Euthanasia: The debate on life and death

Abstract
Euthanasia or mercy-motivated killing has remained a heavily contested topic given its
proximity to homicide and the distinct possibility of misuse. One may consider the practice
of euthanasia to be as old as civilization itself, with its roots firmly placed in ancient Greek and
Roman traditions. The renewed interest in the debate is triggered by the catapulting advances in
life-sustaining medical technology. The paper seeks to discuss what euthanasia is and the various
kinds of euthanasia observed by medical practitioners and the legal stand taken by the courts.
The types and forms of euthanasia looked into comprise of physician-assisted, active, passive,
voluntary and involuntary euthanasia which have some inherent differences detailed in the
following paper.
As multiple forms of euthanasia are explored and detailed in the paper, the controversial issue of
supporting or opposing euthanasia is discussed at length. Proponents of physician-assisted
suicide (PAS) feel that an individual's right to autonomy automatically entitles him to choose a
painless death. The opponents feel that a physician's role in the death of an individual violates
the central tenet of the medical profession.
The landmark case of Aruna Shanbaug is discussed and its various avenues explored, the
judgment explained and the 196th Law Commission report detailed in this paper.

Keywords: Euthanasia, PAS, Aruna Shanbaug, Mercy killing, report.

Introduction

The word Euthanasia is a derivative from the Greek words eu and thanotos which literally
mean good death. It is otherwise described as mercy killing. The death of a terminally ill
patient is accelerated through active or passive means in order to relieve such patient of pain or
suffering. It appears that the word was used in the 17th Century by Francis Bacon to refer to an
easy, painless and happy death for which it was the physicians duty and responsibility to
alleviate the physical suffering of the body of the patient. The European Association of Palliative
Care (EPAC) Ethics Task Force, in a discussion on Euthanasia in 2003, clarified that
medicalised killing of a person without the persons consent, whether non-voluntary (where the
person in unable to consent) or involuntary (against the persons will) is not euthanasia: it is a
murder. Hence, euthanasia can be voluntary only.
We are here concerned with passive euthanasia as distinct from active euthanasia. The
distinction has been highlighted in the decision of the Supreme Court of India in Aruna
Ramachandra Shanbaug vs. Union of India 1. Active euthanasia involves taking specific steps
such as injecting the patient with a lethal substance e.g. Sodium Pentothal which causes the
person to go in deep sleep in a few seconds and the person dies painlessly in sleep, thus it
amounts to killing a person by a positive act in order to end suffering of a person in a state of
terminal illness. It is considered to be a crime all over the world (irrespective of the will of the
patient) except where permitted by legislation, as observed earlier by Supreme Court.
In India too, active euthanasia is illegal and a crime under Section 302 or 304 of the IPC.
Physician assisted suicide is a crime under Section 306 IPC (abetment to suicide). Passive
euthanasia, otherwise known as negative euthanasia, however, stands on a different footing. It
involves withholding of medical treatment or withholding life support system for continuance of
life e.g., withholding of antibiotic where without doing it, the patient is likely to die or removing
the heartlung machine from a patient in coma. Passive euthanasia is legal even without
legislation provided certain conditions and safeguards are maintained (vide para 39 of SCC in
Arunas case).
The core point of distinction between active and passive euthanasia as noted by Supreme Court
is that in active euthanasia, something is done to end the patients life while in passive
euthanasia, something is not done that would have preserved the patients life. Passive euthanasia
is further classified as voluntary and non-voluntary. Voluntary euthanasia is where the consent is
taken from the patient. In non-voluntary euthanasia, the consent is unavailable on account of the
condition of the patient for example, when he is in coma.

1 Aruna Ramchandra Shanbaug v. Union of India, 2011(3) SCALE 298 :MANU/SC/0176/2011

Meaning and Types of Euthanasia

According to Blacks Law Dictionary (8th edition) euthanasia means the act or practice of killing
or bringing about the death of a person who suffers from an incurable disease or condition, esp. a
painful one, for reasons of mercy. Encyclopedia of Crime and Justice, explains euthanasia as an
act of death which will provide a relief from a distressing or intolerable condition of living.
Simply euthanasia is the practice of mercifully ending a persons life in order to release the
person from an incurable disease, intolerable suffering, misery and pain of the life. It is also
known as Mercy Killing. Euthanasia has been defined as the administration of drugs with the
explicit intention of ending the patients life, at the patients request. Euthanasia literally means
putting a person to painless death especially in case of incurable suffering or when life becomes
purposeless as a result of mental or physical handicap. Euthanasia or mercy killing is the practice
of killing a person for giving relief from incurable pain or suffering or allowing or causing
painless death when life has become meaningless and disagreeable.
In the modern context euthanasia is limited to the killing of patients by doctors at the request of
the patient in order to free him of excruciating pain or from terminal illness. Thus the basic
intention behind euthanasia is to ensure a less painful death to a person who is in any case going
to die after a long period of suffering.
Euthanasia may be classified as follows:(1) Active or Positive
(2) Passive or negative (also known as letting-die)
(3) Voluntary
(4) Involuntary
(5) Non-Voluntary
Passive or negative: - euthanasia is passive when death is caused because a treatment that is
sustaining the life of the patient is held off and the patient dies as a result thereof. For example,
withdrawing life supporting devices from a serious patient, removing which, the patient dies. In
"passive euthanasia" the doctors are not actively killing anyone; they are simply not saving him.
Voluntary: - it is voluntary when the euthanasia is practiced with the expressed desire and
consent of the patient. voluntary euthanasia is primarily concerned with the right to choice of the
terminally ill patient who decides to end his or her life, choice which serves his/her best interest
and also that of everyone else.
Involuntary: - when the patient is killed without an expressed wish to this effect, it is a form of
involuntary euthanasia. It refers to cases wherein a competent patients life is brought to an end
against the wishes of that patient that oppose euthanasia; and would clearly amount to murder.
Non-Voluntary:- it refers to ending the life of a person who is not mentally competent to make an
informed request to die, such as a comatose patient. In Non-Voluntary euthanasia the patient has
left no such living will or given any advance directives, as he may not have had an opportunity to

do so, or may not have anticipated any such accident or eventuality. In cases of non voluntary
euthanasia, it is often the family members, who make the decision.

Arguments supporting legalization of Euthanasia

The arguments supporting legalization of euthanasia/physician-assisted suicide (PAS) are
substantial. Proponents perceive PAS as an act of humanity toward the terminally ill patient.
They believe the patient and family should not be forced to suffer through a long and painful
death, even if the only way to alleviate the suffering is through suicide. According to the
proponents of PAS, it becomes ethical and justified when the quality of life of the terminally ill
patient becomes so low that death remains the only justifiable means to relieve suffering. Lack of
any justifiable means of recovery and the dying patient himself making the choice to end his life
are conditions which make euthanasia more justifiable. To the advocate for PAS, legalization of
PAS is a natural extension of patient's autonomy and the right to determine what treatments are
accepted or refused. Arguments in favor of legalization of PAS are typically premised on the
assumption that requests for PAS are rational decision, given the circumstances of terminal
illness, pain, increased disability, and fears of becoming (or continuing to be) a burden to family
and friends. Given the possibility that these symptoms and circumstances may not be relieved,
even with aggressive palliative care and social services, the decision to hasten one's death may
seem rational. Proponents of euthanasia also criticize the artificial and impractical demarcation
drawn by the court and the religious organizations between active and passive euthanasia.
Withdrawal of life support, the classical form of passive euthanasia, actually involves taking
an active step to hasten the death of a terminally ill patient and it is the patient's consent which
lends legitimacy to the act. If, following consent of a similar nature, a physician administers a
lethal dose of injection, there is no reason why this act should be considered as illegal or
immoral. Moreover, the desire to include one's physician in carrying out a decision to end one's
life can be viewed as an extension of the natural reliance of terminally ill patients on their
physicians for help with most aspects of their illness, as well as reasonable mechanism to ensure
that they do not become more disabled and burdensome to their family or friends by attempting
suicide unsuccessfully (causing a persistent vegetative state or increased disability).
Another argument raised by proponents of legalization is that merely knowing that one can
control the timing and manner of death serves as a form of psychological insurance for dying
patients. In other words, knowing there can be an escape from the suffering of illness may
alleviate some of the stress associated with the dying processes. It may be (as argued by some
proponents of PAS) that many individuals with a terminal illness desire the option to end their
lives if certain possible conditions arise, even though the likelihood that they will utilize this
option is small.

Arguments opposing legalization of Euthanasia

Opposition to legalization of PAS and/or euthanasia has come from numerous different
perspectives. This guideline is best exemplified in the Hippocratic Oath which states, I will
prescribe regimen for the good of my patients according to my ability and my judgment and
never do harm to anyone. To please no one will I prescribe a deadly drug, nor give advice that
may cause his death. Thus, the possibility that a physician may directly hasten the death of a
patient one whom the physician has been presumably treating in an effort to extend and
improve life contradicts the central tenet of the medical profession.
From a mental health perspective, professional psychiatric and psychological training reinforces
the view that suicide should be prevented at all costs. Several studies have supported this
connection between mental disorder (e.g., depression) and interest in PAS, suggesting that
suicidal ideation in terminally ill patients is a manifestation of undiagnosed, untreated mental
illness. Consequently, physician compliance with a suffering patient's stated wish for PAS may
circumvent the provision of appropriate psychiatric care. Similar arguments have been made
regarding pain and physical symptoms, suggesting that requests for PAS may be evidence of
inadequate palliative care. In spite of the fact that improperly managed physical and/or
psychiatric symptoms may underlie a patient's wish for hastened death, physicians may
unknowingly participate in PAS designed to alleviate precisely these symptoms that possibly
could be managed with better palliative care, as opposed to providing proper medical
management, if PAS is legalized.
Opponents of PAS additionally posit that individuals of lower socioeconomic classes or other
disenfranchised groups will be coerced, either directly or indirectly, into requesting PAS as a
means of resolving the difficulties posed by their illness. Family members may subtly suggest
that death, since inevitable, would be preferable if it occurred sooner rather than later because of
the social and financial burdens involved in caring for terminally ill family members. Physicians
may view PAS, perhaps because of their own unrecognized feelings (counter transference), as the
appropriate and preferable response to a terminal illness and resulting disability. Thus, physicians
may be particularly poor at recognizing irrational requests for PAS because of their belief that
they would not want to live in a condition similar to that of their patients. An even more
frightening possibility is that physicians or other health care providers might recommend PAS as
an option because the alternative providing adequate palliative care is too expensive or
difficult to obtain. Thus, patients with poor health insurance or limited financial resources may
be coerced into requesting PAS by poorly managed or untreated physical and psychological
symptoms, perceiving their only options to be either continued suffering or death. Several studies
have demonstrated inadequate recognition and treatment of both psychological and physical
symptoms, with symptoms such as depression and anxiety going largely unrecognized in many
medically ill patients. According to a recent review of palliative care in Canada, only 5% of
dying patients in Canada receive adequate palliative care. These and related studies are often

cited by opponents of legalization for PAS/euthanasia as evidence that legalization is premature

until all dying patients and their families have access to skilled and effective palliative care
service.
In response to these concerns, legislators proposing guidelines for PAS have incorporated several
mechanisms to minimize the risk that PAS, if legalized, will be misused. These guidelines
include (1) a voluntarily request for assistance in dying on the part of the patient, (2) evidence of
a terminal illness, and (3) documentation by the primary physician of the reason for the request
and efforts made to optimize the patient's care. Opponents, however, suggest that these
limitations are more arbitrary than scientific, and they argue that the legal and medical
communities will eventually end up on a slippery slope, where euthanasia is ultimately
legalized as an acceptable practice for a wider patient population, including non-terminal, nonvoluntary patients.

A Jurisprudential Case Study in Euthanasia: The

Aruna Shanbaug Incident
Facts
Aruna Ramachandra Shanbaug was a staff Nurse working in King Edward Memorial Hospital,
Parel, Mumbai. In 1973 she was attacked by a sweeper in the hospital who wrapped a dog chain
around her neck and yanked her back with it.
He tried to rape her but finding that she was menstruating, he sodomized her. To immobilize her
during this act he twisted the chain around her neck. The next day a cleaner found her lying on
the floor with blood all over in an unconscious condition. It is alleged that due to strangulation
by the dog chain the supply of oxygen to the brain stopped and the brain got damaged. The
Neurologist in the Hospital found that she had plantars' extensor, which indicated damage to the
cortex or some other part of the brain. She also had brain stem contusion injury with associated
cervical cord injury. 36 years had expired since the incident and Aruna Ramachandra Shanbaug
was about 60 years of age. It was alleged that Aruna Ramachandra Shanbaug was in a persistent
vegetative state (p.v.s.) and virtually a dead person and had no state of awareness, and her brain
was virtually dead. It was alleged that there is not the slightest possibility of any improvement in
her condition and her body lies on the bed in the KEM Hospital, Mumbai like a dead animal, and
this has been the position for the last 36 years. The prayer of the petitioner was that the
respondents be directed to stop feeding Aruna, and let her die peacefully.

Issues
Whilst the Supreme Court had held earlier that there was no right to die (suicide) under Article
21 of the Constitution and attempt to suicide was a crime vide Section 309 IPC, the Court had
held that the right to life include the right to live with human dignity, and in the case of a dying
person who was terminally ill or in a permanent vegetative state he may be permitted to
terminate it by a premature extinction of his life in the circumstances and it was not a crime.
According to Austin, Law is the general command of a sovereign backed by a sanction. In
other words the source of law is the will of the sovereign and the sovereign is empowered to
punish those who violate the law. According to chief proponents of this school, namely Bentham,
Holland, Salmond, Kelson and Hart, the law should be analyzed as it exists today and a general
distinction must be observed by systematizing the law as is and the law as it ought to be. This
theory analyzes the principles of law and reduces them to their fundamentals. It takes into
account the developed legal system and analyzes the basic concepts to bring out their
relationship with one another.2
Discussing the concept of Euthanasia, it observed that Euthanasia is of two types: active and
passive. Active euthanasia entail the use of lethal substances or forces to kill a person e.g. a lethal
injection given to a person with terminal cancer who is in terrible agony. Passive euthanasia
entail withholding of medical treatment for continuance of life, e.g. withholding of antibiotics
where without giving it a patient is likely to die, or removing the heart lung machine, from a
patient in coma. The general legal position all over the world seem to be that while active
euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal even
without legislation provided certain conditions and safeguards are maintained.
The difference between "active" and "passive" euthanasia is that in active euthanasia, something
is done to end the patient's life while in passive euthanasia, something is not done that would
have preserved the patient's life. An important idea behind this distinction is that in "passive
euthanasia" the doctors are not actively killing anyone; they are simply not saving him.

Rule
In India abetment of suicide (Section 306 Indian Penal Code) and attempt to suicide (Section 309
of Indian Penal Code) are both criminal offences. This is in contrast to many countries such as
USA where attempt to suicide is not a crime. The Supreme Court recommended to Parliament to
consider the feasibility of deleting Section 309 from the Indian Penal Code. The law, though
active in many countries, has been a sleeping giant in India, as euthanasia goes on behind closed
doors.

2 Lectures on Jurisprudence and Legal Theory, Prof.Dr.Rega Surya Rao.

The Historical school of Jurisprudence states that, Law is a legacy of the past, a product of each
and every individual, community or nation. The nature of any particular system of law is a
reflection of the spirit of the people who evolved it. Friedrick Karl Von Savigny says that law is
found and not made. Historical jurisprudence examines the manner or growth of a legal system,
and traces the growth of law from its origin with a view to trace out the legal concepts and the
general course of its evolution.
The law awoke from its slumber in 1994 by way of a petition filed by P. Rathinam directed
against the constitutional validity of Section 309 IPC, which deals with punishment for attempt
to commit suicide. (Incidentally, suicide is legal in all states of USA.) The Supreme Court ruled
in favour of the petitioner, thereby legalizing suicide and rendering as unconstitutional
punishment for abetting of suicide. In this case a corollary was drawn (as a passing reference or
in legal terms an obiter dictum) between euthanasia and suicide. The judgment stated that in
cases of passive euthanasia, the consent of the patient (if he be in sound mental condition) is one
of the pre-requisites. So, if one could legally commit suicide, he could also give consent for
being allowed to die. However progress came to a grinding halt in 1996, when the same court
now upheld the constitutional validity of Sections 309 and 306 thereby legalizing the same. A
judgment totally contradictory to the earlier one, this presented a picture of the confusion that
prevails in our apex judiciary as far as euthanasia is concerned. The primary basis for taking such
a contention was Article 21, which states that all Indians have a right to life and personal liberty.
The judgment accepted the view that in a terminally ill patient (one in a Permanent Vegetative
State - PVS), mercy killing does not extinguish life, but accelerates conclusion of the process of
natural death that has already commenced. But it goes on to say that the scope of Article 21
cannot be widened enough so as to include euthanasia. In the concluding remarks, assisted
suicide and abetting of suicide were made punishable, due to "cogent reasons in the interest of
society."

Arguments
Euthanasia can be both voluntary and non voluntary. In voluntary passive euthanasia a person
who is capable of deciding for himself decides that he would prefer to die, and for this purpose
he consciously and of his own free will refuses to take life saving medicines. In India, if a person
consciously and voluntarily refuses to take life saving medical treatment it is not a crime. Non
voluntary passive euthanasia implies that the person is not in a position to decide for himself e.g.,
if he is in coma or PVS. The present is a case where we have to consider non voluntary passive
euthanasia i.e. whether to allow a person to die who is not in a position to give his/her consent.
Culminating the discussion the Supreme Court held that the law is now fairly well settled that in
the case of incompetent patients, if the doctors act on the basis of informed medical opinion, and
withdraw the artificial life support system if it is in the patients best interest, the said act cannot
be regarded as a crime.

The question remained as to who is to decide what is the patients best interest where he is in a
persistent vegetative state (PVS)? Most decisions have held that the decision of the parents,
spouse, or other close relative, should carry weight if it is an informed one, but it is not decisive.
It is ultimately for the Court to decide, as parens patriae, as to what is is in the best interest of the
patient, though the wishes of close relatives and next friend, and opinion of medical practitioners
should be given due weight in coming to its decision. As stated by Balcombe, J. in In Re J ( A
Minor Wardship : Medical Treatment) 1990(3) All E.R. 930, the Court as representative of the
Sovereign as parens patriae will adopt the same standard which a reasonable and responsible
parent would do. The parens patriae (father of the country) jurisdiction was the jurisdiction of the
Crown. This principle laid down that as the Sovereign it was the duty of the King to protect the
person and property of those who were unable to protect themselves. The Court, as a wing of the
State, had inherited the parens patriae jurisdiction which formerly belonged to the King.
It was alleged in the writ petition filed by Ms. Pinky Virani (claiming to be the next friend of
Aruna Shanbaug) that in fact Aruna Shanbaug was already dead. The question to be decided was
as to when a person could be said to be dead ? After considering the report of Committee of
doctors, the Supreme Court held that Aruna had some brain activity. She also recognized that
persons are around her and expressed her like or dislike by making some vocal sound and
waving her hand by certain movements. Aruna Shanbaug met most of the criteria for being in a
permanent vegetative state. From the examination by the team of doctors, it could not be said
that Aruna Shanbaug was dead. The next question was whether her life support system should be
withdrawn, and at whose instance? The Supreme Court observed that there is no statutory
provision as to the legal procedure for withdrawing life support to a person in PVS or who is
otherwise incompetent to take a decision in this connection. It held that passive euthanasia
should be permitted in certain situations

Decisions
The Supreme Court laid down the following law until Parliament made a law on the subject:
(i) A decision had to be taken to discontinue life support either by the parents or the spouse or
other close relatives, or in the absence of any of them, such a decision could be taken even by a
person or a body of persons acting as a next friend. It could also be taken by the doctors
attending the patient. However, the decision should be taken bona fide in the best interest of the
patient.
In the present case, the Supreme Court held that KEM hospital staff was really Arunas next
friend and it was for the KEM staff to take a decision and the KEM staff had clearly expressed
their wish that Aruna Shanbaug should be allowed to live.
(ii) Hence, even if a decision was taken by the near relatives or doctors or next friend to
withdraw life support, such a decision requires approval from the High Court concerned.

Conclusion
In the opinion of the Supreme Court, while giving great weight to the wishes of the parents,
spouse, or other close relatives or next friend of the incompetent patient and also giving due
weight to the opinion of the attending doctors, the approval of the High Court should be taken.
This would also be in consonance with the doctrine of parens patriae. The Supreme Court
observed that Article 226 gave abundant power to the High Court to pass suitable orders on the
application filed by the near relatives or next friend or the doctors/hospital staff praying for
permission to withdraw the life support to an incompetent person of the kind above mentioned.
When such an application is filed the Chief Justice of the High Court should forthwith constitute
a Bench of at least two Judges who should decide to grant approval or not. Before doing so the
Bench should seek the opinion of a committee of three reputed doctors to be nominated by the
Bench after consulting such medical authorities/medical practitioners as it may deem fit.
Preferably one of the three doctors should be a neurologist, one should be a psychiatrist, and the
third a physician. The committee of three doctors nominated by the Bench should carefully
examine the patient and also consult the record of the patient as well as taking the views of the
hospital staff and submit its report to the High Court Bench. Simultaneously with appointing the
committee of doctors, the High Court Bench should also issue notice to the State and close
relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next
friend, and supply a copy of the report of the doctors committee to them as soon as it is
available. After hearing them, the High Court bench should give its verdict. The above procedure
should be followed all over India until Parliament makes legislation on this subject. The views
of the near relatives and committee of doctors should be given due weight by the High Court
before pronouncing a final verdict which should not be summary in nature. With these
observations, the petition was dismissed.

Law Commissions 196th Report

The Law Commission in its 42nd Report25 recommended the repeal of section 309 of India
Penal Code. The Indian Penal Code (Amendment) Bill, 1978, as passed by the Rajya Sabha,
accordingly provided for omission of section 309. Unfortunately, before it could be passed by the
Lok Sabha, the Lok Sabha was dissolved and the Bill lapsed. The Commission submitted its
156th Report26 after the pronouncement of the judgment in Gian Kaur v. State of Punjab,
recommending retention of section 309.
Later the Law Commission in its 210th Report28 submitted that attempt to suicide may be
regarded more as a manifestation of a diseased condition of mind deserving treatment and care
rather than an offence to be visited with punishment. The Supreme Court in Gian Kaur focused
on constitutionality of section 309. It did not go into the wisdom of retaining or continuing the

same in the statute. The Commission has resolved to recommend to the Government to initiate
steps for repeal of the anachronistic law contained in section 309, IPC, which would relieve the
distressed of his suffering.
The Law Commission of India, in its 196th Report, had in its opening remarks clarified in
unmistakable terms that the Commission was not dealing with euthanasia or assisted suicide
which are unlawful but the Commission was dealing with a different matter, i.e., withholding
life-support measures to patients terminally ill and universally in all countries, such withdrawal
is treated as lawful. Time and again, it was pointed out by the Commission that withdrawal of
life support to patients is very much different from euthanasia and assisted suicide, a distinction
which has been sharply focused in Arunas case as well. Arunas case preferred to use the
compendious expression passive euthanasia.
This 196th Report29 of the Law Commission on Medical Treatment to Terminally Ill Patients
(Protection of Patients and Medical Practitioners) is one of the most important subjects ever
undertaken by the Law Commission of India for a comprehensive study.
This Report is relating to the law applicable to terminally ill patients (including patients in
persistent vegetative state) who desire to die a natural death without going through modern Life
Support Measures like artificial ventilation and artificial supply of food.

The Commission has given the following recommendations.

1. The first thing that is to be declared is that every competent patient, who is suffering from
terminal illness has a right to refuse medical treatment (as defined i.e. including artificial
nutrition and respiration) or the starting or continuation of such treatment which has already been
started. If such informed decision is taken by the competent patient, it is binding on the doctor.
At the same time, the doctor must be satisfied that the decision is made by a competent patient
and that it is an informed decision. Such informed decision must be one taken by the competent
patient independently, all by himself i.e. without undue pressure or influence from others.
It must also be made clear that the doctor, notwithstanding the withholding or withdrawal of
treatment, is entitled to administer palliative care i.e. to relieve pain or suffering or discomfort or
emotional and psychological suffering to the incompetent patient (who is conscious) and also to
the competent patient who has refused medical treatment.
2. We propose to provide that the doctor shall not withhold or withdraw treatment unless he has
obtained opinion of a body of three expert medical practitioners from a panel prepared by high
ranking Authority. We also propose another important caution, namely, that the decision to
withhold or withdraw must be based on guidelines issued by the Medical Council of India as to

the circumstances under which medical treatment in regard to the particular illness or disease,
could be withdrawn or withheld.
In addition, it is proposed that, in the case of competent as well as incompetent patients, a
Register must be maintained by doctors who propose withholding or withdrawing treatment. The
decision as well as the decision-making process must be noted in the Register. The Register to be
maintained by the doctor must contain the reasons as to why the doctor thinks the patient is
competent or incompetent, as to why he thinks that the patients decision in an informed decision
or not, as to the view of the experts the doctor has consulted in the case of incompetent patients
and competent patients who have not taken an informed decision, what is in their best interests,
the name, sex, age etc. of the patient. He must keep the identity of the patient and other
particulars confidential. Once the above Register is duly maintained, the doctor must inform the
patient (if he is conscious), or his or her parents or relatives before withdrawing or withholding
medical treatment.
If the above procedures are followed, the medical practitioner can withhold or withdraw medical
treatment to a terminally ill patient. Otherwise, he cannot withhold or withdraw the treatment.
3. A patient who takes a decision for withdrawal or withholding medical treatment has to be
protected from prosecution for the offence of attempt to commit suicide under sec. 309 of the
Indian Penal Code, 1860. This provision is by way of abundant caution because it is our view
that the very provisions are not attracted and the common law also says that a patient is entitled
to allow nature to take its own course and if he does so, he commits no offence.
Likewise, the doctors have to be protected if they are prosecuted for abetment of suicide under
sections 305, 306 of the Penal Code, 1860 or of culpable homicide not amounting to murder
under sec. 299 read with sec. 304 of the Penal Code, 1860 when they take decisions to withhold
or withdraw life support and in the best interests of incompetent patients and also in the case of
competent patients who have not taken an informed decision. The hospital authorities should also
get the protection. This provision is also by way of abundant caution and in fact the doctors are
not guilty of any of these offences under the above sections read with sections 76 and 79 of the
Indian Penal Code as of today. Their action clearly falls under the exceptions in the Indian Penal
Code, 1860.
We are also of the view that the doctors must be protected if civil and criminal actions are
instituted against them. We, therefore, propose that if the medical practitioner acts in accordance
with the provisions of the Act while withholding or withdrawing medical treatment, his action
shall be deemed to be lawful.
4. We have therefore thought it fit to provide an enabling provision under which the patients,
parents, relatives, next friend or doctors or hospitals can move a Division Bench of the High
Court for a declaration that the proposed action of continuing or withholding or withdrawing
medical treatment be declared lawful or unlawful. As time is essence, the High Court must

decide such cases at the earliest and within thirty days. Once the High Court gives a declaration
that the action of withholding or withdrawing medical treatment proposed by the doctors is
lawful, it will be binding in subsequent civil or criminal proceedings between same parties in
relation to the same patient. We made it clear that it is not necessary to move the High Court in
every case. Where the action to withhold or withdraw treatment is taken without resort to Court,
it will be deemed lawful if the provisions of the Act have been followed and it will be a good
defense in subsequent civil or criminal proceedings to rely on the provisions of the Act.
5. It is internationally recognized that the identity of the patient, doctors, hospitals, experts be
kept confidential. Hence, we have proposed that in the Court proceedings, these persons or
bodies will be described by letters drawn from the English alphabet and none, including the
media, can disclose or publish their names. Disclosure of identity is not permitted even after the
case is disposed of.
6. The Medical Council of India must prepare and publish Guidelines in respect of withholding
or withdrawing medical treatment. The said Council may consult other expert bodies in critical
care medicine and publish their guidelines in the Central Gazette or on the website of the
Medical Council of India

Conclusion
There are no better words for an apt conclusion than those echoed by Dr. Jack Koverkian For
those who are facing a terminal illness, who are in irremediable pain and suffering, and wish to
exercise their right to die with dignity, a system should be available to them.
Sanctity of human life does not imply the forced continuation of an existence in pain and
suffering. Given that a person has the right to lead a dignified existence, he cannot be forced to
live to his detriment. If a person suffers from an incurable disease, it would be inhuman to
compel him to live a painful life. A terminally ill person should be permitted to terminate his pain
and suffering by choosing to do so. In fact, these are not cases of extinguishing life but only of
accelerating the process of natural death, which has already commenced. The proposition merely
is that the legislation must provide for an alternative, if the terminally ill patient so desires,
having complied with the requisite conditions, to substitute his slow and painful death with a
quick and painless one.
Medical science is progressing in India as in the rest of the world, and hence currently we are
having devises that can prolong life by artificial means. This may indirectly prolong terminal
suffering and may also prove to be very costly for the families of the subject in question. Hence,
end-of-life issues are becoming major ethical considerations in the modern-day medical science
in India. Allowing euthanasia exclusively in the case of terminally ill patients is desirable. The

term terminal, though a broad one has been consensually narrowed down by medical experts to
mean and include a disease that cannot be cured nor has any remedy. In fact, the final remedy
is death. Death, being the only relief from the intolerable pain and unbearable suffering
connected therewith, criminal laws must not act with misplaced zeal. Only where they can prove
to be an appropriate and efficient tool, to address the concerned evil, should they be resorted to.
Also it is time that the courts reconsidered the interpretation of the phrase right to life as
mentioned in Article 21 of the Constitution, to include within its ambit the right to die
peacefully with medical assistance for the terminally ill.
The landmark Supreme Court judgment has provided a major boost to pro-euthanasia activists
though it is a long way to go before it becomes a law in the parliament. Moreover, concerns for
its misuse remain a major issue which ought to be addressed before it becomes a law in our
country. The ultimate outcome of this debate remains uncertain. It must, however, be
remembered that an acrobatic argument that acknowledges technological advances but dismisses
the evolving ethical issues which pose uncomfortable and disturbing questions is unfair to the
community of patients.