December 28, 2018
In March this year, the Supreme Court in a landmark judgement passed in the case Common Cause (A Regd. Society) v. Union of India, recognized right to die with dignity as a fundamental right. The Bench has hence recognized the concepts of passive euthanasia and living will in India.
What is passive euthanasia– In literal sense passive euthanasia means withholding treatment or supportive measures which would have otherwise saved the patient’s life. On the other hand active euthanasia means to introduce something to cause death.
What is a living will– It refers to the principle where a patient’s consent has been expressed at an earlier date before he became unconscious or otherwise incapable of communicating it as by a `living will’ or by giving written authority to doctors in anticipation of his incompetent situation.
An essential remark made by the Bench expressing it’s concern over permitting euthanasia was that the legal question does not singularly remain in the set framework of law or, for that matter, morality or dilemma of the doctors but also encapsulates social values and the family mindset to make a resolute decision which ultimately is a cause of concern for all.
A very intriguing concern had been raised by the Petitioner in the case, whereby it averred that due to the advancement of modern medical technology pertaining to medical science and respiration, a situation has been created where the dying process of the patient is unnecessarily prolonged causing distress and agony to the patient as well as to the near and dear ones and, consequently, the patient is in a persistent vegetative state thereby allowing free intrusion. This reminds us of one of the most alarming cases of euthanasia in India, the case of Aruna Shaunbaug. In this case, the Petitioner was in a permanent vegetative state (PVS) for 37 long years. In the case, the Two-Judge Bench of the Supreme Court allowed passive euthanasia subject to certain conditions and subject to the approval of the High Court after following the due procedure as laid down by the Court in the case.
Approval by High Court to Withdraw Life Support- Directions in Aruna Shaunbaug case
While laying down the procedure whereby the High Court could grant approval for withdrawing life support of an incompetent person under Article 226 of the Constitution held that when such application is filed, the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not and before doing so, the Bench should seek the opinion of a Committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit. Amongst the three doctors, as directed, one should be a Neurologist, one should be a Psychiatrist and the third a Physician.
The Court further directed that the committee of three doctors nominated by the Bench should carefully examine the patient and also consult the record of the patient as well as take the views of the hospital staff and submit its report to the High Court Bench. Simultaneously with appointing the committee of doctors, the High Court Bench shall also issue notice to the State and close relatives e.g. parents, spouse, brothers/ sisters, etc. of the patient, and in 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, the High Court Bench should give its verdict.
Conclusions made by the Supreme Court in Common Cause case
In this recent case, pursuant to extensively considering the law pertaining to right to life and right to die alongwith relevant precedents, the Supreme Court enumerated the following conclusions:
- The Constitution Bench in Gian Kaur’s case held that the “right to life”: including right to live with human dignity would mean the existence of such right upto the end of natural life, which also includes the right to a dignified life upto the point of death including a dignified procedure of death. The above right was held to be part of fundamental right enshrined under Article 21 of the Constitution which we also reiterate.
- We agree with the observation made in the reference order of the threeJudge Bench to the effect that the Constitution Bench in Gian Kaur’s case did not express any binding view on the subject of euthanasia. We hold that no binding view was expressed by the Bench on the subject of Euthanasia.
- The Constitution Bench, however noted a distinction between cases in which physician decides not to provide or continue to provide for treatment and care, which could or might prolong his life and those in which he decides to administer a lethal drug even though with object of relieving the patient from pain and suffering. The later was held not to be covered under any right flowing from Article 21.
- To provide or continue to provide for treatment and care which could or might prolong his life and those in which he decides to administer lethal drug even though with the object of relieving the patient from pain and suffering.The later was held not to be covered under any right flowing from Article 21.
- Thus, the law of the land as existing today is that no one is permitted to cause death of another person including a physician by administering any lethal drug if the objective is to relieve the patient from pain and suffering.
- An adult human being of conscious mind is fully entitled to refuse medical treatment or to decide not to take medical treatment and may decide to embrace the death in a natural way.
- Euthanasia as the meaning of words suggest is an act which leads to a good death. Some positive act is necessary to characterise the action as Euthanasia. Euthanasia is also commonly called “assisted suicide” due to the above reasons.
- We are thus of the opinion that the right not to take a lifesaving treatment by a person, who is competent to take an informed decision is not covered by the concept of euthanasia as it is commonly understood but a decision to withdraw lifesaving treatment by a patient who is competent to take decision as well as with regard to a patient who is not competent to take decision can be termed as passive euthanasia, which is lawfully and legally permissible in this country.
- The right of patient who is incompetent to express his view cannot be outside of fold of Article 21 of the Constitution of India.
- We also are of the opinion that in cases of incompetent patients who are unable to take an informed decision, “the best interests principle” be applied and such decision be taken by specified competent medical experts and be implemented after providing a cooling period to enable aggrieved person to approach the Court of Law.
- An advance medical directive is an individual’s advance exercise of his autonomy on the subject of extent of medical intervention that he wishes to allow upon his own body at a future date, when he may not be on a position to specify his wishes. The purpose and object of advance medical directive is to express the choice of a person regarding medical treatment in an event when he loses capacity to take a decision. The right to execute an advance medical directive is nothing but a step towards protection of aforesaid right by an individual.
- Right of execution of an advance medical directive by an individual does not depend on any recognition or legislation by a State and we are of the considered opinion that such rights can be exercised by an individual in recognition and in affirmation of his right of bodily integrity and self-determination.
Other important judgments on Euthanasia
Gian Kaur v. State of Punjab– In this case, Five-Judge Bench of the Supreme Court overruled the Supreme Court’s holding in the case of Maruti Shri Pati Dubal v. State of Maharashtra and P. Rathinam v. Union of India & Anr. In Maruti Shi Pati Dubal case, the Supreme Court held Section 309 of Indian Penal Code (this makes attempt to commit suicide a punishable offence in India) as violative of Articles 14 and 21 of the Constitution of India. In P. Rathinam case, the Supreme Court held that the “right to die” is a right enshrined under Article 21 of the Constitution and hence Section 309 of Indian Penal Code was unconstitutional.
In Gian Kaur case, the Supreme Court held that both euthanasia and assisted suicide were not lawfully valid in India.
State of Himachal Pradesh and anr. V. Umed
Ram Sharma- In this case, the Apex Court observed that the right to life embraces not only
physical existence but also the quality of life as understood in its richness
and fullness within the ambit of the Constitution.
 Aruna Shanbaug v. Union of India