Abhilipsa Naik and Shreya Jayakumar
Introduction
“A long illness between life and death makes death a comfort both to those who die and to those who remain.”
– Jean de La Bruyere
Common Cause v. UOI provided much-needed regulations after Aruna Shanbaug v. UOI legalised passive euthanasia. With the progressing world and a new kaleidoscope of rights being added under Article 21, like the Right to Privacy arising from K S Puttaswamy judgement, it is natural to think that Aruna was a step towards adding another facet to Article 21, that is, the Right to Die. It is argued by many scholars and judges that the Right to Die is inconsistent with the Right to Life, as it is the stark opposite of what Article 21 wants to guarantee; however, one cannot help but wonder if Aruna and Common Cause are one step closer to giving individuals the autonomy of making the ultimate decision.
But is this right viable? Consider this situation. A man learns that he has one day left to live. In his quest to live his last to the fullest, he decides to spend all his money fulfilling his wish list. He takes a loan and buys a house of his dreams, a luxury car and everything he has ever wished to own. By the end of the day, he is in heavy debt, but he is not worried about it as he knows he is going to die anyway. The next day, he learns that he is going to live a long life, and his death is no more imminent. Is it right to say that the transactions he made the previous day must be nullified, as he made them under a frame of mind that can be considered close to insanity, or must he live the rest of his life in debt? Correlating this to the purpose of this article, is the consent given by a chronically ill person (who knows that their death is imminent) to undergo euthanasia (active or passive) valid?
This article seeks to explore the concept of consent in the Right to Die, and whether it would be a viable right.
The components of the right to die
“No person shall be deprived of his life and personal liberty except according to the procedure established by the law” (Article 21, The Indian Constitution).
The meaning of the term ‘life’ has not been defined in the Indian Constitution. Judicial precedence asserts that it is not solely restricted to the physical existence of a person, and that it encompasses the right to live with human dignity.
Furthermore, it is recognised that each individual has an inherent right to die with dignitywhich is included under Article 21. There are broadly two components, Euthanasia and Suicide, of the Right to Die, out of which Euthanasia is examined under the lens of validity of consent. Euthanasia or Mercy Killing refers to ending the life of a patient undergoing an ailment (which would imminently lead to their death) to limit their suffering. Euthanasia is broadly of two types-
Active euthanasia is ending the life of a patient by active means, for example, injecting a patient with a lethal dose of a drug; passive euthanasia, on the other hand, is intentionally letting a patient die by withholding artificial life support such as a ventilator or feeding tube.
Evaluating through the lens of JS Mill’s Harm Principle
Right to Die at its core is a person exercising their will and liberty to decide whether or not they want to stay alive in this world, and if not, when they would like to put an end to their life. One of the champions of liberty and its two sidedness is John Stuart Mill. J S Mill, in his book On Liberty, highlights his theory of liberty and “paternalism”. J S Mill does not totally reject paternalism, nor does he laud it. He recognises the threat it poses to individual liberty, but he also recognises that unchecked liberty becomes a license for abuse. Hence, while balancing this conundrum, J S Mill presents an elastic paternalism; the state can interfere in the lives of an individual to ensure development of an individual, but, not in a way that completely takes away his autonomy. He also presents facets of an individual’s life that the state cannot interfere in.
Self-harm is a subject he puts under the first bucket; he allows for state intervention and paternalism when an individual’s ‘self-harm’ harms those who are dependent on said individual. However, he also goes on to say that if self-harm is voluntary, then it should be allowed (but there can be interference till it is established for sure that the harm inflicted by one on himself is voluntary). However, self-harm in common view includes drug abuse, alcohol abuse, and other such usage of harmful substances. Can it be said to include suicide and life-ending harm to self? Can it also be said to include harm caused to others based on their consent, i.e., euthanasia in the form of assisted euthanasia as it is known today? Can an individual refuse life-saving medication?
J S Mill’s Harm Principle allows for suicide and refusal of life-saving medication, provided that they freely consented to it. However, the Harm Principle is strictly against one causing harm to another, as such an act takes away the liberty of the said individual, and hence, J S Mill would have been against the idea of assisted suicide.
The validity of consent so given
The common meaning of consent is understanding and agreeing to something in the same sense as it is referred to. With that being the case, why is the consent given by chronically ill people facing imminent death questioned? Since they understand that they, in most probability, might die due to their medical condition, they consent to die before their disease consumes them. It must then be considered why their consent is questioned.
To understand this, it is important to understand the concept of Free Consent. Consent is said to be valid only when it is given freely, that is, under no influence of other factors like an imminent threat to self or others considered dear, for example. Experts argue that the people considering suicide mostly are not in a sound state of mind to make objective decisions.
Can it be said that the fact that they are facing imminent death renders them incapable of giving free consent? Consider this scenario. A person who has undergone a terrible accident, and requires immediate operation lands up in a hospital. The Supreme Court had held that before any medical procedure is undertaken, consent of the patient must be taken.
Consent given by a person for treatment, operations, etc., when they are diagnosed with a chronic ailment is considered to be valid consent to go through with the treatment despite being in a similar mental state as a person undergoing chronic ailment who wants their suffering to end. Analogously, the consent given in order to undergo active euthanasia should also be valid.
A need for legislation
The need for legislation arrives at the execution part. Consider, for example, what if the patient in the vegetative state still wants to live? According to the guidelines, a patient in the vegetative state cannot provide his own consent towards euthanasia and the responsibility is laid on the close relatives for the same. But is it so that the patient entering into a vegetative state, gives up his right to express his will? The contention here is that there exists a possibility that the patient may want to live and fight the battle towards achieving recovery.
Secondly, there is no fixed period within which a patient or the patient’s relative has to give consent while opting for the option of “mercy killing”. How long does the family have to wait (after the patient has gone into a vegetative state) to go through with opting for euthanasia? Lack of regulations in this regard leads to vagueness and uncertainty regarding opting for passive euthanasia.
The concept of the legal right of Euthanasia should not be mistaken as to include suicide which gives a person a leeway to abruptly end one’s life. The right to die should be restricted to a patient who has no option left to end physical suffering apart from choosing death over life. It shouldn’t overlap with the concept of suicide which provides a way to escape suffering. It need not be a right to assist in ending one’s life.
Conclusion
The right to die is a viable right as long as it is limited to euthanasia. It becomes easier for the state to regulate such a right while ensuring that it is not misused. The concept of euthanasia has already been regulated in various countries, with some allowing it (like Netherlands, Belgium and Luxembourg), and some prohibiting it (like the United States and Canada). It is time for India to take a stance on the same by legislation rather than leaving it unto judicial precedence.
The Authors are second-year students of National Law University Odisha.
Image Credit: iPleaders
Constitutional Law Society 
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