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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