The Paradox Of Autonomy In A Penal State: A Socio-Legal Critique Of Passive Euthanasia And End-Of-Life Care Under The Bharatiya Nyaya Sanhita, 2023
- IJLLR Journal
- Feb 27
- 2 min read
Abhishek, LLM, Constitutional and Administrative Law, CHRIST (deemed to be) University, Bengaluru1
ABSTRACT
The enactment of the Bharatiya Nyaya Sanhita, 2023 (BNS), signifies a monumental shift in India’s criminal jurisprudence, aiming to decolonize and modernize the justice system. Yet, a critical disconnect remains regarding end-of-life care. Despite the Supreme Court’s landmark recognition of the "Right to Die with Dignity" as a fundamental aspect of Article 21 in Common Cause v. Union of India (2018) and its subsequent procedural simplification in 2023, the legislature failed to codify passive euthanasia within the new penal statute. This paper employs Doctrinal Legal Research and Comparative Statutory Analysis to critically evaluate the legal friction between the executive "Soft Law" of the 2024 MoHFW Guidelines and the statutory silence of the "Hard Law" (BNS).
The study highlights that while the 2024 guidelines introduce progressive concepts like "Time-Limited Trials" and streamlined Medical Boards, the BNS retains a punitive framework for acts causing death. Specifically, the analysis reveals that without a codified "medical exception," clinicians remain theoretically vulnerable to prosecution under BNS Section 105 (Culpable Homicide not amounting to murder) and Section 108 (Abetment of Suicide). This looming fear of criminal liability perpetuates an "enforcement gap," driving the ethically problematic practice of "Left Against Medical Advice" (LAMA). In this scenario, hospitals discharge terminally ill patients to avoid legal risks, forcing them into a "miserable death" at home without palliative support. The article concludes that the "Right to Die" will remain illusory until Parliament amends the BNS to provide explicit statutory immunity for authorized medical withdrawal of life support, thereby aligning the penal code with constitutional morality.
Keywords: Passive Euthanasia, Bharatiya Nyaya Sanhita (BNS), Advance Medical Directives (AMD), End-of-Life Care (EOLC), Left Against Medical Advice (LAMA), Medical Futility, Article 21.
