Dignity of the Dead, Dying and Living: Revisiting India’s Constitutional Law amidst the Pandemic

By Monica Yadav

As we maneuver our lives amidst the current health crisis, we have witnessed the ever-rising number of people dying along with several cases where people’s death lacked dignity, and the dead were not dignified. The news last year in India was flooded with instances when hospitals refused to take in patients, patients dying at the doors of hospitals, poor communication of hospitals and doctors with the patients’ families and when the bodies of the dead were left unattended in rooms and wards. During the pandemic, the dying and the dead lost the little dignity that might have been respected otherwise. The pandemic has realized indignities for many and left us with questions. Do the dead have constitutional rights? Can they be ascribed dignity? Far worse, do the dying in India have access to their constitutional rights and dignity? Can a person die with dignity?

In the post-second world war era, human dignity plays a significant role in the international and regional human rights instruments and humanitarian law. Dignity is committed to within the Universal Declaration of Human Rights (UDHR) 1948, the International Covenant on Civil and Political Rights (1966), and the Vienna Declaration and Programme of Action 1993. Also, one of the party in the deliberations of UDHR, India incorporated dignity in its Constitution. Further, the Indian jurisprudence has over the decades gave several judgements engaging with and elaborating upon the idea of dignity. In one, the Supreme Court of India interprets dignity as the basis of human rights and treats dignity as a right in itself. It delineates three points: “first, the value of human dignity serves as a normative basis for constitutional rights set out in the constitution; second, it serves as an interpretative principle for determining the scope of constitutional rights, including the right to human dignity; third, the value of human dignity has an important role in determining the proportionality of a statute limiting a constitutional right.”[1]

Dignity prefigures as the legal and the political image of an individual of the twentieth and twenty-first century. It brings into practical existence the capacity of an individual or group to exercise their fundamental freedoms and experience their rights and defend them against an oppressive condition of existence. As a value concept, it is the worth inherent to an individual as a human also recognized by others. Dignity is realized when one can represent herself as herself and as she likes in the world. A dignified representation is only possible when one lives a life of dignity free of exploitation, bonded labor and custodial torture to living in her place of dwelling when one can own property and has the right to education and health amidst other things. The capacity to a dignified representation also includes representation of oneself in courts which means that a person can file a case and make arguments for her case or find a legal representative to do so on her behalf.[2] Besides, if a person is accused, she has the right to a fair and speedy trial.

When a person presents her arguments on her case in a court (also a guardian of the constitutionality of a law), she also carries in her the capacity to destabilize the normative interpretation of the law through her insights and experiences. Further, she is also capable of presenting to the judge the redundancy of the latter’s knowledge and understanding. The capacity of representation in a court is thereby not just about a person appealing for the protection of her constitutional rights. It may also be a participation in the process of reinterpreting the Constitution alongside a judge. Yet at the same time, we cannot forget that the Indian courts can too, in the name of protecting its dignity, initiate a civil or criminal contempt case. The recent two examples are the criminal contempt court cases against activist lawyer Prashant Bhushan and stand-up comedian Kunal Kamra in 2020 initiated by the complaints or letters filed by law students or lawyers to the SC.

Within such a context, a legal instrument that has given force to a person as a legal subject to not merely be a passive receptor of constitutional law but also an active collaborator in its invocation and reinterpretation is the public interest litigations (PILs). PILs capacitate a group or an individual to approach a court when they see the violation of constitutional rights, injury or harm done to a person or a community where the latter fails to file a case themselves given their social, economic position, helplessness or bondage. PILs establish a process of collective seeking of the necessary dignity of all people by people.

But so far what we have discussed is the dignity of the living.

One of the PILs significant to our discussion at this point is the writ petition filed by the Common Cause (A Regd. Society). While, the Common Cause defends in its petition that an individual has the sovereign right over her life and only then can a person have dignity, it also brings the dying to the discourse of dignity. It thus gathers together the discourse of palliative care and of those dying while in medical care and argues that the right to life with dignity should consciously entail the right to death with dignity. The petitioner stated that a patient with a life-limiting illness has the right to deny a potentially inappropriate medical treatment to prolong her life by a few days. Such treatments often neither improve a patient’s condition nor the quality of her life or death. Additionally, they put the patient and her family under huge financial strain leading to debt and impoverishment. Thereby, a person with a terminal illness or deteriorating health “should be able to execute a document titled ―My Living Will and Attorney Authorisation.”

This petition was filed against the backdrop of a historical judgement of 2011 in the Aruna Ramchandra Shanbaug vs Union of India & Ors case where the SC stated that the “right to live with human dignity would mean the existence of such a right up to the end of natural life. This also includes the right to a dignified life up to the point of death including a dignified procedure of death.” The Court legalized passive euthanasia. However, the term passive euthanasia sparked a debate and the doctors argued that removal of the life support system of a patient in a palliative care setting is neither euthanasia nor passive euthanasia. It is the removal of potentially inappropriate treatment to let the patient have a calm and peaceful death.

The Court’s decision in the Aruna Shaunbagh and the Common Cause case thrust to the forefront the interconnection between the right to life with dignity, right to health, right to healthcare, right to death with dignity, right to self-determination, autonomy and bodily integrity in conditions and decisions of medical care. While the bearer of most of these rights is a living person, the list has attempted to include rights at the time of death that is the rights of the dying. Like the right to a living will or an advance medical derivative in which a person can delineate as to how she would like to breathe her last and legally appoint another person on her behalf in case she is not conscious to decide for herself.[3] Moreover, the right to bodily integrity can also be further extended to the posthumous body where a dignified treatment of the dead body includes a proper funeral. Yet it seems that not much can be said on the dignity of the dead.

The schema of dignity thereby demands an affiliation with life, living, dying and death and explicates a process by which a self is determined, maintained and asserted. Under the current conditions of a year into the pandemic and more infectious mutants of COVID-19 viruses causing another surge of infections and deaths, it feels as though we need to go back to the discussion of dignity of the living, the dying and the dead. At this juncture in history, it becomes necessary to not only see the interdependence of various rights of living and dying and bring dignity in association with these rights but also discuss in greater detail the constitutional rights of the dead and dying in India.

[1] Aharon Barak, Human Dignity: The Constitutional Value and the Constitutional Right (Cambridge: Cambridge University Press, 2015) qtd. in Rajive Raturi vs Union Of India (2017).

[2] Jeremy Waldron, “How Law Protects Dignity,” The Cambridge Law Journal 71, no. 1 (2012): 209.

[3] The guidelines laid down by the Court for its implementation was difficult, tedious, and lengthy. In November 2019, The Vidhi Centre for Legal Policy with the End of Life Care in India Taskforce drafted the End of Life care in India: A Model Legal Framework to address these problems and to operationalize the legal guidelines laid by the SC. See the End of Life Care in India: A Model Legal Framework and the Basic Living Will at https://vidhilegalpolicy.in/research/end-of-life-care-in-india-a-model-legal-framework/.

Bio:
Monica Yadav completed masters in development studies from Tata Institute of Social Sciences, Mumbai and is currently a PhD scholar of theatre and performance studies at Jawaharlal Nehru University, Delhi. She is also a fellow with Pallium India, an NGO based in Kerala which aims to reduce health related suffering through palliative care.

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