JURISPRUDENCE

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Right to Life or Death?: For Bharat Both Cannot be 'Right'
by B.B. Pande†

Cite as : (1994) 4 SCC (Jour) 19

For the moralist, the policy maker, the doctor and the judge, the question of life or death invariably poses a dilemma that belies easy resolution. The roots of such a dilemma lie in the very nature of human existence that begins with life and ends with death. That is why at the mundane or the ordinary-man level of existence, life is good or desirable as represented by Shiv and death is bad or undesirable as represented by Shav. The first is auspicious (shubh) and a symbol of eternal life, while the second is inauspicious (ashubh) for it heralds decay and decomposition. However, it would be in fairness and more scientific to recognise certain unusual psychological states, born out of depression or desperation and under heightened spiritual and poetic experience, when the sharp lines of distinction between Shiv and Shav may loose much of their ordinary meaning.

The recent Supreme Court decision in Rathinam/Nagbhusan Patnaik v. Union of India1 has not only grappled with a similar life or death dilemma, but has also given solutions that are likely to produce far-reaching consequences for individual-State relationship. The matter came before the Supreme Court by way of two criminal petitions assailing the constitutionality of Section 309 of the Indian Penal Code and also seeking the quashing of the penal proceedings instituted under Section 309 respectively. The Supreme Court at the outset appreciated the intensely controversial nature of the issue at hand by referring to the three views on the matter taken by the High Courts of Delhi, Bombay and Andhra Pradesh. The Supreme Court in a leading judgment took several new strides not only in respect of the legal finding but also in matters of style of writing a judgment, reference to the indigenous research and writings on the relevant subject2 and the techniques of law reform through judicial action, etc. The decision is being presently commented upon in respect of the following main aspects:

(i) De-criminalising attempt to commit suicide.

(ii) Recognising a Fundamental Right to die.

(iii) Alternative judicial responses.

De-criminalising attempt to commit suicide

On the issue of de-criminalisation of attempt to commit suicide offence the Rathinam case is refreshingly forthright and categorical. Justice Hansaria's following observation brings home the point forcefully:

''Section 309 of the Penal Code deserves to be effaced from the statute book to humanise our penal laws. It is cruel and irrational provision, and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide.''3

For arriving at a conclusion that Section 309 is outdated, irrational and cruel the Court seems to have heavily relied upon the Forty-Second Report of the Law Commission of India which had in the early seventies itself recommended the deletion of the offence of attempt to commit suicide from the Penal Code. The lead given by the Law Commission was admirably carried forward by the Delhi High Court, which through its two decisions by Chief Justice Rajinder Sachar in State v. Sanjay Kumar Bhatia4 and Court on its own motion v. Yogesh Sharma5 provided the strongest ideological offensive against the outmoded offence. In Yogesh Sharma case5 Justice Sachar took the new ideology to its logical conclusion by quashing, in a feat of rare judicial creativity, all the pending 119 attempted suicide cases in Delhi, in the exercise of inherent power under Section 482 Code of Criminal Procedure.

The Rathinam case deployed a distinctive academic style for arriving at the de-criminalisation conclusion. It exploded the century old religious, moral and social justifications of the attempted suicide offence by elaborately demolishing all the arguments one by one in the laboriously worked-out over twelve paras (paras 50 to 62). Finally, the Court successfully established that a majority of suicides are a product of personality disorganisation that can be more scientifically dealt with through psychiatric intervention and not by adopting punitive approach.

One can hardly disagree with the Supreme Court's view regarding the futility of criminalising attempt to commit suicide and in this sense the Court's ruling is most welcome and timely. The most desirable fall out of such a finding would be that the frustrated and psychologically traumatised suicide-seeker would not only be spared of the most unkind social stigma but would also be in a better position to freely and fearlessly seek medical and psychiatric treatment. This will, it is hoped, lead to a better and more socially acceptable way of dealing with a problem that can hardly be dealt with through law. However, while discussing the desirable consequences of de-criminalisation one should also keep in mind certain implications that would require additional action. The first relates to the offence of abetment of suicide and many other forms of third party intervention situations related with suicide. In this respect the Supreme Court has very categorically laid down that ''As regards person aiding and abetting suicide the law can be entirely different ... as self-killing is conceptually different from abetting others to kill themselves.''6 The second implication would be that in all cases of aided or instigated suicide there would be a tendency to prove that the aid or instigation was at the instance of the person concerned. This might have special relevance in case of Sati where often under social pressure the victim will be compelled to testify that she volunteered to die.7 The third implication relates to instances of self-immolation and fast-unto-death undertaken in public places. It may be true that in the interest of public order the police may be justified in taking action under the Criminal Procedure Code or the Police Act, but unless the law is specifically amended, at times, hard situations are likely to arise8. Similarly, attempted suicide by a life convict even in a private place is likely to undermine the credibility of the criminal justice administration itself and would call for appropriate measures as well.

However, it is one thing to welcome the decision for having suggested the rationalisation of the criminal law and attempted selective de-criminalisation9, but quite another thing to have reservations in accepting a constitutional right to die. This is because the implications of de-criminalisation are entirely of a different order than the implications of constitutional recognition of the right to die. The range of implications of the constitutional recognition are far-reaching and often not so obvious.

Recognising a Right to Die

The Supreme Court in Rathinam case not only declared Section 309 as being violative of Article 21 and thus unconstitutional but also conceded a constitutional right to die. In doing so the Supreme Court seemed to have relied heavily on the Bombay High Court decision in Dubal case. Since the present case as well as the Dubal case related to various aspects of the right to die we propose to critique each of them separately.

(a) Reversing the direction of expansion of the right to life

In Rathinam case, out of the fifteen questions posed by the Court, the second specifically states: ''Has a person residing in India a right to die?". In the subsequent pages the Court has provided elaborate answers to the question. However, sequencing right to die immediately after an elaborate exposition of the Supreme Court's creative expansion of right to life appears somewhat illogical because most of the rights referred to in the judgment such as the right against fetters, hand-cuffing, speedy trial, legal aid, medical aid, shelter, access to road etc. are all concerned with facilitating and enhancing the enjoyment of right to life itself. In a way all these rights guarantee the survival and the happy propagation of human race. In contrast, a right to die - that assures right to universal self-destruction and implies the extinction of human race itself - has nothing in common with the rights discussed earlier. Therefore, hitherto, the expansion of right to life in the last four decades has mainly been understood in terms of all those conditions that are in some way or the other conducive to a free flow and a full growth of life, not conditions that would lead to a decimation of life itself. Advocacy of such a life enhancing expansion has a special significance for a society like ours in which for a majority even the rudimentary right to life has not been realised.10 This is because for those whose basic necessities of life are yet to be met the promise of right to life still remains as the last hope.11 That is why it can be said that right to die is a movement in the reverse direction. It will not only create confusion in the right to life movement but may ultimately absolve the State from any kind of obligation to provide the life enhancing conditions. If may be respectfully stated that the task of creating a meaningful right to life depends not only on creative abilities but more so on a clear sense of direction.

(b) The logic of negative aspect of right to life

The Dubal case logic of right to die being negative aspect of right to life has not only been approved by the Court in Rathinam case, but has been carried further and made the ideological basis of the judgment itself. We would like to state the criticism of Dubal case logic before analysing the views of the Court on the point. It has been argued:

''The aforesaid analogy between right to life and other freedoms is totally misplaced. It can arise on account of a superficial comparison between the freedoms ignoring the inherent dissimilarity between one right and the other, like the freedoms referred to in the above observations, the right to life remains meaningful only in its positive sense, because the negative aspect of this right would mean the end or the extinction of the positive aspect for the claimant. It is either 'this' or 'that', not the suspension of 'this' for the time being as in the case of 'silence' 'non-association' and 'non-movement'."12

The Supreme Court was aware of this criticism of Dubal case13 but only set it aside in the course of their assertion of right to die as follows:

''The aforesaid criticism is only partially correct inasmuch as though the negative aspect may not be enforceable on the analogy of the rights conferred by different clauses of Article 19, but one may refuse to live, if his living be not according to the person concerned worth living or if richness and fullness of life were not to demand living further. One may rightly think that having achieved all worldly pleasure or happiness he has something to achieve beyond this life. This desire of communion with God may very rightly lead even a very healhty mind to think that he would forego his right to live and would rather choose not to live. In any case a person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking.''14        (emphasis supplied)

In the above observation the Supreme Court seems to be viewing right to die from the point of view of mainly those whose richness or fullness of life or whose spiritual urge makes death a welcome event and life a 'detriment' or a 'disadvantage'. With due respect, it may be argued that such fortunate people are far and few even in our land of Rishis and Munis. Furthermore, creating a right merely from the perspective of a small section of sensitive souls is neither desirable nor fair particularly for those who attempt suicide in India on account of material deprivations, social isolations, personal rejections and oppressive systems. For them attempt to suicide is hardly a matter of clear and free choice. To them death is a bitter end to a continued agony, but rarely welcome.

(c) Prioritising Right to Die

In the context of recognition of a right to die an additional argument can be: Even if the individual's interest in terminating his life according to his wish is considered as well deserved and worthy of recognition, can it be accorded priority over many other 'more' deserving interests? We have still not been able to recognise a right to basic necessities of life like food, shelter, clothing, medical care and even pure drinking water.15 Nor, despite a lot of fanfare from time to time, has the society been able to recognise the right to employment so far. Are the interest of basic necessities of life and the most acceptable way of securing them through work and industry less deserving than the right to die, whose recognition could easily wait till at least some of the more deserving interests received recognition? Furthermore, if for recognising a right to free primary education that affects almost forty per cent of the country's population, the Nation could patiently wait for forty-three years16, what was the urgency in recognising the interest in dying, that at best, affects only a few? It may be argued that recognising other interests, like basic necessities, requires positive State action, while right to die does not in any way require any kind of positive action on the part of the State. Certain fallacies in the aforesaid argument can be pointed out : First, the non-interference or the negative perception of a right is only partly true, because in case of several rights like right to a road in a hilly rural area or right to free primary education a positive State action, be it in the form of planning and allocation of funds for roads or primary schools, is imperative for concrete realization of the rights. This is also in consonance with the notion of Welfare State or Service-State envisaged under Parts III and IV of the Constitution. Second, recognition of a right to die may also have negative implications for the State, in as much as the State may be obliged to deploy resources to counter the breach of peace and social alarm associated with the exercise of the right to die.

(d) A jurisprudentially problematic right

The jurisprudential import of a right to die is likely to be very far-reaching. Is the right to die a fundamental right or merely a ''liberty interest''?17 Would the right create correlative duties on the State, the community or the family? How would the conflicts between this right and other rights be reconciled?

Some of the aforesaid jurisprudential issues have come to light already in the context of the American debates on Euthanasia and the Court decisions in Nancy Cruzan case18 and in Wanglie, Re19. The case of Nancy Cruzan is an eye-opener for all those who have imagined an easy journey for a right to die. Nancy Cruzan was in a persistent vegetative state, a condition in which a person exhibits motor reflexes but evinces no indications of significant cognitive functions, for a prolonged period. The U.S. Supreme Court held that the parent's request to withdraw artificial life saving devices can be complied with only if there is a clear and convincing evidence of the person's wish to die. Since there was enough compliance with the clear and convincing evidence standard in Cruzan case, the devices were removed and Nancy Cruzan died peacefully some ten days later. However, the Supreme Court only conceded a constitutionally protected "liberty-interest'' in refusing unwanted medical treatment.20 The majority was careful not to suggest that competent patients have a fundamental right to refuse treatment. For, if they did so, the fundamental right would have to be protected unless the State interest was shown to be compelling.

In Cruzan case, the hospital authorities were not willing to comply with the parent's request to let Nancy die in peace. However, in Wanglie, Re the situation of claim of right to die got reversed, with the unconscious patient's physician expressing an opinion that she should not continue to receive life sustaining treatment although her family believed that this is not what she would have wanted. Who can best represent the terminally ill patient? In India will not all-round ignorance and totally inadequate and inefficient medical information system impair the patient's claim to a clear and informed death-wish?

In case we accord a right to die to each patient, who will be subject to a correlative duty towards him? Would it be the State or the members of his family? If the duty is on the State, would the duty be only of a negative nature that will preclude the State from interfering with the right or would it also extend to creating positive conditions for the enjoyment of such a right? Furthermore, even if the State can be saddled only with a negative duty, will the duty of non-interference with the liberty of terminating life, not also affect the State's legal power to prohibit lower degree self-effacing activities such as smoking, alcoholism and drug-taking? This will substantially alter the individual-State relationship and impose serious limitations on the deployment of penal laws in the future? However, in case the right to die creates an obligation on the part of the family members to the avoid interference with the right to die, what will be the fate of family-support idea? Will each member of the family asserting his right to die not lead to total extinction of the institution itself? Even today, in India, family is the only institution to which individual members look for help and support in moments of crises of any kind. Will subjecting the family to undividual's whim not unduly impair it? The most difficult problems would arise in the event of conflict between the prospective right to die wielding parent and his or her minor children who want him or her to live for providing parental care and protection.21

(e) A right not in tune with social reality

While assessing the social relevance of a right to die, it would be worthwhile to re-state what has been said earlier in these words:

''The issues like 'euthanasia', 'organ transplant' and 'right to die' can be meaningfully discussed only in the context of the specific social reality. While discussing these issues in the context of our society, there is a need to keep in mind the often ignored perspective of the population in the lower stratum of the society comprising approximately two hundred million destitutes whose basic needs of food, shelter, medical treatment, education etc. still remain unfulfilled. This population - largely illiterate, propertyless and jobless - lives through queer ways: parents selling or pleading their progeny for money, individuals selling their blood or organs, children of tender age working under dehumanising and exploitative conditions, is a part of their life story. In some hard cases even all this might not be enough to ward-off the real risk of death due to starvation (under famine or even non-famine conditions), exposure in winters, heat stroke in summers, etc., ... the deliberations on the issue of 'right to die' has to keep in mind the perspective of even those who still struggle for securing the crude right to life itself, those for whom life means nothing more than bare physical survival, be it at the cost of human dignity or even the fear of losing one's kith and kin.''22

In what way has Rathinam case been able to take into account the ground realities associated with the suicide prone conditions in India?

The Court has sadly missed to mention the indigenous suicide causation researches and studies, which invariably reveal that a majority of suicides in India, particularly suicides by married women, are more a desperate bid to secure the elusive right to life itself.23 Even in the two criminal petitions that brought the matter before the Supreme Court, such as Maruti's Sripati Dubal's bid to self-immolate to draw the attention of the Commissioner and Nagbhusan Patnaik's fast-unto-death to improve the conditions in prison were more to assert life meaningfully than to give it up. It is even sadder still that the Court knew the predicament but only cared to opt for an easy way out thus:

''If human beings can be treated inhumanely as a very large segment of our population is, which in a significant measure may be due to wrong (immoral) act of others, charge of immorality cannot be and, in any case, should not be, levied, if any such human being or like of them, feel and think that it would be better to end the wretched life instead of allowing further humiliation or torture.''24 (emphasis supplied)

With respect, it may be submitted that the Court was expected to take a positive stand and resolve to change the 'immoral situation' and see that others are not permitted to perpetrate wrong acts on large sections of our population. But, instead, the Court only found a solution in death. The Court considered attuning this part of criminal law to global wavelength25 more worthwhile than showing equal concern about those leading a wretched life.

Alternative judicial responses

There is no doubt that in Rathinam case the Court faced the teasing reality of outdated criminal law, slow and insensitive law reform procedure and an expectation that the judiciary could do something to resolve the situation.26 The hard situation almost forced the Court to opt for unusual brand of judicial activism. The Court struck down Section 309 of the Penal Code as being violative of Article 21 and thus unconstitutional. This way the Court went beyond the traditional procedural due process and entered the domain of substantive due process. Hitherto even after Maneka Gandhi case the Courts have rarely gone into substantive issues for striking down the laws or the provisions.27 What then were the other alternatives before the Court?

First, the Court could have backed its strong plea for de-criminalisation with a specific recommendation to Parliament to amend the law in terms of the Law Commission recommendation. The Court has itself stated that in their counter-affidavit the Union of India has mentioned that criminal law reform is likely to be undertaken in the near future28. Furthermore, there are instances of piecemeal reform in the field of rape law which was undertaken even after the lapse of the Indian Penal Code (Amendment) Bill of 1972 and 1978.

Second, the Court could have in the exercise of inherent powers of justice quashed all pending proceedings under Section 309 throughout the country29 and also made specific recommendations of an expeditious legislative reform. While the legislative reform was underway the Court could have kept the petitions pending and got the suicide situation scientifically analysed with a view to finding effective ways and means of coping with the social problem.30 The petitions could have been finally disposed off with specific guidelines for dealing with diverse suicide prone situations.31 This way the Court could have played a meaningful creative role and perhaps given a better chance to many who lead a 'wretched life' to opt for a right to life and not a right to death.

Finally, conceding that the Court had very strong reasons for constitutionally killing the flawed attempted suicide provision, the Court could have deployed an alternative conceptual category like liberty or liberty-interest for achieving its objective. The distinct advantage of merely recognising a liberty to die would be the absence of any kind of obligation on the part of the State or the family towards the liberty-seeker. Furthermore, in case of a mere liberty the State could more easily circumscribe or even curtail the liberty in the larger interest. The Courts, particularly, in the United States, have been making a distinction between the different kinds of interest for the purposes of constitutional protection.32 Speaking in the context of such categorisation, Wendy K. Mariner has observed:

"The result has been to divide human concerns into two highly unequal spheres - one for a few political and personal liberties, and a second for all other values. The first sphere of fundamental rights enjoys special insulation from majoritarian decision-making, while interests in the second - much larger sphere, remain subject to almost any form of restriction that is not patently and cruelly arbitrary."33

The possibility of progressive and regressive categorisation at the hands of the Court would not only enhance the possibilities of new claims being upgraded but also provide a meaningful handle to the Court to change the concepts according to social needs. It may be argued that there is little scope for such manoeuvrings in the Indian constitutional scheme, but even substantive due process is also not traditionally permitted under the constitutional scheme. Ultimately much depends upon the objective that is to be achieved and in this case the objective is to play down a 'right' to die so that the right to life could flourish vigorously.

† Professor of Law, Faculty of Law, Delhi University, Delhi Return to Text

1. (1994) 3 SCC 394 (hereinafter referred to as Rathinam case): Coram: Justice R.M. Sahai and Justice B.L. Hansaria (Hansaria, J. wrote the judgment for Sahai, J. and himself) Return to Text
2. The present author gratefully acknowledges the Court's reference to the author's earlier critical comment on the Bombay High Court decision in Maruti Shripati Dubal v. State of Maharashtra, 1987 Cri LJ 743: (1986) 88 Bom LR 589 (hereinafter referred to as Dubal case) published in the Islamic and Comparative Law Quarterly, Vol. VII, No. 2, June 1987 at p. 112 (hereinafter referred to as Pande B.B. (1987). However it appears that the Court has not adequately taken note of the main thrust of the author's criticism of Dubal case. Therefore, the present comment would refer to the earlier article as and when required. Return to Text
3. Rathinam case, p. 429 Return to Text
4. 1985 Cri LJ 931, (Delhi) Return to Text
5. Cri. Revision No. 230 of 1985: Unreported (hereinafter referred to as Yogesh Sharma case) Return to Text
6. Rathinam case, p. 427 Return to Text
7. The Rathinam case has already led scholars to debate the tenability of attempted Sati offence under Section 3 of the Commission of Sati (Prevention) Act, 1987. Though it may be argued that striking down Section 309 of the Penal Code would not affect an offence constituted under a special statute, but the Supreme Court decision would considerably weaken the moral and social justifications of an offence that had been questionable right at its inception. Return to Text
8. It may be suggested that for such hard cases a new category of civil wrongs like the European 'Administrative Infractions' may be devised. Return to Text
9. The European Committee on Crime Problems has in its Report on Decriminalisation (1980) accepted de-criminalisation as an accepted objective of Law Reform. Return to Text
10. See Baxi, Upendra: "From Human Rights to the Right to Be Human: Some Heresies", Upendra Baxi (Ed.) The Right Be Human, Lancer Int. (1987) Return to Text
11. See Pande, B.B.: "The Constitutionality of Basic Human Needs: An Ignored Area of Legal Discourse", (1989) 4 SCC (Jour) 1 Return to Text
12. Pande, B.B.(1987) at p. 117 Return to Text
13. See Rathinam case, p. 410 Return to Text
14. Id. Return to Text
15. Kishen Pattanayak v. State of Orissa, 1989 Supp (1) SCC 258; Also see Pande B.B. (1989) 4 SCC (Jour) 1 Return to Text
16. J.P. Unnikrishnan v. State of A.P., (1993) 1 SCC 546 Return to Text
17. In the Hohfeldian scheme of jural relations rights and liberty lead to different legal consequences. Dias observes in this context: "It is usual for liberties to be supported by claims, but it is important to realise that they are distinct and separate and the distinction is reflected in case law." Jurisprudence, 5th Edn., Butterworths, (1985) p. 29 Return to Text
18. Cruzan v. Director, Missouri Dept. of Health, 110 S. Ct. 2841, 2852 (1990) Return to Text
19. A case before the Minnesota Supreme Court quoted by Alexander Morgan Capron in "Medical Decision - Making and the Right to Die after Cruzan," Law, Medicine and Health Care, Vol. 19: 182, Spring-Summer, 1991, pp. 5 to 8 Return to Text
20. See Gostin, Larry "Life and Death Choices after Cruzan." Law, Medicine and Healthcare, Vol. 19: 1 & 2, Spring-Summer, 1991, pp. 9-12. Return to Text
21. Section 317 of the Penal Code makes abandonment of children by parents an offence. Similarly, Section 125 of the Code of Criminal Procedure creates an obligation for the parents to provide maintenance to minor children. Return to Text
22. Pande, B.B. (1987) at pp. 112-13 Return to Text
23. In Shreerangyee, Re, (1973) 1 MLJ 231 the unfortunate woman was prosecuted for murder of her children and attempted suicide in a situation in which she not only displayed a strong desire of securing the material conditions of life but also a dignified life (she had declined the financial help from her brother-in-law because it involved sexual trade-off). Return to Text
24. Rathinam case, p. 423 Return to Text
25. Rathinam case, p. 429 Return to Text
26. The Supreme Court in Rajendra Prasad v. State of U.P., (1979) 3 SCC 746 had faced a similar teasing reality in the context of death penalty law. In that case Justice V.R. Krishnan Iyer in his inimitable style re-opened the constitutionality issue to strike down death penalty. Return to Text
27. In Mithu v. State of Punjab, (1983) 2 SCC 277: 1983 SCC (Cri) 405, the Supreme Court struck down Section 303 of the Penal Code on grounds of unconstitutionality. Return to Text
28. Rathinam case, p. 428 Return to Text
29. If Chief Justice Sachar could do this in respect of 119 pending prosecutions under Section 309 in the Delhi High Court (See Yogesh Sharma case) what came in the way of the Supreme Court? Quashing of proceedings would also have the required demonstration effect for the police and lower judiciary and would have carried the message home in a better way. Return to Text
30. See Stengel Erwin: Suicide and Attempted Suicide, Mc Gibbon & Kee, (1964) and Jacobs Jerry: Adolescent Suicide, Wieley-Inter Science (1971), for an elaborate understanding of the motivations of suicides. Return to Text
31. Hawton, Keith et al. in Attempted Suicide, Oxford Medical Pub. (1987) has elaborated three approaches for the prevention of suicides. It is notable that even in an advanced country the approach aimed at improving the living conditions proves most difficult. "The third approach to prevention, and the most difficult, lies in economic and social changes which could lead to general improvement in standards of living. Unfortunately, current trends, especially with regard to unemployment are in the opposite direction." at p. 189 Return to Text
32. See Supra n. 20. Return to Text
33. Mariner, K. Wendy: "Access to Health Care and Equal Protection of the Law: The Need for a New Heightened Scrutiny," American Journal of Law and Medicine, Vol. 12, Nos. 3 & 4 (1986) at p. 348 Return to Text