'Living Will' to Die With Dignity

The legend goes that Dharmaraj Yudhisthir told Yaksha that the greatest wonder is that whosoever is born will have to die but nobody wants to believe it. The five-judge constitution bench of the Supreme Court recently delivered a judgment, laden with philosophical conundrums, ethical values, and legal scopes. Many a time it is the same life that becomes burdensome for the person, who is face to face with inevitable death, and also for his/her family members. This judgment has now given the right to people to die with dignity and can write a ‘Will’ of death, saying that if he/she is in the coma or vegetative state, the plugs of life may be pulled off. The poet Alfred Tennyson has said that ‘no life that breathes with human breath has ever truly longed for death.’ But this perception is not always the same at every stage. There comes a phase in life when the spring of life is frozen, the rain of circulation becomes dry, the movement of body becomes motionless, the rainbow of life becomes colourless and the word ‘life’ which one calls a dance in space and time becomes still and blurred and the death comes near to hold it as an octopus gripping firmly with its tentacles so that the person ‘shall rise up never’.

Ernest Hemingway expounded the idea that man can be destroyed but cannot be defeated. Nevertheless, life sans dignity is an unacceptable defeat and life that meets death with dignity is a value to be aspired for and a moment for celebration. It is a vexed question whether a person should be allowed to remain in the stage of incurable passivity suffering from pain and anguish or should he/she not be allowed to cross the doors of life and enter, painlessly and with dignity, into the dark tunnel of death that is full of resplendence.

The Court said that the legal question does not singularly remain in the set framework of law or, for that matter, morality or dilemma of the doctors but also encapsulates social values and the family mindset to make a resolute decision which ultimately is a cause of concern for all. There is also another perspective to it. A family may not desire to go ahead with the process of treatment but is compelled to do so under social pressure especially in a different milieu, and in the case of an individual, there remains a fear of being branded that he/she, in spite of being able to provide the necessary treatment to the patient, has chosen not to do so. The social psyche constantly makes him/her feel guilty.

There is always the fear of misuse of Euthanasia because some greedy kith and kin with the help of unethical doctors may accelerate the death of the comatose person. Thus, the Court observed that in an action of this nature, there can be abused by the beneficiaries who desire that the patient’s heart should stop so that his property is inherited in promptitude and in such a situation, the treating physicians are also scared of collusion that may invite the wrath of criminal law as well as social stigma. The medical, social and ethical apprehensions further cloud their mind to take a decision. The apprehension, the cultural stigma, the social reprehension, the allegation of conspiracy, the ethical dilemma and eventually the shadow between the individual desire and the collective expression distances the reality and it is here that the law has to have an entry to alleviate the agony of the individual and dispel the collective attributes and perceptions.

The factum of the case, in brief, is: The petitioner, a registered society, seeks to declare “right to die with dignity” as a fundamental right within the fold of “right to live with dignity” guaranteed under Article 21 of the Constitution; to issue directions to the respondents to adopt suitable procedure in consultation with the State Governments, where necessary; to ensure that persons of deteriorated health or terminally ill patients should be able to execute a document titled ‘My Living Will and Attorney Authorisation’ which can be presented to the hospital for appropriate action in the event of the executant being admitted to the hospital with serious illness which may threaten termination of the life of the executant; to appoint a committee of experts including doctors, social scientists and lawyers to study into the aspect of issuing guidelines as to the “Living Wills”; and to issue such further appropriate directions and guidelines as may be necessary.

The execution of a ‘Living Will’ has become a necessity in today’s time keeping in view the prolongation of treatment in spite of irreversible prognosis and owing to penal laws in the field that creates a dilemma in the minds of doctors to take the aid of the modern techniques in a case or not. A comparison has been made between the fundamental rights of an individual and the State interest focusing on sanctity as well as the quality of life. However, it was opposed by the Government of India due to the following reasons among others: (a) Hippocratic oath is against intentional/voluntary killings of the patient. (b) Progression of medical science to relieve pain, suffering, rehabilitation, and treatment of so-called diseases will suffer a setback. (c) Wish of euthanasia by a mentally ill patient/in depression may be treatable by good psychiatric care.

Earlier in Gyan Kaur vs the State of Punjab, the Constitution Bench of the Supreme Court had said that ‘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’.  Adverting to the concept of euthanasia, the Court observed that existence in the persistent vegetative state (PVS) is not a benefit to the patient of terminal illness being unrelated to the principle of ‘sanctity of life’ or the ‘right to live with dignity’. The Court addressed the legal issues, namely, active and passive euthanasia. It noted that such legislation is prevalent in Netherlands, Switzerland, Belgium, U.K., Spain, Austria, Italy, Germany, France and United States of America. An example was cited by stating that if a patient requires kidney dialysis to survive, not giving dialysis although the machine is available is passive euthanasia and similarly, withdrawing the machine where a patient is in the coma or on heart-lung machine support will ordinarily result in passive euthanasia.

Euthanasia is basically an intentional premature termination of another person’s life either by direct intervention or by withholding life-prolonging measures and resources either at the express or implied request of that person or in the absence of such approval/consent. While dealing with active euthanasia the Supreme Court in Aruna Shanbaug said that the euthanasia entails a positive act or affirmative action or act of commission entailing the use of lethal substances or forces to cause the intentional death of a person by direct intervention, e.g., a lethal injection given to a person with terminal cancer who is in terrible agony. Passive euthanasia, on the other hand, also called “negative euthanasia” or “non-aggressive euthanasia.

Quoting the Law Commission report, the Court said ‘A hundred years ago, when medicine and medical technology had not invented the artificial methods of keeping a terminally ill patient alive by medical treatment, including by means of ventilators and artificial feeding, such patients were meeting their death on account of natural causes. It is well-settled law in all countries that a terminally ill patient who is conscious and is competent, can take an ‘informed decision’ to die a natural death and direct that he or she be not given medical treatment which may merely prolong life.

The word ‘liberty’ is the sense and realization of choice of the attributes associated with the said choice, and the term ‘life’ is the aspiration to possess the same in a dignified manner. Liberty allows freedom of speech, association, and dissemination without which the society may face hurdles in attaining the requisite maturity. History is replete with narratives how the thoughts of individuals, though not accepted by the contemporaneous society, later on, gained not only acceptance but also respect. The Court further said: ‘Life is precious in itself.’ But life is worth living because of the freedoms which enable each individual to live life as it should be lived. To live is to live with dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfillment of dignity and is a core value which the protection of life and liberty is intended to achieve.’

The Court said that: It will be open to the executor to revoke the document at any stage before it is acted upon and implemented. The Court has set strict Guidelines to prevent its misuse so that the person may be able to die with dignity.

Farmers to be Free from Vicious Debt Trap

In a landmark judgement, the Supreme Court of India has declared that farmers’ loan would not be covered by Banking Regulation Act. This will give huge relief to the farmers as they have been committing suicides in frustration and heavy indebtedness. The verdict of the bench of Justice R.F. Nariman and Navin Sinha has been written with empathy and pathos.

Hardly, a day passes when a farmer does not commit suicide in one part of the company or other. The importance of agriculture in the social and economic fabric of India can be realized from the fact that the livelihoods of the majority of the country’s population is still agriculture. However, over the years agriculture has become so unremunerative that nobody wants to remain in this profession. But then there is no way out for a large number of people engaged in it. As a result, small and marginal farmers have been forced in the vicious web of loans and debts. The desolation and hopelessness of farmers can be gauged from the painful facts that more than three lakhs of them have killed themselves in the last twenty years.

These farmers are often brought to bear humiliation and insult at every level and they are condemned to live in abject poverty and deprivation. The Public Interest Litigation (PIL) seeking for the exclusion of farmers loans from Section 21A of the Banking Regulation Act was filed in the Supreme court by a journalist Jayant Verma from Jabalpur. The Late Dr B.D. Sharma, former Vice Chancellor of North Eastern Hill University (NEHU), Deb Brata Biswas, former Member of the Rajya Sabha and Dr Sunilam, a former MLA of Madhya Pradesh were co-petitioners. It was filed on their behalf by this columnist.

The Minimum Support Price of the farmers' products is decided by the Commission for Agricultural Costs and Prices, but it hardly takes into account the competitive prices of other articles. For example, gold was selling at Rs. 18 per ten grams in 1925 and then the price of wheat t was Rs.16 per quintal. While at present the wheat is sold at Rs.1765 per quintal, the gold price has jumped to more than Rs. 30,000 per ten grams. Thus, we see that during the last nearly one century the difference between the prices of gold and wheat per ten grams and per quintal has widened more than 15 times. Section 21A of the Banking Regulation Act of 1949 has further worsened the condition of farmers across the country. The obnoxious part of the Act is that notwithstanding anything contained in the Usurious Loans Act, 1918, or any other law relating to indebtedness in force in any State, a transaction between a banking company and its debtor shall not be reopened by any court on the ground that the rate of interest charged by the banking company in respect of such transaction is excessive.

The main cause of large-scale migration of farmers to the cities is that their problems, necessities and plights have never been properly addressed by all governments after the independence. Prof. M.S. Swaminathan headed National Commission of farmers underlined in its report which was submitted a decade ago said, ‘there is a general feeling of being ‘left behind’ in large parts of rural India. The widening disparity in per capita income between farm and other than farm sector, the very slow rate of growth in agriculture, the declaring profitability, extremely weak social security arrangements, weakening family and community-based mechanism of social protection, lack of employment opportunities etc., and the rising aspirations are building up social unrest, which if not addressed could lead to threats to internal peace and security.

More than a decade ago the report of the Parliamentary Committee had said that ‘the worst exploitation of farmers is through the adverse credit policies of financial institutions which compel farmers to starve under the burden of loans and commit suicides. The Committee found that in 1918 British Rulers passed a Usurious Loans Act which provided that no farmer can be charged a rate of interest higher than the authorised rate. It also provided that the total amount of interest cannot be higher than the original capital but in 1949 a Banking Regulation Act was passed which made a special provision under section 21A saying that these will not apply to Banking Companies, including Cooperative Banks. In view of the pathetic plight of farmers due to the heavy burden of credit, the committee recommended that section 21A of the Banking Regulation Act should be scrapped. The Central Government, however, did not accede to the recommendations of the MS Swaminathan Committee. As a result of this unconscionable harsh law, the farmers have been arrested in states like Uttar Pradesh and Bihar for defaulting on repayment of loans. What is more deplorable is that these defaulting farmers are made to pay even the expenses of their food and transport etc., when they are in jail.

With the unbearable insults and mounting debts, the farmers have been left with no choice but to end their lives. Earlier also many petitions were filed to scrap Section 21A of the Banking Regulatory Act in different High Courts, but the Courts refused to strike down this obnoxious provision of the Act. Therefore. this decision of the Supreme Court is being hailed by the entire spectrum of the society. The Supreme Court said that ‘we have already seen how agriculture as a subject matter is entirely and exclusively left to the States in all its aspects, save and except evacuee property under Entry 41, List III, which is also left to the States, but concurrently with Parliament, specifically including agricultural land therein. Also, we must not forget that the amendment suggested by Shri Shibban Lal Saxena to make it a concurrent subject, was turned down. Any argument that has the effect of making a relief of agricultural indebtedness a concurrent subject by which Parliamentary legislation ousts State legislation must, therefore, also be rejected’.

This is not to say that Parliament is helpless insofar as relief from agricultural indebtedness to banks is concerned. Article 249 of the Constitution enables Parliament to legislate on the aforesaid subject in the national interest if the Rajya Sabha declares, by a resolution supported by not less than 2/3rd of the members present and voting, that it is necessary or expedient in the national interest that Parliament should do so. Equally, under Article 252 of the Constitution, if the legislatures of two or more States deem it desirable that Parliament should pass an Act for regulating a matter exclusively in the State List, this can be done by resolutions to that effect passed by the legislatures of such States. Also, to implement a treaty, agreement or convention with other countries, Parliament, under Article 253 of the Constitution, has the power to legislate on an exclusive State subject. In an emergency, Parliament can, under Article 250, legislate on matters exclusively reserved for the States. This being the case, we need not be unduly weighed down by the argument that, unless we accept his submission, Parliament would be denuded of legislative competence altogether to deal with the subject matter of relief against debts due to banks from the agricultural sector.’

The Court did not consider the judgment of this Court in Yasangi Venkateswara Rao to be binding as it was cryptic and without any reasoning, instead, it agreed with the judgement of the Andhra High Court. After setting out the Banking Regulation Act and the scope of Section 21A, the Andhra Pradesh High Court held that the purpose, operation and effect of Section 21A of the Banking Regulation Act was not even remotely connected with the purpose, operation and effect of the Agriculturists Relief Act, which was held to be a special law enacted to relieve agriculturist debtors. It was further held that charging excessive interest was no longer part of the Agriculturists Relief Act, and, therefore, the spheres of the two provisions were completely different. The learned Judge also went on to hold that Section 21A was arbitrary and violative of Article 14 of the Constitution.  The Supreme Court declared Section 21A of the Banking Regulation Act to be valid, in pith and substance, only to the extent it is relatable other sectors and agriculture.

Fragmentation of agricultural land because of the growing population and division of families, the farmers have practically been reduced to become farm labourers. Debts and loans add burden to break their bones. Possibly, this judgement of the Supreme Court will provide them much needed succour.