Editorial 1: What is a living will, and the new Supreme Court order for simplifying passive euthanasia procedure?
Recent Context:
- On Tuesday, a five-judge Bench of the Supreme Court headed by Justice K M Joseph agreed to significantly ease the procedure for passive euthanasia in the country by altering the existing guidelines for ‘living wills’, as laid down in its 2018 judgment in Common Cause vs. Union of India & Anr, which allowed passive euthanasia.
First, what is euthanasia, and what is a living will?
- Euthanasia refers to the practice of an individual deliberately ending their life, oftentimes to get relief from an incurable condition, or intolerable pain and suffering. Euthanasia, which can be administered only by a physician, can be either ‘active’ or ‘passive’.
- Active euthanasia involves an active intervention to end a person’s life with substances or external force, such as administering a lethal injection. Passive euthanasia refers to withdrawing life support or treatment that is essential to keep a terminally ill person alive.
- Passive euthanasia was legalised in India by the Supreme Court in 2018, contingent upon the person having a ‘living will’ or a written document that specifies what actions should be taken if the person is unable to make their own medical decisions in the future.
- In case a person does not have a living will, members of their family can make a plea before the High Court to seek permission for passive euthanasia.
What did the SC rule in 2018?
- The Supreme Court allowed passive euthanasia while recognising the living wills of terminally-ill patients who could go into a permanent vegetative state, and issued guidelines regulating this procedure.
- A five-judge Constitution Bench headed by then Chief Justice of India (CJI) Dipak Misra said that the guidelines would be in force until Parliament passed legislation on this. However, this has not happened, and the absence of a law on this subject has rendered the 2018 judgment the last conclusive set of directions on euthanasia.
- The guidelines pertained to questions such as who would execute the living will, and the process by which approval could be granted by the medical board. The SC said that “We declare that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life-saving devices,”
What was the situation before 2018?
- In 1994, in a case challenging the constitutional validity of Section 309 of the IPC which mandates up to one year in prison for attempt to suicide the Supreme Court deemed the section to be a “cruel and irrational provision” that deserved to be removed from the statute book to “humanise our penal laws”.
- 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”, the court said. (P Rathinam vs Union Of India)
- However, two years later, a five-judge Bench of the court overturned the decision in P Rathinam, saying that the right to life under Article 21 did not include the right to die, and only legislation could permit euthanasia. (Smt. Gian Kaur vs The State Of Punjab, 1996)
- In 2011, the SC allowed passive euthanasia for Aruna Shanbaug, a nurse who had been sexually assaulted in Mumbai in 1973, and had been in a vegetative state since then. The court made a distinction between ‘active’ and ‘passive’, and allowed the latter in “certain situations”. (Aruna Ramchandra Shanbaug vs Union of India & Ors)
- Earlier, in 2006, the Law Commission of India in its 196th Report titled ‘Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners)’ had said that “a doctor who obeys the instructions of a competent patient to withhold or withdraw medical treatment does not commit a breach of professional duty and the omission to treat will not be an offence.”
- It had also recognised the patient’s decision to not receive medical treatment, and said it did not constitute an attempt to commit suicide under Section 309 IPC.
- Again, in 2008, the Law Commission’s ‘241st Report On Passive Euthanasia: A Relook’ proposed legislation on ‘passive euthanasia’, and also prepared a draft Bill.
What changes after the SC’s order this week?
- The petition was filed by a nonprofit association that submitted that the 2018 guidelines on living wills were “unworkable”. Though the detailed judgement is yet to be released, the Court dictated a part of their order in open court.
- As per 2018 guidelines, a living will was required to be signed by an executor (the individual seeking euthanasia) in the presence of two attesting witnesses, preferably independent, and to be further countersigned by a Judicial Magistrate of First Class (JMFC).
- Also, the treating physician was required to constitute a board comprising three expert medical practitioners from specific but varied fields of medicine, with at least 20 years of experience, who would decide whether to carry out the living will or not. If the medical board granted permission, the will had to be forwarded to the District Collector for his approval.
This cumbersome process will now become easier.
- Instead of the hospital and Collector forming the two medical boards, both boards will now be formed by the hospital.
- The requirement of 20 years of experience for the doctors has been relaxed to five years. The requirement for the Magistrate’s approval has been replaced by an intimation to the Magistrate. The medical board must communicate its decision within 48 hours; the earlier guidelines specified no time limit.
- The 2018 guidelines required two witnesses and a signature by the Magistrate; now a notary or gazetted officer can sign the living will in the presence of two witnesses instead of the Magistrate’s countersign.
- In case the medical boards set up by the hospital refuses permission, it will now be open to the kin to approach the High Court which will form a fresh medical team.
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Different countries, different laws
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Editorial 2: Delhi’s Cairo outreach
Recent Context:
- The visit of Egypt’s president, Abdel Fattah El-Sisi, to Delhi this week is not just about India rebuilding ties with an old friend that had been on the margins of Delhi’s diplomacy for too long.
- India’s decision to elevate bilateral ties to the strategic level is rooted in a recognition of the enduring salience of Egypt as a pivotal state sitting at the crossroads of the Middle East, Africa and Europe, with the capacity to influence political outcomes on multiple fronts.
- Beyond bilateral ties, the renewed engagement with Egypt is also about expanding and consolidating India’s new coalition with moderate Sunni states in the Middle East, including Egypt, Jordan, Saudi Arabia and the United Arab Emirates, which are eager to counter violent religious extremism.
Significance of India-Egypt relation:
- Stabilising the shared neighbourhood through political and security cooperation has unsurprisingly figured at the top of India’s new strategic partnership with Egypt.
- The current Indian strategy of working with a coalition of moderate Sunni states is very different from Delhi’s past discourse on the Middle East and is in tune with the shifting regional realities.
- India’s renewed engagement with Egypt should take us beyond the banal claim that Delhi enjoys “good relations” with all the major countries in the Middle East. What we see in Delhi today is an effort to align India’s regional diplomatic priorities closer to India’s core interests
- Delhi’s strategic partnership with Cairo also opens the door for a larger Indian role in the region which is trying to diversify its partnerships, as the US begins to turn its attention to the Pacific after prolonged and costly military interventions in Iraq and Afghanistan. Meanwhile, China is rapidly raising its regional profile in the Middle East.
Historical evolving relation between India-Egypt relation
- At the peak of earlier India-Egypt bonhomie in the 1950s and 1960s, the regional context was vastly different than what it is today.
- At that time, India and Egypt joined hands to limit the role of the West in the region and promoted such supra-national forces such as pan-Asianism, pan-Arabism and Third Worldism. They worked together on isolating Israel and fighting for the liberation of Palestine.
- The region has come a long way since then. After the 1973 war, Egypt dumped its military ties to the Soviet Union and turned to the US as a strategic partner.
- Egypt was the first Arab state to recognise Israel (Turkey was the first Muslim state to establish relations with Israel).
- The Indian foreign policy discourse, with its deepening anti-Western rhetoric and empathy for radical Arab States in the 1970s, was not empathetic to the concerns and interests of Egypt as it made brave moves to rethink its regional policies.
- The governments in Delhi took a long time adapting to the shifting alignments in the region and new developments that rocked regional politics, including four major developments in 1979 ; signing of a peace treaty between Israel and Egypt, the Islamic revolution in Iran, the attack on the Grand Mosque in Mecca, and the Soviet occupation of Afghanistan in December.
- It was only after the 1990s that India began to reorient its regional policies by recognising Israel, by stepping up engagement with the Gulf, which was now becoming a major source of energy for India’s accelerated economic growth, a major destination for labour exports and hard currency remittances.
Egypt is a link between Gulf and central Asia
- India’s commercial interests grew with the Gulf, relations with the Western part of the Middle East began to decline. Within the Gulf too, the Indian strategic focus tended to be riveted on Iran that was deemed critical to India’s Afghan strategies.
- Iran was the only gateway to Central Asia given Pakistan’s reluctance to offer India overland access to Afghanistan and inner Asia. But Delhi’s ties with Tehran remain constrained because of the continuing confrontation between Iran and the West on a range of issues.
- It was a pity, though, that Delhi tended to neglect the strategic significance of the Arab Gulf that was viewed narrowly through the prism of labour exports and oil purchases.
- The government of Narendra Modi has reversed this past neglect and has begun to solidify political and security ties to the Arab Gulf — the UAE and Saudi Arabia in particular.
- India’s new outreach to Egypt now brings greater balance to India’s engagement with the Middle East as a whole. As it turns out, Egypt is an important strategic partner for the Gulf Arabs. Emirati and Saudi capital today has a major role in the economic transformation of Egypt and its neighbourhood.
- It might be recalled that the Egyptian armed forces joined the international coalition to liberate Kuwait from Iraqi occupation in 1990-1991. Egypt and the Gulf Arabs have also long shared concerns about Islamic Republic of Iran’s destabilisation of the region.
- After the Arab Spring in 2011, Egypt and the Gulf Arabs have also come together to confront challenges from Sunni extremist forces in the region, like the Muslim Brotherhood backed by Turkey and Qatar. India is no stranger to this problem since it has been at the receiving end of the Islamist policies of Ankara and Doha.
Conclusion
- The evolution of the Middle East towards political moderation and social modernisation is indeed of special interest, not only to India but also to the entire Subcontinent.
- The extremist ideas from the Middle East had their unfortunate resonance in South Asia, destabilising internal and intra-regional dynamics in the Subcontinent over the last few decades.
- India, therefore, has a big stake in building a strong coalition with moderate Arab Sunni states that could help promote peace and stability in both the Middle East and South Asia.