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Despite passive euthanasia law, the Indian state still decides when we are free to end our life

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Given the legal framework in India, the distinction to be debated is not one between active and passive euthanasia, but between passive euthanasia and suicide.

One of the great challenges for Indian constitutionalism is to allow citizens to shape the intimate domains of their life. In many respects, it has failed in this challenge.

The fact that Section 377 of the Indian Penal Code, which criminalises homosexuality, is still on the books is but one among many instances where Indian constitutionalism has invaded rather than preserved the private sphere.

Earlier this month, the Supreme Court in Common Cause was faced with a question that similarly implicated a decidedly private matter: the permissibility of passive euthanasia. Should the law permit the termination of treatment for patients under certain circumstances?

The relevant provision here is Article 21 of the Constitution that guarantees the right to life. In the early 1990s, the Supreme Court had addressed whether the right to life would include the right to die. The inquiry arose in the context of a challenge to Section 309 of the IPC, which punishes attempted suicide.

The court first struck down this provision but then, in a subsequent decision (Gian Kaur) involving the validity of a provision criminalising the abetment to suicide, it reversed its earlier decision and upheld Section 309. The court suggested that rights need not include positive and negative correlates. In particular, negative omissions may be protected but the same could not be said for positive actions. Suicide, it declared, involved an affirmative, positive action to end one’s life, and thereby fell outside the ambit of the right to life.

Gian Kaur settled the matter of suicide, but left open the question of passive euthanasia. It did so by asserting that cases relating to terminally ill patients, where passive euthanasia came into play, were “not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced”. In Common Cause, the Supreme Court stayed with this logic and declared that passive euthanasia was distinct from both active euthanasia as well as suicide. It observed that whereas suicide and active euthanasia involved a “self-initiated positive action with a specific intention to cause one’s death”, “a patient’s right to refuse treatment lacks his specific intention to die”.

Such refusal, the court noted, “merely allows the disease to take its natural course and if, in this process, death occurs, the cause for it would primarily be the underlying disease and not any self-inflicted act”.

After asserting that passive euthanasia occupied an independent domain that was currently unsettled, the court proceeded to establish its constitutionality. It suggested that the right to dignity, which formed part of the right to life, would include the right to a “dignified procedure of death”. It then offered an autonomy-based argument: That persons have the right to choose the medical treatment they receive, and this would include the decision to not receive any treatment at all.

The court’s decision is in many respects laudable. Both dignity and autonomy are important constitutional values.

Other features of the decision are also noteworthy. For example, the opinion by Chief Justice Misra and Justice Khanwilkar was careful in its comparative analyses, and in studying the global move toward permitting passive euthanasia. But the court’s decision in Common Cause is also a fierce reminder of how muddled Indian constitutional doctrine has become.

The distinction between active and passive euthanasia has long been a contentious one. As the famous “Philosophers’ Brief” – a 1997 submission by major philosophers before the United States Supreme Court – underlined, the important distinction has not been acts and omissions but “between acts or omissions that are designed to cause death and those that are not”. As the brief noted, doctors are not permitted to allow a patient who has been injured to bleed to death, even though this might be a natural process. The distinction rests less on principle as it does on regulatory concerns. Practical concerns cannot, by themselves, trump a constitutional right – that would make rights pointless – and states are typically asked to discharge a major burden to demonstrate a compelling interest to support the restriction of a right.

Regardless of how convincing the distinction between active and passive euthanasia might be, the court rightly acknowledged its place in several jurisdictions. But the significant, unspoken fact is that many of those jurisdictions do not criminalise suicide. Given the legal framework in India, the distinction to be debated is not one between active and passive euthanasia – which is the global debate – but rather the distinction between passive euthanasia and suicide. Gian Kaur seemed to suggest that such a distinction had meaning, and Common Cause followed suit without interrogating the matter in any serious way.

But it is hard to sustain the case for passive euthanasia without also decriminalising suicide. The claim that suicide involves an affirmative, positive action whereas passive euthanasia is an omission targeted at a “natural” end is unconvincing, and cannot make sense of even basic cases like starving unto death (which involves restraint from eating). Further, reasons like autonomy offered in support of passive euthanasia apply equally to suicide.

Common Cause was bound by Gian Kaur, as both had benches of coequal strength. Ideally, the Supreme Court should have referred the matter to a higher bench to arrive at an outcome where its position on suicide, active euthanasia and passive euthanasia might cohere.

In the absence of that, the court has done the best it could do under the circumstances. But it is ironic that the law now allows passive euthanasia but criminalises suicide, effectively meaning that the state decides when we have the autonomy to end our life.

The freedom granted by passive euthanasia is to be cherished, but it is a reminder that Indian constitutionalism preserves individual liberty in make-do ways rather than through the consistent, broad application of principle.

Madhav Khosla, co-editor of the Oxford Handbook of the Indian Constitution, is a junior fellow at the Harvard Society of Fellows. His Twitter handle is @M_Khosla

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