A Comparative Study of Legal Framework on Euthanasia in India and the Netherlands

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It is a human tendency to have the desire to live a fruitful life. However, on the other hand, every human being also can experience a feeling to end his life in an unnatural way, because ending your own life is definitely against the order of nature. In layman’s terms, we can call this as an act of ‘suicide’. Although, when such a person wants to end his life with the assistance of another person, it is called ‘euthanasia’ or a simpler term for it would be ‘mercy killing.’ In the field of law, Black’s Law Dictionary is widely referred to and it defines euthanasia as “the act or practise of killing or bringing about the death of a person who suffers from an incurable disease or condition, especially a painful one, for reasons of mercy” If we trace the etymology of the word euthanasia, it is found that it originated from the Greek words ‘eu’ which means easy and ‘thanatos’ which means death. The practice of euthanasia is usually associated with those people who are victims of a terminal illness or those who are deprived of the power to function naturally which results into them wanting to put a stop to their lifelong suffering. 

In recent times, the topic of euthanasia has been enveloped in controversies in consideration of human morals, societal beliefs, and the values instilled in the society. This process of giving someone a painless death if he is suffering from an incurable disease which renders his life devoid of any purpose is debated upon across the globe.

Kinds of Euthanasia

It is important to understand the different kinds of practices encompassed under euthanasia to have a better understanding of it to determine whether it should be legalized or not, wholly, or partially. There are five separate classifications of Euthanasia:-

  1. Active 
  2. Passive 
  3. Voluntary
  4. Involuntary
  5. Non-Voluntary

Active Euthanasia:- When an individual is painlessly put to death for the sake of his mercy, it is active euthanasia. When a doctor gives a fatal dose of medication to such a patient who is in grave suffering.

Passive Euthanasia:- When a patient is given death by holding off a treatment from him which can sustain his life, it is called passive euthanasia. When a doctor withdraws life support from a patient, and he dies consequently. Passive euthanasia means that the patient is simply not being saved, he is not being actively killed by anyone.1 

Voluntary Euthanasia:- When a terminally ill patient decides to end his life for his best interests, and he expresses his desire for such death and consents to it, it is voluntary euthanasia.  

Involuntary Euthanasia: – When the patient has not actively expressed his wish to die but is yet given death by doctors, it is involuntary euthanasia.  This type of euthanasia clearly amounts to murder because a competent person’s life is ended without his consent.

Non-Voluntary Euthanasia:- When a patient who is not mentally capable to make an informed decision as to whether to end his life or not, is given death, it is non-voluntary euthanasia. This type of euthanasia often happens with patients who are in a coma and are not competent to request or express their wish to die. Such euthanasia is carried out after considering the decision of the family members of the patient then. 

Euthanasia Law in India:

In the case of Maruti Shripati Dubal2 the Bombay High Court has tried to make a distinguished comparison between euthanasia, also knows as mercy killing, and suicide. As per the court’s view, the act of suicide by its primary nature is an act for killing oneself or terminating one’s own life all by oneself without any kind of assistance from other people. On the contrary, the practice of euthanasia encompasses other people to intervene and requires an external human agency to terminate life. Therefore, according to the honourable court, keeping euthanasia at the same pedestal as suicide would be a grave mistake and miscarriage of law.

Law in India is constructed over the notion that intention becomes the basis for penal liability to occur. Any committed or omitted act which lacks the intention cannot be considered to be criminal in nature. This is derived from the Roman maxim, “Actus non facit reum nisi men sit rea.” which means that for any act to be considered unlawful or illegal in nature, the act must be done with a guilty mind. If we practically apply this to euthanasia, then it can be said that the accused cannot be made liable for any offence since he does not have a guilty mind and is practising euthanasia after being given consent for it by the patient.

The honourable Supreme Court in the case of Gian Kaur v. State of Punjab3,  held that euthanasia is not lawful in India. Although, the court did refer to the principles that were promulgated by the House of Lords in the Airedale4 case. In this case, the House of Lords concluded that the withdrawing of life-supporting systems based on an informed medical opinion will be considered lawful. It was reasoned that since this act of withdrawal was only being practised so as to allow the patient who cannot be fully recovered, to die painlessly. There was no longer a need to prolong the life of such a patient.

Landmark Case for Euthanasia in India: Aruna Ramchandra Shanbaug v. Union of India

Recently the Supreme Court of India in its judgment in the case of  Aruna Ramchandra Shanbaug v. Union of India5 sowed the seeds to legalize passive euthanasia in India. The case revolves around a petition being filed before the honourable Supreme Court to seek permission for practising euthanasia for a patient named Aruna Ramchandra Shanbaug, who was in a Persistent Vegetative State (P.V.S.) and considered to be a virtually dead person, who had no state of awareness due to a virtually dead brain. The Supreme Court then established a committee in order to perform a medical examination of the patient for understanding the problem. As a result, the Court dismissed Shanbaug’s petition stating that the practice of passive euthanasia is permissible under the supervision of the law only in exceptional circumstances. The Court, however, declared active euthanasia unlawful and did not permit it practicable. The Supreme Court in its judgement also made a recommendation to decriminalize attempt to suicide and thereby dismissing the punishment for it as mentioned in the Indian Penal Code. In the matter of passive euthanasia, the Supreme Court further laid down a set of guidelines which are considered to be law until the Parliament makes concrete legislation governing this topic. Following are the guidelines:

  1. The parents or the spouse or other close relatives of the concerned patient are to make a decision as to whether they want to discontinue life support apparatus or not. In the absence of these people, a person or a group who is acting as a next friend is supposed to make the decision. This decision can also be made by the doctor who is administering the concerned patient. The important point is that such a decision should be made keeping in mind the best interests of the patient and should be bona fide in nature.
  2. After such a decision of withdrawing life support is made by the relatives of the patient or his next friend, such a decision cannot be practised until and unless it is approved by the High Court. The requirement of the High Court’s approval is laid down even in the Airedale’s6 case. This provision of approval of decision is very important and much needed in our country since there is a high possibility of mischief done by the next friend or the relatives of the patient with the purpose of inheriting the property of the patient. This possibility of a malafide intention needs to be ruled out, and the approval of the High Court does exactly that.
  3. The question may arise under which legal provision does the court have the authority to grant such approval for withdrawing life support to a person who is incompetent. It was therefore held that under Article 226 of the Constitution of India, the High Courts have the authority to grant approval to withdraw life support. Article 226 which is famously known for the High Court’s entitlement to issue writs also authorises it to issue orders or directions whatever need be.  The High Court, on receiving such an application, constitutes a Bench of at least two judges to determine whether approval should be granted or not. The Chief Justice of the respective High Court is supposed to form this Bench. Before making the decision as to granting approval or not, the Bench is supposed to nominate any three reputed doctors to form a committee. This committee’s opinion is supposed to be consulted by the Bench before making a decision. It is preferred to have a committee of one neurologist, one psychiatrist, and one physician. The committee needs to submit a report to the Bench after a thorough medical examination. This is the due process which needs to be followed until legislation on this topic is made by the Parliament. 

Euthanasia Law in the Netherlands:

Considered to be a revolutionary event, the Netherlands, in 2002 became the first European country to legalize euthanasia. The law that is concerned with Euthanasia in the Netherlands is the “Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 2002.” The piece of legislation states that if the doctor or the respective physician abides by the criteria of due care, then euthanasia and physician-assisted suicide is not punishable. This is however restricted to special cases in specific circumstances. The penal code of the Netherlands penalises killing a person on his own request with imprisonment of twelve years or a fine. The penal code also penalises assistance in the commission of suicide with imprisonment for three years or a fine. However, there is a provision in the law which allows the establishment of a ‘Medical Review Board’ whose primary function is the suspension of prosecution of those doctors who have performed euthanasia.7 Although, such suspension of prosecution can only take place if the following conditions are all fulfilled:

  • The patient has no scope of improvement and his suffering is not bearable
  • The patient must ‘voluntarily’ request for euthanasia, and such a request should be persistent through time. 
  • The patient’s request for euthanasia cannot be considered if the patient is psychologically ill, is under the influence of drugs, or is under the influence of other people.
  • The patient requesting euthanasia needs to be entirely aware of his medical condition, prospects, and options.
  • The patient needs to be examined by at least one other doctor who is independent, and his opinion needs to be consulted after his confirmation of the medical condition.
  • The administration of death to the patient by the doctor must be done in a manner which is medically appropriate.
  • The patient should be at least 12 years old, if he is aged between 12 to 16 years, then the consent of the patient’s parents must be obtained before practising euthanasia.


The Netherlands have legalised the practice of euthanasia and even in India, passive euthanasia has been given legal sanction. Although, active euthanasia still remains unlawful. In the Indian context, there is still a dire need for robust legislation with regards to passive euthanasia, at the moment, the Court’s orders are the governing body for euthanasia. The Netherlands’ liberal approach to euthanasia is inspiring. India has taken a great stride by allowing passive euthanasia in the Aruna Shanbaug case. The only difference that remains is that the Netherlands has concrete legislation governing euthanasia whilst India is yet to come up with one, but there is a bright chance of this happening in the future. 


1.  Aruna Ramchandra Shanbaug v. Union of India, 2011(3) SCALE 298;

2.  Maruti Shripati Dubal v. State of Maharastra; 1987 Cri.L.J 743 (Bomb)

3.  1996 (2) SCC 648 : AIR 1996 SC 946

4.  Airdale NHS Trust v. Bland, 1993(1) All ER 821 (HL)

5.  2011(3) SCALE 298 : MANU/SC/0176/2011

6.  1993(1) All ER 821 (HL)




Virali Joisher

Student, Kirit P Mehta School of Law, NMIMS Mumbai

Virali is an enthusiastic law student who has big ambitions, and a bigger spirit to always keep learning. She is exploring her interests in the field of law and feels strongly for women’s issues. For any Clarifications, feedback, and suggestion, you can reach her at

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