In the coming week, the Delhi High Court is likely to hear a petition filed by a Bengaluru woman seeking to prevent a Noida-based friend of her's from travelling to Switzerland in a bid to receive Euthanasia (or physician assisted suicide).
The friend, a 48-year-old man, was diagnosed with Myalgic Encephalomyelitis/Chronic Fatigue Syndrome (CFS) - a complex, debilitating, long-term neuro inflammatory disease – in 2014, and since then, his condition has deteriorated.
His suffering was perhaps exacerbated by the encumbered access to treatment (Fecal Microbiota Transplantation) during the peak of the pandemic. He is also compelled to rely frequently on his ageing parents for assistance with basic chores and support.
As per communication shared along with the petition, the man (who is suffering from the disease) told his friend that he cannot bear it anymore and thus wanted Euthanasia.
A perusal of the petition left three burning questions on my mind:
(1) How would you feel if you have a debilitating condition that tends to render you bed bound, struggling to perform everyday tasks, unable to walk beyond a few steps inside your home, and also sceptical about your medical treatment because external factors such as the pandemic have increased your suffering possibly by hindering access?
(2) On the other hand, how would you feel if your friend, loved one or offspring is suffering from this condition and contemplating Euthanasia? How would you get ready to say goodbye to someone you love and watch them walk towards the red, blinking exit sign? Especially while there's still a spark of hope flickering in your heart with regard to their treatment, despite the despair you have seen them experience for years, already?
(3) And how does a court deal with a question such as this one, which is literally a thin line of unclear legality stretched over an ocean of uncertainty, wedging between hope and despair, individual and society, the personal suffering of one man and the potential collective suffering of those who surround him?
While the first two are moral and ethical conundrums which aren't for a mere reporter to prod and poke, the third one may allow some probing.
Broadly, legally, what we know is —
The Existing Law
Under the existing laws, Euthanasia will not be available to this patient in India.
This is even though the Supreme Court, in 2018, held that the right to die with dignity is a fundamental right, and declared passive euthanasia and a living will to be legally valid.
Here's why:
This procedure in India is not allowed unless a medical board suggests that the patient is terminally ill or is in a persistent vegetative state with no hope of recovery.
Despite the fact that the 48-year-old's condition, as pointed out by the petitioner, is "poorly understood" and "in early stages of research", it does not meet the above criteria.
Which explains why the petitioner might have felt the need to travel all the way to Switzerland for the same.
What the Petitioner Seeks
His friend, in her petition, sought a direction to the Indian government to not grant emigration clearance to the man on grounds that “he made false claims before Indian as well as foreign authorities for getting travel permissions.”
As per the petitioner, the man had obtained the Schengen visa (for travel to Europe) under the pretext of a namesake treatment in a clinic in Belgium, following which he had travelled from Belgium to Zurich, Switzerland between 11 and 18 June for first round of evaluation at the organisation where he seeks to receive Euthanasia.
“According to the information received by the Petitioner, his application was accepted by Dignitas (the organisation), first evaluation was approved and (is) now awaiting the final decision by end of August, 2022,” the petition states.
The grounds cited in the petition also include that:
The man was receiving FMT treatment at AIIMS Delhi, “which was promising and giving significant improvement” and that FMT is considered to be safe, promising and an effective treatment method for CFS related problems as the results show high success rate.
However, he could not continue the treatment during the pandemic due to donor availability issues “and this affects his confidence and hope.”
There are no financial constraints when it comes to providing “better treatments within India or abroad (sic)”.
“There still persists a ray of hope for the betterment of his condition”.
His decision to go for Euthanasia affects his ageing parents “miserably”.
"The parents, family members and friends (of) Respondent No 3 (the man) would suffer irreparable loss and hardship and will be going through an agonising moment if the prayers are not allowed," the petition says.
The petitioner also asks for the constitution of a medical board to examine the medical condition of the man and provide necessary medical assistance to him by considering his peculiar health condition.
Legal Possibilities & Arguments
Given the unprecedented nature of this plea, and the facts of the case, it is incredibly difficult to predict an outcome of the case. However, The Quint reached out to legal experts in a bid to get a sense of what to expect.
Speaking to The Quint, Senior Advocate Shekhar Naphade, said:
"This kind of euthanasia is not permissible in India. The person concerned is a citizen of India. So wherever he goes the law of the land follows him, especially the IPC. An act such as this would be an attempt to commit suicide."
Section 115 of the The Mental Healthcare Act 2017, which came into force in 2018, has decriminalised attempt to suicide. However, as pointed out by Naphade:
"It still means that someone who attempts suicide is under stress and so the state has an obligation to reduce the risk of his attempt to suicide and to provide care, treatment and rehabilitation to him."
Thus, Naphade was of the view that the state has an obligation to prevent the man's attempt to secure Euthanasia in Switzerland and so it cannot be legally permitted.
Meanwhile, a former High Court judge (name withheld) elaborated on why the man, according to him, might not be permitted to make the travel.
"Attempting to visit Zurich under a subterfuge for treatment in Belgium, when the real intent is to go for euthanasia in a non-terminal case is forbidden under Indian law even after the 2018 Common Cause Constitutional bench judgement which lays down strict conditions for passive euthanasia," he said.
He further pointed out that Section 6(1)(d) of The Passport Act 1967 speaks of the power of Central government to refuse permission to travel in the public interest, "which may be further narrowly construed (as pointed out in the Maneka Gandhi judgment) to Article 19(2) limits of public order, decency or morality."
In Maneka Gandhi vs Union of India, the Supreme Court had said:
"...if at any time in the future the petitioner wants to go abroad...the question would definitely arise whether the refusal to release or in other words, continuance of the impounding of the passport is in the interests of public order, decency or morality in the first case, and in the interests of the general public in the second, and the restriction thus imposed is reasonable so, as to come within the protection of Article 19(2) or Article 19(6)."
But how do these limits of public order, decency or morality apply in the Myalgic Encephalomyelitis patient's quest for Euthanasia?
According to the ex judge, "abandoning old parents, his petitioner friend and possible future improvements in medical conditions, and thereby defeating concerns of close ones, and also violating Indian law may be against the public interest as it at may be considered violative of the norms of morality and decency."
"Such individualism is frowned upon in our Indian ethos, where the joint family system with its mutual care and non abandonment of seniors is still held out as the preferred model," he added.
Besides, he said, under 10(3)(b) of the The Passport Act, the passport authority can also impound or revoke a passport or a travel document "if the passport or travel document was obtained by suppression of material information or on the basis of wrong information provided by the holder."
Senior Advocate Sanjay Hegde, however, pointed towards the man's right and capability to decide for himself, and advocated the permissibility of his decision, stating:
"I doubt that the friend (the petitioner) has locus in the matter. The man obviously is sentient and capable of making his decisions."
"He has a right to go abroad as part of his Article 21 rights. He has the right to seek treatment wherever he choses to including Switzerland. If the legal and medical regime in Switzerland also accommodates the patient's right to seek voluntary euthanasia according to medical protocol there, I don't see any reason for the court to prevent the man from seeking it."Senior Advocate Sanjay Hegde
"There are many who travel abroad to seek treatment not available in India, can courts restrain them in any manner?" he asked.
Further, he added: "Adding the judicial process to the man's agony at the behest of a stranger, is just not right."
As the case stands on the brink of unfolding, it remains to be seen which particular legal point of view is the Delhi High Court most likely to lean towards.
It is also reasonable to expect, that along with legal arguments, the court will also seek medical opinion on this man's particular situation and call upon medical experts to provide recommendations in accordance with the same.
The Only True Relief
At this point, however, I must admit, that this seems to be one of those cases in which no potential outcome appears be a truly happy outcome, and the pain of this cannot be experienced more greatly by anyone other than those directly involved in the case.
This can be because this case is bred not from a sense of animosity or competition, but from a place of compassion and shared suffering. None has hurt either, and yet both are hurting.
The only true 'relief' that one can, thus, hope for here is that the 48-year-old somehow experiences some improvement in his condition soon. In any case, no victory in a court of law can trump a triumph of hope.
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)