Constitutionality Of Euthanasia
Author: LawSphereX
Category: Constitutional & Human Rights
Published:
Updated:
CONSTITUTIONALITY OF EUTHANASIA
Dattatreya Ghosh, KIIT Law School, KIIT Deemed University
ABSTRACT
In this paper it has been discussed how the legal vacuum of euthanasia actually having the possibility connection of constitutional validity of the country. First what is the actual definition of euthanasia has been defined here. Followed by the cases through which the concept actually came into the force has been discussed. Then followed by that the positive interrelation of the same with Art 21 where how the concept is complying with the true essence of right to live with dignity and liberty is mentioned here. This way it metes out the criteria of constitutionality. Then followed but the difference of euthanasia with right to die has been mentioned here which is always misunderstood to be the same. Lastly the various cases within and beyond the country of India, where how not granting euthanasia led to opposing of Indian constitutionality has been also mentioned here.
INTRODUCTION
We all know article 19 holds a special significance in the entire crux of the fundamental rights. The entire essence of all the fundamental rights , has been summarized in the particular article. And also the entire article has been found to have divided into two major parts. One of that is the right to live with dignity and another is right to liberty. Now what does the word right to live with dignity actually states? Actually it means that a person within a conscious state of mind must actually be entitled with the due respect, regarding the autonomy in leading such life. A person, attaining in majority, appears out to be the best judge of his/her own interest. So the freedom must actually be given to them to lead their own life. Hence that is the actual way, through which the dignity is brought along.
But when the consciousness to a particular, goes away, at such situation, the main crux of dignity, which has been mentioned, ceases to appear. So anything forceful or imposed, can actually ends up with a different meaning. The fact can never be denied that giving them such liberty actually fulfils a different kind of objective. It has a different form of significance, which actually ends up with a different form of meaning. Such objective is actually meted out through providing of proper necessities, health care benefits, as well as protection of individuals from the various inhuman treatment s. But if there are situations where the health condition has found to be in stagnancy, where it is found to have no chance of any kind of improvement, no chance of ultimate recovery even, in such situation can there be any objective of care into the picture?
And coming upon the prevention from inhumane treatment, a person if remains in the permanent vegetative state and continuing with such position itself, one should not make the person stuck with inhumanity. Hence at such situation, there is no meaning of their continuance of life. So treating the same with the essence of the previous mentioned provisions, deviates itself from the main objective of it. At that point of time, the euthanasia, I believe, may come into prevalence as the protective measure to that patient. Because such at that point of time, may be the only objectified treatment to humanity as well as consciousness. Such imposition would qualify the basic objective of serving a life to the people. But however, the legality as well as constitutionality is not at all strong for our country.
But consequently, the effect of the same is some way or the other related with the constitutionality of the matter. Hence all such things cover the main crux of the paper. What is euthanasia? It is a kind of medical action imposed upon certain ailing person, which would actually lead to the end of the life of that person who has been inflicted with such kind of illness which has permanently disabled his/ her ability to recover from such fallacy. Mainly the process is initiated upon the consent of the patients, who are inflicted with such disability bearing enormous pain. On the other hand, consent is taken from the patient’s next kin also when s/he is there totally in vegetative state, unable to act in expression of consciousness.
ORIGIN OF EUTHANASIA Till date the practice of euthanasia, has not got any special prevalence, in spite of having the true essence of fundamentality of the right of the people. Active euthanasia has not come into any kind of prevalence despite having an intense need for the same. Passive euthanasia has actually come into emergence after the case of Aruna Shaunberg Vs Union of India AIR 1971. In this case it was seen that Aruna worked as a nurse in the B. J. D. International Hospital. She was aged 22, at that time, once after being dressed off after service, she was caught the hold of the sight by a group D staff, who jumped upon her, followed by tying the iron string around her neck fixed her to certain place and raped upon her. She being tied with a string could not force flee herself away from that place.
As a result, there was not any proper supply of oxygen to the brain for a long period of time. Hence she went to entire vegetative step. It was medically declared that her being was in purely vegetative state. Hence she being not able to improve from the position and on the other hand being young, having a long life expectancy, was hence granted the right to be euthanatized. She was ordered to be subjected to passive euthanasia. But however, the entire nurse community protested against the practice. As she could not respond, on the other hand also did not have any family, the community declared to make her alive, where she was alive till her 73 years of completion, passing away in 2017 due to pneumonia.
But the fact was that such form of practice actually came into prevalence through passive form, which takes quite a long time, which would actually take quite a long time, making the patient here a reasonable amount of pain. But the objective of the fundamental rights mentioned here are actually contrary to these regulations. 1 RELATION OF RIGHT TO EUTHANASIA WITH ARTICLE 21 OF THE INDIAN CONSTITUTION If we analyse the entire structure of right to life and personal liberty, we get to find out that the right to life is found to be the utmost form of constitutional right. Now the entire meaning of 1https://articles. manupatra. com Euthanasia https://lawbhoomi. com Euthanasia “Right to life” has broader interpretations, within the same. It can be interpreted in different ways.
If we interpret the entire expression “right to live”, it is found that the same has the utmost freedom on the basis of the same. It actually means that the same has the freedom to design the right on the basis of the same. It means to control the life in their own way and also lead the other person to do the same. So in that sense, it means that the same must also have the right to regulate the starting as well as the termination of the entire life. That means when the access to the dignity is actually over, at such juncture, there should be the freedom to terminate the life also. Such objective must also be provided. Only limiting the freedom to life within the ambit of being alive cannot be there in acceptance. Then another aspect, which must also be touched is that the essence of liberty within the same.
This means the right to live is given as a fundamental right with that of liberty. The main essence is to have an independent form of life is regarding the protection of various forms of the personal decisions. So if such capacity of making personal decisions is not there within the capability of the person, the right given as personal liberty, really does not have any value within the same. Now let us come specifically on the matter of right to health. It is found that it is one of the most, rather the most essential essences which bases both right to life as well as liberty. The utmost necessity to lid a proper life is to lead it with a proper health.
Hence for that reason, there must be adequate measures taken, in order to have a wealthy life ----- the state must provide all the necessities to the being so that, that have a proper health structure, so that they can have the ability to have the access to have the efficacies in order to develop themselves. As when there is actually no chance to come out from any disabled health condition then from that perspective what is the need of having the continuance of such life? From the perspective of personal liberty, we find out that mainly the essence of right to health actually comes from the concept of fiving freedom to have a proper health form and also protection from hindering the same. So if on the other hand there comes no probability to retain into such proper health, then what is the need to continue in such form of a life? Within such right also come right to clean environment.
It actually means right to live in a sustainable ecosystem. Now the actual question is a person living in such vegetable source as mentioned above, can it be actually possible for the same to continue with it? Their life would actually be dependent upon the various machineries. Such machinery would control the working of the various body parts for those persons. But according to the law it is the persons to live in a clear ecosystem, so in this manner, if a person remains in the clutches of the machinery then from that sense, it is found to have been simply contrary with the main essence of the law.
So from the above analysis, though it has been argued that euthanasia cannot be legalized in the country because of the fact that the right to life as well as personal liberty is getting obligated, the objective of such declaration, does not have the essence of such conferred rights within the same. DIFFERENCE BETWEEN EUTHANASIA &RIGHT TO DIE Euthanasia is also sometimes misunderstood with right to die. But the same is not the actuality. Right to die is having a very wider interpretation. It actually means absolute freedom from the perspective of dying. In common sense it means that the people have all the right at any time to end up his or her life, and also at any kind of circumstances. It does not have any kinds of objective to have settled for the purpose same. But such never fulfils the objective of the state.
The state has the objective to have progress in the development of the same. Hence in such scenario, the condition of having committed suicide, will actually lead to the infliction of tendencies to other people even. They would be mentally inclined in getting involved with such form of activities. But if such situation prevails then who would actually hold the society upon which the state has been formed? The state, in order to protect the existence of the same, needs the man. And if man itself disappears, then what is the need of the state? It is actually the question. Sometimes it does not lead to the death of the person, but creates a vacuum to the mental stability of the person and they lose their ability to have progress with the life. They become derailed with their life. They some way or the other lose the ability to work upon with the society.
Hence such is also detrimental for the state to work. If the freedom is actually granted to the people in the utmost individual basis then cohesion would be provided not only in the community basis but also reliance as well as submission to the government would be enhanced. Not only it continues with humanity, it is actually a duty of all the human beings as conferred by the religion. Hence ending up the life is a sin created towards the religion. On the other hand, one of the most supreme sources of law is religion. So in that way also the same cannot be permitted by the law. Hence prioritizing the legislations against death was very much needed in the existence of the humanity. But on the same hand if we see persons having no ability within itself to interpret themselves, actually in a vegetative state then in such situation, what is the need for their existence?
Then in that way, how would the same make a society, the state being enforced upon the same? Hence from that it is quietly vibrant about the fact that euthanasia actually does not mean right to die. The same rather is much more squinted concept out of right to die. For the particular to be applicable there needed particular scenario. And such scenario is of such, which is not having any kind the objectives to be fulfilled, because of nullity of the probabilities from the humane. Hence right to die does clashes with the provisions of the legislature as well as the constitution.
2 CASES WHERE RIGHT TO EUTHANASIA IS NOT GRANTED There has been certain cases where we find that the incapability of the persons to accept the practice as a legal one, lead to the sufferings of the particular persons, up to a great extent, and not only that, but also, such leads to the prevalence of irrationality regarding the rights of the people, which actually appears to be purely against the rights of the constitutions. These cases are actually the foreign cases interpreted in lines of the Indian constitution. Firstly, coming to Terri Schiavo case where it was mentioned that though euthanasia was actually given, but the effect of the same were so much passive in nature, that the actual significance was ceased to be carried out from the same. Hence the intense slow process of euthanasia, did actually make the person involved in the pain for a long period of time.
Taking into the consideration of the case of Terri Schivaco, the patient was totally in a vegetative state, having caused a brain death in that regard. There was a long legal procedure held in regard to the case, where at the last, the same was adjudicated with euthanasia. It can be very well presumed regarding the fact the occurrence of brain death in a person, leads to multifunctional disability, where the slight non-connection with any of the materialistic apparatus, would actually loosen the capacity of the person to continue with his life. And on the other hand there is also no probability of such persons recover. At such point of time the apparatus, through with the body of the person is actually connected, does not have any kind of constitutionality, in providing the same.
When there is no probability of the persons to recover, giving them life support does not make any sense within the ambit of right to life under Article 22 of the Indian Constitution. On the other hand persistently engaging with such kinds of the patients, is not 2https://clpr. org. in Euthanasia & Right to die, Centre & Policy leading the other patients, who are entitled to recovery to get the health care. This appears as the breach of the constitutional rights for those persons as they are denied to proper health care. Going with the same line if we interpret the British case of Brittany Maynard, where the brain cancer affliction has no other option but death, even in such situation the same was not given the status of euthanasia, where the declaration was totally based upon the legal stand i. e.
the human right stand of most of the countries worldwide, which does not give any legal recognition, to such death. But according to countries of liberal democracy, all citizens must have the right to live with dignity. And such kind of scenario is depriving persons from such privileges. 3 Another French case was of Vincent Lambart, where we find that the same was there in a permanent vegetative state for a long period of time. The court was of opinion to have granted euthanasia to the same, but the family did not want to make the thing possible. However, it is seen that the court ordered to put away the life sustaining support for him, which will lead his slow pathway to death. That would cause a great suffering to those persons, which would actually have a breach towards Article 21 of the constitution i. e. Right to live with dignity.
4 Coming on to another case, where we find out some Indian cases where, it is to check out not giving the right of euthanasia, has been the properly meted with the constitutionality attached with the same. In the case of Nikhil Bhonsle, we find that the same being associated with some terminal illnesses related to spine which led him not granted the right to euthanatize. Here the case it is very well seen that the constitutionality backing the case was not that much prevalent, as it can be regarded as normal illness were right to proper access in health would lead to the recovery of the persons. 5 On the other hand in the K. S.
Suresh case, it was mentioned that the same afflicted with the death of the brain, he was denied of euthanasia by the Apex Court and was substituted for palliative care in the name of contribution to religiosity as preserving / celebrating life is a vital 3https://vkex. co. uk British Maynard Case 4https://scc. online. comVincientLambart Case 5https://indiakanoon. com Nikhil Sanjay Bhosale Vs State of Maharashtra part of it. 6
CONCLUSION
It can be concluded that though the right not to give euthanasia is to be held to give the fullfledged right to live, but the fact is that the same is not interpreted with the actual objective of the constitution. Here the meaning of the same is found to be very much acquainted. The broader meaning of the same due to the worldwide situation, loses the prevalence of the same, hence is found to be suppressed. Bu the fact is that the foremost principle which guides our constitution is the principle of sovereignty, which defines the state to be its own ruler. Hence through the lines of such concept there should not be nexus with the legal frame work of the country with the legal standings of the other. Hence in order to make the law enforceable the true essence of the constitutionality must be properly interpreted. 6https://indiakanoon.com K.S. Suresh Vs The Superintendent of Police