Right to die with Dignity: A Remarkable part of Article 21

Before delving into the debate of whether the Right to die with dignity should be the Fundamental right or not. This article would like to draw the attention of readers toward the above-mentioned Sanskrit shloka from Bhagavat Gita, where Shri Krishna told Arjuna that ‘Death is certain for one who has been born and rebirth is inevitable for one who has died’. The basic doubt which arises here is that if death and birth is not separated, then why even this question occur that whether Right to life includes right to die. While in many landmark cases, it has been settled that Right to live with dignity is essential part of article 21 of the constitution, then why shouldn’t Right to die with dignity be given the second thought?

Understanding the nuances of right to die with dignity from its constitutional aspect, it is ecstatic to state that From P. Rathinam (1994) where the hon’ble SC held Right to die included in Article 21 to Gian Kaur (1996) where this was overruled, and right to life does not include Right to die and section 309 IPC held constitutionally valid, along with it active and passive euthanasia held as not lawful in India, to the case of Aruna Ramchandra Shanbaug (2011), court allows passive euthanasia and the recent case of 2018 where the “Right to Die” explicitly held as a part of Fundamental Right and passive euthanasia permitting ‘living will’ allowed. The Hon’ble Supreme Court has travelled a long path to finally established something which was in dire need for an advance and civilized society where at some point of times, dying become more important and necessary than to survive like an animal on a death bed.

Now on one hand, the judgment is highly praiseworthy as it removes the agony of those who are suffering nationwide, due to serious medical problems with no possibility of progress in their future condition and where death becomes the only option.

On the other hand, it has been accounted cases where people are misusing it, asking the officials to end their life due to misinformation. Then there are cases where there is high delay faced by the people in availing the benefits of the judgment, one example can be of a 60-years-old man of Mumbai. He fell down and had a hip transplant, due to his diabetic and other age-related health conditions, he developed septicimia, brought back home when doctor shown his recovery chances bleak. His son told a news reporting, “In such mentally distraught situation, I don’t have the energy to run to the government. The process could have been made simpler.”

S.Dhelia, the general secretary of Mumbai-Based Society for Right to Die with Dignity expressed his concern over the legal formalities that are so cumbersome that it becomes simply not workable because the fact is that there is no deadline for all these boards which, somewhere becomes the unwanted hurdles in providing right to die with dignity to terminally ill patients, ultimately blurred the landmark judgment of the Hon’ble Court.

On the basis of above analysis, it can be inferred that the cases where a dying man, who is seriously ill and suffering from virulent and incurable form of disease or is in persistent vegetative state falls under the ambit of Right to dignified death as here the state is not extinguishing the life rather accelerating the process of natural death based on the vedantic philosophy that narrates that ‘God is the material cause and instrumentality of joy and sorrow. Just as he gave the life to us, he takes it away from us as well.’

As Salmond has rightly pointed out that “there are three things in respect of which the worries of a living person extend even after their death. Those are his body, his reputation and his property.”

This quote here connects us with the situation of COVID-19 where the faith and beliefs of people from all communities were shaken as the bodies were not disposed of according to the customs; there was a great hue and cry regarding the spread of infection by the dead bodies, it became hard for India to manage the burial of deceased,tries to reflect that right to decent burial is an entrenched version of right to dignified death.[1]

It is really heart wrenching to mentiona complaint, where it has been stated that the body of one person, who died due to COVID-19, was just “thrown” into the pit without any respect or dignity which it deserves without following the norms on burying remains of COVID victims, thereby dishonoring the deceased’s body.

The Bombay High Court in the case of Pradeep Gandhy v. the State of Maharashtra[2] held that “Right to a decent burial, commensurate with the the dignity of the individual is recognized as a facet of the right to life guaranteed by Article 21 of the Constitution. There is, thus, no reason as to why an individual who dies during this period of crisis because of suspected/confirmed COVID-19 infection would not be entitled to the facilities he/she would have otherwise been entitled to but for the crisis. Should the extant guidelines for disposal of the cadaver of an individual infected by COVID-19 be adhered to and the cadaver properly handled and placed in unique covers to contain any spread, and we find little reason to deprive the dead of the last right, i.e., a decent burial according to his/her religious rites.”

To conclude, The Indian courts have done an applaudable job by giving judgment that provides credibility to the ruling of Right to die as a remarkable part of Fundamental right which gives a person the right to have a beautiful death. The article has tried to cover different contours of what we meant by dignified death, the efficacy of the judgment and the nuances of the right to die with dignity as aremarkable part of Article 21 of the Indian constitution.

The article has been contributed by Niti Pandey, student at Institute of Law, NMIMS, Indore.

End Notes

[1]HarikumarPallathadka,The Rights of The Dead And Their Rights To Have Dignity In Their Last Rites: A Study In India During The Covid-19 Pandemic, EUROPEAN JOURNAL OF MOLECULAR & CLINICAL MEDICINE, Volume 07, Issue 06, 2020.

[2]2020 SCC OnLine Bom 662