#dnaEdit: Showing mercy

By issuing notice seeking responses from the states on legalising passive euthanasia, the Supreme Court’s five-judge Constitutional Bench has turned its back on a 2011 two-judge bench decision in the Aruna Shanbaug case that sanctioned this procedure and had even laid down guidelines. Wednesday’s decision comes, rather ironically, on a petition which sought to push the envelope beyond the 2011 judgment. The petitioner pleaded that terminally-ill persons could execute a “living will” requesting withdrawal of life support if medical opinion rules out recovery or they go into a permanent vegetative state. In 2011, the Supreme Court had interpreted the Constitutional Bench judgment in the 1996 Gian Kaur case — which ruled that the “right to life does not include the right to die” and that the “right to live with dignity included the right to die with dignity” — to authorise passive euthanasia. The judgment allowed doctors or near relatives of such patients to approach high courts with passive euthanasia requests and prescribed norms for high courts to follow until Parliament enacted a legislation.

But in February the Supreme Court noted that the Gian Kaur judgment had not “approved” of passive euthanasia and found the 2011 judgment’s reliance on Gian Kaur to sanction passive euthanasia “factually incorrect”. Though the Gian Kaur judgment had left the question of passive euthanasia hanging without stating any opinion about it, it is unfortunate that mere technicality has felled the 2011 judgment which was hailed as yet another example of the judiciary’s courageousness and progressive credentials. At stake is the individual’s sovereignty over the body to which no State can lay claim. Supporting the 2011 judgment, the Law Commission in a 2012 report said: “Rational and humane considerations fully justify the endorsement of passive euthanasia. Moral or philosophical notions and attitude towards passive euthanasia may vary but it can be safely said that...such considerations do not come in the way of relieving the dying man of his intractable suffering, lingering pain, anguish and misery.”

If the sanctity of life is paramount for the State while arguing against passive euthanasia, it then entails a larger debate. Would the Indian State agree to forsake capital punishment then? The “possibility of misuse” argument has no merit either. The 2011 judgment privileges high courts rather than doctors or relatives to decide passive euthanasia requests. The Law Commission draft Medical Treatment of Terminally-ill Patients (MTTP) Bill further supplements the safeguards in the 2011 judgment. For long, Parliament has painfully lagged the judiciary in filling gaping lacunae and flaws in our laws — be it on Section 377 of the Indian Penal Code, the Vishakha guidelines on sexual harassment at workplaces, or the latest on passive euthanasia. 

With the Supreme Court undertaking an exercise, akin to reinventing the wheel, Parliament should seize the initiative and enact the MTTP Bill. Alternatively, the Constitutional Bench has the opportunity to surpass the 1996 Gian Kaur judgment that had recriminalised suicide and rectify the minor inconsistencies in the 2011 judgment. By equating passive euthanasia with suicide in the Supreme Court, the Centre has effectively locked out Parliament from another debate. Dubbing a terminally-ill person’s desire to die, or a near relative opting for passive euthanasia for a vegetative person, as suicide or illegality ignores individual and social realities. No social contract can sanctify the State’s tendency to regulate every aspect of a person’s life or their choices.