COMMENTARY
a context, to deny individuals who are suf-
fering from debilitating terminal diseases
the option of euthanasia until healthcare
is provided to all, seems unjust.
Notes
1 P Rathinam vs Union of India (1994) 3 SCC 394.
2 Gian Kaur vs State of Punjab (1996) 2 SCC 648.
3 C A Thomas vs Union of India 2000, Criminal Law
Journal 3729.
4 Law Commission of India, Forty-Second Report,
1971.
The Moral Basis
for a Right to Die
Sushila Rao
In Aruna Ramchandra Shanbaug vs
Union of India, the Supreme Court
permitted passive euthanasia for
terminally ill patients in certain
circumstances. Judicial reasoning
tends to accord an inordinate
degree of importance to an
absolutist reading of the “sanctity
of life” principle. But this tenet has
already been compromised to
such an extent as to render its
continued influence tenuous at
best. Moreover, the ethical and
jurisprudential foundation for
extending the right to die to
encompass assisted suicide or
active euthanasia in controlled
circumstances already exists in the
present framework. However,
patients incapable of ending their
lives are unjustly pre-empted from
availing of the right to die in its
plenary form.
Sushila Rao (sushila.rao1@gmail.com) is a
researcher at the Balliol College, University of
Oxford, UK.
Economic & Political Weekly  EPW   april 30, 2011  vol xlvi no 18
5 Law Commission of India, 210th Report, 2008.
6 On the basis of a sample study of the quality of
arrests made in a state the Third National Police
Commission concludes: “It is obvious that a major
portion of the arrests were connected with very
minor prosecutions and cannot, therefore, be re-
garded as quite necessary from the point of view
of crime prevention”.
7 Law Commission of India, 196th Report on “Medi-
cal Treatment of Terminally Ill Patients (Protec-
tion of Patients and Medical Practitioners)”.
8 Manusmriti, Chapter on “The Hermit in the For-
est” says,
“3.1. Or let him walk, fully determined and
­going straight on, in a north-easterly direction,
T
he debate surrounding the legalisa-
tion of euthanasia in India has
proven both protracted and intrac-
table. Opponents cry themselves hoarse
about the “sanctity of life” (SOL) being
­v iolated by self-styled angels of death, and
cite eclectic religious authorities to shore up
their claim.1 Proponents of a more ­liberal
view, on the other hand, insist that a
“right to life”2 must include a concomitant
right to choose when that life ­becomes
unbearable or not worth living.3
Active and Passive Euthanasia
On 7 March 2011, the Supreme Court de-
livered a “path-breaking” judgment in the
case of  Aruna Ramchandra Shanbaug vs
Union of India4 (Aruna), permitting passive
euthanasia for terminally ill patients in
certain circumstances. Comparing itself
to a “ship in an uncharted sea”, the court
borrowed heavily from the decision of the
United Kingdom House of Lords (UKHL)
in Airedale NHS Trust vs Bland5 (Bland).
The Court thus based the crux of its
­decision on the much-vaunted distinction
between “active” and “passive” euthana-
sia. Active euthanasia generally refers
to ­positive steps taken to deliberately
­induce death, whereas passive euthanasia
infers withdrawing life support and treat-
ment, and letting nature take its course
(Wainey 1989: 651).
This active/passive distinction is cou­
ched in terms of a dichotomy between
“killing” and “letting die”, which stipulates
subsisting on water and air, until his body sinks
to rest.”
9 Manusmriti, Chapter on “The Hermit in the For-
est” says,
“3.2. A Brahmana having got rid of his body by
one of those modes (i  e, drowning, precipitating
burning or starving) practised by the great sages,
is exalted in the world of Brahamana, free from
sorrow and fear.”
10 Suchita Srivastava versus Chandigarh Administra-
tion, 2009 (11) SCALE 813.
11 A doctrine that grants the inherent power and
a­uthority of the state to protect persons who are
legally unable to act on their own behalf.
that it is morally wrong to intentionally
take a life, but permissible to ­allow the in-
evitable to happen by withdrawing or
withholding treatment (Potts 1988: 504).
Thus active euthanasia was deemed ille-
gal and a crime in India by the Court, pun-
ishable as murder under Section 302 of
the Indian Penal Code (IPC), 1860; or at
the very least as culpable homicide not
amounting to murder under Section 304
of the IPC.6 On the other hand, passively
permitting nature to take its course by
withdrawing life support was an “omis-
sion”,7 and hence not a crime.
Now, in the context of a “right” or enti-
tlement to die, it appears only logical that
our musings should be focused on those
situations when an individual could face
legal or societal hindrances to choosing
when and how she wishes to depart
from this realm. Pondering an able-­
bodied individual’s right to end her life is
a rather ­unexciting endeavour, given that
it will usually be extremely difficult to
­prevent or pre-empt. The rigour and ful-
someness of a right to die will be tested
only by examining the distinctive ethical
quandaries that arise when an individual
seeks assistance from others in termin­
ating her existence, and thus requires
that the state countenance the “macabre”
transaction.
The law as declared in Aruna presently
concedes a right to die for terminally ill
patients by refusing life-saving or life-­
preserving intervention by others. How-
ever, there is no right to be assisted to die,
either by one’s own hand or by another’s
intervention, variously referred to as
­“active euthanasia” or “assisted suicide”.
Judicial reasoning, as well as public
­discourse, tends to accord an inordinate
degree of importance to an absolutist
reading of the SOL principle, which asserts
13
COMMENTARY

that life is regarded as sacred, regardless
of whether that life contains any of the
goods of human existence. Uncritical
­deference to this version of the SOL
­principle would indeed make the very
idea of any form of assisted suicide un­
imaginable. Yet, on closer examination,
it can be shown that the law does not
in fact countenance an untrammelled
­notion of the SOL principle. This has
­important ­implications for our case, as
also for the laborious, yet unsustainable,
distinction drawn between passive and
active euthanasia.
Thus, the basic purpose of this article is
to demonstrate that the SOL principle has
already been compromised to such an ex-
tent as to render its continued influence
tenuous, at best. It also seeks to argue that
the ethical and jurisprudential foundation
for extending the right to die to encom-
pass assisted suicide or active euthanasia
in controlled circumstances already exists
in the present framework. However, truly
vulnerable persons at the “margins of
­existence” – those incapable of ending
their lives because of mental incompe-
tence or physical disability – are unjustly
pre-empted from availing of the right to
die in its plenary form.
Revisiting the ‘SOL’ Principle
The SOL principle is often mistakenly con-
flated with what John Keown (2006) has
called “vitalism”, which is the idea that
human life should be preserved at all
costs. What the SOL principle in fact pro-
scribes is the deliberate destruction of hu-
man life; it does not demand that life
should always be prolonged for as long as
possible. It might therefore be argued, as
Emily Jackson (2008: 126) cogently does,
that the law’s recognition that withdrawal
of life-prolonging treatment is sometimes
legitimate is not so much an exception to
the SOL principle, as an embodiment of it.
In the most secular judicial interpreta-
tion of the SOL doctrine yet, Denman J of
the UKHL explicated thus:
In respecting a person’s death, we are also
respecting their life – giving it sanctity...A
view that life must be preserved at all costs
does not sanctify life...To care for the dying,
to love and cherish them, and to free them
from suffering rather than simply to post-
pone death is to have fundamental respect
for the sanctity of life and its end.8
Hence, as the process of dying is an in-
evitable consequence of life, the right to
life necessarily implies the right to have
nature take its course and to die a natural
death. It also encompasses a right, unless
the individual so wishes, not to have life
artificially maintained by the provision of
nourishment by abnormal artificial means
which have no curative effect and which
are intended merely to prolong life.9
Furthermore, as was held by the UKHL
in Bland, SOL is only one of a “cluster of
ethical principles”10 which we apply to de-
cisions about how we should live. Another
major determinant is respect for the indi-
vidual, and for individual autonomy or the
right of self-determination. “Erring on the
side of life” as a default rule in this context
often results in violating a person’s body
and human dignity in a way few would
wish upon themselves (Annas 2005).
­Erring on the side of liberty – specifically,
the patient’s right to decide on treatment
– is arguably more consistent with consti-
tutional traditions in most democracies
(ibid). The Massachusetts Supreme Judi-
cial Court11 has held that the right to pri-
vacy is a further personification of the

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14 april 30, 2011  vol xlvi no 18  EPW   Economic & Political Weekly

s­ acredness of individual free choice and
self-determination as fundamental con-
stituents of life. The Indian Supreme Court
has also held that the right to privacy is em-
bedded in the right to a dignified life, as
per Article 21 of the Constitution.12 The
value of life as so perceived is lessened not
by a decision to refuse treatment, but by
the failure to allow a human being the
right of choice.13
In fact, the strongest refutation of the
alleged inviolability of the SOL principle
lies in the fact that competent adults
have the right to refuse any medical
treatment, including life-sustaining treat-­
ment, as em­phatically recognised by the
Supreme Court in Aruna.14 It is counter-
intuitive to suggest that incompetent
adults do not retain a similar interest in
self-­determination. Competent adults can
even execute an advance directive stating
their wishes and designating a person to
act on their behalf,15 and physicians can
honour these wishes.
It goes without saying that the law must
strenuously avoid any form of discrimina-
tion against incompetent patients. Insist-
ence on laudable but therapeutically use-
less measures is no more justified for the
incompetent patient than it is for the com-
petent. As was cautioned in Bland, an
indi­v idual’s incapacity, together with the
absence of an advance directive, should
not serve as a basis for denying her the
rights or freedoms which competent
­patients enjoy in the exercise of their right
to privacy and self-determination. This
would effectively render the incompetent
patient a “second class citizen”.16
Thus, in case the incompetent patient’s
desires cannot be ascertained, we can and
should resort to the devices that the law
has already evolved to ensure respect for
the privacy, dignity and bodily integrity.17
The approaches presently available to us
include: (i) the “substituted judgment” test,
whereby the decision-maker is requi­red to
act as a surrogate for the incompetent
­patient and to determine what decision the
patient would have reached had she been
able to do so; and (ii) the “best interests”
test, whereby the decision-maker is required
to follow whatever course is in the best in-
terests of the incompetent patient. In other
words, where it is not possible to know the
patient’s wishes, the decision-maker, rather
Economic & Political Weekly  EPW   april 30, 2011  vol xlvi no 18
than the patient, has to act reasonably to
decide what is, in an ­objective sense, in the
patient’s best interests.18 The latter ap-
proach has been ­explicitly approved by the
Supreme Court in Aruna.19
A Moral Paradox
Several commentators have justified the
active/passive distinction by averring that
there is an important moral difference be-
tween killing a patient by administering,
say, a lethal injection, and withdrawing
treatment which is currently keeping her
alive. Active euthanasia, runs the argu-
ment, interferes with nature’s dominion,
whereas withdrawal of treatment restores
to nature her dominion.20
Here too, an absolutist version of the
SOL principle rears its unseemly head. In a
plethora of cases in the UK, a course of
­action which would lead to the patient’s
death was held to be compatible with the
“best interests” test. Indeed, a majority in
the House of Lords in Bland explicitly
­accepted that the doctors’ intention in
withdrawing artificial nutrition and hyd­
ration was, in Lord Browne-Wilkinson’s
words, to “bring about the death of
­A nthony Bland”.21 Lord Lowry said that
“the intention to bring about the patient’s
death is there”22 and Lord Mustill admit-
ted that “the proposed conduct has the
aim...of terminating the life of Anthony
Bland”.23 In each case, however, life could
be brought to an end only because the
doctors had recourse to a course of action
which could plausibly be described as a
“failure to prolong life”.
The SOL principle thus works insidi­
ously to ensure that only certain types of
death – namely, those achieved by suffo-
cation, dehydration, starvation and in-
fection, through the withdrawal or with-
holding of, respectively, ventilation, artifi-
cial nutri­tion and hydration, and antibio­
tics – can lawfully be brought about. More
crucially, the SOL principle prohibits doc-
tors from acting to achieve that end quick-
ly, and more humanely, by the administra-
tion of a single lethal injection.24
Lord Browne-Wilkinson lamented this
paradox in Bland in the following words:
How can it be lawful to allow a patient to
die slowly, though painlessly, over a ­period
of weeks from lack of food but unlawful to
produce his immediate death by a lethal
COMMENTARY
i­njection, thereby saving his family from yet
another ordeal to add to the tragedy that has
already struck them? I find it difficult to find
a moral answer to that question.25
As Simon Blackburn (2001) puts it, dif-
ferentiating between withdrawal of treat-
ment and killing may salve some con-
sciences, but it is very doubtful whether it
ought to. It often condemns the subject to
a painful, lingering death, fighting for
breath or dying of thirst, while those who
could do something stand aside, with-
holding a merciful death.
Conclusions
In Aruna, the Supreme Court made pre-
cious little attempt to engage with the
falla­cious moral contours of the active-
passive distinction. There are thus strong
grounds to believe that the active-passive
distinction is not grounded so much in
morality or ethics as in “reasons of policy”,
to quote Lord Goff of Chievely in Bland.26
In Aruna, concern for the actor’s culpability
under the IPC as the cause of death appears
to be the animating force for adopting the
active-passive distinction. A supplementa-
ry factor may be the Court’s ­desire to avoid
accusations of overstepping its boundaries,
and relegating a volatile matter entailing a
positive act ­designed to kill, to the popu-
larly elected legislature’s domain.
It is important to emphasise that I am
not asserting that it is practically possible
or desirable to legalise active euthanasia
in India, as yet. Such a step would entail a
complex policy debate regarding the
availability of palliative and hospice care
for terminally ill patients,27 and necessi-
tate stringent safeguards to protect vul-
nerable patients from unscrupulous rela-
tives or doctors. The significance of what
has been argued above is simply to high-
light the fallacy inherent in drawing an
ethical ­distinction between passive and
active ­euthanasia.
Notes
1 See, for example, Vincent (2011).
2 Article 21 of the Constitution (1950) guarantees
that no person shall be deprived of his life or
­personal liberty, except according to procedure
established by law.
3 See the arguments of the Petitioner in C A Thomas
Master vs Union of India, 2000 Cri LJ 3729 (Ker).
4  MANU/SC/0176/2011.
5 [1993] AC 789.
6 Supra 1 at [41].
7 Ibid at [28].
15
COMMENTARY
8 Denman, J in Osman vs United Kingdom, (1998) 29
EHRR 245.
9 In Re A Ward of Court, [1995] 2 ILRM 401.
10 Supra 2 at 826.
11 Superintendent of Belchertown State School vs
Saikewicz, 373 Mass 728, 742, 370 NE 2d 417 (Mas-
sachusetts 1977).
12 See R Rajagopal vs State of Tamil Nadu, (1975) 2
SCC 148.
13 Supra 17.
14 Supra 1 at [53].
15 An advance directive is a document in which the
individual specifies what action should be taken
in the event of her incapacity. See further, Dress-
ing (2003).
16 Supra 2.
17 It is a civil wrong, and may be a crime, to impose
medical treatment on a conscious adult of sound
mind without his or her consent. See In Re F (Men-
tal Patient: Sterilisation), [1990] 2 AC 1.
18 Supra 2 at 851.
19 Supra 1 at [96].
Repression of Workers’
Struggles in Chhattisgarh
Indira Chakravarthi, Shalini Gera
Contract workers in cement plants
in Chhattisgarh, organised under
the banner of the Chhattisgarh
Mukti Morcha (Mazdoor
Karyakarta Committee) and its
affiliate union, are demanding
regularisation of work, due
payment of wages and other basic
rights denied by the multinational
companies operating in the
cement industry.
Indira Chakravarthi (indira.chakravarthi@
yahoo.co.in) is a Delhi-based public health
researcher. Shalini Gera (shalinigera@
yahoo.com) studies law at the Faculty of Law,
Delhi University, Delhi.
16
20 See, for example, McGee (2005).
21 Supra 17 at 881.
22 Ibid at 876.
23 Ibid at 887.
24 Supra 8.
25 Supra 2 at 885.
26 Supra 2 at 866.
27 See Prakash (2011) in The Hindu.
References
Annas, George (2005): “‘Culture of Life’ Politics at the
Bedside – The Case of Terri Schiavo”, The New
England Journal of Medicine, 352: 1710-15.
Blackburn, Simon (2001): Ethics 63 (Oxford: Oxford
University Press).
Dressing, Rebecca (2003): “Precommitment: A
­Misguided Strategy for Securing Death with
­Dignity”, Texas Law Review, 81: 1823-47.
Jackson, Emily (2008): “Secularism, Sanctity and the
Wrongness of Killing”, Biosocieties, 3: 125-45.
I
t may be recalled that in early 1990,
the Chhattisgarh Mukti Morcha, un-
der the leadership of Shankar Guha
N­iyogi, initiated the process of organising
thousands of contract workers facing
­extreme injustice and exploitation in the
private ancillary industries of the Bhilai
Steel Plant. It also needs to be recalled that
these struggles were met with retrench­
ments, arrests, violence and ­repression
by the industrialists and the erstwhile
Bharatiya Janata Party-led ­Government of
Madhya Pradesh. A report then by the Peo-
ples Union for Democratic Rights (PUDR)1
concluded that government agencies
are at best indifferent to the workers’ plight
and at worst identify themselves completely
with the managements’ point of view. Thus
the onus of ensuring the implementation of
the labour laws lies with the worker.
It culminated in two major violent events:
the assassination of Niyogi on 28 September
1991, and firing by the police on 1 July 1992
on a non-violent month long protest by
workers and their families in which at least
17 people died and many more injured.
Following Niyogi’s assassination a Citizen’s
Committee2 inquired into the workers’
movement and suggested ways to establish
peace and safeguard civil liberties and dem-
ocratic rights in the region. The report said,
april 30, 2011  vol xlvi no 18  EPW   Economic & Political Weekly
Keown, John (2006): “Restoring the Sanctity of Life
and Replacing the Caricature: A Reply to David
Price”, Legal Studies, 26: 109-19.
McGee, Andrew (2005): “Finding a Way Through the
Ethical and Legal Maze of Withdrawal of Medical
Treatment and Euthanasia”, Medical Law Review,
13: 357-85.
Prakash, Padma (2011): “For Dignity in Death”, The
Hindu, available at www.thehindu.com/todays-
paper/tp-features/.../article1554935.ece (accessed
on 20 March).
Potts, Stephen (1988): “Looking for the Exit Door:
Killing and Caring in Modern Medicine”, Houston
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Vincent, Pheroze L (2011): “Faiths Take Nuanced
View”, The Telegraph, available at http://www.
telegraphindia.com/ 11103 08/jsp/nation/story_
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It is indeed a sad reflection on the polity and
society we live in today, that the right to
­organise for collective action so as to ensure
the preservation of democratic institutions and
a just share in the fruits of development for
various sections of our population, recognised
as a fundamental right at the dawn of our
freedom, has now come to be treated as a law-
and-order problem. The democratic institu-
tions have become the instruments of the
powerful to crush the legal aspirations of the
vast majority of poor, and if the downtrodden
are not to conclude the meaninglessness of
non-violence, the State must respond immedi-
ately and positively, lest the erosion of faith
becomes irreversible.
These observations, made two decades
ago, remain just as relevant today. The
e­xploitation of contract workers in the
Bhilai industrial area remains largely unad-
dressed till date. Further, there has been no
change in the response of the industrialists
and the government with regard to ad-
dressing the legal rights and demands of
the workers; both continue to label their
struggles as law and order problems and
crush their organisations, rather than ad-
dress the issues raised by the workers, as
the current situation indicates.
While the condition of contract workers
remains unchanged, the economic context
of industrialisation in Chhattisgarh has
changed drastically. Starting with the eco-
nomic liberalisation of the 1990s and surg-
ing after Chhattisgarh was formed in 2002,
the influx of global capital into the state, by
way of extractive industries such as min-
ing, power generation and cement manu-
facturing, has been voluminous. Compared
to other Indian states, Chhattisgarh boast-
ed of the highest GDP growth rate (11.49%)
in the year 2009-10 and has consistently