Why euthanasia row is far from over

The James Bond movie Live and Let Die evocates part of the controversy on suicide and euthanasia (mercy killing of the living dead), even though the Supreme Court’s decision in Common Cause (2018) deals with passive euthanasia of killing of all-but-dead in a vegetative state.

India is a country replete with suicides of the unfortunate, impecunious, poor and hopeless. The figures are daunting: In 1837 (enacted 1860), a religion-informed view was taken that suicide is a sin and those attempting it will be punishable under the Indian Penal Code. Alternatively, the Jains believe that committing santara (giving up life by starvation) is justified.

This issue is still pending before the Supreme Court.

To punish or not

Originally, the SC in the Rathinam case (1994) correctly took the view not to punish attempted suicide but punishing those who abet suicide — singularly evident in cruel dowry deaths. But in the Gian Kaur case (1996), the apex court reversed this decision in public interest. The decision was erudite but wrong. Fasting to "death as protest" is obviously attempted suicide.

Irom Sharmila was kept alive for decades as an example of duty to care but not punished. The Parliament, under the Mental Health Act, 2017, half-heartedly partly overruled Gian to say that those under severe stress shall be presumed not to commit suicide “unless proved” otherwise. This, too, is unforgiving. What happens if someone else proves the stress was not severe. Punishment would follow.

Although in the latest Common Cause (2018) judgment on passive euthanasia, there is satisfaction that the Mental Health Act protects a suicidal person to obviate punishment. This is not totally true. It seems absurd: Socrates, the Koestlers, Karl Marx’s daughter willed suicide but if they had lived as well as those who protest to die or commit santara would still be punished for attempted suicide.

In many parts of the world (for instance, in England in 1961 following the Wolfenden Report of 1957), voluntary suicide is a part of a man’s liberty. Preventing suicide, offering psychiatric and other supportive help would still be a prime duty of state and society. But they would not be punished.

This foundational question of the right of conscious terminally ill to commit voluntary suicide needs to be answered — especially as many countries regard this a part of the constitutional right to liberty. True, this issue of the voluntary right to die is complicated, but punishing such a person, who tries to kill himself because he sees no reason to live but fails to do so is silly.

The Common Case (2018) skirts this issue, considering it irrelevant because the issue was satisfactorily quelled by Parliament which was not fully the case.

Friend and family factor

The SC deals with the issue of those who were terminally ill in a vegetative state with no chance of recovery unless unforeseen science finds a way. Justice Katju’s decision in the Aruna Shanbaug case (2011) said the vegetative lady could not be euthanised even with medical advice as long as the next friend or family (or in this case, the nurses) decide to continue support and medicine.

Apart from technicalities, the SC affirms that termination of vegetative state by the “next friend” or “family” can take place with due process.

Common Cause case

The Common Cause case (2018) evades these fundamental questions by saying it is only concerned with a “living will” which can be revoked while the person is alive. It is part of their liberty to decide in advance that if he/she were in a future vegetative state beyond rescue by medicine, they can make a “living” written testament for the final decision to be implemented by an executor.

Now, this “advanced directive” is applicable only when a hospital’s medical board approves and when the local collector’s medical board with experts (in medicine, cardiology, neurology, nephrology, psychiatry, oncology or specialists in after care) approve with the “next friend” or executor who has a right to go to the High Court which shall constitute an Independents Doctors’ Committee to decide without “brook(ing) delay”.

Where there is no “living will (ie as for Shanbaug), the procedure will be the same. But assisted suicide for a seriously terminally ill who is not a vegetable can still not be made.

One of the criticisms of Katju judgment (no less by the amicus andhyarjuna) — and, perforce, this case — was that this elaborate procedure is too cumbersome even if urgency is retained. Caution is understandable but the whole point of obviating suffering of a suffering comatose patient and his friends and family is lost.

The suffering is also grave where an assisted suicide, even though terminally ill does not want to live but must because assisted suicide is homicidal. To my mind, these elaborated judgments, led by the chief’s inimitable but clear style have juristic ambiguities.

The right to die (suo motu or assisted suicide) which should also be a part of constitutional guaranteed liberty remains rejected; the right to the vegetative brain dead to die with dignity is upheld. Medical practitioners and others are perplexed of their duty to the living, almost dead and terminally ill, particularly in marginal cases.

(Courtesy of Mail Today)