Legislature going passive on passive euthanasia?
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New Delhi: On Monday, the Supreme Court will hear a non-governmental organization’s petition seeking a ruling on passive euthanasia, or the right to refuse medical treatment.
The government, in an affidavit filed last week said, “thought it prudent to stay its hands, in view of the pendency of the matter before the Constitution bench”.
Passive euthanasia is when a patient is allowed to die by limiting medical intervention, not escalating already aggressive treatment, withholding or withdrawing artificial life support in cases that are judged to be medically futile.
It will now be on the five-judge bench of the top court to decide the future course of action regarding euthanasia, also called assisted suicide. It is possible that the court allows the government to proceed with its recommendations detailed in this affidavit, which includes expert body meetings and a draft law, but that remains to be seen.
The debate around euthanasia reached its peak in the case of Aruna Shanbaug, who remained in a permanent vegetative state for decades after a brutal rape in the hospital where she worked as a nurse. In this case, the apex court laid down guidelines regarding passive euthanasia. It was significant because it brought the term euthanasia and its two types—active and passive euthanasia—in the mainstream. Shanbaug died on 18 May 2015.
NGO Common Cause, petitioner in this case, wanted a living will to be made a valid document. Lawyer Prashant Bhushan, representing Common Cause, said in court on 15 January, that being taken off life support should be allowed even when there is no brain death. The government in its affidavit said that such a will or medical power of attorney by a person would be invalid because of the draft bill in the 241st report of the Law Commission.
The 1st February hearing will be crucial for the country’s policy on euthanasia. Currently, removing life support is permitted under Regulation 6.7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, which said that “the question of withdrawing supporting devices to sustain cardio-pulmonary function even after brain death” would be decided by a team of three doctors. The apex court’s verdict in March 2011 also provides a manner in which life support can be removed, and who can act on a patient’s behalf if the patient cannot decide for himself/herself.
The Indian judiciary comes with its tag of being the strongest in the world, often treading into the realm of judicial activism and judge-made law. This was seen last year when the court struck down a constitutional amendment and law regulating appointments to the judiciary—the National Judicial Appointments Commission—and reinstated a process of selection devised by the judiciary of selection through the five senior-most judges of the Supreme Court.
While its might and apparent infallibility are often criticised, it is worth asking why the elected government would wait for a direction from the court to draft a law on passive euthanasia.