A Law Without Parliament


Euthanasia (the passive death of a person who suffers) is prohibited in the United States, England and France. The bills that were presented in their legislatures were defeated. In the United States, the courts confirmed the ban on assassinations assisted by doctors. In 1972, a bill was introduced in Parliament to amend the Indian Penal Code by eliminating Section 309 (attempted suicide) but it expired and no one has dared to present another one since then. In addition, no one has contemplated the implementation of the 42nd Report of the Law Commission, which suggests that the attempted suicide is not treated as an offense under Section 309.

A constitutional court of five members in the Gian Kaur case (1996) held that the right to life did not include the right to die. Therefore, it annulled the decision of two judges in the Ratinam case, that an attempted suicide would be treated as a crime under the penal code. Judges chaired by Judge Verma, after reading carefully the Airedale case of the United Kingdom, argued that “the convenience of achieving such a change was considered a function of the legislature through the enactment of an adequate law that would provide adequate safeguards to prevent any possible abuse ” The court unanimously held that even doctor-assisted suicide did not have a rational basis for claiming exclusion from the fundamental principles of the sanction of life. He cited, with approval, the reasoning of the English courts that euthanasia was not legal under common law and that Parliament was the supreme authority to deal with it.

However, earlier this month, another court of five judges has ruled on passive murder in cases of terminally ill patients. Why should suffering “be carried forward” when there is no cure? A person must, in advance, make a testamentary declaration, which must be endorsed by a judicial magistrate (who is otherwise heavily charged in his or her judicial work), in which the person will unequivocally state that, in case she / he become ill incurably, she / Would not like to be in a “vegetative state” and should be allowed to die with dignity.

This bank of five judges followed the direction of the bench of two judges in the Aruna Shanbaug case, dictated by Judge Markandey Katju, who promoted the concept of euthanasia by creating a new path for assassinations with medical assistance. The then Indian attorney general strongly opposed the government’s argument that euthanasia had not been accepted by the Indians.

The SC was obliged to follow the judicial precedent of the Gian Kaur case, dictated by Judge Verma for five judges, who argued categorically that Article 21 does not include the right to die. The unnatural termination of life is incompatible and incongruent with the concept of the right to life. Therefore, article 21 guarantees the protection of life “that can not be interpreted in such a way as to read the right to die”. The right to life under article 21 must be interpreted as life with human dignity. This aspect, which makes life worthy, must be read and explored, but not to the extent of including that which extinguishes life, erasing the right itself.

Interestingly, the smallest bank in the Shanbaug case, noting low ethical standards, widespread and widespread commercialization and rampant corruption in the country, said courts should be cautious in deciding these matters. The SC judges have expressed, many times, that they are not experts in several fields, including medicine and health. The guidelines in the current verdict refer to how doctors will be evaluated. But there is no mechanism to certify the reputation of the doctor or the Ministry of Health of the Union has established any regulations regarding such practice.

The Supreme Court assumed the functions of Parliament and has turned it into a judicial legislation that will prevail until Parliament legislates. The laws must be promulgated by the Parliament and the courts must strictly interpret the law and not legislate. Should the superior court have sailed in unexplored waters and governed where there is no legislation enacted by Parliament?