Table Of Content

INTRODUCTION

John Stuart Mill’s Concept of Harm Principle

John Stuart Mill’s Arguments:

SUICIDE ANI) CRIMINAL LAW

Article – 21
. ‘ RIGHT TO LIFE
RIGHT TO LIVE WITH HUMAN DIGNITY
DOES THE ‘RIGHT TO DIE’ EXIST?
Gian Kaur Vs The state of Punjab
Facts of case
Issue raised
Judgment

EUTHANASIA
Aruna Ramchandra Shanbaug Vs Union Of India
Facts of case
Issues
MEDICAL ETHICS
JUDGEMENT

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 DECLARATION
I Darshans (BAO2120015) hereby declare that this Research paper/ Research
project work entitled “The Harm Principle” has been originally carried out by
me under the guidance of Ms. Sumedha Sarkar (assistant professor of law)
Tamil Nadu National Law University, Tiruchirapalli-620 009. This work has
not been submitted either in whole or part of any Degree/Diploma at any
University

Place: Tiruchirapalli

Date: 24/11/22

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INTRODUCTION

In this research paper, we will see how the Harm principle is

applicable in these cases. The Harm principle generally states that the state may
only force someone if it can do so without causing harm to others. This
principle depends on what we understand by “Harm”. The line "your right to
swing your fist ends where my nose begins is a common way to describe the
damage principle. In other words, people should be allowed to do what they like
so long as it doesn't affect others Therefore, the Harm Principle will come up
short of providing enough protection for human liberty if any negative effect on
a person is considered to be harmful. Consequently, a subtler definition of
injury is required. I examine a number of theoretical concepts and contend that
none generates a reasonable application of the Harm Principle. We do not reach
a logical definition of this concept, regardless of whether we concentrate on
welfare, quantities of welfare, or quality of welfare. The idea of harm may
instead be moralized. I take into account various ways to do this as well as
relevant reasons for the modified versions of the Harm Principle. Once more,
there is no logical application of the principle. I also think about the possibility
of using the Harm Principle as a judicial process rather than a tightness
requirement.
The act of purposely ending a life in order to relieve pain and
suffering is known as euthanasia. The euthanasia laws of various nations
change. In ancient Greece and Rome, euthanasia was legal. The moral, ethical,
and legal concerns in relation to euthanasia are the subject of controversial
public dispute in several nations. Euthanasia is described as "an attempted to
establish conducted with the express goal of ending a life, to relieve persistent
suffering" by the British House of Lords select committee on medical ethics.
Euthanasia is considered as "termination of life by a doctor at a patient's
request" in the Netherlands and Belgium. The term "euthanasia" is not used in
Dutch laws, but even the notion is covered by the more general description of
"assisted suicide and end of life on request." Involuntary, non-voluntary, and
voluntary euthanasia are some of the many types. In a rising number of nations,
it is legal to stop someone's life voluntarily, which is known as euthanasia. In
some nations, both active and passive non-voluntary euthanasia, which happens
when a patient's permission is 1not possible, is permitted under specific
restrictions. All nations prohibit and generally see as murder involuntary
euthanasia, which is done without the patient's consent or against their will. At
1
“Harm” and Mill’s Harm Principle[Ethics , Vol. 124, No. 2 (January 2014), pp.
299-326]

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the same time, Humans are considered to have the freedom to decide how they
want to live and die. I quickly examine why this principle has appeared to be so
appealing to liberals in light of my critical understanding.

John Stuart Mill’s Concept of Harm Principle

John Stuart Mill in his book famously stated in On

Liberty that "the only reason control may lawfully be used over any member of
a civilized community, against his will, is to prevent injury to others."
1. This idea, commonly known as the "Harm Principle," is still given a lot of
attention by modern liberals and has good defenders.
2. It also appears to be a good fit for explaining the typically liberal stance that
both common people and decision-makers in western democratic nations adopt
toward how people are treated.
Consider the argument for and against criminalizing gay
practices, for example. Liberals believe that whether men choose to have sex
with other men or women choose to have sex with other women, that decision
should be made by the individual, not by the state. They usually justify this
position by claiming that individuals who find homosexuality offensive are not
negatively impacted. The prohibition of homosexuality in England was a result
of this argument, which was significant politically. When the Committee on
Homosexual Offences and Prostitution argued in the Wolfenden Report in 1957
that homosexual actions between consenting adults should no longer be a crime,
as Herbert Hart points out, it was on the basis of arguments strikingly similar to
Mill's. In this paper, we are going to see how the harm principle works. so I
begin by developing an interpretation of it. I then focus on what seems to me to
be the main critical question about the principle.
The harm principle, which is invoked by the term "damage to others,"
states that society may only interfere with one's behavior if it satisfies the
threshold of harming someone else's rights, in accordance with the rights-
violation perspective. Even if a person's social actions have more negative
impacts than positive ones for others and society decides that some action
would be good, society may not think about dealing with that person as long as
their 2actions do not violate rights. According to David Brink, for Mill, "an

2
Ethics, Vol. 124, No. 2 (January 2014), pp. 299-326
https://www.jstor.org/stable/10.1086/673436

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action must genuinely violate or threaten immediate violation of those essential
interests of others in which they have a right" in order to meet the damage
principle.
According to Mill's theory of utilitarianism, moral duties are
generally defined as laws that, when broken, we assume the violation "ought to
be punished in some way or another." Then he goes on to say that justice "is a
term for certain groups of moral laws, which affect the essence of human well-
being more closely, and are therefore of greater absolute responsibility." He
contends that justice is particularly concerned with those "perfect" moral duties
that involve the equal right of assignable people. Since rights are the "essence of
the idea of justice," when we refer to anything as a person's right, we imply that
he has a valid claim on society to safeguard him in possession of it, either by the
power of law or through that of education. "Whether the measures used are a
physical force in the form of legal penalties, or the moral pressure of public
opinion, the damage principle expresses the jurisdictional trigger for society to
consider the intervention of any type," according to the statement. Following the
activation of society's legitimate power, it is up to social authority to select how
and if to engage, including through less formal measures like reputational
pressure or social stigma. Thus, the rights-violation viewpoint misrepresents
Mill's substantive suggestions regarding the circumstances under which certain
types of social involvement would be acceptable as a principle that only applies
when social power has jurisdiction over a certain issue.

John Stuart Mill’s Arguments:

Now we have a sense of what Mill’s position is, let’s look at the
arguments he offers to defend it. We will cover four arguments here, of why
even the most offensive and immoral options should be allowed.
1. The first argument that mill offer is a particular perspective to
the skeptics out there. Basically, it is an appeal to our epistemic
fallibility. No opinion should be criminalized because it might
be true. There are many things once thought heinous that have
later been widely accepted. By outlawing dissent, you prevent
society from being able to test new ideas. You never know what
you might be wrong about. Everyone might think the earth is
the center of the universe, but if you outlaw any other opinion
you may never learn.
2. The second argument is something of an incrementalist version
of the first, Basically, it claims that even if an opinion is mostly
false, there may be some grain of truth hidden with it, one
ethnic group may have an offensive opinion that another group
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 is thieving them from expressing that opinion may obfuscate
the real problems of a lack of economic opportunities for the
first group, discrimination favoring the second group.
Punishing those that express this opinion hides the grain of
truth that they are being oppressed.
3. The third argument is about understanding, even if the
minority opinion is wholly false, by forcing people the proclaim
the opinion of the majority without coming to that conclusion
themselves that conclusion is itself weakened. If people
believed the truth simply because they are told it, they will
believe a lie just as easily . if however, they come to understand
the reason for it by understanding how the arguments against it
fail, they will not blindly accept anything put in front of them,
but rather seek to understand the reason for a claim and why
objects fail.
4. The fourth main argument that mills offer for this position is
that, if a particular belief is forced on the public, they will have
no reason to fight for it. This can lead to people forgetting why
it was important to fight in the first place.
J s mills state that there is a distinction between offending someone
and infringing a right of an individual. Only infringement of a right should be
punished by the state because offending someone is pretty natural. So the
Government should not interfere with an individual.

SUICIDE ANI) CRIMINAL LAW

In a landmark decision, the Supreme Court of India ruled
that section 309 of the Indian Penal Code (IPC), which specifically prohibits
attempting to take one's own life, is unconstitutional and hence cannot be
applied to punish such an act in India. The decision in P. Rathinam v. Union of
India was made on April 16, 1994. According to the court, the part violates the
terms of Article 21 of the Constitution, which protects everyone the right to life
and prevents taking it away without following the proper legal procedures. In
this viewpoint, the right to life also includes the right to an undisturbed
existence.34
3

4
Journal of the Indian Law Institute, October-December 1994, Vol. 36, No. 4
Journal of the Indian Law Institute, October-December 1994, Vol. 36, No. 4
(October-December 1994), pp. 522-524
https://www.jstor.org/stable/43952373
Michigan Law Review , Nov., 1920, Vol. 19, No. 1 (Nov., 1920), pp. 98-
99[Suicide: Aiding and Abetting]
The Journal of Criminal Law and Criminology (1973-) , Spring, 1998, Vol. 88,
No. 3 (Spring, 1998), pp. 1155-1165.

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The court reached the conclusion that one cannot be forced to exercise their
right to live in a way that is harmful to them, to their disadvantage, or against
their choice after mainly citing the relevant and moral literature. It expounded
on its stand in this regard by stating that section 309 needs to be withdrawn
from the statute book in order to make our laws more humane. It is a cruel and
unjustified regulation that might lead to the repeated (doubly) punishment of a
person who has already endured suffering for his failure to commit suicide.
Suicide attempts have no negative effects on society, hence government
interference with an individual's personal freedom is not necessary. These
words sum up the court's final finding.
We, therefore, hold that section 309 violates article 21, and so, it is
void. May it be said that the view taken by us would advance not only the cause
of humanization, which is a need of the day but of globalization also, by
effacing section 309, we would be attuning this part of our criminal law to the
global wavelength.
Finally, declaring the action to be an offense would be the strongest way to
show rejection of the legislation. As a result, it's possible that the legislation
operates on a sliding scale. It is important to keep in mind that not every
circumstance will need a jump from the first to the last stage. Although section
309 in India naturally placed suicide attempts at the top of the scale, that
position will no longer be held by them as a result of the Supreme Court's
ruling. A matter that will depend on upcoming legal developments is where it
will now be placed on the lower scale.

Article – 21
This fundamental right is at the heart of the Indian Constitution.
Some even call it “the most organic and progressive provision in our living
constitution”.  According to Bhagwati J. article 21 “embodies a constitutional
value of supreme importance in a democratic society.” Iyer, J., has
characterized Article 21 as “the procedural Magna Carta protective of life
and liberty.

. ‘ RIGHT TO LIFE

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 “Everyone has the right to life, liberty, and the security of
person.” The most fundamental and significant of all current rights is without a
doubt the "right to life." On the one hand, all other rights give the "life" in issue
more importance, but on the other hand, they all depend on the 'presence of life'
itself as a condition precedent for their function. The "Right to Life" is the most
essential of all rights since, without it, none of the others would be beneficial or
useful. Article 21 of the Constitution of India, 1950 provides that,
“No person shall be deprived of his life or personal liberty except according to
a procedure established by law.”

According to Article 21 of the Constitution, life is more than

only breathing. It does not mean continuous struggle or a life of simple animal
existence. It has a far broader definition that covers rights to a decent existence,
a means of livelihood, health, and clean air, among other things. The right to life
includes all those parts of life that work together to make a man's life
meaningful, dignified, and meaningful since it is fundamental to our very
existence and without it we cannot survive. It is the only article in the Indian
Constitution that is subject to the largest interpretation. Most all rights have
found protection, room to expand, and survival under the protection of Article
21.

RIGHT TO LIVE WITH HUMAN DIGNITY

"The right to live includes the right to live with human dignity
along with all that goes with it, including the basic needs for food, clothing, and
shelter as well as access to services for reading, writing, and expressing oneself
in a number of ways, as well as the freedom to move around and connect freely
with other people. The right to basic necessities must also include the right to
carry out functions and activities.

Every citizen of our nation has the fundamental right to a life that
is free of exploitation and is lived with human dignity. The Directive Principles
of State Policy, particularly clauses (e) and (f) of Article 39 and Articles 41 and
42, give this right to live with human dignity, which is enshrined in Article 21,
its lifeblood. As a result, it must at the very least include protection of the health
and strength of workers, men, and women, as well as of the tender age of
children against abuse, as well as opportunities and facilities for children to
develop in a healthy manner and in conditions of freedom and dignity. No State,
neither the Central Government nor any State Government, has the authority to
take any action that will limit and expose the individual to these fundamental
needs. These are the minimum conditions that must be met in order to allow a
person to live

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After all of this, it was decided in Peoples Union for Democratic Rights v.
Union of India that the failure to pay small workers the minimum wage
essentially amounts to the denial of their right to live with at least the basic
minimum of human dignity, which was also deemed to be a violation of Article
21 of the Constitution.

DOES THE ‘RIGHT TO DIE’ EXIST?

Art. 21 states that a person has the right to live a dignified life. But the question
that always parallels this declaration is if a person has a right to die.

In the case of the State of Maharashtra v. Maruti Sripati Dubal, this

natural and conflicting question was first brought before the High Court of
Bombay. The Court's decision said that the right to life granted by Article 21
includes the right to death. It was chosen to strike down Section 309 of the IPC,
which imposes penalties for people who attempt suicide. In a case along similar
lines, P. Rathinam v. Union of India, a two-judge Division Bench of the
Supreme Court accepted the judgment of the High Court of Bombay in Maruti
Sripati Dubal's Case and held that, in addition to the right to life, Art. 21 also
includes an inherent right to not be subjected to forced labor. Additionally, the
court ruled that "attempting suicide is actually a cry for rescue and not for
punishment.

’Right to life is a natural right embodied in Article 21 but suicide is an

unnatural termination or extinction of life and, therefore, incompatible and
inconsistent with the concept of the right to life”

Gian Kaur Vs The state of Punjab

Facts of the case

*In the instance case, Gian Kaur and her husband Harbans Singh, being the
appellants had committed the offense of abetment to the suicide of their
daughter-in-law, Kulwant Kaur. For their action, the trial court convicted them
both under section 306 of The Indian Penal Code.
*Henceforth, they were sentenced to Rigorous imprisonment for a term of six
years each and were liable to pay the fine amount of Rs . 2000/-, or in default of
paying the specified fine amount, further Rigorous imprisonment for nine
months would be enforced.5
5
Gian Kaur v. State of Punjab [1996] AIR 946, [1996] SCC 648
 
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*Furthermore, the appellants made an appeal at the High court, which retired
the Lower Court’s decision making the conviction of the appellant’s right.
*However, the sentence of Gian Kaur alone has been reduced from six years to
Rigorous Imprisonment for three years.
*Through the Special Leave Petition, the Appellants have approached the
Supreme court against their conviction sentence under section 306 of the Indian
Penal Code.
Issue raised
* Whether section 306 of the Indian Penal Code, 1860 is constitutionally
valid?
* Whether section 309 of the Indian Penal Code, 1860 violates Articles 14 and
21 of the Constitution?
Judgment
 The five-judge Constitutional Bench had held that the “Right to Life”
under Article 21 of the Indian Constitution does not include the “Right to
die” or “Right to be killed”
 The Apex court asserts the “Right to life” also includes the right to a
dignified life till one reaches the point of death, including a dignified
procedure of death.
 It was mentioned that accelerating the process of natural death of an
individual which by gods creation is imminent in nature, under such
circumstances permitting termination of life is not available for
interpretation under Article 21 to therein include the right to curtail an
individual’s natural span of life.
 Section 309 of The Indian Penal Code to be unconstitutional since it
violated Article 21 of the Constitution cannot be accepted. Moreover, the
court rejected the petitioner’s contention of challenging the constitutional
validity of section 309 based on Article 14 .
LAW COMMISSION'S REPORT ON EUTHANASIA, 2006

The Law Commission of India advocated for the creation of a law in its 196th
Report to safeguard terminally ill people who refuse medical care for whatever
reason from the legal recourse brought on by Section 309 of the Indian Penal
Code. The study likewise proposed that doctors should be eligible under Section
306 of the IPC (suicide attempt) or Section 299 of the IPC when acting in the
best interests of their patients or making such decisions on their behalf (culpable
homicide).

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EUTHANASIA
This term, which derives from the Greek word "Thanatosis," which means
"great demise," was first used centuries earlier in Ancient Greece. Euthanasia
and its procedure have a long history of locking horns as a vexed issue with the
laws of countries across the world. Every human being of adult years and sound
mind has a right to determine what shall be done with his/her own body. It is
unlawful to administer treatment to an adult who is conscious and of sound
mind, without his consent. In patients with a permanently vegetative state and
no hope of improvement, the distinction between refusing lifesaving medical
treatment( Passive Euthanasia) and giving lethal medication is logical, rational,
and well-established. It is ultimately for the court to decide, on the parent’s part,
as to what is in the best interest of the patient.

An erroneous decision was not terminated results in the maintenance of the

status quo; the possibility of subsequent developments such as advancements in
medical science, the discovery of new evidence regarding the patient’s intent,
changes in the law, or simply the unexpected death of the patient despite the
administration of life-sustaining treatment, as least create the potential that a
wrong decision will evidently be corrected or its impact mitigated. Passive
euthanasia is usually defined as withdrawing medical treatment with the
deliberate intention of causing the patient’s death. For example, if a patient
requires kidney dialysis to survive, not giving dialysis although the machine is
available, is passive euthanasia

Similarly, if a patient is in a coma or on a heart-lung machine, withdrawing of

the machine will ordinarily result in passive euthanasia. Similarly, not giving
lifesaving medicines like antibiotics in certain situations may result in passive
euthanasia. Denying food to a person in a coma or PVS may also amount to
passive euthanasia

Euthanasia is the intentional premature termination of another person’s life

either by direct intervention or by withholding life-prolonging measures and
resources, either in the absence of such approval. Euthanasia and physician-
assisted dying: In euthanasia, physician-assisted suicide is the patient himself
who does it, though on the advice of the doctor. In many countries/ states the
latter is legal while the former is not.

Aruna Ramchandra Shanbaug Vs Union Of India

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Facts of the case

1. The petitioner, in this case, Aruna used to work as a Nurse at King

Edward Memorial Hospital, Parel, Mumbai. On the evening of the 27 th of
November 1973, a sweeper from the same hospital attacked her and he
wrapped her neck with a dog chain and yanked her back with it. The
sweeper also tried to rape her but when he found out that she was
measuring he sodomized her. To prevent her from moving or creating any
chaos, he twisted that chain really hard around her neck.

2. Next day, a cleaner found her body lying on the floor unconscious with
blood all over. It was believed that the supply of oxygen to the brain got
damaged. This incident caused permanent damage to her brain and lead
her into a permanent vegetative state.

3. Later an activist journalist Pinki virgin fields a petition in the supreme

court under Article 32 of the constitution alleging that there is no
possibility for her to revive again and get better. So, she should be
allowed to go with passive euthanasia and it should be solved her pain
and agony.

4. To this petition the respondent parties i.e.. KEM Hospital and Bombay
Municipal Corporation filed a counter-petition. This led to a rise in the
disparities between both groups.

5. During this study doctors investigated her entire medical history and
opined that her brain is not dead. She has her own way of understanding
and reacting to situations. Also, Aruna’s body language did not show any
sign of her willingness to terminate her life. Neither the nursing staff of
the hospital showed any carelessness towards taking care of her. Thus, it
was believed by the doctor that euthanasia in the current matter is not
essential. She stayed in this position for 42 years and died in 2015.
Issues

 Does withdrawal of a life-sustaining system and means for a person who

is in a permanent vegetative, should be permissible?

 If a patient declares previously that he/she does not want to have life-
sustaining measures in case of futile care or a PVS, should his/her wishes
be respected in such a situation?

 Does the family or next of kin of a person get to make a request to

withhold or withdraw the life-sustaining system, in case a person himself
has not placed such a request previously?
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MEDICAL ETHICS

*The supreme court dealt with the aspect of informed consent and the right to
the bodily integrity of the patient as followed by the US after the nancy Cruzan
case Informed consent is the king of his treatment, his chance of recovery, and
all the sides effects of all these alternative courses of treatment.

*If a person is in a position to give completely informed consent and he is still

not asked, the physician can be booked for assault, battery, or even culpable
homicide. The concept of informed consent comes into question only when the
patient is able to understand the consequences of the treatment or has easier
when in sound conditions made a declaration.

* In this case, the consent Aruna could not b obtained, and thus, the question as
to who should decide on her behalf is more prominent. This was decided by
beneficence is acting in the patient’s best interest. Acting in the patient’s best
interest means following a course of action that is best for the patient and is not
influenced by personal convictions, motives, or other considerations. Public
interest and the interest of the state were also considered. The mere legalization
of euthanasia could lead to widespread misuse of the provision and thus, the
court looked at various jurisprudence to evolve with the safeguards.
JUDGEMENT

1. The Hon’ble Division Bench of the Supreme court of India, comprising

Justice Markandey Katju and Justice Gyan Mishra, delivered this historic
judgment on March 7, 2011. The court opined that based on the doctor’s
report and the definition of brain death under the transplantation of
Human Organs Act, of 1994, Aruna was not brain dead. She could
breathe without a support machine, had feelings, and produced necessary
stimuli. Though she is in a PVS, her condition was been stable. So,
terminating her life was unjustified.

2. Further the right to take a decision on her behalf is vested with the
management and staff of KEM Hospital and not Pinki Virani. The
removal of life-saving techniques in the case would have meant not
feeding her. The Indian Law in no way advocated not giving food to
people. Removal of ventilators and discontinuation of food could not be
equated. Allowing euthanasia to Aruna would mean reversing the efforts
taken by the nurses of KEM Hospital over the years.

3. Moreover, in furtherance of the parent’s patriae principle, the court to

prevent any misuse of the vested power to determine the termination of
the life of a person in the High Court. Thus, The Supreme court allowed

13
 passive euthanasia in certain conditions, subject to approval by the High
Court following the due procedure.

4. Simultaneously with appointing the committee of doctors the High court

Bench shall also issue the notice to the state and close relatives e.g..,
parents, spouse, and brothers, of the patient and their absence his/her next
friend and supply a copy of the report of the doctor’s committee to them
as soon as it is available. After hearing them High court Bench should
give its verdict.

5. However, Aruna Shanbaug was denied euthanasia as the court opined that
the matter was not fit for the same. If at any time in the future the staff of
KEM Hospital or the management felt a need for the same, they could
approach the High Court under the procedure prescribed.

6. This case clarified the issues revolving around euthanasia and also laid
down guidelines with regard to massive euthanasia. Alongside, the court
also made a recommendation case as it prescribed the procedure to be
followed in an area that has not been legislated upon.

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