When 90-year-old Sanjay Singh passed into coma following complications arising from a surgery, his wife and family would have liked to see him depart in peace without protracting his suffering. There was no hope of his recovery. But doctors in India refused to take him off the life support system. Following his death, his wife of 50 years, a foreign national, chose to relocate abroad making a 'living will' stating that she not be put on any life-support machine in case of medical incapacity.
The living will or an advance healthcare directive, a legal document that a person uses to make known his or her wishes regarding life-prolonging medical treatments in a situation where he is unable to speak for himself, has legal recognition in countries like the US, but not in India. In 2005, Common Cause, an all-India organisation that seeks redress of commonly prevalent social problems, had filed a petition.
"The prayer was that one should have the right to execute a 'Living Will' in the nature of an advance medical directive to one's next of kin and caregivers to the effect that in the event of the incapacitation of the executant s/he should not be subjected to extraordinary life prolonging treatments/procedures so that the agony and process of dying is not unduly extended. This prayer is based on the recognition of a patient's inherent right to autonomy and self-determination and to a dignified death," explains Kamal Kant Jaswal, director, Common Cause. The case has been referred to a constitutional bench and decision is pending. In a scenario where even an advance medical directive is not recognised, there can be little possibility of legalising euthanasia or physician aided-suicide (the physician provides the necessary means or information to die, but the act is performed by the individual).
Last week, the Indian government decided to scrap Section 309 of the Indian Penal Code to decriminalise the attempt to suicide. The section prescribes a jail term of upto one year for those convicted of attempting to take their own lives. The government decision is in keeping with the Law Commission of India report submitted in 2008, which held that "Attempt to suicide is more a manifestation of a diseased condition of mind deserving of treatment and care rather than punishment". In 2011, a SC bench had said, "the time has come when it (Section 309) should be deleted by Parliament as it has become anachronistic." In the same judgment, Justices Markandey Katju and Gyan Sudha Misra had also allowed for passive euthanasia in extreme cases where no recovery is possible. In passive euthanasia, medical treatment is withheld from the sufferer, while active euthanasia involves use of lethal substances or force to end life. It had also prescribed a detailed procedure to be followed in such cases.
Katju and Misra had been examining the euthanasia petition filed by Pinky Virani for Aruna Shanbaug, a Mumbai nurse who has been in a vegetative state for over three decades following a sexual assault on her at the hospital where she worked. The plea for Shanbaug was, however, turned down by the SC. Earlier this year, the appex court issued a notice to states and union territories seeking their opinion on the issue of mercy killing following a petition filed in court. But in India the right to die is shrouded in morality and the sanctity of life - even when that life is one of pain and lacks dignity - is meant to be defended. The decision to scrap Section 309, does not automatically legalise euthanasia or even physician-aided suicide, since the doctor may still be booked under Section 306 or abetment to suicide.
"Criminalisation cannot disregard the de minimis principle and offences cannot be multiplied where alternative sanctions are available. An act can be classified as an offense either on the harm or the offense principle. The latter which is the basis of classifying suicide as an offence is premised more on perceived immorality and preferred notions of social defence on which there is no unanimity. Consequently decriminalising suicide is right. However, this would not lead to automatically permitting euthanasia as qualitatively the two acts have differences. Nevertheless, the perceptible change in thinking apparent in decriminalising suicide can help identify areas where euthanasia can be permitted," feels senior advocate Aman Lekhi. Doctors reportedly get hundreds of requests every year for a painless death from terminally ill patients.
"There are innumerable cancer patients in distressing pain and shame due to loss of control over their own body and incurable pain. Passive euthanasia by way of refusing treatment is practised quite frequently in this country. It is time to decriminalise the same," says Dr Nagraj Huilgol, a radiation oncologist and president of The Society for the Right to Die with Dignity. In cases where recovery is impossible, withholding treatment may not be simply a release for one in pain, but also help give life to others by making it possible for doctors to harvest his organs.
In 2004, a woman had moved the Andhra Pradesh High Court seeking mercy killing for her son, who had debilitating muscular dystrophy, so that his wish of donating his vital organs could be fulfilled. The court rejected her petition.
Legal experts, however, fear misuse, especially in a country like India where poverty is rampant and crime committed for property, common. "I support passive euthanasia as defined in Justice Katju's judgment," says senior advocate Anand Grover, adding, "active Euthanasia may lead to misuse, with murders being committed under the guise of mercy killing."
Then there is the issue of whether euthanasia is being sought owing to inability to support medical treatment. In 2012, a 64-year-old widow sought euthanasia for her son who had been in a vegetative state for 15 years following an accident. Most of those who support euthanasia, even passive, believe in the creation of a mechanism that will stop its misuse - tying up with the medical system, for example, to examine whether the patient has any chance of recovery, and vesting the power to take the final decision in the judiciary. "There is a complete moral confusion on the issue which is why people can't think clearly about it," says lawyer and activist Prashant Bhushan. Bhushan iterates that he supports not only passive but also active euthanasia.
"My reason is that is a person suffering from an incurable medical condition should be allowed a dignified death. Why should a heart and lung machine be blocked if the person has no chance of getting back to good health ever? The machine can be used for someone else who has real chance of survival. However, doctors need to be protected from lawsuits like culpable homicide in such cases," he says. On the issue of misuse, he says, "misuse would mean murder and it can be clearly examined and established in a court of law."
In the absence of a legal resort to euthanasia or the living will, advocate Anil Malhotra, also advisor, NRI affairs, government of Punjab, feels "there may be a large number of Indians living abroad who may wish to relocate to India in their old age but do not do so since they do not want to be on life support machines in case of a critical illness." For most people, with the possible exception of a braveheart soldier, a suicide bomber or a follower of twentieth century existential author and philosopher Albert Camus, for whom suicide was a natural response to the absurdity of life, death is the ultimate fear in life. Which explains why a death sentence is reserved in the rarest of rare cases at the end of a judicial process. Moralists arguing for the sanctity of life should perhaps examine under what conditions one overcomes the fear to seek a release in demise.
Can't hide my desires, want to live like others: Irom Chanu SharmilaManipur's human rights defender Irom Chanu Sharmila has welcomed the central government's decision to decriminalise suicide. "I think it is a good step. But I cannot say much about it now," says Sharmila responding to Centre's move to repeal Section 309 of the Indian Penal Code, which makes the attempt to commit suicide punishable with imprisonment for upto a year. "I think laws are framed for the welfare of the people. If the laws are against the welfare of the people, why should we remain silent?" she asks.
Irom Sharmila who is popularly known as the 'Iron lady of Manipur' has been held in detention and force-fed through a nasal tube in Manipur for more than 14 years on repeated charges of attempted suicide. She has been on a hunger strike since November 2000 after personnel of the 8 Assam Rifles regiment gunned down 10 innocent people, demanding the repeal of the draconian Armed Forces (Special Powers) Act (AFSPA) which gives virtual immunity to security forces to raid, arrest and shoot people.
"My stand is very clear as I continue a non-violent movement to achieve my demand but not commit suicide," Sharmila, 42, told HT inside the security ward of the JNIMS hospital where she is detained as a prisoner of conscience. "As I said earlier, I will not change my stand as I believe in democracy and I believe in God. I hope it will be achieved."
Sharmila has never been convicted of attempting to commit suicide. She has been regularly released after completing a year in judicial custody, only to be re-arrested as she continues her fast. In August 2014, a Manipur court had ruled that there were no grounds to charge Irom Sharmila with attempted suicide and instead described her protest as a 'political demand through lawful means', a belief thousands of her supporters have long held.
Irom Sharmila was released after the verdict but she was re-arrested in farcical circumstances just two days later on the same charges. "As a human being, sometimes I cannot hide my desire and I also want to live like others," she added. "I believe the people will extend support as the demand (to repeal AFSPA) is for the people." Lawyers in the capital believe that Sharmila's fast is a political stand and she cannot demand release even if Section 309 is scrapped.
In 2012, acid attack victim Sonali Mukherjee, then 27-year-old, pleaded for help or the permission for euthanasia. Sonali had been sleeping at home in 2003 when three assailants entered her house and poured acid on her. Disfigured and disabled, Sonali changed from a bright teenager with dreams of being a teacher, to a medical liability living a life of pain. Finally unable to bear the cost of her treatment any more, she begged for mercy killing. Since then help has poured in for Sonali, and the brave fighter in her is back, balancing a government job in Jharkhand with her ongoing medical treatment in New Delhi.
"But I do believe euthanasia should be legalised in the country," says Sonali, adding, "I have seen so many people who suffer from multiple disabilities and they live in such pain. There is no dignity in that living. When I look at them, I think that if they were able to, they would certainly commit suicide. But they are unable to help themselves." For such people, feels Sonali, euthanasia would be a release.
"For those in a vegetative state, or on life support, with no hope of recovery, there should be a mechanism of euthanasia through the aid of a doctor and their organs should be harvested for those who can lead a normal life with proper treatment," she says. The decision should be taken after a proper examination of the condition of the patient, and the government and doctors should be involved to eliminate misuse, she says.
"If there is such a patient at anyone's home, people come to know. It is difficult to pass off a person with possibility of recovery as someone in a vegetative state. But the option should not be left to the family," says Sonali. On the legalising of the living will, she says, "there should be a system of counselling so that the person making a living will is fully convinced and aware of what he is saying." She adds that in case a plea for mercy killing is being made because of inability to afford treatment while the person wants to live and has the possibility of a healthy life with treatment, such permission should not be granted.