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JUDICIARY AND RIGHT TO DIE

 JUDICIARY AND RIGHT TO DIE


The question whether the right to die is included in Article 21 of the

Constitution came for consideration the first before the Bombay high

court in State of Maharastra v. MarutySripatiDubal. The Bombay high

court held that the right to life guaranteed by Article 21 includes a

right to die, and consequently, the court struck down Section 309 IPC

which provides punishment for an attempt to commit suicide by a

person as unconstitutional. 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, the 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 setup a shop and earn a living. Out of frustration, he

tried to set himself a fire in the corporation’s office room. On the

other hand, the Andhra Pradesh high court in Jagadeeswar v. the State

of AP21 held that the right to die is not a fundamental right within the

meaning of Article 21 and hence Section 309 I.P.C is not

unconstitutional. In P.Rathinam v. Union of India22 a division bench

of the Supreme court comprising Mr. Justice M. Sahai and Mr. Justice

Hansaria agreeing with view of the Bombay High Court in Maruti

Sripati Dubal23case held a person has a ‘right to die’ and declared

unconstitutional, section 309 of the Indian penal code which makes

attempt to commit suicide a penal offence. The “right to live” in

Article 21 of the Constitution includes the “right not to live”, i.e.,

right to die or to terminate one’s life. Later in Gian Kaur v. the State

of Punjab, 24 a five judge Constitution bench of the Supreme Court

has now overruled the P. Rathinam’s case and rightly, held that “right

to life” under Article 21 of the Constitution does not include “right to

die” or “right to be killed”. “The right to die”, is inherently

inconsistent with the “right to life” as is “death with life”. The court

rejected the plea that “euthanasia” (mercy killing) should be permitted


by law. The judges said that they would not decide this point as firstly

it is beyond the scope of the present petition and secondly also

because in euthanasia a third person is either actively or passively

involved with whom it may be said that he aids or abets the killing of

another person. 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 A petition for euthanasia was first filed for

Ms. Shanbaug by Pinky Virani, a journalist who has written a book on

the woman who she says is being forced to live her life stripped of

basic dignity. The Supreme Court praised Ms. Virani's concern but

ruled that her relationship with the patient does not give her right to

petition on Ms. Shanbaug's behalf for a mercy killing.

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