Right To Live And Right To Die: Need To Reconceptualize The Contours

“The thought of suicide is a great source of comfort: with it a calm passage is to be made across many a bad night.” -- Friedrich Nietzsche, Jenseits von Gut und Böse (1886).

The solace of a much needed suicide, albeit an assisted one, was never provided to Aruna Shanbaug despite the fact that her perennial bad night lasted for most than four decades. Having been sodomised by a hospital assistant Sohanlal Walmiki in 1973, who choked her with a dog chain rendering her in permanent vegetative state (PVS), Aruna Shanbaug has waited for a long time for natural death to come. This long period of wait has fuelled several debates and engendered a couple of contemplations. Today, the time is perhaps too ripe for their enumeration.

David Hume has safely posited that no man ever threw away life ‘while it was worth keeping’ (David Hume). The jurisprudence on the right to life encompasses right to live with dignity (Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981)1 SCC 608), and seeks to differentiate it from mere animal existence. Despite the erudite reasoning adduced by the Apex Court in the case of Aruna Shanbaug v. Union of India (2011) 4 SCC 454, an empathetic doubt has lingered in our minds: could the vegetative existence of a paralytic and cortically blind Shanbaug be termed a dignified living, was her life still worth keeping? Had she been in a position to express her willingness or lack of it to continue with such an existence, what could have been the chances for her opting in favour of life?

Her life seemed to be worth keeping to her ‘guardians’. The nurses of KEM Hospital have portrayed a rare instance of compassion taking her responsibility even after the legal system had moved on and the case was over for the media. They have wanted Shanbaug to live, even though her chances of revival were nil. However, a pragmatic approach compels us to look at this issue from the point of view of the suffering victim. The basic right to life enjoyed by an individual can never be complete unless the fact that the right to die is inextricably intertwined therewith is taken note of. In the absence of such an interpretation, we would continue to err in favour of an archaic legislation of colonial legacy, Irom Sharmila would continue to be penalized for attempted suicide under Section 309, and terminally ill patients would continue to suffer with increasingly modernized life-support systems.

Some of us are resourceful and sentimental enough to sustain our vegetative or terminally ill relatives by utilizing the miracles of science. The medical business would thrive at the expense of the suffering patients who are beyond recovery. Our terminally ill relatives would suffer just because we can afford it, or because our religion- which is necessarily of anthropogenic import- prohibits mercy killing. We would not pull the plug whilst they continue to suffer because active euthanasia is illegal.

This distinction between active and passive euthanasia seems artificial. While active euthanasia entails the use of legal substances to end a life, passive euthanasia involves withholding of medical treatment for the continuation of life. Both necessarily involve an element of human interference and participation, either an act or an omission. It is high time now that a cue is taken from the jurisdictions legalizing euthanasia with ample safety nets. Formulating a legislation on this point is the clarion call of the hour, as euthanasia could be made lawful only by a legislation (Aruna Shanbaug v. Union of India). The perusal of the Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 2002 of Netherlands might aid the exercise. Euthanasia and physician-assisted suicide ought not to be punishable if the physician acts in accordance with some criteria, such as the patient’s request and/or the patient’s suffering, the presence of reasonable alternatives, consultation with another physician etc.

Sohanlal would not have been prosecuted only for attempted murder and theft had the current rape laws been in force. Our legal system, dynamically organic, is evolving. In order not to impede the pace of this ardently needed evolution, the contours of the right to life ought to be reconceptualized, and euthanasia ought to be legalized.

(The writer is a Research Scholar at the Centre for International Legal Studies, JNU, New Delhi)