Do we have the Right to Die?

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The most basic and essential right that is attributed to living beings is the Right to life. The Judiciary of India has allocated wider connotation and meaning to the term ‘Right to Life’ which extends way beyond the imagination of the founding fathers of the Constitution. With time, Article 21 has been provided with  different interpretation. Article 21 of the Constitution of India can be read as –

“No person shall be deprived of his right to life or personal liberty except according to the procedure established by law.”

The term “Life” under Article 21 does not denote mere physical existence. It holds in itself much wider meaning and includes all those aspects of a person’s life that makes the human life worth living. It includes- Right to Livelihood, Right to Shelter, Right to Clean Environment, Right to Privacy, so on and so forth.

In the Landmark Judgment of Maneka Gandhi Vs Union of India[1], the Apex Court observed that-

“The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings and must include the right to basic necessities the basic necessities of life and also the right to carry on functions and activities as constitute the bare minimum expression of human self.”

Since Article 21 has been given a wider connotation and it has been painted with the changing dynamics of the society the question arises is that can the ambit be so extended so as to include within itself ‘The Right to Die’? And if that is the case then what is the fate of Section 309 of the Indian Penal Code which talks about the Attempt to commit suicide? India was under the British rule and therefore majority of the laws prevalent today in India show a major influence of the British Raj, Section 309 is one such rule and it was preserved even though the Parliament of the Britain decriminalized an attempt to suicide by an Act passed in the year 1961.

The rationality of Section 309 of IPC was challenged on various occasions. Many people were of the view that Article 21 also includes within itself the Right to end their individual lives. In P Rathnam Vs Union of India the Court while holding Section 309 unconstitutional held that “It is ironic that Section 309 IPC still continues to be on our Penal Code. The very idea is revolting. Need is for humane, civilised and socially oriented outlook and penology.”[2] 

The above judgment was countermanded in the case of Smt. Gian Kaur vs State of Punjab wherein the Apex Court upheld the constitutional validity of Section 309. An exception of the same was provided in the case of Aruna Ramchandra Shanbaug Vs Union of India wherein the Hon’ble Supreme Court of India permitted Passive Euthanasia and upheld its constitutional validity. The historic judgment laid down that Right to life does not contain within its ambit Right to Die but includes the Right to die with dignity which is enabled by Passive Euthanasia only in certain extraordinary circumstances permitted by the Apex Court. The landmark judgment issued comprehensive guidelines and safeguards pertaining to Advance Directives as to who shall  execute it and when it shall be given etc. The court permitted individuals to decide against artificial life support, should the need arise, by creating a “living will”. A ‘living will’ is a concept where a patient can give consent that allows withdrawal of life support systems if the individual is reduced to a permanent vegetative state with no real chance of survival.[3]

In the past week, we celebrated mental healthcare day and  according to the report from WHO; about 8 lakh people die from suicide every day and almost 25 times as many do a suicide attempt. India contributes to around 34% of the suicides around the world. In the year 2019, a person died every four minutes due to suicide. Most of these cases were related to mental issues.

An attempt was made to decriminalize section 309 of IPC  by passing of the Mental Healthcare Act, which came into effect in July 2018, and it tried to make attempt to die by suicide punishable but it has not led to the repeal of the IPC provision.[4]

Section 115 of the Mental Healthcare Act of 2017 lays down the provision as follows-

(1) Notwithstanding anything contained in section 309 of the Indian 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 under the said Code.

(2) The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.

There has been ambiguity over the term “severe stress” and the question that arises is that what is the limit of the given term in order to decide the case under this section?

If we revisit the Mental Healthcare Act it puts emphasis upon being the Legislation for the people. The Preamble states that the legislation aims to provide mental healthcare and services for persons with mental illness and to promote, and fulfill the rights of such persons during delivery of mental healthcare and services. But what if the prerequisite of the condition of stress are not made out? If it is proved that the person has committed suicide, not under any stress, then she/he shall be subjected to section 309 and under that circumstance the person will have to suffer twice.

We, as a society have failed miserably in understanding the psyche of the people who suffer from mental illness. We are so reluctant in accepting the fact that people can go through mental pain. The passing of the Mental Healthcare Act has been a revolutionary step towards the development and realization of mental and emotional health in India. The highlight of the act is that it grants the same status in terms of healthcare services to the person suffering from mental pain as that of the person who is physically ill. There exists no difference.

The person who attempted to take his life shall be provided with rehabilitation facilities and not trials and punishments. The passing of this Act has buttressed the victims to have a second innings at living life and has provided them with hope. However, attempt to suicide calls for not partial but complete decriminalization and the Courts shall opt for providing better mental healthcare facilities rather than imprisoning them. The Act has now initiated the conversation of Mental Healthcare and the same is now viewed as a major concern which provides a great start however India has a long way to go.

[1] 1978 AIR 597, 1978 SCR (2) 621




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