DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW (U.P.)
Session- 2015-16
Constitutional law - I

Scope of Article 21 of the Indian Constitution:

Right To Die

UNDER THE SUPERVISION OF: SUBMITTED BY:

Mr. Mahendra Singh Paswan Arpit Dwivedi

Assistant Professor Roll No. - 43
Department of Law Section - A
Semester- III
 Acknowledgment

I would like to express my gratitude to all those who helped me to complete this project. I extend my
sincere acknowledgements to Mr. Mahendra Singh Paswan sir who mentored me in completing
Scope of Article 21 of the Indian Constitution: Right to Die as my project topic. I am
deeply indebted to him whose help and stimulating suggestion helped me in choosing this topic.

I would like to thank Honble Vice Chancellor sir for providing our institute with all the facilities
which are required for the completion of this project.

I further extend my thanks to library staff of DR. RAM MANOHAR LOHIYA NATIONAL LAW
UNIVERSITY who helped me in getting all the materials necessary for the project.

-Arpit Dwivedi
Roll No. 043
 Table of Contents

Introduction ..................................................................................................................................... 4

Constitutional Validity of Right to Die ....................................................................................... 4

Relevant Cases: ............................................................................................................................... 8

State of Maharashtra v. Maruti Sripati Dubbal .................................................................... 8

Chenna Jagdeshwar v. State of Andhra Pradesh ................................................................... 8

P. Rathinam v. Union of India ................................................................................................. 9

Conclusion . ................................................................................................................................. 10

Bibliography ................................................................................................................................. 11
Introduction

The Constitution of India provides a long list of fundamental rights under Part-III. Article 21 of our
Constitution is one of the important fundamental rights among those rights. This article 21 of our
constitution deals with Protection of Life and Personal Liberty.The Article 21 reads as follows:
No person shall be deprived of his life or personal liberty except according to procedure established
by law.According to this article right to life means the right to lead meaningful, complete and
dignified life. It does not have restricted meaning. The object of the fundamental right under Article
21 is to prevent any restriction by the State to a person upon his personal liberty and deprivation of
life except according to procedure established by law.

The meaning of the words personal liberty came up for consideration of the Supreme Court for the
first time in A.K. Gopalan v. Union of India1. The scope of Article 21 was a bit narrow at that time.
In this case the Supreme Court held that the word deprivation was construed in a narrow sense and it
was held that the deprivation does not restrict upon the right to move freely which came under
Article 19 (1) (d). Finally, in Maneka Gandhi v. Union of India2, the Supreme Court has overruled
Gopalans case and widens the scope of the words personal liberty, which is as follows: The
expression personal liberty in Article 21 is of widest in nature and it covers a bundle of rights which
go to constitute the personal liberty of man and some of them have raised to the status of distinct
fundamental rights and given additional protection under Article 19.

Constitutional Validity of Right to Die

Every person shall have the right to die with dignity; this right shall include the right to choose the
time of ones death and to receive medical and pharmaceutical assistance to die painlessly. No
physician, nurse or pharmacist shall be held criminally or civilly liable for assisting a person in the
free exercise of this right. Many patients on respirators are not conscious and so cannot say
whether they want to live or die. But Piergiorgio Welby is still full of words, hard and touching ones,
that may be changing the way Italy thinks about euthanasia and other choices for the sick to end their

1
1950 AIR 27; 1950 SCR 88
2
1978 AIR 597; 1978 SCR (2) 621
own lives. Almost everyone would agree that life is the most precious gift that human beings have
been given. Yet, despite this, there are times when life becomes so difficult or unbearable that many
have, at one time or another wished they were dead or had never been born. For some, these feelings
lingerand if they linger long enough, suicide seems to be the only escape. Under jurisdiction of
living world the right to life is regarded as most prominent right among all the basic rights. India is
not exception to it. Under the Indian Constitution right to life is regarded as most important
fundamental right that no derogation from it is permitted even in the time when the country is
suffering from emergency. It is equally true that howsoever important the right to life may be it is the
death which is the end of the process. One cannot ignore this fact. Therefore the question arises that
Does the right to life include the right to die? If the death is an integral part of life, should the
individuals decision to die, its time and manner, be protected from state intrusion? This question is
still unsettled despite a long term debate and discussion on this issue, going on at the judicial and
extra judicial review regime.

The issue of right to die came for consideration for first time before the High Court of Bombay in
State of Maharashtra v. Maruti Sripati Dubal3. In this case the Bombay High Court held that the
right to life guaranteed under Article 21 includes right to die, and the honble High Court struck
down section 309 IPC which provides punishment for attempt to commit suicide by a person as
unconstitutional. In P Rathinam v. Union of India4 a Division Bench of the Supreme Court
supporting the decision of the High Court of Bombay in Maruti Sripati Dubal case held that under
Article 21 right to life also include right to die and laid down that section 309 of Indian Penal Court
which deals with attempt to commit suicide is a penal offence unconstitutional.

This issue again raised before the court in Gian Kaur v. State of Punjab5. In this case a five judge
Constitutional Bench of the Supreme Court overruled the P. Rathinams case and held that Right to
Life under Article 21 of the Constitution does not include Right to die or Right to be killed and
there is no ground to hold that the section 309, IPC is constitutionally invalid. To true meaning of the
word life in Article 21 means life with human dignity. Any aspect of life which makes life

3
1987 Crl. L.J. 743; 1987 (1) BomCR 499; (1986) 88 BOMLR 589
4
1(1994)3SCC394;1994SCC(Cri)740
5
(1996) 2 SCC 648; AIR 1996 SC 1257
dignified may be include in it but not that which extinguishes it. The Right to Die if any, is
inherently inconsistent with the Right to Life as is death with life

Section 309 of IPC deserves to be effaced from the Statute book to humanize our penal laws. It is a
cruel and irrational provision and it may result in punishing a person again who has suffered agony
and would be undergoing ignominy because of his failure to commit suicide. Honble Supreme
Court has also expressed similar view in Aruna Ramchandra Shanbaug v. Union of India & Ors6.
An act of suicide cannot be said to be against religion. Morality or public policy, and an act of
attempted suicide have no baneful effect on society. Further, suicide or attempt to commit suicide
causes no harm to others; therefore the states interference with the personal liberty of the concerned
persons is not called for. Thus section 309 violates Article 21, and so void.

If a person has right to live Article 21 of the Constitution, the question is whether he has a right not
to live. Logically, it must follow that the right to live will include the right not to live, say, the right
to die or to terminate ones life. Right to live of which article 21 speaks of can be said to bring in its
trail the right not to live a forced life. If a person, because of family discord, distraction, loss of a
dear relation or other cause of a like nature overcomes the instinct of self-preservation and decides to
take his life, he should not be held for an attempt to suicide. In such case the unfortunate man
deserves indulgence, sympathy and consolation instead of punishment.

The Indian constitution under Article 21 confers the right to Life as the fundamental right of every
citizen. The Right to Life enriched in Article 21 have been liberally interpreted so as to mean
something more than mere survival and mere animal existence. The Supreme Court has asserted that
Article 21 is the heart of the fundamental Rights provided under part III of the constitution. The
Supreme Court has clearly stated that in order to treat a right as a fundamental it is not mandatory
that it should be expressly stated as a fundamental right.

The right to life under Article 21 of the Constitution has received the widest possible interpretation
under the able hands of the judiciary and rightly so. On the grounds as mentioned, Article 21 does
not have a restrictive meaning and needs to be interpreted broadly. This affirms that if Article 21

6
(2011) 4 SCC 454
confers on a person the right to live a dignified life, it should bestows the Right to Die also, but the
inclusion of Right to die under Article 21 contradict the provision of Indian Penal Code under
Section 309. As according to Section 309 of the Indian Penal Code Whoever attempts to commit
suicide and does any act toward the commission of such offence, shall be punished with simple
imprisonment for a term which may extend to one year (or with fine, or with both). This section is
based on the principle that lives of men are not only valuable to them but also to the state which
protects them. By considering both the laws the provision of IPC under section 309 is contradictory
to the fundamental right guaranteed under Article 21 of the Indian Constitution. The states power
under section 309, IPC to punish a man for attempt to commit a suicide is questioned not only on the
grounds of morality, but also on the constitutionality of the said provision. A lot of conflicting
opinions have been given on desirability of retaining or abolishing section 309 of Indian Penal Code
because of some contrasting judgement given by various courts.

A question may arise, in case of a dying man, who is, seriously ill or has been suffering from
virulent and incurable form of disease he may be permitted to terminate it by a premature extinction
of his life in those circumstances. This category of cases may fall within the ambit of Right to Die
with dignity as a part of life with dignity. According to the court these are not cases of extinguishing
life but only of accelerating the process of natural death which has already commenced. In as much
as the Supreme Court in Gian Kaur case specifically stated that Euthanasia and Assisted Suicide are
not lawful, it is obvious that so far as Euthanasia and Assisted Suicide are concerned, they will fall
within one or other of penal provisions and continue to be unlawful thus the court did not proposed
going to Euthanasia and Assisted Suicide. In Gian Kaur case the Supreme Court had declared it to be
the duty of the doctor to keep his patient alive as long as possible even in case of terminal illness
(except in case of persistent vegetative state) even if the patient and/or his family members request
him to stop the treatment. Under common law a patient has to give his consent (informed consent) to
medical treatment, including invasive treatment. When the patient is competent and wants
withholding or withdrawal of treatment, that decision is also binding on the doctors provided the
doctor is satisfied that the patient is competent and that this decision of the patient is an informed
one then the doctor can ignore the patients decision and decide what is in the best interests of the
patient according to the view of a body of medical experts. There is, however, too much confusion
and uncertainty in respect of criminal liability of the doctor in cases of passive euthanasia. In this
section suicide has not been separately defined but generally means a deliberate termination of
ones own physical existence.

So for the applicability of Section 309 as this issue is concerned, the Law Commission of India has
given opinion that once a competent patient decides not to take medicines and allows the nature to
take its own course, the doctor has to obey the instructions of the patients, since this omission of this
doctor is based on the patients direction, therefore, it is not an offence under Section 306 of IPC.

On the basis of above discussion it can be inferred that since the withholding or withdrawal of life
supporting equipment (which amounts to euthanasia) has been permitted by the Court in cases where
a patient is in persistent vegetative state, doing so is neither illegal criminal in India.

Relevant Cases:
State of Maharashtra v. Maruti Sripati Dubbal7
The main question before the court was whether Sec. 309 of Indian Penal Code is constitutional or
not. It was held that Sec. 309 is unconstitutional as Right to die should be included in Right to life. It
said that the section is violative of Article 14, as well as Article 21. It was held that Sec. 309 of IPC
is discriminatory in nature and also arbitrary and that it violated equality guaranteed by Article 14 of
the Indian Constitution. Article 21 was interpreted to include the Right to die or take away ones life.

Chenna Jagdeshwar v. State of Andhra Pradesh8

In this case the court held that Right to die is not included in Right to life as Right to life gives a
positive aspect of Article 21. The court also held that the courts have adequate power to ensure that
unwarranted harsh treatment or prejudice is not meted out to those who need care and attention.
The court also negatived the violation of Article 14 of the Indian Constitution.

7
1987 Crl. L.J. 743; 1987 (1) BomCR 499; (1986) 88 BOMLR 589
8
1988 Crl.L.J. 549
P. Rathinam v. Union of India9
The Supreme Court examined the constitutional validity of section 309 in P. Rathinam v. Union of
India with reference to Articles 14 and 21. The Court considered the decisions of the Delhi, Bombay
and Andhra Pradesh High Courts and disagreed with the view taken by Andhra Pradesh High Court
on the question of violation of Article 21. Agreeing with views of the Bombay High Court, the
Supreme Court observed:

On the basis of what has been held and noted above, we state that section 309 of the Penal Code
deserves to be effaced from the statute book to humanize our penal laws. It is a cruel and irrational
provision, and it may result in punishing a person again (doubly) who has suffered agony and would
be undergoing ignominy because of his failure to commit suicide. Then an act of suicide cannot be
said to be against religion, morality or public policy and an act of attempted suicide has no baneful
effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which
States interference with the personal liberty of the persons concerned is not called for. We,
therefore, hold that section 309 violates Article 21, and so, it is void. May it be said that the view
taken by us would advance not only the cause of humanization, which is a need of the day, but of
globalization also, as by effacing section 309, we would be attuning this part of criminal law to the
Global wavelength.

Gian Kaur v. State of Punjab10

The view of Supreme Court taken in P. Rathinams case was overruled by a larger Bench in Smt.
Gian Kaur v. State of Punjab wherein Verma J., (as he then was) speaking for the Court, held that P.
Rathinams case was wrongly decided. The Court observed:

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 be read to be included in protection of life. Whatever may be the philosophy of permitting a

9
1994 AIR 1844, 1994 SCC (3) 394
10
1996 SCC (2) 648
person to extinguish his life by committing suicide, we find it difficult to construe Article 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 the reason 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 qua Article 21. 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 and 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.

Conclusion

Laws are made for the people and it should be change to meet the aims and aspiration of the
changing society. Legislation is duty bound to walk with the society. A person cannot be forced to
enjoy right to life to his detriment, disadvantage or disliking. The right to live in Article 21 of the
Constitution includes the right not to live. The court went on to say that person who attempts to
commit suicide does not deserve prosecution because he has failed. There can be no justification to
prosecute sacrifice of life. It exempts the physician from civil and criminal liability for withholding
treatment or removing artificial respirator etc. and in case, the attending physician does not want to
follow instructions, he has to remove himself from the case.
 Bibliography

Books:
Indian Constitutional Law, MP Jain, 7th Edition
The Constitution of India, P.M. Bakshi

Law Reporter:
Supreme Court Cases
All India Reporter

Web sources:
http://www.scconline.co.in
http://www.manupatrafast.in
http://www.legalserviceindia.com/article/l374-Article-21-and-Constitutional-validity-of-Right-
to-Die.html