This article is written by Shraileen Kaur, a student at ICFAI University, Dehradun. In this exhaustive article, the author discusses in detail the judgement in the case of Common Cause v. Union of India (2018); the concept of euthanasia, the petition, issues, and arguments in the case, along with the opinion of the Bench hearing the case. 

It has been published by Rachit Garg.

Introduction  

The right to life and personal liberty is one of the most significant fundamental rights that helps in the exercise of other fundamental rights. It also acts as a facilitator of other fundamental rights. It particularly includes their right not to be killed by another person. But the question is whether a person’s right to life includes the right to die.

This question was answered in the case of Common Cause v. Union of India (2018). In this case, the petition was filed by a registered society named Common Cause. 

The society demanded that the ambit of Article 21 of the Constitution of India be extended to include the right to die with dignity as a component of the right to live with dignity. It also requested guidelines for the State to create suitable policies that would allow people with declining health or terminal illnesses to execute living wills or advance medical directives.

The Supreme Court of India, after carefully examining Indian and international laws and precedents, notably the ruling in K.S. Puttaswamy and Anr. v. Union of India and others (2017), determined that the right to die with dignity is a fundamental right under Article 21 of the Indian Constitution. Additionally, the Court approved the application of advanced medical directives, emphasising that through this process, it can be ensured that the individual had a dignified death as his or her individual autonomy is protected. 

The Court went into great length about the evolution of the right to privacy, pointing out that it is necessary for maintaining human dignity, without which freedom cannot be realised. The right to privacy was also seen as being essential to maintaining one’s physical integrity, freedom of choice, and individuality. Additionally, the decision of a court in the United States of America in Re Quinlan (1976) was taken into consideration by the Supreme Court of India in evaluating government interest and privacy protection. The case showed that as physical integrity was increasingly damaged and possibilities of recovery decreased, the right to privacy expanded and state interest diminished.

The Supreme Court of India further observed that along with violating the principle of informed consent, it also violates the patient’s right to individual autonomy and integrity, which the Apex Court has recognised as a component of their right to privacy. Treatment should never be continued against the patient’s desires. 

This article analyses the judgement of the Apex Court in the case of Common Cause v. Union of India (2018) along with its background, associated concepts and precedents. 

Concept of euthanasia

Before analysing the case of Common Cause v. Union of India (2018), it is essential to understand the concept of euthanasia. 

The term “euthanasia” is derived from two greek words “eu”, which means “good” and “Thanatos”, which means death. Euthanasia is the practice of ending a patient’s life in order to relieve their suffering. Normally, the patient in concern would have a serious illness or be in excruciating pain.

Euthanasia would allow the individual to have a comparatively ‘good death,’ as opposed to sentencing them to a slow, excruciating, or indignified demise.

There are different types of euthanasia, namely – 

Active and passive euthanasia

Active euthanasia refers to the act of killing an individual by employing any active means of death. Some of the instances of active euthanasia involve injecting an individual with a fatal drug dose, leading to death. Due to the means employed under active euthanasia, it is sometimes also referred to as “aggressive euthanasia.” 

Passive euthanasia refers to a process where an individual is intentionally obstructed from living life. Whenever any artificial life support is withdrawn, such as a ventilator or feeding tube, leading to the death of an individual, it comes under the ambit of passive euthanasia. 

Voluntary euthanasia and involuntary euthanasia

Voluntary euthanasia refers to ending the life of the individual in question with their consent. On the other hand, involuntary euthanasia refers to ending the life of the individual in question without his or her consent. Cases of involuntary euthanasia are quite popular among nations with low per capita income. When they cannot afford to pay for the treatment of their relatives, they opt for involuntary euthanasia to avoid hefty payments. 

Euthanasia on the basis of administration

On the basis of administration, euthanasia can be divided into two different types, namely – self-administered euthanasia and euthanasia administered by others. 

In self-administered euthanasia, the individual in pain himself or herself administers the means of ending his or her life. On the other hand, in euthanasia administered by others, an individual other than the patient is appointed to administer the means of ending the life of the sufferer. 

Assisted euthanasia

Assisted euthanasia refers to ending the life of an individual with the assistance of a medical professional. 

The aforementioned methods of euthanasia can be combined in a wide variety of ways, and many of them are morally debatable. Various nations permit some forms of assisted suicide, such as voluntary or passive forms of euthanasia.

• Mercy killing 

The phrase “mercy killing” typically refers to an active, involuntary or non-voluntary form of euthanasia that is delivered by a third party. To put it another way, someone intentionally ends the life of a patient to put an end to the misery of the individual suffering.

• Physician-assisted suicide

“Physician-assisted suicide” refers to active, voluntarily performed assisted suicide in which a doctor supports the patient in ending his or her life. The patient is given the means necessary to commit suicide by the doctor, such as ample medication.

In addition to being acrimonious, the euthanasia debate also raises a number of legal, psychological, sociological, and economic issues. Since the dawn of time, it has been a problem for humanity and has taken centre stage at the nexus of bioethics and jurisprudence.

While euthanasia supporters cite the freedom of self-determination and the absurdity of extending a life devoid of purpose and dignity, opponents contend that palliative care should take priority and that legalisation of euthanasia would violate the idea of the sanctity of life.

Therefore, the majority of countries have made an effort to strike a balance between these different perspectives and have only allowed passive euthanasia, or the removal of life support, with sufficient safeguards for people who are critically ill or in a persistent vegetative condition. Many nations, including the United Kingdom of Britain, Colombia, Canada, Luxembourg, the Netherlands, Switzerland, Belgium, and Singapore, also permit the implementation of advance directives with the necessary protections.

Common Cause v. Union of India (2018)

Parties to the case 

In the case of Common Cause v. Union of India (2018), the parties involved are mentioned below – 

Parties to the petition	Name of the Parties
Petitioner	Common Cause – Non Profit Organisation based in Delhi
Advocate(s) representing petitioner	Prashant Bhushan
Respondent	Ministry of Health and Family Welfare
Advocate(s) representing respondent	Saurabh Shyam Shamshery, K. V. Jagadeeswaran, Pamidighantam Sri Narasimha
Intervenor	Jai Kishan Agarwal; Delhi Medical Council; Society for the Right to Die with Dignity; Dr. Surendra Dhelia; Indian Society of Critical Care Medicine; Vidhi Centre for Legal Policy
Advocate(s) representing intervenor	R. R. Kishore, Preveen Khattar, Sanjay Hegde, and Arvind Datar.

Petition as filed by Common Cause

To draw attention to the suffering of people with terminal illnesses whose natural lifespan is being unnaturally stretched by unwelcome medical treatments, Common Cause, a non-governmental organisation, filed a writ petition in the Supreme Court in the public interest.

The Apex Court has already acknowledged that the right to life includes the right to live with dignity. Additionally, the Court has ruled that while the right to life does not encompass the right to death, it does include the right to dignity up until the end of one’s normal lifespan.

This petition makes the case that it is inhumane to artificially extend life without taking the patient’s wishes into consideration. Victims in this condition are unconscious; therefore, the choice to prolong their suffering is chosen on their behalf by medical professionals or by the patient’s families.

Through this appeal, the Court is urged to legalise passive euthanasia. It declares that it is not attempting to legalise active euthanasia, which entails taking steps like administering lethal medications to end a person’s natural life. When a patient’s natural life is approaching its end, passive euthanasia, on the other hand, signifies that nothing will be done to artificially extend it.

The petition states explicitly that it wants patients to have the option of passive euthanasia. It advises putting policies in place for living wills, which patients can sign if they want to specify what medical operations can and cannot be done on them if they get to the point where they are unable to express their preferences.

Prayer by the petitioners

The petitioners had requested the Court to appoint an expert committee of professionals to examine living wills and passive euthanasia, including physicians, social scientists, and attorneys.

In their petition, the petitioners ask the Court to establish rules for the execution of living wills as well as passive euthanasia.

Grounds on which petition is sought

The petitioners argued that extending the natural life of an individual by medication and increasing suffering violates numerous fundamental rights. Some of these fundamental rights are stated below – 

• Right to privacy

Numerous international conventions and treaties recognise privacy as a fundamental human right. It serves as one of the basic pillars of a democracy and is crucial for the preservation of human dignity. The right to privacy comes under the ambit of Article 21. This Article concerning the right to life and personal liberty has a wide scope and encompasses all aspects of a person’s existence that make it more meaningful.

Article 12 of the Universal Declaration of Human Rights Act, 1948, reads in part, “No one shall be subjected to arbitrary interference with his privacy, family, home, or communications, nor to attack against his honour and reputation,” thus recognising the right to privacy as a fundamental human right.

In India, the Supreme Court proclaimed the right to privacy to be a fundamental right in the K. S. Puttaswamy v. Union of India case in 2017.

The petitioners contend that the right to privacy includes the freedom to decide on sensitive and private issues like undergoing medical procedures to extend one’s natural life. This means that individuals must be given the freedom to choose whether they want to continue their medicated life or end their sufferings.

• Right to die with dignity

It is widely accepted that the right to life guaranteed by Article 21 extends beyond simple survival. In the Gian Kaur v. the State of Punjab, (1996) ruling, the right to die with dignity was established as a fundamental right, and the Constitutional Court’s five-judge panel, which included the then Chief Justice of India Dipak Misra, Arjan Kumar Sikri, Ajay Manikrao Khanwilkar, Dr. Dhananjaya Yeshwant Chandrachud, and Ashok Bhushan, decided that both voluntary and involuntary “passive euthanasia” are acceptable. The Court declared:

“The right to live with dignity also incorporates the facilitation of the dying process for those who are terminally ill or who are in a passive vegetative state and have no chance of recovery. The right to a dignified death and to a smooth end to life may not be supported if advance medical directives are not legally recognised.”

According to the petitioners, a person’s right to dignity lasts till the end of their natural life. A life which is unnecessarily stretched with the help of life support or other medical equipment without their approval does not accord them dignity when their natural life has begun to wane due to old age or a fatal illness. Considering the precedents of the Apex Court, the right to life does not include the right to death. The petitioners contend that even while the right to death is not part of the right to life, it must be a part of the right to a life with dignity.

• Right to freely practice one’s profession

The petitioners also make a reasonable argument that doctors are obligated to continue treating patients even when they are aware that doing so will only cause them pain. Their right to freely practise their profession is being violated by this. 

Additionally, they point out that when scarce medical resources are used to extend the natural lives of individuals who are unable to recover, others who could benefit from the same resources are excluded. This is a violation of their right to life under Article 21.

• Right to liberty

Article 21 imposes on the state the duty to preserve life and liberty in addition to upholding the individual’s right to life and liberty. The petitioners contend that in order for the State to uphold its duty to safeguard life, it cannot compel anyone to receive medical care against their will. This is because everyone has the right to live life with liberty. They contend that if a person merely remains physically alive but is mentally or emotionally incapacitated, they should have the option to decline life-extending medical procedures. The right to liberty under Article 21 is violated when this option is denied. 

Background

The question of whether the freedom to die is a fundamental right guaranteed under Article 21 was first put before the Supreme Court in P. Rathinam v. Union of India (1994). In this case, Section 309 of the Indian Penal Code, 1860, i.e., attempting to commit suicide, was challenged on the ground of being against fundamental rights. Invoking the ruling in Maruti Shripati Dubal v. the State of Maharashtra (1987), the Court determined that Section 309 of the Indian Penal Code was unconstitutional because fundamental rights can have both constructive as well as detrimental aspects. It stated that the right to life would also include the right to die. Later, in Gian Kaur v. the State of Punjab, a constitutional issue regarding Section 306 of the Indian Penal Code, 1860, which deals with abetment to suicide, was brought up before the Apex Court.

Here it was contended, quoting P Rathinam v. Union of India, that aiding in the suicide of another person could not be punished because the aiding party was only assisting in the execution of a basic right. The Court overturned its decision in P. Rathinam and stated that because all basic rights differ from one another, a single test should not be adapted to them all. Since there is a negative component to the safeguards under Article 19, Article 21 cannot be interpreted in a comparable way. Furthermore, suicide cannot be recognised as an element of Article 21 even if it is construed in this way because it always incorporates an overt act on the part of the suicide victim.

Therefore, an unnatural death could not be considered a part of the right to life.

The Court made a distinction between the “right to die” and the “right to die with dignity” by citing the House of Lords ruling in Airedale National Health Service Trust v. Anthony Bland (1992). A person’s natural death process has already started when they are in a permanent vegetative state or are terminally ill, and without life support, death is unavoidable.

The Court addressed the question of allowing euthanasia for the first time in the case of Aruna Ramchandra Shanbaug v. Union of India (2011). 

When Aruna Shanbaug was viciously raped and suffered injuries that rendered her in a permanently vegetative state, she was working as a nurse at King Edward Memorial Hospital in Mumbai. For a very long time, she received nursing care from the hospital staff, but her condition did not get any better. Aruna Shanbaug’s euthanasia request was made on her behalf by social activist Pinki Virani. However, it was determined that she lacked the legal authority to make the request because she could not be granted the status of a close friend.

However, the two-judge Bench went ahead and made a decision, citing Airedale once more as well as other international legal precedents, and concluded that, under certain conditions, passive euthanasia might be permitted for patients who are terminally ill or in a persistent vegetative state. Recognising the patient’s autonomy, the Court decided that if the individual is aware and competent to provide approval, their opinion must be considered; otherwise, at the very least, a close friend’s view is required, and they should make the same decision as the individual would have if he or she was in a conscious state. After that, the case would be brought before the High Court, where a division bench would need to assemble a group of three qualified doctors to examine the patient in question.

Additionally, it was opined that these rules should be followed until Parliament passes any legislation relating to the matter.

Facts of the case

In this case, the writ petition sought a decision that, in accordance with Article 21, the ‘right to live with dignity’ included the ‘right to die with dignity’ as well as a guarantee that those in a vegetative state or who are terminally ill might sign a living will or an Advance Medical Directive.

Although this issue was initially brought before a three-judge Bench, where it was transferred to a Constitution Bench because of conflicting precedents about the law governing the right to die in India.

The issue, as stated in the petition, first came to light in the year 1994 when the decision in P. Rathinam v. the Union of India was announced. Considering the facts and circumstances, the decision in this case was announced by a division Bench of the Apex Court, which stated that – 

“Criminalisation of attempt to commit suicide under Section 309 of the Indian Penal Code, 1860 stands unconstitutional as the section is violating the provisions mentioned under Article 14 (Equality before law and equal protection of law) and Article 21 (Protection of life and personal liberty) of the Constitution of India.”

The Court further stated that the right to life also includes the right to die. However, this decision was overruled in the case of Gian Kaur v. the State of Punjab (1996). In this case, the five-judge Bench of the Apex Court narrowed the scope of Article 21 by declaring that the right to life under Article 21 of the Constitution of India does not include the right to die under its ambit. 

Ultimately, the Supreme Court allowed passive euthanasia in the year 2011 in the case of Aruna Ramachandra Shanbaug v. Union of India and Others. In this case, the Court allowed passive euthanasia to the rape victim, who had been in a vegetative state for the past 42 years. The Court held that – 

“Under certain exceptional circumstances, passive euthanasia can be allowed to put the sufferings of the patients to the end.”

Also, the Apex Court laid down specific guidelines to be followed strictly when deciding on the question of giving passive euthanasia to the patient. 

Issues in the case

A total of 5 issues were framed in the case of Common Cause v. Union of India. These issues are as follows – 

1. Whether passive euthanasia and active euthanasia are different from each other? 
2. Whether the right to die in dignity falls under the umbrella of the right to live with dignity protected by Article 21 of the Constitution?
3. Whether in India, individuals are allowed to include passive euthanasia in their living will?
4. Whether there exists any recommendation by the Law Commission of India concerning the use of euthanasia as a means to end the sufferings of patients?
5. Whether there exists any right provided to the individual for stopping the medical treatment of the person or for removing the life-supporting equipment from the individual leading to death?

Arguments as presented by the parties

During the hearing of the case, the arguments were presented by all three parties. Here are the arguments presented by different parties – 

Arguments as presented by the petitioner

The petitioner made the contention that the idea of preserving individual autonomy was embedded in the right to privacy and that it also played an important part in the definition of liberty. The argument made in support of this perspective was that using advanced medical techniques to keep a patient alive in a persistent vegetative state prolonged their pain and suffering and allowed for an infringement on their autonomy and dignity. The petitioner additionally asserted that the right to live and die with dignity were interlinked. 

Moreover, it argued that a person could not be compelled to accept medical treatment against their will and that it was their right under common law to decline any undesired medical treatment.

Arguments as presented by the respondent

The respondent, i.e., the Ministry of Health and Family Affairs, submitted a counter affidavit in the Court and stated that the ministry found it highly unfavourable to regulate euthanasia as the need for euthanasia entirely depends on a case-to-case basis where uniform laws or regulations cannot be made. It was further argued by the respondent that under Article 21 of the Constitution of India, the right to live with dignity is included, but the right only includes the proper availability of food, shelter, and means for treatment for any health ailment. Hence, they asserted that the right to die with dignity does not form a component of the right to live with dignity. 

Arguments as presented by the intervenor

In this case, Society for the Right to Die with Dignity, a society registered in Mumbai since 1981 by one of the social activists, Minoo Masani, filed an application as an intervenor. The Supreme Court accepted the intervention of society. The intervenor submitted the affidavit in support of euthanasia. It was stated in the affidavit that there is a need to have a mechanism which can ensure a calm departure of an individual from life, leading to less pain and suffering. It further stated that freedom of choice also includes the freedom to choose whether to live or not to live. This freedom entitles the person to choose death rather than being in a state of irrecoverable ailment. Moreover, the intervenor also advocated the living will concept and attached a sample of a living will with the affidavit filed in the court.

Opinion of the judges

In this case, the Supreme Court delivered its judgement on 8 March 2018. The judgement by the Apex Court included two opinions of the judges, namely – 

• Majority opinion 
• Concurring opinion

The majority opinion was provided by the then Chief Justice of India – Justice Dipak Misra. The majority opinion was also cited on behalf of Supreme Court Judge Ajay Manikrao Khanwilkar. 

On the other hand, a concurring opinion was provided by Justice Dhananjaya Yeshwant Chandrachud. 

The majority opinion of the judges

The then Chief Justice of India, Dipak Misra, authored the majority opinion. He focused on one of the issues of the case, which stated – Whether there exists any right provided to the individual for stopping the medical treatment of the person or for removing the life-supporting equipment from the individual leading to death.

Justice Misra opined that this question has diverse aspects dealing with legal issues, questions on ethics, morality and societal norms. There is also a huge potential for abuse of such rights. 

Citing the precedents, Justice Dipak Misra writes that –

Initially, in the case of P. Rathinam v. Union of India (1994), the issue of whether the right to life guaranteed by Article 21 also includes the right to die was raised. When the constitutional validity of Section 309 of the Indian Penal Code, 1860, was challenged, the case was handled by the Apex Court by drawing a parallel among different fundamental rights. Moreover, according to Article 19, the right to free expression includes both the ability to speak and the ability to remain silent. Similarly, the right to not live is also a part of the right to live under Article 21 of the Indian Constitution. As a result, Section 309 of the Indian Penal Code, 1860, was declared unconstitutional.

However, just a year after the judgement of P. Rathinam v. the Union of India (1994) was announced, it was challenged in the case of Gian Kaur v. State of Punjab (1996). 

The argument was that someone who aids suicide is only helping to uphold Article 21 of the Indian Constitution. P. Rathinam was overturned by the five-judge panel. It was determined that P. Rathinam made the wrong verdict by relying on the analogy that certain other fundamental rights include the ‘right not to,’ as the right not to speak is a covert act. It is not a blatant act like taking one’s own life. The Court made clear that it would not be considering the issue of euthanasia while quoting from Airedale National Health Service Trust v. Bland (1992) multiple times and made a distinction between the right to die, which is unnatural, and the right to die with dignity, which is natural. Also, it was upheld that Sections 306 and 309 of the Indian Penal Code, 1860 are constitutional.

Despite this commendable judgement, the issue concerning the legality of euthanasia did not come to an end. In the year 2011, the issue regarding the legality of euthanasia was raised in the case of Aruna Ramachandra Shanbaug v. Union of India and others (2011).

The Court concluded that Gian Kaur permitted the early death of a person who was suffering from a terminal disease or was in a lifelong vegetative condition. Withholding treatments with the purpose of swiftly bringing about the patient’s death was described by the Court as “passive euthanasia.” It was decided that passive euthanasia was acceptable provided doctors removed the patient’s life support in accordance with informed medical advice. 

The Court becomes the ultimate decision-maker of what is best for the patient when the Parens Patriae principle is invoked (Parens Patriae is the Latin phrase for ‘parent of the nation’. The principle states that the Court has the authority to intervene and act as a guardian). Article 226 gave the High Courts the power to exercise this authority. Moreover, the Court stated in the case of Gian Kaur v. the State of Punjab (1996) that euthanasia could be made legitimate only by the introduction of the concerned legislation. 

Analysis of the precedents by majority opinion holders

First, contrary to what was held in the case of Aruna Shanbaug, Chief Justice Misra claims that Gian Kaur’s judgement merely made reference to a portion of Airedale and that Gian Kaur’s reasoning did not include the Airedale case. Second, Gian Kaur’s decision did not condemn the idea of euthanasia. In fact, it suggested that it might fall under the category of the right to a dignified life. It also made a distinction between intentionally taking one’s own life and taking one’s own life by refusing medical care. Second, Gian Kaur’s judgement did not suggest that euthanasia could be legalised; Aruna Shanbaug’s bench misunderstood Gian Kaur’s judgment.

After that, Chief Justice Misra talks about the current situation. To start, he defines euthanasia.

Generally, there are two types: passive euthanasia – when there is no overt act of administering medications or substances that will end one’s life and active euthanasia – where there is an overt act done to end the life of the individual. The case of Aruna Shanbaug permitted passive euthanasia. However, she set restrictions and prerequisites. There is a ban on active euthanasia. Euthanasia may also be non-voluntary or voluntary, depending on the decision-making capacity of the patient. There is also “physician-assisted euthanasia,” which is largely based on the doctor’s recommendations. 

The British Columbia (Attorney General) v. Rodriguez (1993) and Vacco v. Quill (1997) decisions said that the intention and cause of death are what separate active from passive euthanasia. Chief Justice Misra supported this rationale.

The majority view on the right to deny treatment or medication

Expressing the view of the majority Justice Dipak Misra acknowledges the right of individuals (above the age of 18 years) to make their own choices. Individuals even have the freedom to choose whether to opt for medical treatment or not. He stated that an individual’s freedom to make choices and their self-determination constitute the fundamentals of life. Therefore, the choice to forgo medical care belongs to every adult who is of sound mind. Besides this, the decision may be void if the individual was not legally qualified to make a decision if it was made under pressure, if the terms were unclear or confusing, or if it was based on false information.

In contrast to euthanasia, physician-assisted suicide, and suicide, Chief Justice Misra places the right to make choices on a higher pedestal. He makes it clear that refusing medical assistance is neither euthanasia nor suicide, as they are both self-initiated positive actions taken with the express purpose of causing one’s own death. The majority opinion also referred to the principle of necessity. This principle refers to the cases of emergency when taking consent of the patient is not possible. In these situations, the doctor is required to act in the best interest of the patient. Given the inability to interact with the patient, such a measure would be essential. It would have to be one that a prudent person would adopt in the patient’s best interests.

The opinion of the majority was supplemented by the following cases – 

1. Schloendorff v. Society of New York Hospital (1914) – New York Court of Appeal
2. F v. R (1983) – Supreme Court of South Australia
3. Rogers v. Whitaker (1993) – Supreme Court of New South Wales
4. Malette v. Shulman (1990) – Supreme Court of Ontario
5. Secretary, Department of Health and Community Services (NT) v. JWB and SMB; famously known as Marion’s case (1992) – High Court of Australia

The majority view on the concept of passive euthanasia and Article 21 of the Constitution of India

Expressing the majority view on passive euthanasia and Article 21, it was stated that – 

“It is critical that the Court come to the conclusion that Article 21 permits passive euthanasia so that it can establish the rules for its regulation. The authority to establish the rules is known as ‘Judicial Legislation,’ which is the applicability of legislation to new or unexpected demands and circumstances.”

Chief Justice Dipak Misra stated that the application of fundamental rights must be flexible, as stated in numerous judgements. K.S. Puttaswamy v. Union of India (2017) clarified that Article 21 includes the concept of individual dignity. According to Chief Justice Misra, it ‘corrodes the essence of dignity’ to let a sufferer wait for death while not knowing whether or not they are still alive. Death does not indicate the disappearance of dignity because dignity does not require any connection to a person’s condition. Thus, under Article 21, a terminally sick individual or one who is in a permanent vegetative condition might choose to have his life end prematurely. This is a fundamental human right. Hence, there is no need for legislation on this subject. Also, it is specifically stated that Article 21 permits only passive euthanasia. 

The majority of opinion holders referred to the following cases while giving judgement on Article 21 and passive euthanasia – 

1. Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and Others (1982) – High Court of Bombay
2. Maneka Gandhi v. Union of India (1978) – Supreme Court of India
3. Central Inland Water Transport Corporation Limited and another v. Brojo Nath Ganguly and another (1986) – Supreme Court of India
4. M. Nagaraj and others v. Union of India and others (2007) – Supreme Court of India
5. V.C. Rangadurai v. D. Gopalan and others (1978) – Supreme Court of India
6. K.S. Puttaswamy v. Union of India (2017) – Supreme Court of India

The majority view the autonomy of an individual and the right to self-determination

A person’s ability to practice self-determination as well as autonomy involves whether or not they are willing to conform to clinical procedures and therapies.

Aruna Shanbaug’s case highlighted that one has the option of choosing the method of treatment only if they have a sense of self-determination. If a patient lacks the mental capacity to make decisions, their preferences, as expressed in a living will or by agents acting on their behalf, should, be honoured. These preferences would be known as “substituted judgements.” The caregiver must act in the patient’s best interest and cannot let personal beliefs, motivations, or other factors persuade their decisions.

According to Chief Justice Misra, if a doctor is satisfied that a patient’s condition is fatal, they are obligated to follow their patient’s wishes. The patient’s best interests cannot be served by any other factor.

The majority view on the issues concerning medical ethics, societal morality code of conduct, and state interest

In order to resolve the issues of medical ethics, social morality, societal code of conduct, and state interest, Chief Justice Misra makes it clear that stopping medication in an irreparable condition is distinct from discontinuing patient care altogether. He continues by asserting that such concerns and pity are out of place once passive euthanasia is acknowledged by the law as defending the right to die in dignity.

The majority view on the inclusion of an advance medical care directive

The phrase “Advance Medical Directives” describes a person’s medical choices and names the people who will make those choices if the person is unable to express his preferences to a physician. Instead of using the word “living will,” Chief Justice Misra offered recommendations for “Advance Medical Directives.”

Only an individual who is above 18 years of age, of sound mind, able to speak, and capable of understanding the aim and implications of advanced medical directives may carry out one such directive. It must be carried out voluntarily and free from coercion, undue influence, or constraint. It must be in writing and explicitly state how and when medical care may be stopped or discontinued. It should state that the executor of the advance medical directive is always free to withdraw the instructions.

It should include the name of the caregiver or immediate family member who will be permitted to consent to, decline, or discontinue medical treatment in accordance with the advanced medical directive. The most recently signed advanced medical directive will be taken into account if there are multiple valid advanced medical directives.

The Judicial Magistrate of First Class, who has jurisdiction over the matter, must verify that the executor signed the advance medical directive willingly and without being coerced and in the presence of two attesting witnesses. A preliminary opinion must be provided by a medical board that has been established by the hospital and is composed of at least three medical practitioners with a minimum of 20 years of expertise in the health area. After visiting the patient, the Board will determine whether to recognise the advanced medical directive or not.

A second medical board that has been established by the District Collector will review the hospital medical board’s certification. Following that, the Judicial Magistrate of First Class must be informed of the Board’s decision before visiting the individual to authorise his decision.

The individual, his family or close relatives, his doctor, or the medical staff may file a writ to the High Court under Article 226 of the Medical Board that refuses to allow the advance medical directive to be performed. The decision to approve or reject the advance medical directive will then be made by a division bench appointed by the Chief Justice of the concerned High Court.

The advance medical directive may be terminated or modified by written notice at any time. The doctors must be convinced beyond reasonable doubt that the executor of the advance medical directive is chronically ill, is receiving extensive treatment, is on life support, and that the condition is irreversible. This should be done before the doctors give consideration to the directives in the declaration. In situations where advance medical directives are not present, the process differs solely in the first phase, which is the execution of the advance medical directive. These directives will be in effect until a law is passed by Parliament.

Concurring opinion as cited by Justice Dhananjaya Yeshwant Chandrachud

Expressing the concurring opinion, Justice DY Chandrachud states that – 

“The right to privacy is an element of human dignity. The sanctity of privacy lies in its functional relationship with dignity. Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion. Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life. In doing so, privacy recognizes that living a life of dignity is essential for a human being to fulfil the liberties and freedoms which are the cornerstone of the Constitution.”

Justice DY Chandrachud states that the Court cannot limit itself by considering euthanasia “only at the individual level”; rather, the Court should focus on other levels of the social organisation, such as socio-cultural, institutional, and administrative levels.

Considering the facts and circumstances of the cases, Justice Chandrachud framed four main issues. These issues are as follows –

• Considering medical ethics, is the medical practitioner obligated to follow the choice made by the patient concerning his or her medical treatment? 
• Whether the person who is incapable of expressing his or her wish should be permitted by law to refuse to continue or withhold his or her medical treatment? 
• Does the Constitution of India provide any right to make a choice regarding medical treatment? If yes, does the Constitution also provide the individual with the authority to decide the future course of action?
• Whether the person in question should be permitted to refuse to continue or withhold his or her medical treatment? 

Analysis of precedents by Justice DY Chandrachud

In his concurring opinion, Justice Chandrachud analysed two landmark judgements of the Apex Court, namely – Gian Kaur v. the State of Punjab (1996) and Aruna Ramachandra Shanbaug v. Union of India and others (2011).

Analysis of Gian Kaur v. State of Punjab (1996)

According to Justice Chandrachud’s findings, Gian Kaur’s judgement disagreed with the interpretation done in the case of P. Rathinam v. Union of India (1994). According to this ruling, Article 21 defines life as a life with dignity, and it is incompatible with the continuation of life for any reason, including attempting or aiding suicide. A person’s right to life does not include a person’s right to die. Conversely, it did not make a clear decision on whether or not to permit euthanasia.

Justice Chandrachud continued by stating that given recent domestic and international trends that led to the decriminalisation of suicide, Gian Kaur’s ruling that the right to live does not encompass the right to die in the context of suicide may need to be reconsidered in the future.

According to the Mental Healthcare Act of 2017, someone who attempts to commit suicide is presumably under a considerable amount of stress and cannot be prosecuted and penalised under the Indian Penal Code, 1860. He further claims that the right to live and the right to die can be seen as two faces of a single coin.

Analysis of Aruna Ramachandra Shanbaug v. Union of India and others (2011)

In order to prevent abuse, the Aruna Shanbaug case permitted passive euthanasia in specific circumstances with the High Court’s authorisation. Passive euthanasia is the denial of medical care required to maintain life. It is an omission, whereas active euthanasia is the act of administering a fatal drug or effort to end an individual’s life. However, the perception in Aruna Shanbaug’s case that Gian Kaur’s judgement approved the Airedale judgement is inaccurate.

The excerpt from the Airedale judgement that was highlighted in the Gian Kaur case is actually about the need for laws that would permit active euthanasia, not the other way around.

Aruna Shanbaug’s decision received criticism from Justice Chandrachud as well about the issue of decision-making authority concerning the continuation of medical treatment of the individual. By considering the opinions of Aruna Shanbaug’s caregivers, medical staff, and legal experts, the Court rejected her right to individual autonomy and self-determination in death. Aruna Shanbaug’s interpretation of Gian Kaur’s verdict on euthanasia is similarly inconsistent. On the one hand, Aruna Shanbaug claims that ‘no final opinion was conveyed’ in Gian Kaur. On the other hand, Gian Kaur’s lack of a definite opinion on the subject was thus interpreted as sanctioning it. According to Justice Chandrachud, both paths of reasoning cannot coexist.

Additionally, Justice Chandrachud is devastated by the Court’s comparison of Aruna Shanbaug’s case to the proceedings of Nazi war offenders.

The distinction between different types of euthanasia made by Justice DY Chandrachud

In his analysis of the distinction between different types of euthanasia, Justice Chandrachud states: 

• As the name suggests, involuntary euthanasia is the taking of life against the wishes of the individual being killed. It is against the law and is nothing less than murder.
• Non-voluntary euthanasia is the act of ending an individual’s life without permission or disagreement from the person being murdered.
• Voluntary euthanasia is the act of ending a person’s life at the desire of the individual being killed.
• Active euthanasia is the act of actively accelerating death.
• Passive euthanasia does nothing to preserve life.

Justice Chandrachud offers a number of remarks about how law and bioethics interact. Moreover, passive euthanasia is a problem if withdrawing or withholding medical treatment could cause suffering and, ultimately, a torturous and protracted death. The goal of euthanasia, which is to end the pain, will be defeated in this situation. For example, Aruna Shanbaug would have died from suffocation if her medical care had been stopped. 

Is this the most dignified death that could ever occur? To relieve one’s pain, passive euthanasia is not a streamlined solution. Additionally, Justice Chandrachud cautions against prioritising medical professionals’ advice while performing a euthanasia procedure. This neglects individual autonomy as well as the misery of the sufferer.

Concurring views on the issue of the quality and sanctity of life

The right to life is safeguarded by the Constitution as a universal human right. Even in times of necessity, this right is sacrosanct. It acknowledges the value of life as its invincible component. Although the principle of sanctity of life forbids the intentional taking of life, this does not imply that life must always be preserved for as long as humanly possible. The idea of “quality of life” can be used to support the right to die. According to the Constitution, safeguarding the sanctity of life is intimately connected to upholding human dignity, which is jeopardised by physical impairment, illness, and suffering.

According to Justice Chandrachud, Article 21 protects human dignity in death and makes it actionable against the State.

Concurring views on the potential repercussions for medical practitioners

Justice Chandrachud came to the conclusion that a medical practitioner’s recommendation to suspend or withhold medical assistance for a critically ill person is not made with the intention of causing death. He came to this conclusion after considering the different potentially unbearable circumstances that an individual would have to face if there was no reasonable cure and the agonising and ineffective procedures that an individual would have to undergo. As a result, the action does not qualify as culpable homicide or murder.

Concurring view on Advance Medical Directives

Advance directives come in two different forms: a living will, which expresses a person’s opinions and preferences regarding medical care; and a lasting power of attorney for medical care delivery, which designates a third party to make healthcare choices on behalf of the person in the event of his or her incapacitation.

Judgement in the case of Common Cause v. Union of India (2018)

The Supreme Court’s Constitution Bench had already ruled in the Gian Kaur case that the right to a dignified death was a constitutionally guaranteed right. Additionally, the Court made it clear that the Gian Kaur ruling did not convey the idea of passive euthanasia. Furthermore, the Court highlighted the difference between different types of euthanasia, primarily active and passive euthanasia. It is stated that where active euthanasia necessitates an overt action to terminate the life of the individual, while passive euthanasia involves the act of removing life support to end the suffering of the individual. It concluded that the Court’s decision in Aruna Shanbaug to rule that passive euthanasia could only be legalised through legislation was incorrect.

Concerning living wills, the Court determined that there was clear evidence of the adoption of the idea of advance medical directives in India.

The Court went on to say that the ability to carry out an Advance Medical Directive was a move towards safeguarding the rights to individual autonomy and self-determination. A standpoint which showcases the best interests of the patient may be used in cases when patients are unable to make an educated choice, permitting a caretaker to intervene and decide the alternative on their behalf.

This case went into great detail about the relationship between autonomy and liberty and the right to privacy, as it was outlined in the case of Justice K.S. Puttaswamy v. Union of India. In this case, the Court cited passages from various judgements. The Court even explored the relationship between privacy rights and their consequences for euthanasia. In addition to Indian cases, the Court also referred to international court rulings.

The Court cited the decision in Re Quinlan (1976), in which the New Jersey Supreme Court determined that as the person’s condition deteriorates, the interest of the state changes substantially and the person’s right to privacy with regard to their personal integrity grows greater. A guardian, including family members, spouses, or children, might do this on behalf of the patient if they are unable to exercise their rights to privacy independently. 

The ruling rendered by the European Court of Human Rights (ECHR) in the case of Pretty v. the United Kingdom (2002) was also cited in this judgement. In this matter, the European Court of Human Rights came to the conclusion that a person had the option to prevent what they perceived to be an unpleasant and traumatic end to his or her life.

In addition, the Court ruled that such a decision would be protected by the right to respect for private life as outlined in Article 8(1) of the European Convention on Human Rights.

The Court stated that the right to privacy mandated preserving the moral fortitude of decisions made by the individual in the private sphere of choices pertaining to death. The Court held that the safeguarding of these fundamental rights was an extension of the right to privacy as they were connected to the fundamental rights to life and personal liberty guaranteed by the Constitution under Article 21.

Landmark judgements referred to by the Supreme Court in Common Cause v. Union of India (2018)

P. Rathinam v. Union of India (1994)

In this case, Section 309 of the Indian Penal Code, 1860, was challenged on the ground of being in violation of Article 21 of the Constitution of India. Concerning the then prevalent situation, the court bench led by Justice Banwari Lal Hansaria held that Section 309 of the Indian Penal Code, 1860 was in violation of Article 21 and hence was declared unconstitutional. Also, the Court decriminalised assisted suicide. 

Gian Kaur v. State of Punjab (1996)

In this case, the decision in the case of P. Rathinam v. Union of India (1994) was challenged before the Supreme Court. The five-judge Bench led by Justice Jagdish Sharan Verma held that the decision in the previous case was wrong. The Court upheld the constitutionality of Section 309 of the Indian Penal Code, 1860. The Court stated that, considering Article 21 of the Indian Constitution, the right to life is included in it. However, when a question arises regarding the right to die, the ambit of Article 21 is not wide enough to include the right to die. 

Moreover, the Court also quashed the legitimacy of passive euthanasia as well as assisted suicide. 

Aruna Ramachandra Shanbaug v. Union of India (2011)

This case was the most significant instance that marked a breakthrough in the legislation regarding euthanasia. Passive euthanasia was legalised, and the Smt. Gian Kaur’s case rulings were entirely overruled. The fundamental distinction between this case and the common cause case, which might be seen as a complement, is that in the former, passive euthanasia was made legal, whereas, in the latter, the right to die with dignity was essentially incorporated into the right to live with dignity.

Airedale National Health Service Trust v. Bland (1993)

This decision, which was determined in the House of Lords of the United Kingdom, is widely regarded as setting the standard for passive euthanasia as well as euthanasia globally.

Analysis of the judgement in Common Cause v. Union of India

Analysis of euthanasia by the Court

Using a writ petition, Common Cause, an NGO, brought up the right to die with dignity once more before the Supreme Court. The organisation asked that ‘advance directives and attorney authorisations’ be made lawful so that those who are terminally ill or in a persistent vegetative condition might exercise their right to do so. A five-judge panel made up of the then Chief Justice of India, Dipak Misra, Arjan Kumar Sikri, Ajay Manikrao Khanwilkar, Dr. Dhananjaya Yeshwant Chandrachud, and Ashok Bhushan received the case after it was originally heard by a three-judge panel. The nine-judge bench of the Supreme Court in Puttaswamy explained the privacy-autonomy-dignity matrix guaranteed by the Constitution of India under Article 21. The bench has drawn the right to die with dignity from this reasoning.

It maintained the ability of a person who is competent in giving permission to issue advance directives and attorney authorisations to permit the suspension of ineffective medical treatment or life-supporting technology in cases when the patient is terminally ill or in a persistent vegetative state. In order to keep a proper balance between relevant legislation and medical ethics, the bench has also established rules that set forth how such directions may be carried out. The Court established these directions with the intent to avoid any potential abuse of such directives. To provide a framework for the right to carry out these directions and get attorney authorisations, all judges have extensively examined the ethical, social, and legal challenges surrounding the idea of euthanasia and advance directives.

For instance, the opinion provided by Chief Justice Dipak Misra for himself and Justice Khanwilkar begins with a philosophical discussion of the worth of life and the irreverence of a life devoid of purpose and dignity. He has referenced a number of writers, philosophers, and thinkers, including Epicurus, Hemingway, and Tennyson, who have advanced the notion that mortality is not an adversary and that, rather than an undignified extension of life, a dignified death is a reason to celebrate.

He has also considered the socio-economic concerns surrounding this matter, such as the stigma that may be attached to medical professionals who stop life support and the potential for abuse of such legislation by dishonest family members, underlining the significance of carefully drafting legislation concerning advanced medical directives. To deduce the right to die with dignity from Article 21, Judge Arjan Kumar Sikri also looked to Gandhian ideals, the teachings of numerous religions on human dignity, several international agreements, as well as Mill’s idea of individual autonomy. In line with Dworkin’s definition of a “hard case,” Judge AK Sikri categorises it as one in which there are multiple legal options and judicial discretion must be used in the service of the greater good.

Additionally, Chandrachud J. has addressed the topic of euthanasia in light of the interlinkages between scientific knowledge, medical science, morality, and the fundamental ideals of individual autonomy and dignity enshrined in the Constitution of India. He has highlighted the importance of considering this right not only from an individual standpoint but also from institutional, political, and social views with an eye toward the future. The “best interest” standard, which medical practitioners are expected to follow, has its roots in the Hippocratic Oath and Plato’s writings. Judge Ashok Bhushan has taken a similar strategy and has mentioned various religious doctrines regarding life and death in addition to tracing the history of the best interest norms.

Additionally, in order to defend the right to a dignified death, every member of the bench has reviewed the legal precedents set forth by the Hon’ble Supreme Court, from the case of P. Rathinam to Aruna Shanbaug. To give an example, Justice Dipak Misra stated that the Supreme Court had made a distinction between the “right to die” and “the right to die with dignity” in its earlier judgments. While the right to die could only be drawn from the right to die with dignity in a very limited way, that is only in the manner of passive euthanasia and only for individuals in a permanent vegetative condition. The former could not be construed to be a component of the protection of life and personal liberty under Article 21 of the Indian Constitution. Similarly, with regard to the Court’s decision in Shanbaug, Judge AK Sikri has explored the various kinds of euthanasia, as well as its philosophies, ethics, and economic history. A contrast between the “right to die” and the “right to die with dignity” has also been drawn by Judge DY Chandrachud and Judge Ashok Bhushan through analysis of the judgments in the cases of Gian Kaur and Aruna Shanbaug.

In addition, they have made comparisons to the Transplantation of Human Organs and Tissues Rules, 2014, which permit advanced medical directives for organ transplants. Moreover, the Court cited the Mental Healthcare Act, 2017, which acknowledges advanced instructions for individuals suffering from mental illness. It details the process for documenting and carrying out such a medical directive, including the executor’s informed permission, the obligations of the healthcare practitioner, the creation of a medical review committee, the nomination of patient representatives, and the safeguards granted to medical practitioners. More crucially, the judges have drawn inspiration from the Puttaswamy decision, in which the Court outlined the connection between the notions of dignity, privacy, and personal liberty to provide the groundwork for this right.

In order to highlight the same, they have concentrated on the ideas of sanctity and quality of life that have been infused into modern jurisprudence through a number of decisions by the Hon’ble Supreme court, from the case of Maneka Gandhi to K. S. Puttaswamy judgement.

Analysis of international jurisprudence on euthanasia by the Court

To support its decisions, the Bench has extensively researched relevant international jurisprudence. Following in the footsteps of the Bench in the Shanbaug case, all of the judges analysed the House of Lords’ judgement in the Airedale case, in which the House of Lords evaluated both libertarian and utilitarian perspectives in legalising passive euthanasia for people in a persistent vegetative condition. When giving its judgement on the issue of whether to permit withdrawal of medical treatment or life-supporting equipment for a patient who is in a persistent vegetative condition, the Court stated that – 

A special case to the rule of the sanctity of life can be made when individuals are not expected to survive or recover and are in a condition where a majority of medical practitioners believe that extending their lives is not in their best interests. Giving medical assistance to such an individual who doesn’t want to pursue treatment and who gets no benefit from such treatment would actually constitute forceful physical intervention of that patient. It is also highlighted that, in order to prevent abuse, the Court’s view must be sought in certain circumstances, such as – 

• When there is a discrepancy among the medical practitioners, 
• A conflict between the opinions of the family members,
• A difference between the parent or guardian and the professional opinion, or
• When the relative of the patient is not present to provide consent.

It is also noted that life extension in these situations is a “no win and all lose” scenario, and the expertise, efforts, and resources that would be invested in extending the life of an individual could be productively applied to restoring the wellbeing of other individuals, who, if treated properly, may be able to have a productive life. Despite allowing passive euthanasia, the judiciary chose not to create a law on the subject and instead gave the Legislature the opportunity to discuss the issue. Additionally, the bench has relied on other rulings involving assisted suicide, such as R v. Director of Public Prosecutions (1995), which underlined utilitarian reasoning and the concern for individual autonomy.

Additionally, Judge DY Chandrachud and Ashok Bhushan have taken into account the requirements of the Mental Capacity Act, 2005, passed by the British Parliament. It contains specific guidelines about the ability to give his or her consent, the appointment of a caretaker, and the value of medical advice. It is noteworthy to observe that the adoption of this legislation has led to a concentration on enhanced healthcare services rather than the discontinuation of medical treatment, despite the fact that the guidelines proposed by Chief Justice Dipak Misra closely resemble its contents. The United States’ legal framework regarding the freedom to decline medical care and physician-assisted suicide has also been explored in-depth by the Court. The Court, meanwhile, has chosen to ignore physician-assisted suicide and instead draws inspiration from the right to decline medical care.

Not just this, the bench members – Chief Justice Dipak Misra, Judge DY Chandrachud, and Ashok Bhushan, have referred to euthanasia and mental health-related legislation in several nations. Some of these nations or states are – 

• Columbia
• Montana
• Washington
• Oregon

These states or nations also have authorised advanced medical directives along with the guidelines to execute these directives. The Court has also cited the case of Cruzan v. Director, Missouri Department of Health (1990), in support of their judgement.

In Cruzan v. Director, Missouri Department of Health, the Supreme Court of the United States of America upheld the individual autonomy of the patient by ruling that the state would need to provide “clear and convincing evidence” of the individual’s wish to end life assistance in order to persuade the doctor to do so. Furthermore, Justice Misra and Judge Bhushan have quoted the decision in Vacco v. Quill (1997), in which the Supreme Court supported the State of New York’s ban on physician-assisted suicide. The Court made a distinction between physician-aided suicide and letting a patient reject life-supporting treatment. The Court opined that the declining treatment was legal as a component of the legal system, which provides the right to bodily integrity and individual autonomy. In a similar context, Judges Chandrachud and Bhushan discussed Cardozo’s opposing opinions in Schloendorff v. New York Hospital Trust (1914). The case was decided by the New York Court of Appeals. The Supreme Court of India referred to this case in order to ensure that personal sovereignty serves to protect the right of a person to initiate the withdrawal of life-sustaining treatment in cases of a fatal disease. The Court referred to numerous jurisdictions for extensive research regarding jurisprudence. Some of these nations are – 

• Singapore
• Canada 
• Switzerland
• Australia
• Belgium
• Netherlands

Justice Misra even quoted the judgement in the case of Carter v. Canada (2015), where the Apex Court of Canada stated – 

Physician-assisted suicide shall be permitted in certain situations where the medical state of an individual is critical and irrecoverable. However, such consent should be provided by an adult in clear terms. He has also spoken about the protections put in place by the Parliamentary Joint Committee, which was established in 2016 with the aim of establishing both substantive as well as procedural safeguards. In order to implement advanced medical directives in India, he also took inspiration from the committee and developed measures. 

Additionally, he has studied the situation in Australia, where the right to refuse medical treatment and advance medical directives have both been recognised as a part of common law and where the individual’s best interest is the guiding principle for deciding whether to discontinue treatment or not. For instance, the High Court of Australia determined in Secretary, Department of Health and Community Services v. JWB and SMB (1992) that an individual (major) of sound mind can take voluntary decisions regarding what should be done to his or her body. Also, his decision is protected by common law.

Moreover, the Court referred to the following cases – 

• Pretty v. the United Kingdom (2002)
• Haas v. Switzerland (2011)
• Lambert v. France (2015)

In these judgments, the Court noted that states had authority in “end of life” circumstances, maintaining a balance between both the principles of autonomy and the right to life and allowing termination of treatment. If adequate precautions are put in place, allowing passive euthanasia in such circumstances would not be against the duty of the state under the convention.

In addition, the Court has mentioned the prerequisites for consulting other doctors, the precondition that the person has the legal ability, the person’s medical condition and level of pain, the existence of alternative solutions, etc. that are outlined by laws in the Netherlands, Luxembourg, and Belgium concerning the consent of the person.

Euthanasia is only permitted in certain countries when all other treatments have failed and the person’s pain is intolerable and cannot be relieved in any other way than death. These prerequisites have been very carefully outlined in these laws. Additionally, Judge Bhushan discussed the situation in Singapore, where the Advance Medical Directive Act, 1994, contains comprehensive provisions concerning the same, and in Switzerland, where Articles 362 and 365 of the Swiss Civil Code, 1907, provide for the performance and enforcement of advanced medical directives.

Analysis of the procedure and guidelines laid down by the Court regarding the authorisation of an attorney and the issuing of advance medical directives

The right to die with dignity, which is found in Article 21, has been rooted by Justice Misra in light of the aforementioned international jurisprudence. He has established various protections and processes with regard to the advance medical directives and attorney authorisations, which have been approved and reinforced by other judges on the bench. He views this as a question of interpretation of the Constitution which the Court is obligated to do. The regulations provide that only an individual above the age of 18 years, of sound mind, who is capable of communicating, reacting, and comprehending the repercussions of signing the document, and who has full information and understanding, may freely sign it.

The declaration must indicate informed permission and clearly and indisputably specify when medical care may be discontinued, or additional treatment may not be administered in an effort to extend life. It must also include a clause that allows the executor to revoke it, as well as the name of a caretaker who will give permission to refuse or discontinue medical care in compliance with the advance medical directive. The most recent advanced medical directive will take effect if there are multiple ones. However, the rules do not cover circumstances when the directive is unclear.

The paper must be officially approved by a Judicial Magistrate of First Class, who is expected to document approval as to the informed consent and voluntary participation of the executor, and two attesting witnesses, who should ideally be unbiased, must be present. A tangible copy of the document and a digital copy must be stored with the JMFC in order to prevent tampering in the future, and another real and virtual copy must be stored with the Registrar of the relevant District Court. Additionally, the municipality or panchayat, if applicable, is required to keep a copy.

If family members are uninformed, they must be informed, and if there is a family doctor, he must also be notified. Only after the person is terminally sick and the doctor has verified the document’s validity with the JMFC, only then can the document be put into action. Officials at the hospital are compelled to take action if the practitioner has a philosophical or religious disagreement. The doctor is required to notify the hospital administration of the members of the Medical Board, which will be composed of the head of the concerned department and three specialists from different fields (such as pharmaceuticals, urology, haematology, etc.) who have expertise in emergency departments and have been practising for at least 20 years overall.

The Board will then examine the patient while the designated guardian is present, and it will make a determination regarding whether or not the directives in the document can be followed. If this preliminary opinion is positive, it will be forwarded to the jurisdictional collector, who will then establish a new medical board with the Chief District Medical Officer serving as chairman and three experienced practitioners from diverse specialties with at least 20 years of experience, excluding the doctors who were on the preceding Board. If, after examining the individual, this Board agrees with the hospital’s board; the decision will be reported to the JMFC. Next, the JMFC will pay a visit to the patient as soon as possible to approve the implementation of the document. The document may be revoked by the executor at any time before it is put into effect by putting it in writing. It is possible for the executor, family, or even the practitioner to file a writ petition under Article 226 before the High Court in situations when the medical board denies authorisation. In these situations, the Chief Justice of the stated court will need to appoint a division bench to make a decision. The High Court would be authorised to establish an impartial medical board with the same credentials as those listed above, and it would have a duty to make a decision quickly and in the patient’s best interests.

Furthermore, there is no requirement to follow unclear instructions. As a result, the Court has established thorough guidelines that are applicable until  Parliament passes relevant legislation. It is necessary to ensure that there are no gaps in the application of these rules in light of the precedents in nations like the Netherlands, where advance directives have been legal for a very long time. 

Suggestions

In my view, the Court must have ordered the formation of a separate group composed of judicial and medical specialists to supervise the application of these rules in every instance. After all, there is undoubtedly a risk of abuse of these directives and authorisations, given the lack of resources and poor quality of treatment in India.

Furthermore, there is no indication in the instructions as to when a person’s “permission” may be regarded as having been given with informed choice and without any coercion or undue influence. I think the Hon’ble Court should have required a psychological assessment and consultation by medical professionals before someone used their ability to execute advanced medical directives. Similarly, they do not specify a mechanism for revoking such directives, which may lead to disagreements about whether or not the patient has cancelled the advance directives. It would have been ideal to specify a similar process for revoking such directives.

Additionally, the Court has created a pathway for the abuse of this authority by permitting the treating practitioner to approach the hospital administration for the creation of a medical board in the absence of any directions or approval from a critically ill person. However, this is done with the knowledge and cooperation of family members. Taking such action in the absence of the instructions would be a violation of the right to personal liberty, even though the Court’s prescribed procedure would be implemented in this situation as well.

Conclusion

The decision in the case of Common Cause v. Union of India (2018) demonstrates how the notion of proportionality has been applied. It showcases how the Court balances two aspects of the same right, in this case, the right to life guaranteed under Article 21 of the Constitution of India. While the right to life gives rise to a strong state commitment to safeguarding human life, it also guarantees the person’s autonomy to make decisions regarding his or her own health. 

The Court has carefully considered the social, intellectual, moral, and economic facets of this matter. It has made an exception to the idea of the sanctity of life in circumstances where a person’s existence has lost significance and prolonging his life is no longer in his best interests. 

Comparative jurisprudence has also proven extremely useful to the Court. The Bench members performed a thorough analysis of international jurisprudence while carrying out this exercise. The Court has confirmed the right to die with dignity and to make advance directives while also providing specific guidelines for doing so. In order to frame the guidelines, the Court relied on the case of Visakha and others v. State of Rajasthan (1997).

Hence, the need of the hour is to frame proper legislation conforming to the guidelines laid down by the Supreme Court along with overcoming the loopholes in the judgement. 

Frequently Asked Questions (FAQs)

Under what circumstances and illnesses can an individual be subjected to passive euthanasia? 

In order to avoid intruding on the purview of medical specialists, the Court has not named any diseases. The family’s permission may be sought for passive euthanasia if the practitioners are of the opinion that there is no chance of recovery. According to doctors, the issue should only come up for individuals who are permanently incapacitated (vegetative state) or in a coma.

What is the doctrine of the double effect commonly used in reference to cases concerning euthanasia? 

According to the theory of double effect, as long as a morally right action has an unintended unfavourable consequence, it is ethically justifiable to carry it out. This is valid even if one anticipates that a negative outcome is likely to occur.

The aforementioned theory is used to support situations where a medical practitioner administers medications to a patient despite having realised that doing so may reduce the life of a patient in order to relieve distressing symptoms.

This occurs because the practitioner is not aiming to kill the individual intentionally, and the bad outcome of the tragic death is a secondary consequence of the positive outcome of lowering the person’s misery.

What is the status of the legality of euthanasia in India?

In India, passive euthanasia is permitted by the judiciary. According to this concept, medical professionals are permitted to remove a person’s life support if they are in a persistent vegetative state. Aruna Shanbaug’s tragedy led to the legalisation of passive euthanasia in India. Although the bench prohibited active euthanasia, it did rule that passive euthanasia might be permitted under specific conditions.

If the person is in the capacity to take decisions, his requests must be considered. If the person is incapacitated, the preferences of close relatives, such as the patient’s wife or husband, parents, children, and others, must be considered. If there are no close relatives available, the opinions of a close friend can be considered.

After that, the case must be heard by at least two judges on a bench at the High Court. A group of three qualified doctors should also be on Board to assess the condition of the patient. The bench must also take into account the opinion of the government of the concerned state along with close relatives of the patient. According to the Apex Court, this process should be followed up until India’s Parliament passes a statute permitting euthanasia.

The government of India is now working on a bill titled “The Management of Patients with Terminal Illness-Withdrawal of Medical Life Support Bill.”

The Bill is being developed in accordance with the Law Commission of India’s guidelines, which specify that an individual’s life support may be removed if they are in a permanent vegetative state (PVS) or have an irreparable health condition.

The Centre is against the idea of a living will because it might be abused. People can specify in advance, with the use of a living will, that they will not be given life support if they have a terminal illness.

References

• https://www.scobserver.in/cases/common-cause-euthanasia-and-the-right-to-die-with-dignity-case-background/
• http://docs.manupatra.in/newsline/articles/Upload/E4A68ACB-DCC1-4003-88DC-F41D7AA65A59.pdf
• http://www.penacclaims.com/wp-content/uploads/2018/09/Arjun-Sahni.pdf

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