Sunday, September 13, 2015

An Examined Death

(This piece was written more than two weeks ago. There have been some developments recently. Also, I hope to find more time soon to reflect further on the last bit - the choice of death under coercion, duress, emotional arm twisting and mental instability).

Right to kill, but not to die

At the risk of reductionism, I am tempted to engage with an irony – we are now simultaneously a state that awards death to an individual who is very keen on living, and forces life upon an individual keen on dying. We are one of the few civilised states still practicing death penalty (which might change very soon after the Indian Law Commission recently concluded that "The death penalty does not serve the penological goal of deterrence any more than life imprisonment"), and one of the many still shirking the right to die.

We have been negotiating with decriminalisation of attempt to suicide since 2013. In Feb 2015, Ministry of Home Affairs decided to accept the recommendation of the Law Commission of India to delete Section 309 from the IPC, and drafted a proposal. I wonder if it's de facto non-punishable while we wait. We now remain, at least on paper, one of the last few countries in the world, where if you don’t die successfully, you’ll go to jail for attempting. My partner Kani tells me that can make for a good film.

Whose life is it anyway?

The fundamental function of the state is to guarantee sustenance, equality and complete civil liberty, while balancing it with checks to ensure one individual’s liberty does not violate another’s rights. It is to negotiate social contracts, warn against violation, and compensate for a breach. The state builds infrastructure and systems to fulfill its fundamental promises, and protects property, owned individually, commonly or collectively.

So how do we resolve a conflict between the state’s guarantee of the citizen’s well being and a citizen’s demand for self-annihilation? By establishing a simple inviolable boundary – the landscape of the individual. The individual (an informed, soundminded consenting adult) is the sole owner of the self, entirely responsible for the self, and not state property. The state’s duty is limited to protecting the citizen from external threats and vice versa. The state, in its traditional paternity, shall not forget, that it has limited powers and responsibilities in an individual’s choices affecting their own selves.

 “My reckless child”

The state must educate, inform and caution the citizen, but must not mistake pedagogy for paternity.

Case in example, smoking. The state directs cigarette companies to warn consumers, without ambiguity, against the risks smoking poses to their health. The state is even free to carry out educational campaigns enlightening citizens of such risks. Warned against eventual, potential fatality, the individual is still free to smoke. Not everywhere though – the state has to now step in to prevent the individual’s action from harming others, and may do so, by banning smoking in public spaces, even creating smoking booths, where smokers are welcome to injure and pleasure themselves and their compatriots.

Now, when the law fines a citizen for not wearing a seatbelt or a helmet, the only ethical explanation for such punishment is that it’s a deterrent created to lessen the burden of medical infrastructure on the exchequer, caused by the incidence of accident related fatality. (There have been arguments about smokers having to register themselves, which will limit their healthcare rights in the eventuality of developing lung cancer, but such recommendation is bound to conflict with other fundamental rights of the citizen).

Religion, morality, law

I am an atheist and I am assertively irreligious – to the extent that I am convinced that most religious and ancient philosophical systems of the world are well intended, but under-updated and stagnant, often vestigial and flawed, at times inspired, yet misinformed. I am not an advocate of freedom of religious expression, if it violates the fundamental rights of another individual (including those of non-human persons.)

In furtive didacticism, the character of Maitreya in my film Ship of Theseus often mouths my personal beliefs. One such is, “All ethics should be arrived at, in isolation of religious beliefs.” It was important for me that a monk would say this. I wanted to make sure that the central philosophical debate about identity, self and violence doesn’t get embroiled in religious politics, social practice and contemporary law. So, I hypothesized the situation within the framework of a fictitious religion, the basic principles of which were, inspired by the two Śramaṇa traditions – Jaina and Buddha. Similarly, I suggest we step away from religion for a moment, to examine the discourse around Sallekhana.

In times when we have decoded the human genome, plunged deep into the brain, deconstructed every emotion and instinct to its original evolutionary function, we have little need to fall back on ancient institutions for finding moral solutions – we can do that completely using contemporary tools of enlightenment and inquiry. (We might however, in some cases, want to dust over usable parts of intuitions and ideas from ancient wisdom.) In building a case for the right to die, I recommend that we do not let the defense get overpowered by a singular conversation around religious freedom. There is something bigger at stake here.

Bodily integrity and individual sovereignty are inalienable rights of the modern citizen. These rights are even more fundamental than the right to religious expression, and it is primarily these rights that are being challenged by the ban on Sallekhana. We have to accept and establish that the law has no moral right, whatsoever, to legally interfere with lifestyle, sexual, reproductive and death choices of informed, consenting adults, even if they are beyond fathoming of the presumably well-intended representatives of the state.

The right to religious expression follows soon after, and can be rephrased as the right to define and manifest the self, as an extension of the worldview guiding an individual’s life. How the individual sees the self – as a sum total of all the past causes, as an evolving bio-chemical cumulative with an accumulated meaning and free will, as a wave in an ocean, as a meaningful creation of a hyper intelligent entity, as a meaningless accident, as a notion, as a machine hosting a ghost, as a step towards ascension, as transient, as permanent or as an atom carrying the universe – will have to be allowed, however unacceptable it may seem to the rest of us. The individual has the right to construct their own meaning of life, and interpret their life and death in the light of that meaning. This worldview can be negotiated with, argued with, transformed, informed – but cannot be legally regulated. Not for a while, at least.

Rules of infringement – lines in sand

However, it will be puerile to brush the nuance of the dilemma under the carpet. While there is greater unanimity over a terminally ill patient’s right to die, the debate is really within the space of a physically healthy individual’s choice to terminate their life, as it raises questions of mental well being and informed consent.

Is it a stable choice, achieved after due deliberation, and profound consideration of the consequences, or is it an impulsive decision, an avoidable one, a decision made out of mental instability or a falsely perceived absence of choices? Can we establish coercion or emotional arm twisting, conclusively? (Coercion, or just a gently aggressive egging on from the family could be enough for a dependent elderly member of the family to want to die. The possibility of coercion and mental instability form the crux of the argument calling for a legal ban on death practices like Sallekhana and euthanasia). Is it the concerned individual making the choice, or is it a guardian or a caretaker ? These questions will need more inquiry and deliberation.

Meanwhile, as far as informed, sound minded, consenting adults are concerned, it’s high time the state stops criminalising their sexual choices, their aesthetic choices, their media consumption, their personal expression, how they live and how they die. 

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