Have you ever met an immortal?
“Life and death are inseparable. Every moment our bodies undergo change. Life is not disconnected from death. Dying is a part of the process of living.” – Justice D.Y. Chandrachud
When a person ends his life by his own act, it is called “suicide” but to end life of a person by others, though on the request of the deceased, is called “euthanasia” or “mercy killing“.
Euthanasia is described as the deliberate and intentional killing of a person for the benefit of that person in order to relieve him from pain and suffering. The term is derived from the Greek words which literally means “good death” (Eu= Good;Thanatos=Death). The term was coined by the great historian Suetonius, who described the way King Augustus opted for quick, painful death without suffering. Euthanasia is defined as the administration of a lethal agent by another person to a patient for the purpose of relieving the patient’s intolerable and incurable suffering.
It is usually separated into two categories: passive and active euthanasia. Active euthanasia is when death is brought about by an act – for example when a person is killed by being given an overdose of pain-killers. Passive euthanasia is when death is brought about by an omission – i.e., when someone lets the person die. This can be by withdrawing or withholding treatment.
This has been a much-debated issue throughout the world. The debate has become increasingly significant because of the developments in Netherlands[1*] and Belgium[2*] and few other countries where euthanasia has been allowed. I, as a proponent of physician-assisted suicide (PAS) feel that an individual’s right to autonomy automatically entitles him to choose a painless death. The opponents feel that a physician’s role in the death of an individual violates the central tenet of the medical profession.
[1* `Termination of life on request and assisted suicide (Review Procedures) Act’ by The Dutch Senate. (2002, April 1). BBC News from http://news.bbc.co.uk/2/hi/europe/1269682.stm]
[2* Jans, J. (2005). The Belgian “Act on Euthanasia”: Clarifying Context, Legislation, and Practice from an Ethical Point of View. Journal of the Society of Christian Ethics, 25(2), 163-177. Retrieved January 26, 2021, from http://www.jstor.org/stable/23561605]
The Supreme Court of India in Aruna Ramchandra Shanbaug v. Union of India, 2011 AIR SC 1290 gave legal recognition to Passive euthanasia in India and robust interpretation of `Right to life’ including `Right to die’, thereby bringing it within manifold of article-21 of Constitution of India. However, another landmark judgement in Common Cause (A Regd. Society) v. Union of India, 2018 AIR SC 1665 has given legal sanction to passive euthanasia by permitting ‘living will’ by patients to withdraw medical support if they slip into irreversible coma by holding that Right to die with dignity” is a fundamental right within the fold of “right to live with dignity” as guaranteed under Article 21 of the Constitution of India.
Wherefore, the main intent behind the practice of Euthanasia is not to take a life of a person, but to relive him from all forms of pains and suffering, which can also be named as `good death’.
`Right to life’ is given in all the nations of the world while `Right to Die’ is recognized only in a few nations of the world. The reason being as it might lead to an increase in casual attitude of health care personnel ultimately leading to private killings for covering up wrong diagnosis and treatments.
While the contrary view is that a patient must not suffer and `Right to life’ includes within itself `right to die with dignity’. Dying people are not suicidal – they don’t want to die but they do not have the choice to live. When death is inevitable, suffering should not be. That is why I call for a law based on one that has worked safely in Oregon[3*] and has remained unchanged since 1997, a law that is now in place in California[4*], Washington[5*] and other US states.
[3* Death with Dignity Act 1994 (the DWDA) from https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Pages/index.aspx]
[4* End of Life Option Act; approved in 2015, in effect from 2016 from https://www.deathwithdignity.org/states/california/]
[5* Death with Dignity Act; 2008 from https://www.doh.wa.gov/youandyourfamily/illnessanddisease/deathwithdignityact]
As an advocate for controlled active euthanasia, I strong believe and insist that active euthanasia is made legal in India and everywhere else. Despite the loopholes, until there is a medical breakthrough to combat terminal illness, I assert that a controlled system can be worked through and patients can happily plan his death, instead of desperately waiting for it.
To conclude, I would like to quote Pamela Bone.
“I’m not afraid of being dead. I’m just afraid of what you might have to go through to get there.”
(The author is a Freshman at Kelley School of Business, Indiana University, Bloomington, USA and the views shared herein are personal only)
© Chawla Publications (P) Ltd.
The Hon’ble Supreme Court while dealing with the case of Justice K.S. Puttaswami and another v. Union of India, wherein a nine Judge Constitutional Bench, while delivering its Judgment on 24th August, 2017, declared “privacy” as a fundamental right under Article 21 of the Constitution of India. Subsequently, on 26th September, 2018, a five Judge Constitutional Bench of the Hon’ble Supreme Court while delivering its final judgment in the above case impressed upon the government to bring out a robust data protection regime.
This paved the way for introduction of a Data Protection Bill in the Parliament, which is pending in both the houses. The Personal Data Protection Bill 2019 was tabled in the Parliament by the Minister of Electronics and Information Technology on 11th December 2019. The bill within its ambit tries to develop a mechanism for protection of personal data and for setting up an authority “Data Protection Authority of India” for the same.
This bill aims to provide for protection of the privacy of individuals relating to their personal data, specify the flow and usage of personal data, create a relationship of trust between persons and entities processing the personal data, protect the rights of individuals whose personal data are processed, to create a framework for organizational and technical measures in processing of data, laying down the norms for social media intermediary, cross-border transfer, accountability of entities processing personal data, remedies for unauthorized and harmful processing, and to establish a Data Protection Authority of India for the said purposes and for the matters connected therewith or incidental thereto. Among various facets of the bill, an interesting facet is Right to be forgotten.
The Right to be forgotten is distinct from the right to privacy, which constitutes information that is not publicly known, whereas the right to be forgotten involves removing information that was publicly known at a certain time and not allowing third parties to access the information. The Right to be Forgotten allows the individuals to have certain information or data about themselves in the form documents, photographs, videos etc to be deleted from the internet, so that it may not be accessed by internet search engines any further. The grey area lies in the potential undue influence that such results may exert upon a person’s online reputation almost indefinitely if not removed.
This concept has already been put into practice in the European Union and Argentina since 2006. Since in India this will be a relatively new concept therefore I will try to explain its merits and demerits quoting the European Union’s process. To exercise the right to be forgotten and request removal from a search engine, a person requires to complete a form through the search engine’s web sites. Google’s removal request process requires the individual to identify their country of residence, personal information, a list of the URLs to be removed along with the short description of each one, and attachment of legal documents regarding identification. The applicant receives an email from Google confirming the request but the request must be assessed before it is approved for removal. If the request is approved, searches using the individual’s name will no longer result in the content appearing in search results. The content remains online and is not erased. After a request is filed, their removal team reviews the request, weighing “the individual’s right to privacy against the public’s right to know”, deciding if the website is “inadequate, irrelevant or no longer relevant, or excessive in relation for the purposes for which they were processed”. Google has formed an Advisory Council constituting of various professors, lawyers, governments officials from around Europe to provide guidelines for these decisions. However, the review process is still a mystery to the general public. Google began to take action on this much sooner than that, which allowed them “to shape interpretation to their own ends”.
Google form asks people to select one of the twenty-eight counties that make up the European Union, as well as Iceland, Liechtenstein, Norway and Switzerland. The form allows an individual to put in a request for the removal of any URLs believed to be a violation of the individual’s privacy. Regardless of who is submitting the form, he is required to submit photo identification of the person for whom the form is being submitted. The purpose of this is to verify the identity of the person for whom the request is being made, and in fact that person approves of the same.
If Google refuses a request to unlink material, individuals can appeal to their local data protection agency. If Google fails to comply with a Data Protection Agency decision, it can face legal action. Google has applied the right to be forgotten since May 2014, when the European Court of Justice first determined that under some circumstances European citizens could force search engines to delist web pages containing sensitive information about them from queries made using their names.
Indian Perspective:
As per the data available on google since 2009 out of approximately 8400 requests of data removal, Items broken down by decision taken in requests involving a court order or originating from various government agencies. Prior to 2019, Google published removal percentages based on action taken on requests and not found items, is as under:
Removed Legal 45.6%, Removed owing to Policy 5.1%, Not enough information 27.8%, No action taken 15.4%, Content already removed 4.5%, Content not found 1.6%.
Indian Courts have been alive to this concept, as there have been few instances such as:
In January, 2017 the Hon’ble Karnataka High Court upheld the right to be forgotten, in a case involving a woman who originally went to Court in order to get marriage certificate annulled, claiming to have never been married to the man named in the certificate. After the two parties came to an agreement, the woman’s father wanted her name to be removed from search engines regarding criminal cases in the High Court. The Karnataka High Court approved the father’s request, stating that she had a right to be forgotten. According to the Court, its ruling would align with western countries’ decisions, which typically approve of the right to be forgotten when dealing with cases “involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned.” The woman in this specific case was worried that the search results would affect her standing with her husband, as well as her reputation in society. There is another case of similar consequences, which is pending before the Hon’ble Delhi High Court.
The Hon’ble Karnataka High Court considered as follows: “The `right to be forgotten’ or `the right to be erased’ allows an individual to request for removal of his/her personal information/data online. The origin of this right can be traced back to the French jurisprudence on the `right to oblivion’ or droit a l’oubli. The rationale behind it was to allow offenders who had served their sentence to object to the publication of information regarding their crime and conviction in order to ease their process of social integration. It was along these lines that the European Union Data Protection Directive, 1995 acknowledged the right to be forgotten, wherein it was stipulated that the member states should give people a right to obtain from the `controller’ the rectification, erasure or blocking of data relating to them, the processing of which did not comply with the provisions of the Directive.”
There are certain limitations, regarding its application in a particular jurisdiction, which may have practical difficulties, including the inability requiring removal of information held by companies, entities, individuals outside the jurisdiction, because of their being no global legal framework to allow individuals control over their online images, documents, videos etc.
There are industry apprehensions that the bill gives a blanket power to the Government to access citizen data and further that the Central Government can exempt any Government agency from the purview of this bill.
The Data Protection Bill, 2019 is in tune with the modern times, and with the growth and boom of internet, social media, and other platforms, this Data Protection Bill, is a must, which should be implemented at the earliest, though with few changes and a little bit of fine tuning in sync with the present times and scenario.
Views Are Personal Only.
(The author is a practicing advocate in the Punjab and Haryana High Court at Chandigarh)
© Chawla Publications (P) Ltd.
These days we are having many discourses on human rights. On December 10th every year we celebrate and commemorate these rights very meticulously. The General Assembly of the United Nations Organisation passed a resolution 217-A (III) on 10th December, 1948 known as the Universal Declaration of Human Rights (UDHR). The heart of UDHR articles, as given in Articles (1) and (2), is that:
“human beings are born free and equal in dignity and rights, and that they are endowed with reason and conscience and should act towards one another in a spirit of brotherhood,” and “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Human Rights are rights that all persons have simply because they are human beings; because they are persons. Human rights are those natural rights which are inherent in our nature precisely as ‘human’ and without which we cannot live as human beings. Hence to understand human rights one ought to understand what ‘human person’ and ‘human life’ are all about; the nature of human personality and the dignity of human life need to be adequately assessed in order to comprehend human rights adequately.
The meaning that we ordinarily give to the concept of human rights goes beyond the description given in the “Protection of Human Rights Act, 1993” in India by which the National Human Rights Commission (NHRC) was constituted. Explaining the phrase “human rights”, paragraph 2(d) says:
“Human rights mean the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenant and enforceable by courts in India.”
As clear from this definition, the Act is talking of the human in human rights in an individual sense, not in a collective, communitarian or relational category. The anthropological understanding of the human here is in an isolated individual category. But today we talk of a relational anthropology. An authentic and adequate understanding of the human is in a corporate, relational and communitarian character. Here we have to go beyond our definition of a person as a ‘rational being’ and re-define a human being as a “rational and relational being-with” (a ratio- relational being-with). I am not just a person but a person-with. My very entity is embedded in a socio-relational, corporate, and communitarian character of interdependency. In the otherness of the other I find my identity (Buber). Only an integral view of human rights that takes into consideration of both individuals and groups, including the rights of humanity as such, can provide a dynamic future to the human rights discourse. A realization of the complexity of the human rights debate can take us to a holistic and integral approach to human rights.
The concept of ‘right’ too is not free from ambiguities. Trying to clarify the concept in the judicial context, Wesley Newcomb Hohfeld, an eminent jurist, talks of four things, viz. claims, liberties, powers, and immunities. Thus one can talk of ‘claim rights’, ‘liberty rights’, ‘power rights’, and ‘immunity rights’. They are described and thus considered as legal advantages. These four legal advantages are juxtaposed with ‘opposites’ and ‘correlates’ (which he calls ‘legal disadvantages’). Thus he expanded and generated eight fundamental conceptions of ‘right’.
The rights that humans have could be put in the categories of positive rights and moral rights. A positive right belongs to the realm of what is, and moral right belongs to the category of what ought to be. In an authentic humanisation process the positive should continuously strive to the moral.
Human rights are moral rights. “Moral” indicates that they are based on a valid moral principle. To call a principle “moral”, in turn, is to indicate that certain requirements for action are obligatory. Hence human rights are rights, which imply obligatory requirements for action. Besides moral rights, there are legal rights, prudential and intellectual rights. The difference among these rights is based on the different justifying criteria for these rights. For example legal rights are based on statutes and other laws.
Earlier philosophers called these rights “Natural rights”, meaning that they are rights derived from the nature of the individual, and existing for one’s welfare. They differ from civil rights, which are derived from society or the state, and are intended for a social or a civil purpose. The right to vote, the right to hold a public office, are examples of social or civil rights. A natural right neither proceeds from nor is primarily designed for a civil end, and so it cannot be annulled, even by the State. For example right to life and the right to liberty are so sacred to an individual, so necessary to one’s existence and welfare, that even the State may not rightfully kill an innocent person, nor punish an innocent one to prison. There are people who argue that a State does not have the right for capital punishment even of guilty people. A natural right neither proceeds from nor is primarily designed for a civil end, and so it cannot be annulled, even by the state.
Though natural rights are all equally valid, they differ with respect to their basis, their urgency, or importance. We may distinguish three principal types of Natural Rights.
The first type is exemplified in an individual’s right to live. The object of this right, life, is intrinsically good, i.e., good for its own sake, an end in itself. It is an end to which even the civil society and/or the state is a means. Since life is good intrinsically, the right to life is also valid intrinsically.
Among the natural rights of the second category are the right to enjoy personal freedom, the right to marry, right to education, the right to own consumption-goods such as food and clothing. The objects of these rights are not ends in themselves, but means to human welfare. It is an indispensable means to reasonable life in the majority of persons. Right to education may belong to this category; social association might belong to this category. One could say that the right to the HIV/aids infected for care and protection belongs to the second category of the natural rights. Of course, as far as they have a right to live, as any person in a society, they too have the right of the first category. Hence there life too is to be protected and saved. Their life too is an end in itself.
There is a third class of natural rights. Private ownership of land belongs to this category. It is also a means to human welfare. It is not directly necessary for every individual, like food is necessary for living.
Public Interest Litigation (PIL) is very helpful for those who find it very difficult to have access to justice because of poverty, technicalities of law, rule of locus standi or for some other reason. There is constant change in the approach of judiciary in regard to the main concerns of the PIL jurisdiction and its causes and consequences. In the earlier years of PIL jurisdiction, the main concern was the problem of the poor. In the later period, the focus changed to developmental concerns of the upper and middle classes. This change in judicial attitude has been conditioned by social and political priorities. The emergence of PIL in the 1970’s, at a time when socialism and collectivism were dominant political ideologies, was a certain rejection and appreciation of limitation of laissez faire common law jurisprudence which strictly followed the rule of locus standi. The elevation of Justice Krishna lyer in 1974 to the Supreme Court reinforced the tendency towards people-oriented judicial action. For Justice Krishna lyer, law is meant for the people, not people for the law K.M. SHARMA : JUDICIAL UNIVERSE OF MR. JUSTICE KRISHNA, (1981) 4 SCC (JOUR.) 30. The activist approach of judiciary in enforcing human rights through PIL jurisdiction can be seen in two phases, which are influenced by the dominant political and social ideology of the respective period. First, the era of socialism, which started from lifting of emergency lasting till the process of liberalization began and second, economic liberalization era, which began in 1990 with P.V. Narsimha Rao Government coming to the power.
During this period the Indian courts, especially the Supreme Court, were primarily concerned with the problems of the poor and the downtrodden through the PIL jurisdiction. A large number of laws relating to legal aid, abolition of bonded labour system, oppression of Dalit and debt relief to the poor were passed during this period.
In three Hussainara Khatoon cases (1980) I SCC 81; (1980) 1 SCC 98 : (1980) 1 SCC 108, the court took up the problems of the poor under trial prisoners and gave elaborate directions so that the poor under trial prisoners may be released on bail with comparative ease. In Rudul Shah v. State of Bihar, AIR 1983 SC 1086 the Supreme Court directed the state to give specific compensation to the petitioner against petitioner’s illegal detention. In Sunil Batra v. Delhi Administration, (1980) 3 SCC 488 the court treated a letter, written by a prisoner complaining about brutal attack and assault by head warden on a fellow prisoner, as a writ petition on the ground of class standing. The court issued elaborate instructions for safeguarding the rights of prisoners and for the improvement of jail administration.
In People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235 the Supreme Court gave attention to the problems of the weaker and unorganized sections of labour, who in India are one of the vulnerable sections of society. The Supreme Court entertained a petition from a public-oriented organization on the behalf of labourers belonging to socially and economically weaker sections of society, employed in the construction work of various projects connected with Asian Games in 1982.
In Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 a public-spirited organization alleged that in some stone quarries of Faridabad, labourers lived under inhuman conditions and many of them were bonded labour. The court ordered compliance of welfare legislations and released the bonded labour, after verifying the allegations through a commission appointed by it.
A large number of homeless people, especially in big cities, illegally squat on public lands and pavements. Because of the magnitude of the problem and near impossibility of these homeless people to acquire any alternative place of residence, the S.C. in Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 was called upon to decide against the eviction ordered by the Bombay Municipal Corporation, which according to the petitioners was violative of many provisions of the Constitution. The court upheld the constitutionality of the impugned Section but at the same time held that even to evict pavement and slum dwellers the requirement of the rules of natural justice must not be dispensed with.
The aforementioned cases analyse and effectively portray the significance of PIL in India, which continued to remain so in the latter period but different issues received central attention of the judiciary like environment and economic development. The reason for this was the change in the dominant social and political ideology to a free market economy, which led to the creation of a new class of consumers and investors, i.e., middle class. Subsequently, by addressing the issues of environmental and economic development, the courts were invariably addressing the issues of this middle class and also the upper class.
After economic liberalisation in 1991 the emphasis of PIL jurisdiction shifted from the problems of the poor to development, environmental and other concerns of the market and middle classes. In the new dispensation, the problems of the poor were attended only if the space left after satisfying developmental concerns, especially where the concerns of the poor were juxtaposed with development concerns and these development concerns are invariably expressed as concerns encompassing the interests of all.
Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751 is a case which clearly demonstrates the balancing of interests when there is a conflict between the interests of forest dwelling tribes and rural farmers, though in this case the apparent focus was on developmental and ecological issues. The petitioner insisted that the project was launched without proper planning, without proper understanding of environmental implications and thus violated rights under Article 21 of the Constitution. But the court was not impressed by any of the arguments and it appeared that development was the court’s priority area. The court described the purpose of this project in these words:
“The population of India which is now one billion is expected to reach a figure between 1.5 billion and 1.8 billion in the year 2050, which would necessitate the need of 2788 billion cubic meter of water annually to be above stress zone3. To feed increasing population more food grain is required and effort has to be made to provide safe drinking water. Darns play a vital role in providing irrigation for food security, domestic and industrial water supply, hydroelectric power and keeping flood water back. On full development, the Narmada has a potential of irrigating 6 million hectares of land and generating 3000 MW of power.”
In MC. Mehta v. Union of India, AIR 1997 SC 734 also known as the Taj Trapezium case, the Supreme Court took the laudable initiative to protect Taj Mahal from pollution. The court emphasized the importance of the Taj as one of the wonders of the world and ordered to switch over to natural gas as an alternative fuel for reducing pollution.
In M.C. Mehta v. Union of India, a Delhi stone crushing case, the Supreme Court ordered the closure of stone quarries in and around Delhi within three months to prevent air pollution and the Haryana government was asked to allot alternative sites in a new crushing zone.
Though these cases are very pertinent from the environmental point of view, these cases are silent regarding the problems of those who are rendered unemployed due to closure of quarries and industries. The cases suggested that the main concern of Indian judiciary in enforcing the human rights through PIL jurisdiction had been tilted toward the environmental and developmental concerns, which is predominantly the concern of the middle class and the other capitalists, and moreover this developmental and environmental concern is ostensibly shown as the concern for all including the poor and the downtrodden sections of society. Therefore, the judicial ideology is coincided or influenced by the predominant social and political ideology.
The Preamble of our Constitution encapsulates the basic objective of the Constitution to build a new socio-economic order where there will be social, economic and political justice for everyone and equality of status and opportunity for all. Till the advent of PIL, access to justice for the downtrodden and under-privileged was illusionary due to their poverty, ignorance and illiteracy. Therefore, the Supreme Court realized that it was necessary to depart from the traditional rule of locus standi to broaden access to justice. It did this by providing accessibility to the legal system where a legal wrong or a legal injury is caused to a person or to a class of persons, who by reason of their poverty or disability or socially or economically disadvantaged position, cannot approach the court for relief. In such cases any member of the public or social action group or interest group or a concerned citizen, acting bona fide, can move an application in a high court or the Supreme Court, seeking judicial redress for the legal wrong or injury caused to them. This judicial creativity led to the establishment of PIL jurisdiction in the aftermath of emergency. After 1990, during the era of economic liberalization, the main concern of the judiciary shifted towards developmental and environmental concerns with change in the dominant political and social ideology of free market economy and emergence of the new middle class. Though the judiciary continued to address the problems of the poor, its central concern shifted towards the developmental and environmental problems which were mainly the concerns of the middle and upper classes. Thus we see a shift in the judicial approach.
© Chawla Publications (P) Ltd.