Right to die and Article 21: Comparison

Author: Ms. Saloni Ratra, Amity Law School Noida.


The term derived from Greek roots “EU” means “well or good” and“Thanatos” means-  “death‟ means good death. “The term Euthanasia normally implies an intentional termination of life by another at the explicit request of the person who wishes to die. Euthanasia is generally defined as the act of killing an incurably ill person out of concern and compassion for that person’s suffering. It is sometimes called mercy killing, but many advocates of euthanasia define mercy killing more precisely as the ending of another person’s life without his or her request. Euthanasia, on the other hand, is usually separated into two categories: passive euthanasia and active euthanasia.

In many jurisdictions,  active euthanasia can be considered murder or Manslaughter, whereas passive euthanasia is accepted by professional medical societies, and by the law under certain circumstances.”

Again according to the definition given in Oxford Dictionaries, Euthanasia means,

“The painless killing of a patient suffering from an incurable and painful disease or in an irreversible coma”.So, from the above definition, we can interpret that Euthanasia is the practice of killing one person who is sufferings from some kind

of serious painful illness so that he can get relief from his pain on the ground of mercy and sometimes even it is known as mercy killing also.



Article 21  of the Indian Constitution says, “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. The right to life under Article 21 does not include the Right to die. The right to life is a natural right. Now, the question regarding the Right to die the first time comes before Bombay High Court in State of Maharashtra v. Maruti Sripati Dubal 1987 Cri LJ 743. And here in this case court declare that Right to Life includes Right to die, thus making Section 309 of Indian Penal Code, 1860 which makes attempt to suicide as punishable offense unconstitutional. But Supreme Court in Gian Kaur v. the State of Punjab (1996)2 SCC 648, held that Right to life does not include “Right to die” or “Right to be killed”. Thus, an attempt to suicide is a punishable offense under section 309 of the Indian Penal code, and it is not unconstitutional to Indian Constitution Art. 21. Right to life is a natural right and right to die is not a natural right and no one has a right to finish their life in an unnatural way.    Even when a petition was filed for Euthanasia, In Aruna Ramchandra Shanbaug versus Union of India (2011)4 SCC 454, Supreme Court in its judgment declared that only Passive Euthanasia is legal in India; means when a person is on ventilation in that case only, the patient can be removed from the ventilation. Even in India whether it is Voluntary Euthanasia, Involuntary Euthanasia or Non- Voluntary Euthanasia whatever the case may be is not acceptable and is illegal here and it is a punishable offense under the Indian Penal Code except the passive Euthanasia.

B. Right to Life With Dignity

Right to life with dignity means when a person is enjoying his life in a dignified way. Means something which is not only a mere existence and not like the way which animal used to do. Now here lies my question, that whether a person is bedridden and dependent on others for his every basic need e.g. last stage cancer patients in those cases whether he can be said that the person is enjoying his life with dignity. A person, who even can‟t eat with his own hand, can‟t move from his bed, can‟t even stand or walk for washroom, in such cases we can‟t say that the person is living with dignity, even though his family members love him  lots and taking proper care also but still nobody will like such kind of life. Now when a person has spent most of his life without depending on other and suddenly he has to depend on others for his every basic need, in that case, he loses his self-confident, respect, independence, etc which means a person is surviving without his dignity

No Right to Die in contrast with Euthanasia

Art. 21 confers on a person the right to live a dignified life. Does, it also confers a right not to live or a right to die if a person chooses to end his life? If so, what is the fate of Sec. 309, I.P.C., 1860, which punishes a person convicted of attempting to commit suicide? There has been a difference of opinion on the justification of this provision to continue on the statute book.

This question came for consideration for the first time before the High Court of Bombay in State of Maharashtra v. Maruti Sripati Dubal. In this case, the Bombay High Court held that the right to life guaranteed under Article 21 includes the right to die, and the Hon’ble High Court struck down Section 309 of the IPC that provides punishment for an attempt to commit suicide by a person as unconstitutional.

In P. Rathinam v. Union of India[lv], a two-judge Division Bench of the Supreme Court, took cognizance of the relationship/contradiction between Sec. 309, I.P.C., and Art. 21. The Court supported the decision of the High Court of Bombay in Maruti Sripati Dubal’s Case held that the right to life embodies in Art. 21 also embodied in it a right not to live a forced life, to his detriment disadvantage or disliking.

The court argued that the word life in Art. 21 means right to live with human dignity and the same does not merely connote continued drudgery. Thus the court concluded that the right to live of which Art. 21 speaks of can be said to bring in its trail the right not to live a forced life. The court further emphasized that “attempt to commit suicide is, in reality, a cry for held and not for punishment.”

The Rathinam ruling came to be reviewed by a Full Bench of the Court in Gian Kaur v. State of Punjab[lvi]. The question before the court was that if the principal offense of attempting to commit suicide is void as being unconstitutional vis-à-vis Art.21, then how abetment can thereof be punishable under Sec. 306, I.P.C., 1860. It was argued that ‘the right to die’ having been included in Art.21 (Rathinam ruling), and Sec. 309 having been declared unconstitutional, any person abetting the commission of suicide by another is merely assisting in the enforcement of his fundamental right under Art. 21.

The Court overruled the decision of the Division Bench in the above-stated case and has put an end to the controversy and ruled that Art.21 is a provision guaranteeing the protection of life and personal liberty and by no stretch of imagination can extinction of life’ be read to be included in the protection of life. The court observed further:

“……’ 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 the right to life”

Euthanasia and Right to Life

Euthanasia is the termination of the life of a person who is terminally ill or in a permanent vegetative state. In Gian Kaur v. State of Punjab[lvii], the Supreme Court has distinguished between Euthanasia and attempt to commit suicide. The court held that death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating the conclusion of the process of natural death that has already commenced.

The court further held that this may fall within the ambit of the Right to live with human dignity up to the end of natural life. This may include the right of a dying man to also die with dignity when his life is ebbing out. This cannot be equated with the right to die an unnatural death curtailing the natural span of life.


A. Active and Passive Euthanasia

The  Honorable  Supreme Court of India in, Aruna Ramachandra Shanbaug vs. Union of India had made a clear distinction between Active and Passive Euthanasia. In Active euthanasia something is done to end the life of the patient in sleep, thus it amounts to killing a person by positive action in order to end the suffering of a person in a state of a terminal illness. It is considered to be a crime all over the world except where permitted by legislation. In India too, active euthanasia is illegal and a crime under Section 302 or 304 of the IPC. Physician-assisted suicide is a crime under Section 306 IPC (abetment to suicide). Passive euthanasia in another hand, involves the withholding of medical treatment or withholding life support system for the continuance of life e.g., withholding of antibiotic where without doing it, the patient is likely to die or removing the heart-lung machine from a patient in a coma. Passive euthanasia is legal even without legislation provided certain conditions and safeguards are maintained. The core point of distinction between active and passive euthanasia as noted by the Supreme  Court is that in active euthanasia, something is done to end the patient‟s life while in passive euthanasia, something is not done that would have preserved the patient‟s life. To quote the words of learned Judge in Aruna‟s case, in passive euthanasia, “the doctors are not actively killing anyone; they are simply not saving him”. The Court graphically said “while we usually applaud someone who saves another person‟s life, we do not normally condemn someone for failing to do so”. The Supreme Court pointed out that according to the proponents of Euthanasia, while we can debate whether active euthanasia should be legal, there cannot be any doubt about passive euthanasia as “you cannot prosecute someone for failing to save a life”. Again Passive euthanasia is further divided into voluntary and non-voluntary. Voluntary euthanasia is where the consent is taken from the patient. And in non-voluntary euthanasia, the consent is unavailable on account of the condition of the patient for example, when he is in a comma.


“Marte  hain aarzoo  mein marne ki  Maut aati hai par nahin aati”                                                              

  —- Mirza Ghalib “I’m not afraid of being dead. I’m just afraid of what you might have to go through to get there.”                              

  —– Pamela Bone (A reputed Journalist) A person who is born in the world will also die one day. This is the universal truth, where there is life there is death.

Nobody can escape from death. But one thing which every man deserves in his life is the Right to life as well as the Right to die with dignity. No  one should be deprived of this right

I think this is the right time when the Right to die with dignity should be allowed under  Article 21 for terminally ill patients. Even a medical committee should be formed to discuss and decide the diseases which can be fall under the” Terminally ill” category. And for those diseases “right to die with dignity” through Physician-Assisted Suicide should be allowed. So, terminally ill patients can die without facing any suffering and pain.

If we consider Darwin theory of “Survival of the fittest”, then we will find that in today‟s world only the rich people can survive well for their existence. And those who are poor are born to live with misery. But death is the last stage of life which never sees who is poor and who is rich. So, this last stage of life should be free of suffering and pain.  

Lastly,  it‟s high  time to amend  Article 21 of Indian Constitution and to include Right to die with dignity