‘The law has taken all my rights away’: on India’s conundrum of able-normative death with dignity

ABSTRACT

This article argues that the exceptionless prohibition on active euthanasia contained in Indian penal law constitutes indirect discrimination against terminally ill persons disabled from committing suicide, and that reasonable accommodation by way of permitting assisted suicide for persons falling within this class is necessary to address such discrimination. While terminally ill persons physically capable of committing suicide may do so without the threat of penal sanction due to the general decriminalisation of the attempt to commit suicide under the Mental Healthcare Act 2017, those who are physically disabled and require assistance are forbidden therefrom due to the exceptionless prohibition under the Indian Penal Code. I argue, therefore, that the current law constitutes both indirect discrimination and a denial of reasonable accommodation, and is incompatible with the constitutional pursuit of substantive equality. I also argue that this incompatibility cannot be saved by a proportionality-backed justification.

KEYWORDS:

• Indian constitutional law
• euthanasia
• disability
• substantive equality
• proportionality

Acknowledgments

The author thanks Prof. (Dr.) Aparna Chandra for her constant guidance; Jyotika Tomar, Sukarm Sharma, and the peer reviewers for their help in ideating; and the Editorial Board for their assistance throughout the editing process.

Notes

1 The remark in the title, ‘The law has taken all my rights away’, was made by Diane Pretty after the European Court of Human Rights had delivered its judgment in Pretty v United Kingdom (2002) 35 EHRR 1 (European Court of Human Rights (ECtHR)), finding that the UK’s prohibition of assisted suicide under Suicide Act 1961 was compatible with the European Convention on Human Rights. This, she claimed, prevented her from exercising the only right she was left with following a loss of bodily functions due to degenerative motor neurone disease: ‘Diane Pretty: the law has taken all my rights away—European court rejects right-to-die appeal’ (The Herald Scotland, 30 April 2002) <www.heraldscotland.com/news/11964940.diane-pretty-the-law-has-taken-all-my-rights-away-european-court-rejects-right-to-die-appeal/> accessed 13 June 2023.

2 (2011) 4 SCC 454 (Supreme Court of India (SCI)).

3 ibid [1].

4 IPC, s 306 reads as follows: ‘If any person commits suicide, whoever abets the commission of such suicide, shall be punished … ’. IPC, s 309, now put into abeyance, reads as follows: ‘Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished … ’. It must be noted that a whole gamut of penal offences constitutes the exceptionless prohibition, the crux of which is in section 306. The Indian Supreme Court in Common Cause v Union of India (2018) 5 SCC 1 (SCI) [466]–[467] (Sikri J) relies on sections 299 to 304 and 306 in the IPC as preventing the Court from holding active euthanasia to be constitutional.

5 Common Cause (n 4).

6 ibid [459]–[462] (Sikri J). IPC, s 300 exception 5 states that ‘[c]ulpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.’ Active euthanasia, including assisted suicide, constitutes culpable homicide punishable under section 304 of the IPC.

7 MH Act 2017, s 115(1): ‘Notwithstanding anything contained in section 309 of the Penal Code (45 of 1860) any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished … ’ See also Common Cause (n 4) [366] (Sikri J).

8 See Rohini Shukla, ‘Passive Euthanasia in India: A Critique’ (2015) 13 Indian Journal of Medical Ethics 35, arguing that the simple withdrawal of medical treatment is likely to amplify the patient’s pain. See also Common Cause (n 4) [394], where the Court acknowledges that the likely effect of passive euthanasia for Aruna Shanbaug, following the relief given in Aruna Shanbaug (n 2), would have been a death of pain and suffocation.

9 MH Act 2017, s 115.

10 See Andrew I Batavia, ‘Disability and Physician-Assisted Suicide’ (1997) 336 New England Journal of Medicine 1671. See also Margaret J Giannini and others, ‘Understanding Suicide and Disability through Three Major Disabling Conditions: Intellectual Disability, Spinal Cord Injury, and Multiple Sclerosis’ (2010) 3 Disability and Health Journal 74; Lauren R Khazem, ‘Physical Disability and Suicide: Recent Advancements in Understanding and Future Directions for Consideration’ (2018) 22 Current Opinion in Psychology 18.

11 RPwD Act 2016, s 2(s) defines ‘person with disability’ as ‘a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others’. For a discussion on reasonable accommodation within the framework of the RPwD Act 2016, see Vikash Kumar v Union Public Service Commission (2021) 5 SCC 370 (SCI) [34]–[38]. See also Avni Prakash v National Testing Agency (2023) 2 SCC 286 (SCI) [37]–[45].

12 For the discussion on indirect discrimination, see text accompanying nn 55–60.

13 [2001] UKHL 61 (UK House of Lords (UKHL)).

14 Common Cause (n 4) [391], [396].

15 While the decisions in P Rathinam v Union of India (1994) 3 SCC 394 (SCI) and Maruti Shripati Dubal v State of Maharashtra (1986) SCC OnLine Bom 278 (Bombay High Court) were premised on the Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India, (1970) 1 SCC 248 [48] (SCI) position on the interrelationship between articles 19 and 21 of the Constitution, only the former identifies a liberty interest in concluding the nature of suicide as a self-regarding action immune from external interference: see P Rathinam [109]; Shripati [8]. Gian Kaur v State of Punjab (1996) 2 SCC 648 (SCI), on the other hand, is premised solely on the principle of sanctity of life and the sui generis nature of article 21 that proscribes its extinction: see [22].

16 The constitutionality of section 309 of the IPC had been commented on, though not adjudged, in two previous cases of the Delhi High Court in State v Sanjay Kumar Bhatia (1985) Cri LJ 931 (Delhi High Court (DHC)) and Court on Own Motion v Yogesh Sharma 1986 RLR 348 (DHC).

17 Shripati (n 15) [2].

18 ibid [23].

19 ibid [33].

20 ibid [11]. See also RC Cooper (n 15) [48].

21 Shripati (n 15) [11].

22 ibid [17].

23 ibid [33] (emphasis in original).

24 ibid [53].

25 Gian Kaur (n 15).

26 ibid [3].

27 ibid [21]–[22].

28 ibid.

29 ibid [22].

30 ibid (emphasis mine).

31 ibid [25] (emphasis mine).

32 Aruna Shanbaug (n 2).

33 ibid [104] (Katju J) citing Gian Kaur (n 15) and Airedale NHS Trust v Bland [1993] AC 789 (HL) (UKHL).

34 Aparna Chandra and Mrinal Satish, ‘Misadventures of the Supreme Court in Aruna Shanbaug v. Union of India’ (Law and Other Things, 13 March 2011) <lawandotherthings.com/misadventures-of-supreme-court-in-aruna/> accessed 13 June 2023.

35 The question in Gian Kaur concerned the constitutionality of the penal prohibition on abetment to suicide; the judgment cannot, therefore, be authoritative on the question of passive euthanasia without legislative sanction. See Gian Kaur (n 15) [40] for the discussion on Airedale (n 33).

36 See Common Cause (n 4) [393]–[394] for a critique of Aruna Shanbaug (n 2) on this point.

37 (n 4).

38 Common Cause (n 4) [198]. See also Common Cause (A Regd Society) v Union of India (2023) SCC OnLine SC 99 (SCI) (‘Modification Order’) [6], which changes the procedure for obtaining passive euthanasia both in the presence and absence of an AMD.

39 Common Cause (n 4) [450]; Modification Order (n 38) [6]. In Aruna Shanbaug (n 2) [124], the Court laid down an interim regime laying down a list of persons who may authorise passive euthanasia for a patient. This list included the patient’s parents, spouse, relatives, and doctors based on the High Court’s approval. Common Cause has moved beyond a regime based on another’s authorisation, creating a regime of Advance Medical Directives.

40 Common Cause (n 4) [198.1], [198.1.4] states that the AMD must demonstrate the patient’s consent to the withholding or withdrawal of treatment, when such treatment has the ‘effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity’.

41 Modification Order (n 38) [6].

42 Common Cause (n 4) [199.1]. For a comprehensive definition of the term ‘terminally ill’, see David Hui, ‘Concepts and Definitions for “Actively Dying,” “End of Life,” “Terminally Ill,” “Terminal Care,” and “Transition of Care”: A Systematic Review’ (2014) 47 Journal of Pain and Symptom Management 77.

43 Shanbaug (n 3) [41] holds that ‘active euthanasia is illegal and a crime under Section 302 or at least under Section 304 [of the IPC]’ (Katju J). See also Common Cause (n 4) [459]–[460].

44 It was argued in Pretty (UKHL) (n 13) that suicide does not obtain the status of a right merely because of its decriminalisation, which was approved by the Court: see [84], [106] (Lord Hope). Notwithstanding the sui generis nature of suicide from its status as an unpunishable wrong in the UK, Common Cause (n 4) has approved the dictum of death with dignity for the terminally ill as a part of their right to life and personal liberty under article 21 of the Constitution: see [380]. See also Antje Pedain, ‘The Human Rights Dimension of the Diane Pretty Case’ (2003) 62 Cambridge Law Journal 181.

45 Suresh Kumar Koushal v Naz Foundation (2014) 1 SCC 1 (SCI) [66].

46 Pretty (UKHL) (n 13) [42] (Lord Steyn).

47 Suicide Act 1961 (England and Wales), s 2(1): ‘A person (“D”) commits an offence if— (a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and (b) D's act was intended to encourage or assist suicide or an attempt at suicide.’

48 The petition before the House of Lords sought a declaration of incompatibility of section 2(1) of the Suicide Act 1961 (England and Wales) with the European Convention on Human Rights, under section 4 of the Human Rights Act 1998. While the privacy claim rested on the right under article 8 of the Convention, the equality claim rested on article 14 thereof. See Pretty (UKHL) (n 13) [26], [64] (Lord Hope).

49 Pretty (UKHL) (n 13) [23] (Lord Bingham).

50 ibid [36] (Lord Bingham). For cases refusing to acknowledge disparate impact in equality claims, see Javed v State of Haryana (2003) 8 SCC 369 (SCI); Rajbala v State of Haryana (2016) 2 SCC 445 (SCI); Dhirendra Pandua v State of Orissa (2008) 17 SCC 311 (SCI).

51 Pretty (UKHL) (n 13) [36] (Lord Bingham).

52 ibid [36] (Lord Bingham), [87]–[88] (Lord Steyn).

53 ibid [36] (Lord Bingham).

54 Kunnathat Thatehunni Moopil Nair v State of Kerala (1961) 3 SCR 77 [8].

55 (2021) 15 SCC 125 (SCI).

56 ibid [56]–[57].

57 Nitisha (n 55) [65].

58 Hugh Collins and Tarunabh Khaitan, ‘Indirect Discrimination Law: Controversies and Critical Questions’ in Hugh Collins and Tarunabh Khaitan (eds), Foundations of Indirect Discrimination Law (Bloomsbury 2018) 27.

59 Joanne Fraser v Canada (Attorney General) [2020] SCC 28 (Supreme Court of Canada).

60 Nitisha (n 55) [65.1], [82].

61 Fraser (n 59) [61] holds that sometimes ‘evidence about a group will show such a strong association with certain traits—such as pregnancy with gender—that the disproportionate impact on members of that group will be apparent and immediate’. This has been quoted with approval in Nitisha (n 55) [69].

62 Nitisha (n 55) [90].

63 ibid [87].

64 ibid [90].

65 (2018) SCC OnLine Del 6660 (DHC).

66 ibid [13], [17].

67 (2015) SCC OnLine Del 14619 (DHC).

68 ibid [7].

69 Nitisha (n 55).

70 ibid [120].

71 Madhu (n 65) [30]–[31].

72 Ravina (n 67).

73 ibid [13]–[14].

74 Tarunabh Khaitan and Sandy Steel, ‘Wrongs, Group Disadvantage and the Legitimacy of Indirect Discrimination Law’ in Hugh Collins and Tarunabh Khaitan (eds), Foundations of Indirect Discrimination Law (Bloomsbury 2018) 197.

75 RPwD Act 2016, s 2(c)(s).

76 Vikash Kumar (n 11) [60]–[63]. See also Lisa Waddington, ‘Reasonable accommodation’ in Dagmar Schiek and others (eds) Cases, materials and text on national, supranational and international non-discrimination law (Hart 2007) 188.

77 For the relationship between reasonable accommodation and indirect discrimination, see Ravinder Kumar Dhariwal v Union of India (2023) 2 SCC 209 (SCI). See also Lisa Waddington, ‘Reasonable Accommodation—Time to Extend the Duty to Accommodate Beyond Disability?’ (2011) 36 NJCM Bulletin 186.

78 Sandra Fredman, ‘Substantive Equality Revisited’ (2016) 14 International Journal of Constitutional Law 712.

79 State of Kerala v NM Thomas (1976) 2 SCC 310 (SCI) [136] (Iyer J), approving Rao J’s dissent in T Devadasan v Union of India (1964) 4 SCR 680 (SCI) on article 16(4) of the Constitution being an emphatic restatement of article 16(1).

80 ibid; M Nagaraj v Union of India (2006) 8 SCC 212 (SCI).

81 See, inter alia, Indra Sawhney v Union of India 1992 Supp (3) SCC 217 (SCI) [146]; M Nagaraj (n 80) [66]; B K Pavitra v Union of India (2019) 16 SCC 129 (SCI) [121]–[122]; Neil Aurelio Nunes (OBC Reservation) v Union of India (2022) 4 SCC 1 (SCI) [43].

82 (2009) SCC OnLine Del 1762 (DHC) [104].

83 Vikash Kumar (n 11) [41].

84 See Waddington, ‘Reasonable Accommodation—Time to Extend the Duty to Accommodate Beyond Disability?’ (n 77) 188, arguing that a law disadvantaging a single woman may not be held indirectly discriminatory but a failure to remedy that disadvantage may constitute a denial of reasonable accommodation.

85 Vikash Kumar (n 11) [65].

86 ibid [91].

87 Dhariwal (n 77) [37], [40], [45], [135].

88 ibid [2]–[3].

89 ibid [131].

90 ibid [135] (emphasis mine).

91 Nitisha (n 55) [69] quoting Fraser (n 59) [76].

92 Common Cause (n 4).

93 ibid [394] (emphasis mine).

94 Shukla (n 8).

95 Nitisha (n 55) [65].

96 Common Cause (n 4) [462] considers penal laws to be the primary policy-based constraint in holding active euthanasia legal.

97 For a narration of the pain suffered by persons compelled to live, see A Chapple and others, ‘What People Close to Death Say about Euthanasia and Assisted Suicide: A Qualitative Study’ (2006) 32 Journal of Medical Ethics 706.

98 See Pedain (n 44) 182 for Diane Pretty’s anticipation of a ‘distressing death by suffocation once even her breathing muscles started to fail’.

99 Dhariwal (n 77) [131].

100 RPwD Act 2016, s 3(3).

101 Nitisha (n 55) [70].

102 The Court incorporated the four-pronged proportionality test in Modern Dental College and Research Centre v State of MP (2016) 7 SCC 353 (SCI). This test has been regularly employed by the Supreme Court in adjudicating constitutional cases. For cases applying the test, see Vivek Narayan Sharma (Demonetisation Case-5 J) v Union of India (2023) 3 SCC 1 (SCI); KS Puttaswamy (Aadhaar-5J) v Union of India (2019) 1 SCC 1 (SCI); Subramanian Swamy v Union of India (2016) 7 SCC 221 (SCI).

103 Gian Kaur (n 15); Common Cause (n 4). See also Cass R Sunstein, ‘The Right to Die’ (1997) 106 Yale Law Journal 1123.

104 Ronald Dworkin and others, ‘Assisted Suicide: The Philosophers’ Brief’ (The New York Review, 27 March 1997) <www.nybooks.com/articles/1997/03/27/assisted-suicide-the-philosophers-brief/> accessed 30 July 2022.

105 Gian Kaur (n 15) [24]–[25].

106 ibid [22].

107 Common Cause (n 4) [437]–[438].

108 ibid.

109 Puttaswamy (n 102) [326].

110 Jonas-Sébastien Beaudry, ‘Somatic Oppression and Relational Autonomy: Revisiting Medical Aid in Dying Through a Feminist Lens’ (2020) 53 University of British Columbia Law Review 241.

111 ibid 247.

112 Anita Ghai, Rethinking Disability in India (Routledge 2015) 203.

113 Sunstein (n 103) 1141.

114 Dworkin (n 104).

115 Beaudry (n 110).

116 Pedain (n 44) 185.

117 Wesley N Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale Law Journal 16.

118 Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press 2012) 303.

119 Aruna Shanbaug (n 3) [5].

120 The underpinnings of this conception lie in Gian Kaur’s reference to Airedale (n 34). See Gian Kaur (n 15) [40]:

[T]he existing crucial distinction between cases in which a physician decides not to provide, or to continue to provide, for his patient, treatment or care which could or might prolong his life, and those in which he decides, for example, by administering a lethal drug, actively to bring his patient's life to an end, was indicated.

121 Shukla (n 8) 5.

122 Aruna Shanbaug (n 3) [43].

123 Common Cause (n 4) [392].

124 ibid [462].

125 ibid (emphasis mine).

126 Sushila Rao, ‘India and Euthanasia: The Poignant Case of Aruna Shanbaug’ (2011) 19 Medical Law Review 646.

127 Common Cause (n 4) [465].

128 IPC, s 299(c): ‘Whoever causes death by doing an act … with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.’

129 Shukla (n 8) 9.

130 Aadhaar (n 102) [155].

131 See AMD safeguards in Common Cause (n 4) [184].

132 ibid.

133 Vikash Kumar (n 11) [78].

134 Beaudry (n 110) 258–59.

135 ibid 289.

136 John Keown, ‘Euthanasia in the Netherlands: Sliding down the Slippery Slope’ (1995) 9 Notre Dame Journal of Law, Ethics and Public Policy 407.

137 John Griffiths, ‘The Slippery Slope: Are the Dutch Sliding Down or Are They Clambering Up?’ in David C Thomasma, Thomasine Kimbrough-Kushner, and Gerrit K Kimsma (eds) Asking to Die: Inside the Dutch Debate about Euthanasia (Springer Netherlands 1998).

138 Pedain (n 44).

139 ibid 203 (emphasis mine; original emphasis omitted).

140 See, for example, Beaudry (n 110) 258; Puttaswamy (n 102) [47]–[49].

141 Beaudry (n 110) 297.

142 Carter v Canada (Attorney General) (2015) SCC 5 (Supreme Court of Canada) [105] (quoting the trial judge).

143 ibid [119].

144 Matthias Klatt and Moritz Meister, The Constitutional Structure of Proportionality (Oxford University Press 2012) 8–11.

145 Barak (n 118) 364.

146 See also Pedain (n 44) 203.

147 For empirical contestation on the effects of permitting active euthanasia, see Carter (n 142) [120] (quoting the trial judge); Keown (n 136); Griffiths (n 137).

148 Barak (n 118).

149 Robert Alexy, A Theory of Constitutional Rights (Oxford University Press 2010) 408.

150 ibid. Alexy also considers another variable in the balancing test, which he refers to as the epistemic reliability of the normative and empirical premises underlying both principles. The third variable is omitted for the simplicity of the test. See also Klatt and Meister (n 144) 12.

151 For this reasoning, see Indian Young Lawyers Assn (Sabarimala Temple-5J) v State of Kerala (2019) 11 SCC 1 (SCI) [410].

152 Alexy (n 149) 408.

153 See, for example, John Keown, ‘The Law and Practice of Euthanasia in the Netherlands’ (1992) 108 Law Quarterly Review 51, 56; Charles H Baron and others, ‘A Model State Act to Authorize and Regulate Physician-Assisted Suicide’ (1996) 33 Harvard Journal on Legislation 1; Madoka Kono and others, ‘Identifying Practical Clinical Problems in Active Euthanasia: A Systematic Literature Review of the Findings in Countries Where Euthanasia Is Legal’ (2023) Palliative and Supportive Care 1.

154 Modification Order (n 38) [6].

155 See text under n 1.

Additional information

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Kartik Kalra

Kartik Kalra is a student at the National Law School of India University, Bengaluru.