The conundrum of living will

The conundrum of living will

Ichha Mrityu (power to choose the time of one's death) of Bhishma in Mahabharata is quite well entrenched in the Puranic tradition but it has become a grave issue of public discourse today. Recently, a constitution bench headed by Chief Justice of India Dipak Misra, faced with a dilemma as to whether the Constitution gives a terminally ill person the right to end his/her own life with the help of a doctor or whether the government's duty to protect life outweighs whatever individual right may exist in this respect.

Despite various instances of "acceptance" of euthanasia in ancient times, these practices have been largely rejected by physicians, philosophers, and ethicists, especially in the past two millennia. Interest in hastened death by one's choice regained support from some sections of the medical and scientific communities in the late 19th century, though the said movements were relatively short-lived. The modern interest in assisted suicide began to surface in public debates in the 1980s.

Based on both philosophical ideas and religious beliefs, human life is sacred and should be protected whenever possible. Theologists also strongly believe that life is a sacred gift bestowed by a 'Supreme Being', and therefore it is a violation of religious law to harm this gift by human intervention. There is also no way to distinguish which lives are worth living and which are not, and it is unethical to try to end one's life.

There is no "right to die" enshrined in the Constitution, nor is there any moral claim to the act of ending one's life. According to religious tenets, life is a gift given by god and should only be taken by god or the naturally ordained process of death. Hinduism does not support mercy killing. Christianity, Judaism and Islam also equally emphasise the "sanctity of human life".

Our moral tradition and our laws have uniformly condemned these practices; it is simply inaccurate to say that the right to assist in ending a human life is a personal right inherent in an individual. Indeed, it is our proud history to have prohibited such dangerous conduct.

The Constitution recognises the inalienable right to life and so the government's most important duty is to protect life. The State places the highest importance on protecting the lives of all its citizens. Yet, these claims fail to recognise that life is already
measured, and society often ends lives pre-
maturely under specific State sanction. The clearest example would be the death penalty, which is still legal in many countries, including India. It is argued that those who are awarded death penalty do not want to
die but receive death as punishment, where-
as those who seek death are denied it.

In other instances, the nation has applauded those who willingly lay down their lives in service of the nation. Military personnel are awarded posthumous medals for acts of valour, such as jumping on a grenade or taking a bullet for a comrade. The heroes of the military, fire department, police and other groups protect our citizens at the expense of putting their lives at risk, but they are not accused of acting in derogation of their primary right to protect their lives.

However, the pro-good death lobby believes that end-of-life decisions are personal matters that should not involve government interference for three reasons: (1) End-of-life matters typically fall within the realm of personal freedom (2) End-of-life decisions are private medical matters that should be protected as private. (3) Prolonging a patient's life against his or her wishes wastes resources that the patient may not want to drain from his or her family or society.

Judicial response

Although early laws in the West were rigid in dealing with such cases, more recent developments have gradually expanded the boundaries and defined the conditions under which hastened death can occur. In the United States, this process began with theQuinlan Case (1976), which upheld the right to terminate life-sustaining interventions. Subsequent Supreme Court cases such as Cruzan (1990), Glucksberg (1997), and Quill (1997) have further established parameters of interventions to hasten death.

Indian courts have responded differently, and they have put the sanctity of life on a higher pedestal. In Gian Kaur case (1996), a five-judge constitutional bench held that the "right to life" is inherently inconsistent with the "right to die." In  Samira Kohli case (2008), the Supreme Court has laid down certain pathbreaking guidelines to be followed to obtain the patient's consent, which should be real and valid. This may include information regarding the nature of treatment, alternatives if any, risks associated with a particular treatment, etc.

These guidelines are, by all means, well-founded because they indeed enable an individual to harmoniously exercise his Right to Life as guaranteed in Article 21. The latest one being Aruna Ramchandra Shanbaug case (2011), wherein the apex court held it illegal to allow active mercy killing but allowed passive euthanasia (with guidelines). This judgement brought the rights of the patients to the forefront.

To die peacefully, without suffering, is a right under Article 21. But the liberty associated with ending one's life is riddled with so many complicated questions, given the cultural, religious and legal systems in India. On the other hand, the liberty of a person is also equally important in relation to his choice to die when faced with a condition of unending suffering. The constitution bench hearing the matter needs to evolve some objective standards so that laws can be applied justly without compromising the constitutional values attached to the very fundamental right to life.

Any devious idea to end somebody's life because he/she is terminally ill should be strongly shunned. The need of the hour is to strike a fine balance between right to life and the liberty to die. The founding fathers of the Constitution recognised and established primacy of liberty over the very fundamental right to life. As Patrick Henry said, "Give me liberty or give me death."

(The author is a Supreme Court advocate)  

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