IN THE HIGH COURT OF KERALA, AT ERNAKULAM
Present:
The Honorable Chief Justice Mr. A.V. Savant
&
The Honorable Justice Mr. K.S. Radhakrishnan
Friday, the 23rd June, 2000 /2nd Ashadha, 1922.
O.P.NO. 11596 OF
1998-E
C.A. THOMAS MASTER Vs. UNION OF INDIA AND ANOTHER.
A.V. SAVANT, C.J. & K.S. RADHAKRISHNAN, J.
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O.P.NOS.11596 & 21470 OF 1998
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Dated this the 23rd day of June, 2000.
J U D G M E N T
Savant,
C.J.
1.
Heard
all the learned counsel, Dr. Vincent Panikulangara, for the petitioners, Mr.
Prasanth, for the first respondent - Union of India, and Mr. Jose Thetteyil,
for the second respondent - State of Kerala.
2.
O.P.No.11596
of 1998 is filed by Mr. C.A. Thomas Master, who was then 80 years old, for very
unusual reliefs. The petitioner says
that he is a retired teacher. His wife
is aged 72 years old; she is also a retired teacher. The petitioner has a daughter, son-in-law, as also his son and
grand-children, who are school going.
The petitioner says that his family members are well-settled. He is in a good mental and physical state. He enjoys music and plays harmonica. He led a contented life and believes that
all his duties and obligations in his life are successfully fulfilled and has
accomplished his mission in life. The
petitioner, therefore, states that he has no desire to live any further, and it
is high time he quits this world.
However, as a law abiding citizen, he does not want to commit suicide,
but he wants to voluntarily put an end to his life or donate his bodily organs
to facilitate voluntary death.
3.
The
petitioner has referred to the fact that death is the only certainty in life
and hence a person who thinks that he has lived enough, and is contented in
life, Should have the freedom to choose the time and place of his death, as well
as the method. The freedom to choose
the method of one's death is a part of the right to life guaranteed by Article
21 of the Constitution, says the petitioner.
He says in the ancient Indian and Chinese civilisations, it was
customary to permit voluntary death and arrangements should, therefore, be
provided by the respondents to facilitate voluntary death clinics. Petition proceeds to distinguish between a
suicide which is committed by a person frustrated in life or unsuccessful in
life and the right to voluntarily put an end to one's life by a person like the
petitioner, who is successful and happy in life and has achieved his mission in
life.
4.
The
petitioner has then referred to the decision of the Apex court in GIAN KAUR v.
STATE OF PUNJAB, A.I.R., 1996 S.C. 1257.
The petitioner has also referred to the decisions of some of the High
Courts on the question, but his regret is that the said decisions do not
consider the distinction between what is commonly understood as suicide and the
right of a person to take a decision regarding voluntarily putting an end to
one's life which he says is - an inalienable part of the right to life. The petitioner, therefore, contends that
notwithstanding the decision of the Apex court in GIAN KAUR's case, the distinction between
"suicide" as commonly understood, and the right to Voluntarily
terminate one's life needs to be considered by the Court. The petitioner then claims to have
approached some of the medical institutions under the control of the State
Government, including the District Hospital, Thrissur, seeking help to
facilitate his voluntary death and for donation of his organs, including heart,
kidneys, eyes, etc. However, his
request was not taken seriously and he was told that none of the hospitals
under the State Government has such facilities to enable the petitioner to
voluntarily cause his death, which would no be suicide.
5.
Being
aggrieved, therefore, by the refusal and inaction on the part of both the
respondents, the petitioner has prayed for the issuance of a writ of mandamus
commanding the respondents to start "Mahaprasthana Kendra" or
Voluntary Death Clinics in each District Hospital so as to facilitate voluntary
death and donation of bodily organs as well as their transplantation. There is a further prayer for a direction to
the respondents to appoint a commission to study the practice of voluntary
death in ancient India and to suggest methods for its practice in the context
of environmental changes and technological advancements. The petitioner also prays for a direction to
the respondents to set apart funds and set up infrastructure for assisting
voluntary organisations which are willing to facilitate voluntary deaths and the
donation of bodily organs. There are
other consequential relief's such as setting up of organ bank, etc.
6.
O.P.No.21470
of 1998 is filed by Mr. Mukundan Pillai. He is 69 year old with B.A.Degree in
Economics. He was a teacher, who later on acquired B.Ed. Degree and retired as
Headmaster. Thereafter he was the
Principal of N.S.S. Public School, Thiruvananthapuram. The petitioner, his wife, as well as his
daughter and her family are leading happy life. He claims to be in good physical and mental conditions. He also states that though he is 69 years
old, he is absolutely contented and believes that his mission in life is
fulfilled. He has no further impetus to
live any longer. This petition also, being
drafted by the same learned counsel, contains similar averments as in
O.P.No.11596 of 1998, which are summarised above. The petitioner also refers to the decisions of the various High
Courts and of the Apex court in GIAN KAUR's
case and similar relief's are prayed for in this petition; the
principal being for the issuance of directions to the respondents to start
"Mahaprasthana Kendra" (Voluntary Death Clinic) so as to facilitate
voluntary death and donation/transplantation of bodily organs.
7.
In
O.P.No.21470 of 1998 a counter has been filed by Mr. R.M. Bhattacharya,
Director, Ministry of Health and Family Welfare, on behalf of the first
respondent - Union of India. It states
that a meeting of an expert body including officers of the Ministry of Health
was held to deliberate upon the issues raised in this petition, and having
considered the relevant facts it was decided as under:
1.
Ethically
everyone has a right to live but he has no right to die. To the best of the knowledge no voluntary
death clinic exists anywhere in the world.
2.
Euthanasia
is not provided under the existing law.
3.
The
experts felt that there is no need to appoint a commission at this point of
time as the practice of voluntary death in India is not provided under the
rules. The experts also felt that
various medical associations in the world have not advocated for practice of
voluntary death.
In view of the above, first respondent has
opposed the petition as being without merit.
8.
In
so far as the relief for transplantation of bodily organs is concerned, the
question need not detain us longer since we have a legislation on the subject,
namely, the Transplantation of Human Organs Act, 1994. Hence, in our view, it is not necessary to
express any opinion on the said question, which is covered by the opinion on
the said question, which is covered by the provisions of the Transplantation of
Human Organs Act, 1994.
9.
In
fairness to the learned counsel, Dr. Vincent Panikulangara, it must be stated
that his main emphasis was on the distinction between suicide commonly
understood, and the right to voluntarily terminate one's life. According to him, the Apex court has not
considered this distinction while laying down the law in GIAN KAUR'S case. It must also be stated at the outset that
petitioners are not concerned with the constitutional validity of the
provisions of Sections 306 and 309 of the I.P.C., 1860. Section 306 makes abetment of suicide
punishable with imprisonment of either description for a term which may extend
to ten years, and such a person is also liable to fine. The section obviously contemplates a
completed act of suicide which has been abetted by someone. Section 309 deals with the attempt to commit
suicide. Where a person does any act
towards the commission of such offence, or makes any attempt to commit suicide,
he can be punished with simple imprisonment for a term which may extend to one
year or with fine, or with both. In
view of the fact that a Constitution Bench of the Apex court had occasion to
consider the question of the validity of the said provisions on the touch-stone
of Articles 14 and 21 of the Constitution, and the same having been upheld,
learned counsel did not address us on the question of constitutionality of
either Section 306 or Section 309 of the I.P.C. The whole emphasis of the petitioners was that this Court should
embark upon a novel experiment of directing the respondents to set up voluntary
death clinics to facilitate persons exercising their right of voluntarily
terminating their life, which, according to petitioners, is not suicide. Towards this end, petitioners want us to
issue a requisite direction, including a direction for providing requisite
finance, so that infrastructure is made available for setting up of such
voluntary death clinics in each of the Districts in the State of Kerala.
10.
In
his attempt to persuade us to grant the above mentioned relief's, petitioners criticised
the judgment of the Apex Court in GIAN KAUR'S case as being unduly
influenced by the principles of Anglo Saxon Jurisprudence, overlooking the
ancient Indian texts like Manu's Smrithy.
The petitioners distinguished the question of euthanasia from suicide
and emphasised the distinction between suicide and the right to voluntarily
terminate one's life. Before dealing
with the decision in GIAN KAUR'S case, we would like to refer to a few
definitions.
11.
The
word "suicide" is not defined in the I.P.C. One must, therefore, look at the dictionary meaning of the
word. As per New Webester's Dictionary of
the English language, Deluxe Encyclopedic Edition, the word "suicide"
appearing at page 980 means:
"One who intentionally takes his own life; the
intentional taking of one's own life; destruction of one's own interests or
prospects-v.i.--suicided, suiciding. To
commit suicide.--v.t. to kill (oneself)."
In
the Concise Oxford Dictionary, 9th Edn., at page 1393, the word
"suicide" is stated to mean
as under:
n. & v.
n.1.a. the intentional killing of oneself; b. a person who commits suicide.
2.a. self-destructive action or
course (political suicide).3.
designating a highly dangerous or deliberately suicidal operation,
etc. (a suicide mission). v.intr. commit suicide.
In
the Halsbury's Laws of England, fourth edn., ninth volume, page 686, paragraph 1124, the word "suicide" has been
dealt with in the following words:
A finding of suicide must be based on evidence of
intention. Every act of self-destruction
is, in common language, described by the word 'suicide' provided it is the
intentional act of a party knowing the probable consequence of what he is
about. Suicide is never to be
presumed. Intention is the essential
legal ingredient.
In
re DAVIS, (1968) 1 Q.B. 72, the Court of Appeal ruled that suicide required an
intention on the part of a person to kill himself, so that to justify a verdict
of suicide to kill himself, so that to justify a verdict of suicide, it must be
shown that he knew what he was doing and was aware of the probable consequences
of his acts. The earlier decision in
CLIEF v. SCHWABE, (1846) 3 C.B. 437 was approved.
12.
In
our view, therefore, the word "suicide" in plain English language
would mean -- a person voluntarily putting an end to his life. It is obvious, on a plain reading of the
definition of "suicide", that the causes and circumstances leading
one to take such a decision are wholly irrelevant for deciding the question as
to whether the death was a suicide or not.
A person who is frustrated or defeated in life, or considers himself to
be frustrated or defeated in life, may, on the spur of the moment or after
proper deliberation, come to the conclusion that he needs to put an end to his
life. On the other hand, a person who
is otherwise happy and claims to be successful in life, and had led a contented
life, like the petitioners before us claim may also take a conscious decision
of putting an end to one's life. Such a
decision may be taken on a full consideration of the relevant facts. Such a decision, as in the case before us,
is stated to have been based in one's own interest with a view to avoid any
pain, or misery, or suffering in old age, to himself or one's dependants. Nevertheless, on a plain meaning of the word
"suicide" it is difficult to say that the decision taken to
voluntarily put an end to one's life, in the latter case where a person claims
to be successful in life and happy is not suicide.
13.
It
is true that some of the High Courts as also the Apex Court in P. RATHINA V.
UNION OF INDIA, (1994) 3 S.C.C.394 =
A.I.R., 1994 SCW 1764, had taken the view that Section 309 of the I.P.C. was
unconstitutional, since it was violative of the provisions of Article 1 of the
Constitution. It was held that the
right to die was part of the right to life Section 309 of the I.P.C. was held
to be unconstitutional any person abetting a commission of suicide by another
was merely assisting in the enforcement of the fundamental right under Article
21, and, therefore, Section 306 I.P.C. penalising assisted suicide was equally
violative of Article 21 of the Constitution.
14.
The
whole controversy centered round the question as to die, assuming that such a
right existed, was included within the ambit of Article 21 of the Constitution.
Since a two-Judge Bench of the Apex Court had decided the question of
validity of Sec.309 IPC, the Constitution Bench heard a batch of appeals along
with GIAN KAUR's case. The Apex court
elaborately discussed the question on the subject, including the cases decided
by the Bombay, Delhi and Andhra Pradesh High Courts, and its earlier decision
in RATHINAM's case. We do not think it
necessary to reproduce the same here.
Suffice it to say that in paragraph 15 of the judgment, the Apex court
has referred to the recommendation contained in the 42nd Report
(1971) of the Law Commission of India, which in turn had taken into account
some of the shlokas in the Chapter on " the Hermit in the Forest" in
Manu's Code. Shlokas 31 and 32 read as
under:
31.
Or
let him walk, fully determined and going straight one, in a north-easterly
direction, subsisting, on water and air, until his body sinks to rest.
32.
A
Brahmana having got rid of his body by one of those modes (i.e. drowning,
precipitating burning or starving) practiced by the great sages, is exalted in
the world of Brahmana, free from sorrow and fear.
15.
The
Apex court also considered the note by F. Max Muller on the Laws of Manu,
translated by George Buhler, Sacred Books of the East, edited by F. Max Muller
in the following words:
From the parallel passage of Apas tambha II, 23, 2,
it is, however, evident that a voluntary death by a starvation was considered
the befitting conclusion of a hermit's life.
The antiquity and general prevalence of the practice may be inferred
from the fact that the Jaina ascetics, too, consider it particularly
meritorious.
16.
The
Law Commission of India had taken note of the fact that the British Parliament
had enacted the Suicide Act in 1961, under which an attempt to commit suicide
has ceased to be an offence. Law
Commission, therefore, concluded that the penal provision contained in Section
309 of the I.P.C. was harsh and unjustifiable, and should be repealed. The Apex court considered the fact that a
bill was introduced in 1972 to amend the IPC by deleting Section 309. However, the bill lapsed and no attempt was
made thereafter to implement the recommendation of the Law Commission. We asked the learned counsel appearing for
the first respondent as to whether there was any further change in the attitude
of the Legislature in this behalf, but counsel for the first respondent could
not enlighten us on this point.
17.
Be
that as it may. The Apex Court in GIAN
KAUR's case then considered the question as to whether the right to life would
include the right not to live, that is, the right to put an end to, or to
terminate, one's lif2e. That was the
basis on which the earlier decision in RATHINAM's case proceeded. The Court then distinguished the nature of
rights under Art. 21 dealing with the right to life, as against the nature of
rights under other Articles, such as freedom of speech and expression in
Art.19(1)(a), which includes the freedom not t move anywhere; the freedom of practicing
any profession or to carry on any occupation, trade or business
under Art.19(1)(g) which includes the freedom not to do any business. The Court then pointed out the fallacy in
the reasoning of the judgment of the Bombay High Court, to which a reference
was made in RATHINAM's case, and came to the conclusion as under:
19. When a man commits suicide he has to undertake
certain positive overt acts and the genesis of those acts cannot be traced to,
or be included within the protection of the 'right to life' under Article
21. The significant aspect of sanctity
of life is also not to be overlooked.
Article 21 is a provision guaranteeing protection of life and personal
liberty and by no stretch of imagination can extinction of life bread to be
included in 'protection to life'.
Whatever may be the philosophy of permitting a person to extinguish his
life by committing suicide, we find it difficult to construe Art.21 to include
within it the 'right to die' as a part of the fundamental right guaranteed
therein. 'Right to life' is a natural
right embodied in Article 21, but suicide is an unnatural termination or extinction
of life and, therefore, incompatible and inconsistent with the concept of 'right to life'. With respect and in all humility, we find no similarity in the
nature of the other rights, such as the right to 'freedom of speech' etc. to
provide a comparable basis to hold that the 'right to life' also includes the
right to die. With respect, the
comparison is inapposite, for there as on indicated in the context of Article
21. The decisions relating to other
fundamental rights wherein the absence of compulsion to exercise a right was
held to be included within the exercise of that right, are not available to
support the view taken in P. RATHINAM (1994) A.I.R. SCW 1764), qua Article 21.
20. To give meaning and content to the word 'life'
in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified
may be read into it but not that which extinguishes it ad is, therefore,
inconsistent with the continued existence of life resulting in effacing the
right itself. The 'right to die', if
any, is inherently inconsistent with the 'right to life' as is 'death with
life'.
18.
The
Apex Court in GIAN KAUR's case also considered the question of euthanasia which
is sought to be justified on the view that existence in persistent vegetative
state (PVS) is not a benefit to the patient of a terminal illness being unrelated to the principle of 'sanctity of
life' of the 'right to live with dignity'.
It was held that the protagonism of euthanasia was of no assistance to
determine the scope of Article 21 for deciding whether the guarantee of 'right to life' therein includes the right
to die'. The Court emphasised that the
'right to life' under Article 21 would include the right to live with human
dignity upto the end of natural life,
which includes the right to a dignified life upto the point of death including
a dignified procedure of death. But the
'right to die' with dignity at the end of life is not to be confused or equated
with the 'right to die' an unnatural death curtailing the natural span of
life. In this view of the matter, the
Court disagreed with the view expressed earlier in RATHINAM's case and came to
the conclusion that the reason for which Section 309 of the I.P.C. was held to be violative of Art.21 did
not withstand legal scrutiny. It was,
therefore, held that Section 309 of the I.P.C. was not violative of Art.21 of
the Constitution.
19.
As
far as the validity of Section 306 of the I.P.C. is concerned, the Apex court
held that having regard to the distinct nature of the offence under Section
306, where a person abets the commission of a suicide, there was nothing
unconstitutional in the said provision, which was therefore held to be valid.
20.
The
Court then referred to the Suicide Act, 1961 enacted by the British Parliament,
and considered the decisions of some of the courts abroad, where it was held
that euthanasia was not a lawful act, and stated that the desirability of
bringing about such a change in euthanasia was considered to be the function of
the legislature by enacting a suitable law providing therein adequate
safeguards to prevent any possible abuse.
21.
The
aforesaid decision n GIAN KAUR's case makes it clear that it is possible to
distinguish between the right to voluntarily terminate one's life and
"suicide" as commonly understood.
22.
We
may now refer to the decision of the Apex court in SURJIT SINGH v. STATE OF PUNJAB, AIR 1996 SC 1388. Question was of the claim of the appellant,
Surjit Singh, former Deputy Superintendent of Police, for medical
reimbursement. Appellant having been
operated on for a bye-pass surgery in London, claimed Rs.3 lakhs which was
spent by him for his treatment in London.
His claim for medical reimbursement was rejected by the State. When the matter was examined by the Apex
court, the court has expressed its opinion with reference to the aspect of self
preservation of one's life, which is stated to be the necessary concomitant of
the right to life enshrined in Art.21 of the Constitution, which was
fundamental in nature, sacred, precious and inviolable. In paragraph 10 at page 1391, the Court has
quoted versus 17, 18, 20 and 22 in Chapter 16 of the Garuda Purana (a dialogue
suggested between the Divine and Garuda, the bird) in the following words:
17.Vinna Dehana kasyaapi Without the body how can one obtain the
canpurushaartho na vidyate objects of human life?
Therefore protecting
Tasmaaddeham dhanam
the body which is the wealth, one should
Rakshet-punyakarmaani
perform the deeds of merit.
Saadhayet.
18.Rakashayet sarvaddat- One should protect his body which is
maanamaatmma sarvasya responsible for everything. He who
bhaajanam.
protect himself by all efforts, will see many
Rakshane yatnamaatish-
auspicious occasions in life.
thejje vanbhaadraani
pashyati.
20.Sharirarakshanopaayaath The wise always undertake the protective
kriyante sarvada bhdhaih measures or the
body. Even the persons
Necchanti cha punastyaa- suffering from leprosy and other diseases
Gamapi kushthaadiroginah. do not wish to get rid of the body.
22.Aatmaiva yadi
naatmaan- If one does not
prevent what is unpleasant
amachitebhyo nivaarayet to himself, who else will do if? Therefore
Konsyo hitakarastasmaa- one should do
what is good to himself.
daatnaabnam taarayishyati
23.
In
view of the above discussion, it is not possible for us to accept the
petitioners contention that voluntary termination of one's life is not suicide
as understood in ordinary English language in the absence of any specific definition in the I.P.C. If that be so, voluntary termination of
one's life for whatever reason, assuming that it is by persons like the petitioners,
who say they are successful in life,
and had led a contented life, and claim that their mission in life is ended,
would nevertheless amount to suicide within the meaning of Section 306 and 309
of the I.P.C. In our view, no
distinction can be made between suicide committed by a person who is either
frustrated, or defeated, in life. The
question as to whether suicide was committed impulsively or whether it was
committed after prolonged deliberation, is, in our view, wholly
irrelevant. Similarly, the decision
taken by persons life the petitioners to voluntarily put an end to one's life
on the footing that one has led a successful life, and the mission of his life
was completed, would, in our view, amount to suicide.
24.
What
the petitioners have overlooked is the possible loss to the society, when a
person who is otherwise bodily an mentally healthy, wants to exercise his right
to voluntarily put an end to his life.
It may be that his family members or the society at large may stand to
gain by his rich experience in life.
The possibility of misuse, or abuse, of such a right and exploitation on
that count, cannot be ruled out. That
apart. In the absence of any
legislation in that behalf, and having regard to the discussion in GIAN KAUR's
case, in our view, no distinction can be made between suicide as ordinarily
understood, and the right to voluntarily put to an end to one's life, as
distinguished by the petitioners. In
our view, in either case, it would amount to suicide and thus attract the
provisions of Sections 306 and 309 of the I.P.C. depending upon the facts of each case. If that be the true legal position, none of the reliefs prayed
for by the petitioners can be granted.
25.
Accordingly
both the Original Petitions are disposed of.
Sd/-
(A.V. SAVANT)
CHIEF JUSTICE.
Sd/-
(K.S. RADHAKRISHNAN)
Judge.