On Friday, the Supreme Court issued a landmark judgment on passive euthanasia. In light of the verdict, Firstpost spoke to National Award winner and bestselling author Pinki Virani —who filed a petition in the apex court in 2009 on behalf of Aruna Shanbaug, the King Edward Memorial (KEM) Hospital nurse who was raped and rendered comatose for 40 years — whose PIL led the top court, on 7 March 2011, to recognise passive euthanasia in Shanbaug’s case by which it permitted withdrawing life-sustaining treatment from patients not in a position to make an informed decision
If the 2011 judgment was landmark, then how would you describe this ruling?
A tectonic shift. Exactly seven years ago, the Supreme Court ruling legalising passive euthanasia was a profound shift from the masses – caste, class, culture, religious, medical — to individual rights. The 2018, five-judge Constitution Bench not only validates it, but goes beyond it to add intellectual sinew and heft in a manner where all reading this 500 plus page judgment will be — as I am — thankful for their superb encapsulation of how Article 21, the Right to Life, can indeed include that life which “meets death with dignity” as “a value to be aspired for”.
The judgment, in context of upholding passive euthanasia for individuals with terminal illnesses, also says, “Mere existence does not amount to presence.” I’m still reading the giant judgment, savouring its erudition, and marvelling at how liberty, privacy, writing a medical directive [if one chooses], passive euthanasia and dying with dignity, all come under the umbrella of Article 21.
But the 2011 judgment was under a cloud, right?
Not the outcome of the judgment; there was some debate in the manner of its arrival: Ergo, whether the route reaching the goal-post was constitutional or not. When I filed the PIL in 2009 as the “next friend” of Shanbaug — who had been in persistent vegetative state [PVS] by then for more than a quarter of a century as the world’s worst sexual assault victim — it was specifically for passive euthanasia [the turning off of her feed].
I was made aware that there were other PILs pending, which referred to broad-spectrum euthanasia [which would include active] and living wills as a corollary. Some time after the 2011 passive euthanasia two-judge verdict was announced, which for the first time brought PVS into the medico-legal limelight as a recognisable condition, one of the earlier petitioners approached the Supreme Court again to ask for an expeditious hearing since passive euthanasia had been legalised.
The three-judge bench of that time did not disagree with the 2011 verdict, though they expressed their concern on its perception, and referred it to a five-judge Constitutional Bench. Last week, this part has been legally settled. I won’t deny the stress of such a long journey — from 2009 to 2018 — but it’s nothing compared to Aruna’s forty plus years. Or any other patient in PVS for even one year.
Along with this judgment, the Supreme Court granted the plea of an NGO and laid down conditions for an advanced directive, which is a kind of very specific living will for specific situations. What is the relation between passive euthanasia and living will?
There isn’t any connection between the two, strictly speaking. The 2011 ruling on passive euthanasia said family and doctors can take the call on passive euthanasia if their near and dear ones are in specific situations: If they’re brain dead, on a ventilator or in a PVS. The 2018 judgment said those who do not write an advanced directive and are passive euthanasia-applicable are to be treated on par with those who have written one.
However, what the advanced directive can do, if people choose to write it, is free their loved ones from the guilt of having to take what tends to be a very difficult decision, more so when they are cash-strapped. Passive euthanasia is about choice, writing an advanced directive is also about choice, having the liberty to do either or both is about living, and dying, with dignity.
In 2017, the Supreme Court spoke about the Right to Privacy and alluded to passive euthanasia. How does the latter support the former?
The 2018 judgment, and I’m paraphrasing here, states that in the case of irreversible illnesses, the person’s Right to Privacy decreases as the degree of bodily invasion increases. Death has already set in, yet the patient’s “being” exclusively rests on the medical technology and machines which will prolong a condition that is not in the patient’s best interest. “On the contrary, it’s tantamount to destruction of his dignity which is the core value of life.”
As an example there is — specifically for those with terminal illnesses and long-term PVS patients — the nasogastric tube which could be an invasion into the person’s body and therefore into the person’s privacy. Because the tube itself does not provide life in the midst of the death which has already set in. To remove the tube and retain the patient’s privacy, therefore, need not be seen as “an act of spite” or “malafide intent”.
Government of India was drafting a bill on passive euthanasia. What happened to it?
They called for public input on their draft at this email address: email@example.com. Since then, only silence. That draft said it disapproved of living wills. I should add here that a living will is an umbrella term, and an advanced directive is specific. They do, though, have an advanced directive in the Mental Healthcare Act. They also have the decriminalisation of suicide [though, obviously, not abetment to suicide] in the same Act, thanks as much to the passive euthanasia law of 2011 which called for it.
But that draft allowed living wills for terminally-ill teenagers on the lines of a 16-year-old deciding to accept or reject treatment simply by saying so. Does the 2018 judgment say the same?
The passive euthanasia law is understood as being applicable to all patients in irreversible conditions. Age is no bar. As per Indian law, a minor is under the age of 18. The 2018 judgment said advanced directives can be drawn up only by adults. I submitted, as I’m sure countless Indians did, my suggestions, while opposing this ridiculous inclusion that a 16-year-old teen on his death bed could, by extension, be incited into taking his parents to court if they did not agree with his decision. I have no idea when we will all see another, hopefully, vastly improved draft bill. Meanwhile, the central government still has to get the long-pending surrogacy law, and then another one to control all these “fertility clinics” which are mushrooming — without qualified doctors — all over the country.
Has the verdict made it riskier for doctors who are taking the final decision to withdraw life support?
They are not taking the final decision. They are merely certifying that the patient is in the condition[s] stipulated by the 2011 and 2018 passive euthanasia judgments. The final choice rests with the near and dear ones. And if there is, as per the 2018 judgment, an advanced directive drawn up as per the prescribed rules by the patient herself/himself, the doctor has to follow it. That’s the compassion of both passive euthanasia judgments isn’t it: That no one person stands in judgement?
Would you like to comment on the NGO who got this advanced directive judgment alongside the upholding of passive euthanasia?
Let them, too, never forget Shanbaug. It’s all made possible because of her passive euthanasia law.
Some people don’t like the 2018 judgment. They feel it’s a “slippery slope” to active euthanasia…
Both, 2011 and 2018 judgments make painstaking points about the differences between passive and active euthanasia, which is not permitted in India. There will always be those who feel that my right to refuse medical treatment when I am irreversibly ill — for example withholding antibiotics even though it means a mildly accelerated end — is the same as jumping off a skyscraper.
Individuals now have the legal power to decide how much dignity their last breath deserves. What I am observing, for a while in Indian society, is that some who are diagnosed with advanced, irreversible cancers are choosing to take only those medicine which keep them comfortable. They spend more quality time with themselves and their families until they become, so to speak, passive euthanasia patients. They exercise their right to choose a dignified, final exit over a long drawn out, medically-mediated death. So, clearly, it was time that the law caught up with society.
Doctor Abantika Pal is medical officer, Government of Bengal, and author of the first Bengali book on euthanasia in her state’s contemporary context