RIGHT TO DIE- A FUNDAMENTAL RIGHT?

BY -DEEPIKA.PON INTRODUCTION:
Suicide occurs in all ages. Life is a gift given by God and he alone can take it. Its premature cannot be approved by any society. But when a troubled individual tries to end his life, it would be cruel and irrational to visit him with punishment on his failure to die. It is his deep unhappiness which causes him to try to end his life. Attempt to suicide is more a manifestation of a diseased condition of mind deserving of treatment and care rather than punishment. It would not be just and fair to inflict additional legal punishment on a person who has already suffered agony and ignominy in his failure to commit suicide.

Suicide is a deliberate refusal to accept the only conditions on which it is possible to go on living
The criminal law must not act with misplaced over zeal and it is only where it can prove to be apt and effective machinery to cure the intended evil that it should come into the picture. In our country, attempt to suicide is an offence punishable under section 309 of the Indian Penal Code. Section 309 reads thus: Attempt to commit suicide: Whoever attempts to commit suicide and does any act towards the commission of such offence shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both. Thus Section 309 of the Indian Penal Code provides double punishment for a person who has already got fed up with his own life and desires to end it. Section 309 is also a stumbling block in prevention of suicides and improving the access of medical care to those who have attempted suicide. It is unreasonable to inflict punishment upon a person who on account of family discord, destitution, loss of a dear relation or other cause of a like nature overcomes the instinct of self-preservation and decides to take his own life. In such a case, the unfortunate person deserves sympathy, counseling and appropriate treatment, and certainly not the prison. RIGHT TO DIE- A FUNDAMENTAL RIGHT? Article 21 of the Indian Constitution reads thus.

No person shall be deprived of his life or personal liberty except according to procedure established by law

The Indian Perspective : In India, the sanctity of life has been placed on the highest pedestal. "The right to life" under Article 21 of the Constitution has received the widest possible interpretation under the able hands of the judiciary and rightly so. This right is inalienable and is inherent in us. It cannot and is not conferred upon us. This vital point seems to elude all those who keep on clamoring for the "Right to Die." Suicide means deliberate termination of ones own physical existence or self-murder. It is an act of voluntarily or intentionally taking ones own life. Suicide needs to be distinguished from euthanasia or mercy-killing. Suicide by its very nature is an act of self- killing or selfdestruction, an act of terminating ones own life without the aid or assistance of any other human agency. Assisted suicide is the process by which an individual, who may otherwise be incapable, is provided with the means (drugs or equipment) to commit suicide. In some cases, the terms aid in dying or death with dignity are preferred. These terms are often used to draw a distinction from suicide; in some legal jurisdictions, suicide (whether assisted or not) remains illegal, while aid in dying is permitted. The term euthanasia refers to an act that ends a life in a painless manner, performed by some other than the patient. This may include withholding common treatments resulting in death, removal of patient from life support or the use of lethal substances or forces to end the life of the patient. It involves the intervention of other human agency to end the life. Self-deprivation of life is not established by any procedure.

The researcher would like to bring to your attention few facts with regards to suicides in India. According to the data the researcher has, sourced from the report titled Humanization and Decriminalizing of attempt to suicide submitted to the then Law Minister Mr. H. R. Bharadwaj, the number of recorded suicides in India in the year 2006 was 1,18,112. The deceased were mostly from the age group of 15-29 and 30-44 accounting for 36% and 35% respectively of the total suicides in the country. Ours is a democracy which means that it is by the people, of the people and for the people. Constitution locates power that resides in the people. Constitution is the society in its political aspect. We cant understand its nature without understanding the chief characteristics of the society. If the Constitution is such that it has taken into consideration, the social set up, then only will it stand the test of time. Constitution and society grows, develops together and gets interwined in each other. The Constitution takes into account change and developments in the society. The question whether the right to die is included in Art.21 of the Constitution came for consideration the first time before the Bombay High Court in State of Maharashtra v. Maruti
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Sripati Dubal1. The Bombay High Court held that the right to life guaranteed by Art.21 includes a right to die, and consequently the court struck down Section 309 IPC which provides punishment for attempt to commit suicide by a person as unconstitutional. The Bombay High Court held that Sec 309 is violative of Art 14 because of the following reasons: 1) The acts or the series of acts, which will constitute suicide, are undefined and ambiguous and the want of a plausible definition made it arbitrary. 2) Sec 309 treats all attempts to commit suicide by the same measure without referring to the circumstances and therefore unlike cases are treated alike. The judges felt that the desire to die is not unnatural but merely abnormal and uncommon. They listed several circumstances in which people may wish to end their lives, including disease, cruel or unbearable condition of life, a sense of shame or disenchantment with life. They held that everyone should have the freedom to dispose of his life as and when he desires. In this case a Bombay Police Constable who was mentally deranged was refused permission to set up a shop and earn a living. Out of frustration he tried to set himself afire in the corporations office room. On the other hand, the Andhra Pradesh High Court in Chenna Jagadeeswar v. State of Andhra Pradesh 2 held that the right to die is not a fundamental right within the meaning of Art.21 and hence Section 309 I.P.C. is not unconstitutional.

In P.Rathinam v. Union of India3 a Division Bench of the Supreme Court comprising Mr.Justice M.Sahai and Mr.Justice Hansaria agreeing with the view of the Bombay High Court in Maruti Sripati Dubal case held that a person has a right to die and declared unconstitutional, Section 309 of I.P.C. which makes attempt to commit suicide a penal offence. The right to live in Art.21 of the Constitution includes the right not to live, i.e., right to die or to terminate ones life. In the present case the petitioner had challenged the validity of Section 309 on the grounded that it was violative of Arts.14 and 21 of the Constitution and prayed for quashing the proceedings initiated against the petitioner (Nagbhushan) under Section 309 pending in the Court Sub-Judge, Gunpur in the District of Koraput, Orissa for attempting to commit suicide. The Court held that Section 309 of the IPC was violative of Art.21 and hence it is void. S person can not be forced to enjoy right to life to his detriment, disadvantage or disliking. The Court held that Section 309 of the IPC was a cruel and irrational provision. The Court held that right to life of which Art.21 of the Constitution speaks of can be said to bring in its trial the right not to live a forced life.

1 2

1987 Cr LJ 549 1988 CR LJ 549 3 (1994)3 SCC 394

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The Supreme Court in the same case recognized the right to die as a part of right to life in Art21. The judges cited a number of cases to show the expansion of the scope of Art21 over the years by the judiciary4.Thus the judges observed that: The right to life embraces not only physical existence but the quality of life as understood in its richness and fullness by the ambit of the Constitution. It therefore logically follows that if a person is not satisfied with the quality of life as granted under Art21 then he has the right to terminate it. However, sequencing the right to die immediately after an elaborate discussion of the Supreme Courts expansion of the right to life as illegal as most of the rights attempted to enhance the enjoyment of life itself. In contrast, the right to die extinguishes life itself and has nothing in common with the other rights. Thus, the expansion of right to life over the past four decades has mainly been understood in terms of all those conditions that are in someway or the other conductive to a free flow and enhancement of life. The recognition of right to die was a movement in the reverse direction as it would have not only created confusion in the right to life movement but also could have ultimately absolved the state of any obligation to provide the life enhancing conditions5. There is a distinction between an attempt of a person to take his life and action of some others to bring to an end the life of a third person such a distinction can be made on principle and is conceptually permissible. The Court set aside the judgement of the Bombay High Court in Maruti Sripati Dubal v. State of Maharashtra and the decision of the Supreme Court in P.Rathinam v. Union of India cases wherein Section 309 IPC was held to be constitutional and upheld the judgement of the Andhra Pradesh High Court holding that Section 309 of the IPC was not violative of Arts.14 and 21 of the Constitution. Some people argue that right to die is not ones ultimate personal freedom, since we not only live for ourselves, but also for others. According to them, the right to personal freedom cannot be stretched to the extent of mankind returning to state of nature, state of lawlessness. It is that so many societies on this planet view death as inherently undermining of social order and cohesion. We like to control the circumstances in which individuals and their loved ones decide on the moment to finish with life. We fear the floodgates will open if we sanction death for those who desire it because they no longer want to live. The timidity with which politicians approach voluntary euthanasia and the restrictions placed on the media's discussion of suicide are testament to this state of affairs.

See Unnikrishnan v. State of A.P (1993)1 SCC 649(Right to Education); Sunil Batra v. Delhi Administration. AIR 1980 SC 1519(Right against Confinement);Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360(Right to Speedy trial). 5 B.B.Pande, Right to life or death? For Bharat both cannot be right (1994)4 SCC (J) 1.
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Media guidelines in the United States, the United Kingdom and Australia characterize suicide as being the act of someone who is "desperate" or "mentally ill." It is not suggested that suicide or the right to die should not be handled sensitively by the media and the community -- with every death, there are those left behind who grieve the loss of a human life -- but we should not view death in these circumstances as being a wholly negative experience. Philip Nitschke, one of the architects of that Northern Territory law and an internationally renowned right-to-die campaigner, recently has observed in a new book that the blanket negativity toward suicide in all circumstances is a relatively recent phenomenon in human history. Great Enlightenment thinkers such as Scottish philosopher David Hume regarded suicide as a viable and worthwhile option. "When life has become a burden, both courage and prudence should engage us to rid ourselves at once of existence," Hume wrote. It was the advent of psychiatry and allied disciplines in the late 19th and early 20th centuries that redefined suicide. "Concepts such as personal autonomy, liberty, selfdetermination and free will -- values cherished by contemporary Western society -- became increasingly sidelined," Nitshcke observes. Suicide is now always seen as a medical problem that needs to be "cured" or alleviated in some way. There is, in the view of many in positions of authority in our society, no legitimate reason for taking one's own life. For example, in the cases of hunger strike till death, irrespective of the achievements of a noble or purposeful object or for greater service for society which is definitely an attempt to commit suicide as defined under Sec 309 of the Penal Code no action can be taken against the people resorting to these practices, on the ground that they have the right to dispose themselves, in case the right to die is recognized. Furthermore, practices like Sati would be legalised and the removal of Sec 309 from the Penal Code will create hurdles in eradicating the social and shameful evil of Sati, which is a criminal phenomenon and against the conscience of humanity. In fact Justice Krishna Iyer has observed that the Indian Penal Code in Sec 306 and 307 go to the extent of dealing with the Sati system effectively and make it a crime. Everyone who is party directly or indirectly to the operation of Sati is guilty of abetment of murder. CASE: Our life is inextricably linked with so many other peoples lives. Therefore it would be preposterous to even suggest that a person has the personal liberty to die considering how many lives would be affected by that. In certain cases, suicides can even affect the society as a whole. The researcher would like to draw the attention to a suicide that took place in state Kerala a few years back, when a college student named Rajani committed suicide by jumping off the 3nd floor of the Kerala Entrance Commissioners office, because her application for an education
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loan was rejected by a bank. The state was paralyzed for the next 10 days, public property destroyed and schools shut down. The decision to commit suicide is impulsive, irrational and emotional; due to various factors at a personal level and at a socio-economic level. The researcher strongly believes that through effective intervention at the appropriate time, such deaths can be avoided, altering the conditions which lead to the decision to exterminate ones own life. Psychologist Paul G. Quinnett: Psychologist Paul G. Quinnett, Ph.D., makes this observation6 in his book: "As we have already discussed, however, you do not have to be mentally ill to take your own life. In fact, most people who do commit suicide are not legally `insane.' So it seems we have a very interesting problem. To prevent you from killing yourself, doctors like myself will stand up in court and say something to the effect that, by reason of a mental illness, you are a danger to yourself and need treatment. But - and this is the weird part - you may, in a matter of a few hours to a couple of days, get up one morning and say, `I've decided not to kill myself, after all.' And if you can convince us you mean what you say, you can leave the hospital and go home. Question: Are you now completely cured of your so-called mental illness? Obviously not, since the chances are you were never `mentally ill' in the first place. ... As I have said, I do not believe you have to be mentally ill to think about suicide" One reason some oppose the right to commit suicide is theological belief that is sometimes expressed this way: "God gave you life, and only God has the right to take life from you." Using this reasoning to justify interfering with a person's right to commit suicide is imposing religious beliefs on people who may not share those beliefs. Sometimes people oppose the right to commit suicide because of belief in a sort of entirely nonbiological mental illness. Even people who oppose the right to commit suicide because of their belief in mental illness sometimes can be made to understand the erroneousness of their biological theorizing or their belief in some kind of non-biological mental illness by asking them if they would see any point in living if they were suffering from a terminal disease involving excruciating, unrelievable physical pain or were completely paralyzed from the neck down with no chance of recovery. Once people admit there are any circumstances in which they would choose death, they often see suicide is the result of a person's personal judgment about his or her circumstances in life rather than a biological malfunction of the brain or some conception of nonbiological mental illness.

Proponents and "Right to die" groups argue that, a patient in unbearable agony and excruciating pain or "terminally ill", the saving- grace is assisted suicide on compassionate grounds. It is submitted that the problem here is" the term "terminally ill" has no precise
6

Paul G. Quinnett, Ph.D., Suicide: The Forever Decision:(pp. 11-12).

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definition. For instance, Jack Kervorkian, a famous proponent of euthanasia, defined "terminal illness" as "any disease that curtails life even for a day". Some laws define "terminal" as one from which death will occur in a "relatively short time" or "within a span of six months". The nub of the point is that all these definitions scream ambiguity and medical experts have acknowledged that it is virtually impossible to predict the life expectancy of a particular individual. It is reinforced that this issue hovers around an invaluable asset called "life". Just as a mistaken diagnosis is possible, so is a mistaken prognosis (forecast of the likely course of a disease or an illness).It must be remembered that death is final and a chance of error too great to approve the practice of euthanasia. At first one might be shocked to learn how many healthy of mind and body elderly people are thinking about choosing this option, when it suits them to finish their life with dignity, with all their mental facilities in tact and without pain or loss of dignity. We all know how distressing it is to witness a loved one deteriorate into dementia, or foe someone who has suffered a stroke, to be physically affected that they no longer have any quality of life. The loss of dignity and total lack of quality for some old people in our nursing homes is heart wrenching. It seems after a full, rich, long life, a person ought to have the right to choose when the time to go has come and have a chance to celebrate their life before they are gone, or have lost the ability to do so. After all we do so for our beloved pets so they will not suffer. We let them go to sleep without pain, trauma and in peace. Many old people take their own lives in the end and some in dreadfully violent or unpleasant ways, simply because the means to do in a peaceful way was not available to them. Should we make the means available to them? This is the question that riddles this dilemma? How do we advocate a peaceful passing? It is against all our human beliefs in the preservation of life at all cost, but do we really think about or measure that cost to the individual in terms of the pain they may be suffering or worse their loss of dignity? In the case of R.C.Cooper v. Union of India7 (citation) the Supreme Court, while evolving the analogy of negative rights, had held that all fundamental rights had their positive as well as negative aspects. For example, the right to freedom of speech includes the right to remain silent. Therefore, in the case of Maruti Shripati Dubal v. State of Maharashtra, the Bombay High Court held that if this is so, logically it must follow that right to live as recognized by Article 21 will include right not to live or not to be forced to live. To put it positively it will include also a right to die or to terminate ones life. The persistence of this law leads to the following difficulties: 1) Emergency treatment for those who have attempted suicide is not readily accessible as they are referred by local hospitals and doctors to tertiary centres
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1970 AIR 564

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2)

3) 4)

5)

as it is termed as Medico Legal case. The time lost in the golden hour will save many lives. Those who attempt suicide are already distressed and in psychological pain and for them to face the ignominy of police interrogation causes increased distress, shame, guilt and further suicide attempt. At the time of family turmoil dealing with police procedure adds to the woes of the family. It also leads to a gross under-reporting of attempted suicide and the magnitude of the problem is not known. Unless one is aware of the nature of extent of the problem effective intervention is not possible. As many attempted suicides are categorized in the guise of accidental poisoning etc. emotional and mental health support is not available to those who have attempted as they are unable to access the services.

In a truly free society, you own your life, and your only obligation is to respect the rights of others. The researcher believes everyone is entitled to be treated as the sole owner of himself or herself and of his or her own life. Accordingly, the researcher thinks that a person who commits suicide is well within his or her rights in doing so provided he or she does so privately and without jeopardizing the physical safety of others. Family members, police officers, judges, and "therapists" who interfere with a person's decision to end his or her own life are violating that person's human rights. The often expressed view that the possibility of suicide justifies psychiatric treatment even if it must be imposed against the will of the potentially suicidal person is wrong. Provided the person in question is not violating the rights of others that person's autonomy is of more value than enforcement of what other people consider rational or of what other people think is in a person's best interests. In a free society where self-ownership is recognized, "dangerousness to oneself" is irrelevant. In the words of the title of a movie starring Richard Dreyfuss: "Whos Life Is It, Anyway?" The greatest human right is the right of selfownership, one aspect of which is the right to life, but another aspect of which is the right to end one's own life. Whether or not a person supports the right to commit suicide is a litmus test of whether or not that person truly believes in self-ownership and the individual freedom that comes with it.

 The unseemly spectacle: The unseemly spectacle of the U.S. Congress, lawyers, churches and family members all clamoring to save a woman whose life had effectively ended is not an isolated case. We can expect more people who are in Schiavo's position to be used as political and moral weapons because we refuse to recognize death as having just as much value as life.

CONCLUSION:
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Right to live would, however, mean right to live with human dignity up to the end of natural life. Thus, right to live would include right to die with dignity at the end of life and it should not be equated with right to die an unnatural death curtailing natural span of life. Rather than being impulsive, suicide is something people do after long contemplation as part of their efforts to deal with what they consider intolerable life circumstances. If the act of attempted suicide were to be decriminalized it will make things more workable and easier for all to extend their hand and support in reducing suicide in India. It will encourage those who attempted suicide to seek medical and professional help immediately without fear or inhibition. Only a handful of countries in the world, like Pakistan, Bangladesh, Malaysia, Singapore and India have persisted with this law. Hence, a dying man who is terminally ill or in a persistent vegetative state can be permitted to terminate it by premature extinction of his life. In fact, these are not cases of extinguishing life but only of accelerating process of natural death which has already commenced. In such cases, causing of death would result in end of his suffering. The person who contemplates suicide because he or she is no longer "actively struggling for life and health" is not "mentally ill" and our society has no business preventing that person from ending his or her life simply because we fear the consequences of saying yes to death. The right to die is as fundamental as the right to life -- an uncomfortable thought for many, but one that is perfectly rational and fair But even such change, though desirable, is considered to be the function of the legislature which may enact a suitable law providing adequate safeguards to prevent any possible abuse.

BIBLIOGRAPHY:
Books referred:  Basu Dr. Durga Das, Shorter Constitution of India, 13th Ed.(2001) Reprint 2003, Wadhwa & Co., Nagpur.  Datar, Arvind P, Constitution of India, 2001, First Edition, Wadhwa & Co.,Nagpur, India.  Jain Mahabir Prasad, Indian Constitutional Law, 5th Ed.2003, Wadhwa Co., New Delhi.  Jain Subhash, Constitution of India: Select Issues & Perceptions, Ed. 2000 Taxmann, New Delhi.  Pandey,J.N.Dr, Constitutional Law of India, 44th Ed., Central Law Agency 2007, Allahabad. Dictionaries & Law Lexicons referred:  Aiyar K.J, Judicial Dictionay: Complete Law Lexican, 2001, Butterworths, New Delhi.  Bryan A. Garner, A Dictionary of Modern Legal Usage, 2nd Ed.2001, Oxford University Press. Statutes referred:  Constitution of India. Web sources:      www.amardeepsingh.com www.legalserviceindia.com www.mightylaws.com www.indiatoday.in www.antipsychiatry.org

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APPENDIX:
Here is an editorial from The Times of India, which uses sentimental arguments to support the Right to Die. Venkatesh, a 25-year-old muscular dystrophia patient, wanted to be granted the right to die. He sought to enforce the right so that he could donate organs before they were affected by his illness. The plea was rejected a day before his death by the Andhra Pradesh high court. The court ruled that the petition sought to violate the Transplantation of Human Organs Act, 1995, which had no provisions that allowed individuals to donate organs before they were brain dead. The court's caution in this case is understandable considering the implications of easing restrictions in organ transplant. However, the order indirectly reiterated the stated legal position that an individual had no right to end his life voluntarily. Our Constitution guarantees the right to life. The right to life is incomplete without the right to death. The karma of life is a wheel that is completed only when birth is complemented by death. The right to die is built into the right to live. The state has every obligation to legally ensure the protection of life; protection in this case limited to prevention of homicide. However, the Indian state has expanded its territory to be the arbiter even in cases of suicide and euthanasia. Section 309 of the Indian Penal Code holds suicide a criminal act while euthanasia or mercy killing has been left open for debate. It seems to the researcher that suicide probably ought to remain illegal, because many people who attempt it (especially young people) are either a) not fully in charge of their faculties, b) treatable patients with one or another form of mental illness, and c) would probably thank us later for resisting their attempt. These aren't strong arguments (it can still be argued that suicide "doesn't hurt anyone but the doer"), but they are good enough for me. The state should do everything it can to discourage people from committing suicide. On the other hand, it shouldn't penalize people who attempt it and fail. If the 'crime' of suicide is punished, you run the risk of the old totalitarian joke: he tried to commit suicide, and failed, so they executed him.

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