Opinion: Passive euthanasia brings in a new wind of change

In a series of recent landmark judgments, the Hon'ble Supreme Court, on March, 9, 2018, added another feather to its cap when it put to rest the long-debated issue of euthanasia i.e. mercy killing. Indian society had, for long, considered the concept of mercy killing as a taboo and had prevented itself from opening up to the idea and, as such, the political dispensations had also been reluctant in promulgating the relevant legislations on the subject.

However, the change came about with the case of Aruna Shanbaug which was decided by the Supreme Court in 2011, wherein, the apex court permitted passive euthanasia and issued strict guidelines for the same which included a clearance from the jurisdictional high court. The latest verdict of March 9 is in pursuance to the previous one and has also introduced the concept of 'living will' which is a document executed by an individual of a sound mental disposition, thereby, placing on record as to whether he/she would like to be placed on artificial medical support should the individual suffer from an incurable terminal ailment.

As a reference, worldwide, there are multiple recognised forms of euthanasia like passive/active euthanasia, assisted suicide etc but India has only permitted passive euthanasia. The basic difference is that, in active euthanasia, death of the patient is brought about by an action like administering an overdose of medicines whereas passive euthanasia involves an omission to provide any further medical support and letting the individual die in natural course.

Historically, various religions have also practised this form of euthanasia. For example, Jainism has the concept of Sallekhana which is primarily practiced by seers. In this, when they feel like putting an end to their worldly journey, they refuse the food, water or medications and, gradually, slip into eternal sleep. But this was not a legally recognised concept and had also led to controversies in recent years. But now, with the legal sanction, the concept of euthanasia has been accepted and can be professed by anyone who chooses the path.

While passing the judgement, Supreme Court was also conscious of the probable misuse of this provision and, as such, has introduced multiple layers of precautions in the form of guidelines so as to ensure that the provision is exercised in its letter and spirit. As stated above, there is no legislation in place on the subject and, hence, till that time, the guidelines issued by the apex court would act as guiding light. As a basic measure, the 'living will' can be executed only by an individual of sound mind out of free will and volition. The living will has to be unambiguous in its intent and should clearly state the terms and conditions and circumstances of withdrawal. Further, the living will should specify the name of guardian or a close relative who, in the event of executor becoming completely indisposed, would be authorised to accord consent on behalf of the patient to withdraw the treatment.

In order to allay the fears of misuse, the Supreme Court has also provided for the clearance by the State before the living will is carried out. The living will is to be signed by the executor before two attesting witnesses and the same is to be countersigned by the jurisdictional Judicial Magistrate, First Class. Both the Judicial Magistrate and the witnesses would record their satisfaction as to the free will of the executor while preserving one copy in his office and sending another to the record of the jurisdictional district court and to the competent officer of the local government.

The safeguards have also been provided at the medical platform like verifying the authenticity of the living will and forming of medical boards - one by hospital and another by the district collector - and, only after their clearance, can the process be proceeded with.

Undoubtedly, this is a welcome introduction by the Supreme Court and it is hoped that the provision is carried out in letter and spirit and ends the sufferings of those with no hopes. However, with the first step taken, a debate upon extending the sweep of the provision to cover active euthanasia as well is not far away in sight but that can only be after the provisions of passive euthanasia are successfully imbibed by the society.

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)