.DtnnuaLRs.7DO,--

••. __ •.• • .• _· •.••.•..••• ·l·

, fSin,gie part

R.s.150;'·

Layout &' T,>'pesct(and (Gm}i.;iiction. (~i-·-5~~1tures,~C"';

Ii; ,,'

~--~-- ~=========192 [2010JOURNAL

divorce easily since the consequences ofdivorce would be serious and it will haveadverse impact on the development ofchildren. Even in England easy divorce is notendemic unless it becomes inevitable forspouses to get separated permanently. Onething is clear that modem trend is towardseasy divorce that may be sought by theneedy spouses when they find it difficult tolive together.

Reference Books:1. Mayne's "Treatise on Hindu Law and Usage",

14th Edition 19962 "Marriage and Divorce", AN. Sinha, 4th Edition,

1987.

3. Paras' Diwan "Muslim Law in Modem India",3rd Edition, 1985.

4. Justice P.S. Narayan's 'Law relating to Christiansin India', 2nd Edition, 2008.

5. Verma's "Muslim Marriage, Maintenance andDissolution, 2nd Edition, 1988

EUTHANASIA A LOOK AT THE INDIAN LEGAL SYSTEM

1. The Indian Law considers as. the mostseVer~t form of crime, the intentionally causingdeath of a person' and prescribes even thedeath penalty for such a crime'. Any act bywhich death is accelerated in respect of aperson laboring under a physical disorder,disease or bodily infirmity constitutes culpablehomicide', The law is not prepared tocondone the act of a person resulting indeath, even though the victim by resorting toproper remedies and skilful treatment, thedeath might have been prevented'. Evencausing the death, while a person is still in thewomb of the mother also treated as culpablehomicide, if some part of the child is broughtforth", All the exceptions to murder statedin first to fifth, do no give any immunity

1. See Section 300 IPC which defines the crimeof culpable homicide amounting to murder.

2 See Section 302 IPe3. See Explanation I to Section 299 of IPC4. See Explanation II to Section 299 of IPC5. See Explanation III to Section 299 of IPC

By-Dr. MUKUND SARDA,

Principal and DeanNew Law College,

Bharatiya Vidya Peet University,Pune

I

from punishment, but regard them as culpablehomicide not amounting to murder,punishable under Section 304 of Indian PenalCode.

2. Acts of suicide, whereby the act of aperson terminating one's own life, withoutany aid or assistance of any other agency ismade punishable". Striking down Section 309IPC as unconstitutional, the Supreme Courtheld that 'no question of protection ofsociety from depradation of dangerousperson in case of suicide'". However, in alatter decision, the Supreme Court lost noopportunity to overrule this decision andto uphold the constitutional validity ofSection 309 IPC and stated in unequivocableterms thus : "Right to life under Article 21does not includenight to die, because _of.extinction of life is not included in the

6. See Section 309 of Indian Penal Code

7. P. Rothinama Nagabhlliall Patnaik: v. Union oj'India, AIR 1994 SC Pl844.

2010-AILO August

AILD] JOURNAL 93

protection of life". It follows, that attemptingto conunitsuicide, an act by which onecauses his own death, is made punishable.No question of any humanitarian cause orsympathy is taken into consideration, whileconsidering the criminal liability for a crimeof an act of attempting to commit 'suicide'.When ones 'own's act of killing himself isneither excused nor condoned, the questionof an assisted or aided killing by any otherhuman agency, does not stand on any differentfooting and makes such acts as severe crimes.

3. Though self-killing is conceptuallydifferent from abetting others to killthemselves, and the later coming under'Euhanasia' is sought to be justified ongrounds of humanity or sympathy, as itwould enable dignified exist of persons fromthe misery and misfortune of the deadlydiseases and such cases are considered as 'lifeworst than the death'. However, the lawmakes such acts as offences falling underException V of Section 300 of Indian PenalCode which states thus ; .

"Culpable homicide is not murder whenthe person whose death is caused, beingabove the age of 18 years, suffers death .or takes the risk of death with his ownconsent."

As stated earlier, this exception makes theact to fall under the category of culpablehomicide not amounting to murder andpunishable under Section 304 IPC8.

4. Euthanasia is sought to be legalized onthe ground, that it is an act of rational suicidein order to avoid protracted suffering fromdeadly diseases". Even a staunch supporterof 'auto Euthanasia' Arthur Koestler ended inlife by ingesting a lethal dose of drugs'", An

. 8. This Section provides for hnprisonment~feither .description which may extend to 10 yearsand liable to fine as well.

, 9. Rational suicide raises patient Rights issue, 66. ABA] 149910. Time, March 14, 1983 at P.96

extract from the work of Robbins makesout a case of euthanasia which reads ;-

''1 am not afraid to die but I am afraidof this illness, what it is doing to me.There is never relief from it nothing butnausea and this pain?".

5. It is no doubt true that modernmedicine has.done a great job of prolonginglife. But people who live long than theywant to live, the legal system has found nosolutions for it. In fact, it has been vehementlyadvocated that people should have the rightto end their lives, when they want it and toget the necessary help for the exercise of thisright. There are several decisions to theeffect that the deprivation of the right to dieand keeping a man in the hospital in hispres~nt condition would be abridging theright of privacy, 'removing the freedom ofchoice and invade the right to self-determination". A statement made in theWorld Medical Assembly enunciates that "the

. controlling principle for decision-making inheath issues should be the 'best interests' ofthe patient"!' and the duty of the physician isto protect and maximize his patient's 'bestinterests'. However, the actual experience ofphysician's not to follow the principle of the'best interests' on the face of several penalstatutes prohibiting Euthanasia and imposingcriminal liabiliry". In fact, code of ethics clearlyimposes a duty on a physician to the effectthat 'he shall give no deadly medicine toanyone, if asked or nor suggest anyCounsell 5."

6. In some of the legal systems, Euthanasiahas been legalized. Australia's NorthernTerritory approved Euthanasia in 1995, and

11. B. Rollin "Last Wish" 1985 (p.149),,12 Bonvia v..High .Deserr Hospital; Issues and Med .

493 (1986) " I

13. Statement of the World Medical Assembly, 140Med.]. 431 (Oct, 1983)

14. Kulse "Euthanasia - again" 142 Med. J. Aust610 (dated 27.5.1983)

15. Hippocratic Oath 400 B.C.21 2010-AILD August

~94~ ~J~O~U~R~N~A~L~ ~ ~010in u.s. State of Oregon (1998),Netherlandson (2000).and Belgium (2002),it, has beenlegalized. In somephices, -Euthanasia -islegalized but the method of bringing about,has not been recognized as legal. Kulse pointsout cases, that the patient could have diedless painfully, had lethal injection had beengiven". .

heavy demand for the patient's right to berecognized to refuse futile prolongation ofdying, in case of terminally ill patients withno hopes of recovery. The' question stillremains Unresolved, whether a refusal of life-sustaining therapies would constitute suicide?Perhaps, law in India' may consider suchrefusals as attempt to. commit suicide. Thequestion assumes greater importance; whenthe patient is unable to participate in medicaltreatment decisions, on account of his physical

.;~ty.

7. The Council of Ethical and JudicialAffairs of the American Medical Associationhas advocated a new policy" known as"passive Euthanasia" whereby a physiciancan withdraw all means of life prolonging',.;~:·::I't~:::ba,.; ..:;;bcen -insisted that a 'self-medical treatment, including water and f~;'~<detenniruirion~;:~)'f"',de2th':' must be made infrom a patient in an "irreversible co~".,'~accotdance·With·:('8:ccepttd rules, medicalOccasions have arisen where reconciling:the'.:.staodards2'~mher procedural require..ments.differences of opinion between physicians and, RationalseIf'''determinationto die shall bepatient's family. This has provided·:1lt\'\;· •••WtdCd.&:all'_lentable:~>Which,w.nsistsadditional safeguard to the maintenance of of:-self-determination, without judicialinterference, .when they' were reconciled by HospitalEthics Committee", Newmaacpoiars out,"disconnection of life·-.suppott systems-byphysicians acting at 'thebebesr of familiesshould not be considereda.crisiiaal act"19and this was further elucidated as.oneresting /WhilesanctityOt"life- should-be-preserved,

. on request fo~ ~essation of ,treatment-by. a , equally 'so, the 'physicians -mustihave 'thecompetent patient", authority -both legal and social to refuse

·unilaterally.to do what they consider futile or8. There has been a growing criticism'rhat: . doing anything which runs . counter to the

the judicial systems are' ill-equipped and has'best.inrerests' of the patients. At any rate,no special compete[}ce to.' consider .or .take .:prordsiooalcoderequires physician not todecisions regarding the treatment of criti011Y.tteat &paaeni. while the patient 'refuses toill and terminally illpatieors and thetef~ ~tikc.)tbe>,uarmcot. ·This.is based ,oo"impl.iedthey cannot impose decisions': onilicit· 'coosent"ootlOtouch the'body.of-thepanemevaluation of what is in the 'best interests' of without.his consentthe patients. On the other hand, there is a

(a) To refuse medical or surgical treatment;and

l(b)"'To 'choose "to<diem.';a>H\im2lle:;md'digni6edmanner -

"= !

AILD] JOURNAL

11. An emergent need to enact a lawtided "Euthanasia (Regulation and Control)"which must give some guidelines for managing.death issues r: The law may provide asfollows :-

(i) Any person who is above (75 years)of age may be entitled to seekpermission to die; subject to thefollowing conditions :-

(a)That he/she must be suffering fromincurable disease and recovery ofsuch patients is absolutely notpossible. This should be supportedby medical opinion;

(b) That he/she must be suffering frompain-mental or physical which is'unbearable that 'living is worst thandeath';

(c)That he/she is absolutely withoutany dependence or maintenance for .support;

(d) That in the opinion of the MedicalBoard- duly constituted under theAct, that the case is a fit case forpermitting to die;

.{e)That the entire case with all medicalrecords should be considered bythe Medical Department, and placedbefore the cabinet for approval;

(f) When the State Cabinet accordsapproval, a Government Ordershould be passed that the personbe permitted to die, a painlessdeath only after the expiry of (6)months of the GovemmentOrderbeing passed;

(g) That a public notice shall bepublished in the leading newspapersincluding the Gazette, of theGovernment Order issued withintwo days of issuing of theGovernment Order;

(11) If any person, either relative orotherwise or a public institutioncomes forward to take care of theperson concerned, the GovernmentOrder shall be cancelled and theperson be handed over to suchperson/ or institution after executionof a bond assuring to take care ofthe person in question without anyclaim for financial assistance; and

(i) The person be allowed to die onlyas a case of 'last resort' when noother remedy is available.

12. In conclusion, the State Governmentmust show concern to save the life of theindividual and permission to die being givenas a 'last resort'.

•';CONTRACT LEGISLATION AND MATERIALS MANAGEMENT

By-Dr. MUKUND SARDA,

Principal and DeanNew law College,

Bharatiya Vidya Peet University,Puneg

el.'-1.jln:,every:. organization, materials acquire a thorough knowledge of all aspects~1g~~toccupies .•a very important place relating to materials management. Material:and\'.the\:.612f£ «iealing with this subject must management deals with procurement, whiIII 23 2010-AllD A~.,

95