The Constitution Bench had passed the judgement in the case of Common Cause (A registered Society) versus Union of India (2018) 5 SCC 1on the issue relating to “right to die with dignity”. The Constitution Bench for the same was constituted on a reference made by a three – Judge Bench vide its order dated 25th February, 2014 in a public interest by Common Cause (A Regd. Society).
In this backdrop, the following two issues were there before the Constitution Bench;
FIRST ISSUE- Whether passive euthanasia, voluntary or even, in certain circumstances, involuntary, is legally permissible? If so under what circumstances?
SECOND ISSUE- Whether a ‘living will’ or ‘advance directive’ should be legally recognised and can be enforced? If so, under what circumstances and what precautions are required while permitting it?
To understand the views of the Constitution Bench it is important to know a few important concepts and the history of judgements in our country on right to life and Euthanasia.
1. Concept of Euthanasia
Euthanasia is defined as a painless putting to death of persons having an incurable disease; an easy death. Also known as mercy killing.
The Oxford English Dictionary defines ‘euthanasia’: “The painless killing of a patient suffering from an incurable and painful disease or in an irreversible coma”.
Passive euthanasia is usually defined as withdrawing medical treatment with a deliberate intention of causing the patient’s death. For example, if a patient requires kidney dialysis to survive, not giving dialysis although the machine is available, is passive euthanasia.
2. Concept of Advance Directives
Broadly, there are two forms of Advance Directives- A Living Will and a Durable Power of Attorney.
A Living Will is a will which indicates a person’s views and wishes regarding medical treatment. A Durable Power of Attorney for Health Care or Health care Proxy which authorises a surrogate decision maker to make medical care decisions for the patient in the event she or he is incapacitated although there can be an overlap between these two forms of advance directives, the focus of a durable power is on who makes the decision while the focus of a living will is on what the decision should be. A “living will” has also been referred as “a declaration determining the termination of life,” “testament permitting death,” “declaration for bodily autonomy,” “declaration for ending treatment,” “body trust,” or other similar reference.
The law relating to right to die has evolved over time. From the case of P. Rathinam to the present one there have been many important observations made by the Supreme Court on such sensitive and important issue. The present ratio is the outcome of the analysis of the previous important judgements. The two historic judgements have been stated below to understand the background of the present landmark judgement.
The two historic judgments
The first important judgment delivered by the Constitution Bench of the Hon’ble Supreme court on the subject is the judgment of Constitution Bench in Gian Kaur Vs. State of Punjab, (1996) 2 SCC 648. In this case, the appellants were convicted under Section 306 and awarded sentence for abetment of commission of suicide by one Kulwant Kaur. The conviction was maintained by the High Court against which the appeal was filed as special leave in the Supreme Court. One of the grounds for assailing the conviction before this Court was that Section 306 IPC is unconstitutional. The reliance was placed on two ¬Judge Bench decision of the Supreme Court in P.Rathinam Vs. Union of India & Anr., (1994) 3 SCC 394,wherein Section 309 IPC was held to be unconstitutionalas violative of Article 21 of the Constitution. The Constitution Bench dwelt the question as to whether ‘right to die’ is included in Article 21 and concluded that ‘right to die’ “cannot be included as part of fundamental rights guaranteed under Article 21”.
The Constitution Bench held that Article 21 does not include right to die and observed that “Right to life” is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of “right to life”.
Thus, the Constitution Bench in the case of Gian Kaur (supra) overruled the two judge Bench in P. Rathinam case and held that Section 306 of Indian Penal Code does not violate Article 21 and Article 14 of the Constitution of India.
The second judgment which needs to be noted in detail is the two –Judge Bench judgment of the Supreme Court in Aruna Ramachandra Shanbaug Vs. Union of India & Ors., (2011) 4 SCC 454. Writ Petition under Article 32 on behalf of Aruna Ramachandra Shanbaug was filed by one M/s. Pinky Virani claiming to be best friend. Aruna Ramachandra Shanbaug was staff nurse working in King Edward Memorial (KEM) Hospital, Parel, Mumbai. On 27.11.1973, she was attacked by a sweeper of the hospital who wrapped a dog chain around her neck and yanked her back with it. While sodomising her, she twisted the chain around her neck, as a result supply of oxygen to the brain stopped and the brain got damaged. On the next day she was found in unconscious condition. From the date of above incident she continued to be in persistent vegetative state (PVS) having no state of awareness, she was bed-ridden, unable to express herself, unable to think, hear and see anything or communicate in any manner. In writ petition under Article 32 it was prayed that the hospital where she is laying for last 36 years be directed to stop feeding and let her die peacefully. In this case, the two- Judge Bench considered all aspects of euthanasia, the court examined both active and passive euthanasia. Dealing with active and passive euthanasia and further voluntary and involuntarily euthanasia, it was held that withdrawal of lifesaving measures is Passive Euthanasia which is permissible in India. It was also clarified that ‘A critically ill patient who is mentally competent to take a decision, decides not to take support of life prolonging measures, and respecting his wisdom if he is not put on such devices like ventilator etc., it is not at all Euthanasia. Large number of persons in advance age of life decide not to take medical treatment and embrace death in its natural way, can their death be termed as Euthanasia. Answer is, obviously ‘No’. The decision of not to take life saving medical treatment by a patient, who is competent to express his opinion cannot be termed as euthanasia, but a decision to withdraw life saving 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’. On the strength of the precedents of our country and weight of precedents of other countries such action of withdrawing life saving device was held legal by the two Judge Bench in the case of Aruna Shanbaug (supra) subject to the various directions and safeguards which were enumerated by the two judge Bench to safeguard the interests of patients, doctors and society till the appropriate legislation was framed and enforced.
The Present Law
The Constitution Bench of the Hon’ble Supreme Court in the case of Common Cause(A registered Society) versus Union of India(2018) 5 SCC 1after evaluating all aspects and also after studying the above cases in detail concluded the following-
“(i) 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 up to 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.
(ii) We agree with the observation made in the reference order of the three ¬Judge 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 Constitution Bench on the subject of Euthanasia.
(iii) 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.
(iv) 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 even if the objective is to relieve the patient from pain and suffering.
(v) 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 natural way.
(vi) Euthanasia as the meaning of words suggest is an act which leads to a good death. Some positive act is necessary to characterize the action as Euthanasia. Euthanasia is also commonly called “assisted suicide” due to the above reasons.
(vii) We are thus of the opinion that the right not to take a life saving 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 life saving 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 lawful and legally permissible in this country.
(viii) The right of patient who is incompetent to express his view cannot be outside of fold of Article 21 of the Constitution of India.
(ix) 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.
(x) 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 in 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 looses 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.
(xi) 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.”
In view of the conclusions as noted above the writ petition was allowed by the Constitution Bench and the following was held:
(a) The right to die with dignity as fundamental right as already been declared by the Constitution Bench judgment of this Court in Gian Kaur case (supra) was reiterated.
(b) An adult human being having mental capacity to take an informed decision was declared to have the right to refuse medical treatment including withdrawal from life saving devices.
(c) A person of competent mental faculty is now entitled to execute an advance medical directive in accordance with safeguards as referred.
The Hon’ble Supreme Court summoned all its instincts for legality, fairness and reasonableness in giving a suitable answer to the vexed issue that confronts the people on daily basis, keeping in mind the competing interests and balancing those interests. It will help lead society towards an informed, intelligent and just solution to the problem.
It is hoped that the Legislature would step in at the earliest and enact a comprehensive law on ‘living will/advance directive’ so that there is a proper statutory regime to govern various aspects and nuances thereof which also take care of the apprehensions that are expressed against euthanasia.