is what has been done by the Courts of United State and England. The Constitution states certain unalienable rights to life, liberty, and the pursuit of happiness. Since we have this right to life, it is our right to decide what we want to do with our lives. And people should be free to live their lives as they themselves think best.
2. If I have been reduced to a corpse, suffering from an incurable, interminable disease, I don't deserve to live with so much pain
3. Our religion supports a person who wants to die
C. Thomas a Christian, quoted the Gita and Ramayana to prove that " vanavas ", the ancient Indian tradition of merging with the Supreme was the most honourable system. "It is the western jurisprudence we now follow without thinking that considers taking one's own life a crime". In his argument he said that Jain preists after reaching a certain age starved themselves to death and the rishis and munis of those times also willfully ended their lives after attaining enlightenment.
4. I fear death and the pain that will come with it, I want to have a sound sleep
C. Thomas believed that death would be a pleasant experience if one were to die at an advanced age on his won volition with some medical help once he or she thought had fulfilled all possible duties of life. Most of the old people today spend their lives fretting about their death and that causes a lot of mental agony and suffering. Guaranteeing a person the right to die would dismiss the fear of death and mourning now prevalent in people.
5. I want to donate my organs before the disease affects it
Venkatesh, a 25-year-old muscular dystrophia patient, wanted to be granted the right to die. He sought to enforce the right so that he could donate organs before they were affected by his illness. The plea was rejected a day before his death by the Andhra Pradesh high court. The court ruled that the petition sought to violate the Transplantation of Human Organs Act, 1995, which had no provisions that allowed individuals to donate organs before they were brain dead. The court's caution in this case is understandable considering the implications of easing restrictions in organ transplant. However, the order indirectly reiterated the stated legal position that an individual had no right to end his life voluntarily. This is not the only case where someone of their free will wanted to donate their organs, to serve a noble cause and wasn�t allowed to do so. Otherwise in our country illegal trade of human body parts and organs is taking place at a massive rate and when a person approaches law and seeks its help, he is denied the same.
You do not have the right to die; you only have the right to live
1. I do not want to die, I want to live but they won't let me
What stands as the biggest fear in the minds of the people is the exploitation that will occur once right to die is legalized in our country. One example is that many of our age old social customs like sati pratha may get legitimacy once right to die is legalized. In a recent case of Roop Kanwar who performed sati in Rajasthan, there were many local people who supported her and asked everyone to do what she had done so bravely and uphold the Hindu traditions and long followed customs of the village. It can be falsely propagated by Hindu fanatics to serve their purpose saying that a woman has a right to die by throwing herself in the funeral pyre of her husband while the whole while she herself did not consent to it. It is the vast majority of illiterate people who will be targeted. They will be told to give up their lives for their religion and they will do so very gladly saying that they have a right to die, whatever be the reason.
The Sati (Prevention) Bill, which mandates:
1. one to five years imprisonment for any woman who attempts sati;
2. the death penalty or life imprisonment for abetment of Sati;
3. one to seven years imprisonment for glorification of Sati; and
4. Suspension of civic rights of anyone convicted of abetting or
glorifying Sati, i.e. disqualification from holding any public office. However this very piece of legislation will stand negated once right o die is legalized in our country.
2. India is a poor country where there are many feeding mouths and resources are less
In light of the increasing pressure on hospital and medical facilities, it is argued that the same facilities should be used for the benefit of other patients who have a better chance of recovery and to whom the said facilities would be of greater value. Thus, the argument runs, when one has to choose between a patient beyond recovery and one who may be saved, the latter should be preferred as the former will die in any case.
But one should not forget that in a country like India where there is tremendous pressure on the available medical facilities, it is all the more necessary for the maximum utilisation of the limited facilities.
3. There is a risk of abuse of this right
It is again, a conflict between the humane, the ethical and the legal. it is not always that the patient wants to die. The relatives of the patient are also allowed to decide whether to let the patient live. In addition, even where the consent is that of the patient it may be one obtained by force. Use of physical force here is highly unlikely. But emotional and psychological pressures could become overpowering for depressed or dependent people. Moreover, financial considerations, added to the concern about being a burden, could serve as a powerful force that would lead a person to �choose� to die.
Moreover, it is argued that when a healthy person is not allowed to commit suicide then why a diseased person should be allowed to do so. It is pointed out that suicide in a person who has been diagnosed with a terminal illness is no different than suicide for someone who is not considered terminally ill. Depression, family conflict, feelings of abandonment, hopelessness, etc. lead to suicide regardless of one's physical condition. Studies have shown that if pain and depression are adequately treated in a dying person as they would be in a suicidal non-dying person the desire to commit suicide evaporates. Suicide among the terminally ill, like suicide among the population in general, is a tragic event that cuts short the life of the victim and leaves survivors devastated.
It is feared that placing the discretion in the hands of any individual would be placing too much power in his hands and he may misuse such power. This fear stems largely from the fact that the discretionary power is placed in the hands of non-judicial personnel (any individual in this case). This is so because we do not shirk from placing the same kind of power in the hands of a judge (for example, when we give the judge the power to decide whether to award a death sentence or a sentence of imprisonment for life). Generally people who attempt suicide or want to commit are under a lot of emotional stress. For example a patient receiving chemotherapy might want to end his life because of the physical and mental trauma but once he feels better, he might change his mind. Decisions in case of such patients are fluctuate. Also relatives can use the law to achieve their own interests. In India, the crime rate is increasing faster than the population growth. The one main reason behind the crime rate is greed. The old people are very vulnerable.
The near kith and kin want to usurp their property and other possessions. We come across this in almost everyday in news papers. Once euthanasia is legalised, old people will become the main targets. A doctor will declare a patient terminally ill for a paltry some. It will have dangerous repercussions on the society. We should respect life. Life is the most precious thing the God has bestowed upon us.
A youth of our age, depressed to see his parents fight every night, depressed as he does not have a job and has the burden of his family on his shoulders, depressed as he failed in board exams, will not think twice before killing himself! And this will result in gross degradation of a human beings life. His family and society at large will lose an otherwise bodily and mentally healthy person whose rich experience in life and his own skills can be a great asset.
4. slippery slope argument
The slippery slope argument, in short, is that permitting suicide would over the years lead to a slide down the slippery slope and eventually we would end up permitting even non-voluntary and involuntary euthanasia.
5. mind, body and soul
. We are discussing here the rights of a very few people vs. the whole possibility of murders and suicides that can follow from such a law. Besides, if one understands the life and soul and how it works, one will understand that Euthenasia is actually irrelavant and unnecessary. The Spirit or Soul in us decides when to leave. When the MEST life (this physical universe) gets too challenging, the should carves in and gives up to find another body and to start afresh. That's the way the spirit/life works. So if that be the case, the death will come as soon as the Soul decides it. And the fact is that the Soul does not continue in a body a minute longer than it can bear to be there. One could argue about the pain of those around the suffering and dying person. But it's not of our selection that someone we love is suffering. It's a part of life. But legalizing this would mean a gaping hole that many can take advantage of.
In the end, we also would do well to remember the following words of Mahatma Gandhi:
Death is our friend, the truest of friends. He delivers us from agony. I do not want to die of a creeping paralysis of my faculties a defeated man.
So the outcome as it seems
It seems to me that suicide probably ought to remain illegal, because many people who attempt it (especially young people) are either a) not fully in charge of their faculties, b) treatable patients with one or another form of mental illness, and c) would probably thank us later for resisting their attempt. These aren't strong arguments (it can still be argued that suicide "doesn't hurt anyone but the doer"), but they are good enough for me. The state should do everything it can to discourage people from committing suicide. On the other hand, it shouldn't penalize people who attempt it and fail. If the 'crime' of suicide is punished, you run the risk of the old totalitarian joke: he tried to commit suicide, and failed, so they executed him.
So perhaps suicide should remain generally illegal (but not punishable), and there should just be an exception granted to people who are terminally ill and in excruciating pain (like L. Venkatesh). But doctors often disagree on what defines terminal illness. And while there will certainly be some cases where death is inevitable, there will be many cases where death is fairly far off in the future, and there is some hope, however small. Moreover, critics can object that there is always the possibility of a medical miracle -- that 1 in 10,000 chance that a patient will recover -- so isn't it worth keeping the patient alive in case that happens? Opening up the Right to Die as an exception in the law against suicide would only work if the likelihood of death were overwhelmingly high, and if the "miracle cure" argument were thrown out on a cost/benefit basis.
Thus, it seems like a viable argument to say that the right to die should remain generally illegal because of the confusion that could ensue if it were legalized. This is the status quo, and the suffering of people like Venkatesh is unfortunate, but perhaps justified because it does serve the greater common good.
On the other hand, if I could be convinced that doctors could specify the cases where euthanasia is the best option with upwards of 99% certainty (this would require a classification of terminal illnesses and probably the statistical ascertainment of survivability), then may be legalizing righ to die would also serve the common good.
The basic moral question that arises is whether by legalizing a person's right to die, we will degrade a human beings life and stop respecting human life. No one can deny that there is nothing more precious than the gift of life which every human being enjoys. Why then should man decide when his life should end? Most religious people believe that life is sacred and one should not waste time in planning about their death but planning about how to enjoy life. Terminating life is not an answer to pain. All along life's journey man will suffer pain whether it is physical or mental or emotional or psychological. Will legalization of right to die be done to relieve oneself from the physical pain only?A person weakened by illness may not be in a position to review his decision to kill himself. Decision to die by coming under some financial or social obligation is also very dangerous. Somewhere down the line we may end up violating the right to life while legalizing the right to death.
When life is woe and hope is dumb, the world says go! The grave says , come! Whose voice will you hear? Will you be a faint heart and say that I want the right to die or will you in your sorrow and misery and pain be a brave heart and say, dear god give me two more precious moments because I want to cherish the precious gift of life.
No comments:
Post a Comment