1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 215 OF 2005
Common Cause (A Regd. Society) ...Petitioner(s)
Versus
Union of India and Another …Respondent(s)
J U D G M E N T
Dipak Misra, CJI [for himself and A.M. Khanwilkar, J.]
I N D E X
S. No. Heading Page No.
A. Prologue 3
B. Contentions in the Writ Petition 10
C. Stand in the counter affidavit and the
applications for intervention
14
D. Background of the Writ Petition 18
D.1 P. Rathinam’s case – The question of
unconstitutionality of Section 309 of
the Indian Penal Code
19
D.2 Gian Kaur’s case – The question of
unconstitutionality of Section 306 of
22
2
the Indian Penal Code
D.3 The approach in Aruna Shanbaug qua
Passive Euthanasia vis-à-vis India
30
D.4 The Reference 42
E. Our analysis of Gian Kaur 45
F. Our analysis of Aruna Shanbaug qua
legislation
51
G. The Distinction between Active and Passive
Euthanasia
52
H. Euthanasia : International Position 58
H.1 U.K. Decisions: 58
H.1.1 Airedale Case 58
H.1.2 Later Cases 79
H.2 The Legal position in the United
States
89
H.3 Australian Jurisdiction 96
H.4 Legal position in Canada 99
H.5 Other Jurisdictions 104
H.6 International considerations and
decisions of the European Court of
Human Rights (ECHR)
107
I The 241st Report of The Law Commission of
India on Passive Euthanasia
114
J. Right to refuse treatment 120
3
K. Passive Euthanasia in the context of Article
21 of the Constitution.
126
K.1 Individual Dignity as a facet of Article
21
135
L Right of self-determination and individual
autonomy
149
M. Social morality, medical ethicality and State
interest
155
N. Submissions of the States 157
O. Submissions of the Intervenor (Society for
the Right to Die with Diginity)
159
P. Advance Directive/Advance Care Directive/
Advance Medical Directive
160
(a) Who can execute the Advance Directive
and how
170
(b) What should it contain? 171
(c) How should it be recorded and
preserved
172
(d) When and by whom can it be given
effect to
174
(e) What if permission is refused by the
Medical Board
179
(f) Revocation or inapplicability of
Advance Directive
181
Q. Conclusions in seriatim
186
A. Prologue:
Life and death as concepts have invited many a thinker,
philosopher, writer and physician to define or describe them.
4
Sometimes attempts have been made or efforts have been
undertaken to gloriously paint the pictures of both in many a
colour and shade. Swami Vivekananda expects one to
understand that life is the lamp that is constantly burning out
and further suggests that if one wants to have life, one has to
die every moment for it. John Dryden, an illustrious English
author, considers life a cheat and says that men favour the
deceit. No one considers that the goal of life is the grave. Léon
Montenaeken would like to describe life as short, a little
hoping, a little dreaming and then good night. The famous
poet Dylan Thomas would state ―do not go gentle into that
good night.‖ One may like to compare life with constant
restless moment spent in fear of extinction of a valued vapour;
and another may sincerely believe that it is beyond any
conceivable metaphor. A metaphysical poet like John Donne,
in his inimitable manner, says:-
―One short sleep past, we wake eternally, And death
shall be no more; death, thou shalt die‖.
Some would say with profound wisdom that life is to be
lived only for pleasure and others with equal wise pragmatism
5
would proclaim that life is meant for the realization of divinity
within one because that is where one feels the ―self‖, the
individuality and one‘s own real identity. Dharmaraj
Yudhisthira may express that though man sees that death
takes place every moment, yet he feels that the silence of
death would not disturb him and nothing could be more
surprising than the said thought. Yet others feel that one
should never be concerned about the uncertain death and live
life embracing hedonism till death comes. Charvaka, an
ancient philosopher, frowns at the conception of re-birth and
commends for living life to the fullest. Thus, death is
complicated and life is a phenomenon which possibly intends
to keep away from negatives that try to attack the virtue and
vigour of life from any arena. In spite of all the statements,
references and utterances, be it mystical, philosophical or
psychological, the fact remains, at least on the basis of
conceptual majority, that people love to live – whether at
eighty or eighteen – and do not, in actuality, intend to treat life
like an ―autumn leaf‖. As Alfred Tennyson says:-
6
―No life that breathes with human breath has ever
truly longed for death.‖
2. The perception is not always the same at every stage.
There comes a phase in life when the spring of life is frozen,
the rain of circulation becomes dry, the movement of body
becomes motionless, the rainbow of life becomes colourless
and the word ‗life‘ which one calls a dance in space and time
becomes still and blurred and the inevitable death comes near
to hold it as an octopus gripping firmly with its tentacles so
that the person ―shall rise up never‖. The ancient Greet
philosopher, Epicurus, has said, although in a different
context:-
―Why should I fear death?
If I am, then death is not.
If death is, then I am not.
Why should I fear that which
can only exist when I do not?‖
But there is a fallacy in the said proposition. It is because
mere existence does not amount to presence. And sometimes
there is a feebleness of feeling of presence in semi-reality state
when the idea of conceptual identity is lost, quality of life is
7
sunk and the sanctity of life is destroyed and such destruction
is denial of real living. Ernest Hemingway, in his book ‗The Old
Man and the Sea‘, expounds the idea that man can be
destroyed, but cannot be defeated. In a certain context, it can
be said, life sans dignity is an unacceptable defeat and life
that meets death with dignity is a value to be aspired for and a
moment for celebration.
3. The question that emerges is whether a person should be
allowed to remain in such a stage of incurable passivity
suffering from pain and anguish in the name of Hippocratic
oath or, for that matter, regarding the suffering as only a state
of mind and a relative perception or treating the utterance of
death as a ―word infinitely terrible‖ to be a rhetoric without
any meaning. In contradistinction to the same, the question
that arises is should he not be allowed to cross the doors of
life and enter, painlessly and with dignity, into the dark
tunnel of death whereafter it is said that there is resplendence.
In delineation of such an issue, there emerges the question in
law – should he or she be given such treatment which has
8
come into existence with the passage of time and progress of
medical technology so that he/she exists possibly not realizing
what happens around him/her or should his/her individual
dignity be sustained with concern by smoothening the process
of dying.
4. 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. There is also another perspective to it.
A family may not desire to go ahead with the process of
treatment but is compelled to do so under social pressure
especially in a different milieu, and in the case of an
individual, there remains a fear of being branded that he/she,
in spite of being able to provide the necessary treatment to the
patient, has chosen not to do so. The social psyche constantly
makes him/her feel guilty. The collective puts him at the
crossroads between socially carved out ‗meaningful guilt‘ and
his constant sense of rationality and individual responsibility.
9
There has to be a legalistic approach which is essential to
clear the maze and instill awareness that gradually melts the
idea of ―meaningful guilt‖ and ushers in an act of ―affirmative
human purpose‖ that puts humanness on a high pedestal.
5. There is yet another aspect. In an action of this nature,
there can be abuse by the beneficiaries who desire that the
patient‘s heart should stop so that his property is inherited in
promptitude and in such a situation, the treating physicians
are also scared of collusion that may invite the wrath of
criminal law as well as social stigma. The medical, social and
ethical apprehensions further cloud their mind to take a
decision. The apprehension, the cultural stigma, the social
reprehension, the allegation of conspiracy, the ethical dilemma
and eventually the shadow between the individual desire and
the collective expression distances the reality and it is here
that the law has to have an entry to alleviate the agony of the
individual and dispel the collective attributes and perceptions
so that the imbroglio is clear. Therefore, the heart of the
matter is whether the law permits for accelerating the process
10
of dying sans suffering when life is on the path of inevitable
decay and if so, at what stage and to what extent. The said
issue warrants delineation from various perspectives.
B. Contentions in the Writ Petition:
6. The instant Writ Petition preferred under Article 32 of the
Constitution of India by the petitioner, a registered society,
seeks to declare ―right to die with dignity‖ as a fundamental
right within the fold of ―right to live with dignity‖ guaranteed
under Article 21 of the Constitution; to issue directions to the
respondents to adopt suitable procedure in consultation with
the State Governments, where necessary; to ensure that
persons of deteriorated health or terminally ill patients should
be able to execute a document titled ―My Living Will and
Attorney Authorisation‖ which can be presented to the
hospital for appropriate action in the event of the executant
being admitted to the hospital with serious illness which may
threaten termination of the life of the executant; to appoint a
committee of experts including doctors, social scientists and
lawyers to study into the aspect of issuing guidelines as to the
11
―Living Wills‖; and to issue such further appropriate directions
and guidelines as may be necessary.
7. It is asserted that every individual is entitled to take
his/her decision about the continuance or discontinuance of
life when the process of death has already commenced and
he/she has reached an irreversible permanent progressive
state where death is not far away. It is contended that each
individual has an inherent right to die with dignity which is an
inextricable facet of Article 21 of the Constitution. That apart,
it is set forth that right to die sans pain and suffering is
fundamental to one‘s bodily autonomy and such integrity does
not remotely accept any effort that puts the individual on life
support without any ray of hope and on the contrary, the
whole regime of treatment continues in spite of all being aware
that it is a Sisyphean endeavour, an effort to light a bulb
without the filament or to expect a situation to be in an apple
pie order when it is actually in a state of chaos.
8. It is put forth that the concept of sustenance of
individual autonomy inheres in the right of privacy and also
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comes within the fundamental conception of liberty. To
sustain the stand of privacy, reliance has been placed on the
decisions in Kharak Singh v. State of U.P. and others1,
Gobind v. State of Madhya Pradesh and another 2 and
People’s Union for Civil Liberties v. Union of India and
another3. Inspiration has also been drawn from the decision
of the United States in Cruzan v. Director, Missouri
Department of Health 4 . It is 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. It
is also contended that the petitioner-society is not claiming
that the right to die is a part of the right to life but asserting
the claim that the right to die with dignity is an inseparable
1
(1964) 1 SCR 332 : AIR 1963 SC 1295
2
(1975) 2 SCC 148
3
(1997) 1 SCC 301
4
111 L Ed 2d 224 : 497 US 261 (1990) : 110 S.Ct. 2841 (1990)
13
and inextricable facet of the right to live with dignity. The
execution of a living will or issuance of advance directive has
become a necessity in today‘s time keeping in view the
prolongation of treatment in spite of irreversible prognosis and
owing to penal laws in the field that creates a dilemma in the
minds of doctors to take aid of the modern techniques in a
case or not. A comparison has been made between the
fundamental rights of an individual and the State interest
focusing on sanctity as well as quality of life. References have
been made to the laws in various countries, namely, United
Kingdom, United States of America, Australia, Denmark,
Singapore, Canada, etc. The autonomy of the patient has been
laid stress upon to highlight the right to die with dignity
without pain and suffering which may otherwise be prolonged
because of artificial continuance of life through methods that
are really not of any assistance for cure or improvement of
living conditions.
14
C. Stand in the counter affidavit and the applications
for intervention:
9. A counter affidavit has been filed by the Union of India
contending, inter alia, that serious thought has been given to
regulate the provisions of euthanasia. A private member‘s Bill
and the 241st report of the Law Commission of India have been
referred to. It has been set forth that the Law Commission had
submitted a report on The Medical Treatment of Terminally-ill
Patients (Protection of Patients and Medical Practitioners) Bill,
2006 but the Ministry of Health and Family Welfare was not in
favour of the enactment due to the following reasons:-
―a) Hippocratic oath is against intentional/voluntary
killings of patient.
b) Progression of medical science to relieve pain,
suffering, rehabilitation and treatment of so-called
diseases will suffer a set back.
c) An individual may wish to die at certain point of
time, his/her wish may not be persistent and only a
fleeting desire out of transient depression.
d) Suffering is a state of mind and a perception,
which varies from individual to individual and
depends on various environmental and social
factors.
e) Continuous advancement in medical science has
made possible good pain management in patients of
cancer and other terminal illness. Similarly,
15
rehabilitation helps many spinal injury patients in
leading near normal life and euthanasia may not be
required.
f) Wish of euthanasia by a mentally ill patient/in
depression may be treatable by good psychiatric
care.
g) It will be difficult to quantify suffering, which may
always be subject to changing social pressures and
norms.
h) Can doctors claim to have knowledge and
experience to say that the disease is incurable and
patient is permanently invalid?
i) Defining of bed-ridden and requiring regular
assistance is again not always medically possible.
j) There might be psychological pressure and
trauma to the medical officers who would be
required to conduct euthanasia.‖
10. The counter affidavit further states that after the
judgment was delivered by this Court in Aruna
Ramachandra Shanbaug v. Union of India and others5,
the Ministry of Law and Justice opined that the directions
given by this Court have to be followed in such cases and the
said directions should be treated as law. The Law Commission
in its 241st Report titled ―Passive Euthanasia – A Relook‖ again
proposed for making a legislation on ―Passive Euthanasia‖ and
also prepared a draft Bill titled The Medical Treatment of
5
(2011) 4 SCC 454
16
Terminally Ill Patients (Protection of Patients and Medical
Practitioners) Bill. The said Bill was referred to the technical
wing of the Ministry of Health and Family Welfare (Directorate
General of Health Services-Dte. GHS) for examination in June
2014. It is the case of the Union of India that two meetings
were held under the chairmanship of Special Director General
of Health Service which was attended by various experts. A
further meeting was held under the chairmanship of
Secretary, Ministry of Health and Family Welfare, on
22.05.2015 to examine the Bill. Thereafter, various meetings
have been held by experts and the expert committee had
proposed formulation of legislation on passive euthanasia.
11. Counter affidavits have been filed by various States. We
need not refer to the same in detail. Suffice it to mention that
in certain affidavits, emphasis has been laid on Articles 37, 39
and 47 which require the States to take appropriate steps as
envisaged in the said Articles for apposite governance. That
apart, it has been pronouncedly stated that the right to life
does not include the right to die and, in any case, the right to
17
live with dignity guaranteed under Article 21 of the
Constitution means availability of food, shelter and health and
does not include the right to die with dignity. It is asseverated
that saving the life is the primary duty of the State and,
therefore, there is necessity for health care. It is also
contended that the introduction of the right to die with dignity
as a facet of the right under Article 21 will create a right that
the said constitutional provision does not envisage and further
it may have the potential effect to destroy the said basic right.
12. An application for intervention has been filed by the
―Society for the Right to Die with Dignity‖ whose prayer for
intervention has been allowed. The affidavit filed by the said
society supports the concept of euthanasia because it is a
relief from irrecoverable suffering of which pain is a factor. It
has cited many an example from various texts to support
passive euthanasia and suggested certain criteria to be
followed. It has also supported the idea of introduction of
living will and durable power of attorney documents and has
filed a sample of living will or advance health directive or
18
advance declaration provided by Luis Kutner. Emphasis has
been laid on peaceful exit from life and the freedom of choice
not to live and particularly so under distressing conditions
and ill-health which lead to an irrecoverable state. The
management of terminally ill patients has been put at the
centre stage. It has been highlighted that determination of the
seemly criteria will keep the element of misuse by the family
members or the treating physician or, for that matter, any
interested person at bay and also remove the confusion.
We have heard Mr. Prashant Bhushan, learned counsel
for the petitioner. Mr. P.S. Narasimha, learned Additional
Solicitor General for Union of India, Mr. Arvind P. Datar
learned senior counsel and Mr. Devansh A. Mohta, learned
counsel who have supported the cause put forth in the writ
petition.
D. Background of the Writ Petition:
13. Before we engage ourselves with the right claimed, it is
requisite to state that the present litigation has a history and
while narrating the same, the assertions made in the Writ
19
Petition and the contentions which have been raised during
the course of hearing, to which we shall refer in due course,
are to be kept in mind.
D.1 P. Rathinam’s case – The question of
unconstitutionality of Section 309 of the Indian Penal
Code:
14. Presently, it is necessary to travel backwards in time,
though not very far. Two individuals, namely, P. Rathinam
and Nagbhushan Patnaik, filed two Writ Petitions under
Article 32 of the Constitution which were decided by a twoJudge
Bench in P. Rathinam v. Union of India & another6.
The writ petitions assailed the constitutional validity of Section
309 of the Indian Penal Code (IPC) contending that the same is
violative of Articles 14 and 21 of the Constitution. The Court
posed 16 questions. The relevant ones read thus:-
―(1) Has Article 21 any positive content or is it merely
negative in its reach?
(2) Has a person residing in India a right to die?
x x x x
(12) Is suicide against public policy?
6
(1994) 3 SCC 394
20
(13) Does commission of suicide damage the
monopolistic power of the State to take life?
(14) Is apprehension of ‗constitutional cannibalism‘
justified?
(15) Recommendation of the Law Commission of India
and follow-up steps taken, if any.
(16) Global view. What is the legal position in other
leading countries of the world regarding the
matter at hand?‖
15. Answering question No. (1), the Court, after referring to
various authorities under Article 21, took note of the authority
in State of Himachal Pradesh and another v. Umed Ram
Sharma and others7 wherein it has been 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. In the said case, the Court had
held that for residents of hilly areas, access to road was access
to life itself and so, necessity of road communication in a
reasonable condition was treated as a constitutional
imperative. P. Rathinam perceived the elevated positive
content in the said ruling. Answering question No. (2), the
Court referred to the decision of the Bombay High Court in
7
(1986) 2 SCC 68 : AIR 1986 SC 847
21
Maruti Shripati Dubal v. State of Maharashtra 8 that
placed reliance on R.C. Cooper v. Union of India9 wherein it
had been held that what is true of one fundamental right is
also true of another fundamental right and on the said
premise, the Bombay High Court had opined that it cannot be
seriously disputed that fundamental rights have their positive
as well as negative aspects. Citing an example, it had stated
that freedom of speech and expression includes freedom not to
speak and similarly, the freedom of association and movement
includes freedom not to join any association or move anywhere
and, accordingly, it stated that logically it must follow that the
right to live would include the right not to live, i.e., right to die
or to terminate one‘s life.
16. After so stating, this Court approved the view taken by
the Bombay High Court in Maruti Shripati Dubal and
meeting the criticism of that judgment from certain quarters,
the two-Judge Bench opined that the criticism was only
partially correct because the negative aspect may not be
8
1987 Cri LJ 473 : (1986) 88 Bom LR 589
9
(1970) 2 SCC 298 : AIR 1970 SC 1318
22
inferable on the analogy of the rights conferred by different
clauses of Article 19 and one may refuse to live if his life,
according to the person concerned, is not worth living. One
may rightly think that having achieved all worldly pleasures or
happiness, he has something to achieve beyond this life. This
desire for communion with God may rightly lead even a
healthy mind to think that he would forego his right to live
and would rather choose not to live. In any case, a person
cannot be forced to enjoy the right to life to his detriment,
disadvantage or disliking. Eventually, it concluded that the
right to live of which Article 21 speaks of can be said to bring
in its trail the right not to live a forced life.
17. Answering all the questions, the Court declared Section
309 IPC ultra vires and held that it deserved to be effaced from
the statute book to humanize our penal laws.
D.2 Gian Kaur’s case – The question of
unconstitutionality of Section 306 of the Indian
Penal Code:
18. The dictum laid down by the two-Judge Bench in P.
Rathinam did not remain a precedent for long. In Gian Kaur
23
v. State of Punjab10, the Constitution Bench considered the
correctness of the decision rendered in P. Rathinam. In the
said case, the appellants were convicted by the trial Court
under Section 306 IPC and the conviction was assailed on the
ground that Section 306 IPC is unconstitutional and to
sustain the said argument, reliance was placed on the
authority in P. Rathinam wherein Section 309 IPC was held
to be unconstitutional being violative of Article 21 of the
Constitution. It was urged that once Section 309 IPC had been
held to be unconstitutional, any person abetting the
commission of suicide by another is merely assisting in the
enforcement of the fundamental right under Article 21 and,
therefore, Section 306 IPC penalizing abetment of suicide is
equally violative of Article 21. The two-Judge Bench before
which these arguments were advanced in appeal referred the
matter to a Constitution Bench for deciding the same. In the
course of arguments, one of the amicus curiae, Mr. F.S.
Nariman, learned senior counsel, had submitted that the
debate on euthanasia is not relevant for deciding the question
10 (1996) 2 SCC 648
24
of constitutional validity of Section 309 and Article 21 cannot
be construed to include within it the so-called ―right to die‖
since Article 21 guarantees protection of life and liberty and
not its extinction. The Constitution Bench, after noting the
submissions, stated:-
―17. … We, therefore, proceed now to consider the
question of constitutional validity with reference to
Articles 14 and 21 of the Constitution. Any further
reference to the global debate on the desirability of
retaining a penal provision to punish attempted
suicide is unnecessary for the purpose of this
decision. Undue emphasis on that aspect and
particularly the reference to euthanasia cases tends
to befog the real issue of the constitutionality of the
provision and the crux of the matter which is
determinative of the issue.‖
19. Thereafter, the Constitution Bench in Gian Kaur (supra)
scrutinized the reasons given in P. Rathinam and opined that
the Court in the said case took the view that if a person has a
right to live, he also has a right not to live. The Court in Gian
Kaur (supra) observed that the Court in P. Rathinam (supra),
while taking such a view, relied on the decisions which relate
to other fundamental rights dealing with different situations
and those decisions merely hold that the right to do an act
25
also includes the right not to do an act in that manner. The
larger Bench further observed that in all those decisions, it
was the negative aspect of the right that was involved for
which no positive or overt act was to be done. The
Constitution Bench categorically stated that this difference
has to be borne in mind while making the comparison for the
application of this principle.
20. Delving into the facet of committing suicide, the larger
Bench observed that when a man commits suicide, he has to
undertake certain positive overt acts and the genesis of those
acts cannot be traced to or be included within the protection of
the ‗right to life‘ under Article 21. It also held that the
significant aspect of ‗sanctity of life‘ should not be overlooked.
The Court further opined that by no stretch of imagination,
extinction of life can be read to be included in protection of life
because Article 21, in its ambit and sweep, cannot include
within it the right to die as a part of fundamental right
guaranteed therein. The Constitution Bench ruled:-
―‗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
26
inconsistent with the concept of ―right to life‖. With
respect and in all humility, we find no similarity in
the nature of the other rights, such as the right to
―freedom of speech‖ etc. to provide a comparable
basis to hold that the ―right to life‖ also includes the
―right to die‖. With respect, the comparison is
inapposite, for the reason indicated in the context of
Article 21. The decisions relating to other
fundamental rights wherein the absence of
compulsion to exercise a right was held to be
included within the exercise of that right, are not
available to support the view taken in P. Rathinam
qua Article 21.‖
21. Adverting to the concept of euthanasia, the Court
observed that protagonism of euthanasia on the view that
existence in persistent vegetative state (PVS) is not a benefit to
the patient of terminal illness being unrelated to the principle
of ―sanctity of life‖ or the ―right to live with dignity‖ is of no
assistance to determine the scope of Article 21 for deciding
whether the guarantee of ―right to life‖ therein includes the
―right to die‖. The ―right to life‖ including the right to live with
human dignity would mean the existence of such a right up to
the end of natural life. The Constitution Bench further
explained that the said conception also includes the right to a
dignified life up to the point of death including a dignified
procedure of death or, in other words, it may include the right
27
of a dying man to also die with dignity when his life is ebbing
out. It has been clarified that the right to die with dignity at
the end of life is not to be confused or equated with the ―right
to die‖ an unnatural death curtailing the natural span of life.
Thereafter, the Court proceeded to state:-
―25. A question may arise, in the context of a dying
man who is terminally ill or in a persistent
vegetative state that he may be permitted to
terminate it by a premature extinction of his life in
those circumstances. This category of cases may fall
within the ambit of the ―right to die‖ with dignity as
a part of right to live with dignity, when death due
to termination of natural life is certain and
imminent and the process of natural death has
commenced. These are not cases of extinguishing
life but only of accelerating conclusion of the
process of natural death which has already
commenced. The debate even in such cases to
permit physician-assisted termination of life is
inconclusive. It is sufficient to reiterate that the
argument to support the view of permitting
termination of life in such cases to reduce the
period of suffering during the process of certain
natural death is not available to interpret Article 21
to include therein the right to curtail the natural
span of life.‖
[Emphasis supplied]
22. In view of the aforesaid analysis and taking into
consideration various other aspects, the Constitution Bench
declared Section 309 IPC as constitutional.
28
23. The Court held that the "right to live with human dignity"
cannot be construed to include within its ambit the right to
terminate natural life, at least before the commencement of the
process of certain natural death. It then examined the question
of validity of Section 306 IPC. It accepted the submission that
Section 306 is constitutional. While adverting to the decision in
Airedale N.H.S. Trust v. Bland11, the Court at the outset made
it clear that it was not called upon to deal with the issue of
physician-assisted suicide or euthanasia cases. The decision in
Airedale‘s case (supra), was relating to the withdrawal of
artificial measures for continuance of life by a physician. In the
context of existence in the persistent vegetative state of no
benefit to the patient, the principle of sanctity of life, which is
the concern of the State, was stated to be not an absolute one.
To bring home the distinction between active and passive
euthanasia, an illustration was noted in the context of
administering lethal drug actively to bring the patient's life to an
end. The significant dictum in that decision has been extracted
in Gian Kaur (supra) wherein it is observed that it is not lawful
for a doctor to administer a drug to his patient to bring about
11 (1993) 2 WLR 316: (1993) 1 All ER 821, HL
29
his death even though that course is promoted by a
humanitarian desire to end his suffering and however great that
suffering may be. Further, to act so is to cross the rubicon
which runs between the care of the living patient on one hand
and euthanasia - actively causing his death to avoid or to end
his suffering on the other hand. It has been noticed in Airedale
that euthanasia is not lawful at common law. In the light of the
demand of responsible members of the society who believe that
euthanasia should be made lawful, it has been observed in that
decision that the same can be achieved by legislation. The
Constitution Bench has merely noted this aspect in paragraph
41 with reference to the dictum in Airedale case.
24. Proceeding to deal with physician assisted suicide, the
Constitution Bench observed:-
―42. The decision of the United States Court of
Appeals for the Ninth Circuit in Compassion in
Dying v. State of Washington12, which reversed the
decision of United States District Court, W.D.
Washington reported in 850 Federal Supplement
1454, has also relevance. The constitutional validity
of the State statute that banned physician-assisted
suicide by mentally competent, terminally ill adults
was in question. The District Court held
12 49 F 3d 586
30
unconstitutional the provision punishing for
promoting a suicide attempt. On appeal, that
judgment was reversed and the constitutional
validity of the provision was upheld.‖
And again:-
―43. This caution even in cases of physicianassisted
suicide is sufficient to indicate that
assisted suicides outside that category have no
rational basis to claim exclusion of the fundamental
principles of sanctity of life. The reasons assigned
for attacking a provision which penalises attempted
suicide are not available to the abettor of suicide or
attempted suicide. Abetment of suicide or attempted
suicide is a distinct offence which is found enacted
even in the law of the countries where attempted
suicide is not made punishable. Section 306 IPC
enacts a distinct offence which can survive
independent of Section 309 in the IPC. The learned
Attorney General as well as both the learned amicus
curiae rightly supported the constitutional validity
of Section 306 IPC.‖
Eventually, the Court in Gian Kaur (supra), apart from
overruling P. Rathinam (supra), upheld the constitutional
validity of Section 306 IPC.
D.3 The approach in Aruna Shanbaug qua Passive
Euthanasia vis-à-vis India:
25. Although the controversy relating to attempt to suicide or
abetment of suicide was put to rest, yet the issue of
31
euthanasia remained alive. It arose for consideration almost
after a span of eleven years in Aruna Shanbaug (supra). A
writ petition was filed by the next friend of the petitioner
pleading, inter alia, that the petitioner was suffering
immensely because of an incident that took place thirty six
years back on 27.11.1973 and was in a Persistent Vegetative
State (PVS) and in no state of awareness and her brain was
virtually dead. The prayer of the next friend was that the
respondent be directed to stop feeding the petitioner and to
allow her to die peacefully. The Court noticed that there was
some variance in the allegation made in the writ petition and
the counter affidavit filed by the Professor and Head of the
hospital where the petitioner was availing treatment. The
Court appointed a team of three very distinguished doctors to
examine the petitioner thoroughly and to submit a report
about her physical and mental condition. The team submitted
a joint report. The Court asked the team of doctors to submit
a supplementary report by which the meaning of the technical
terms in the first report could be explained. Various other
aspects were also made clear. It is also worth noting that the
32
KEM Hospital where the petitioner was admitted was
appointed as the next friend by the Court because of its
services rendered to the petitioner and the emotional bonding
and attachment with the petitioner.
26. In Aruna Shanbaug (supra), after referring to the
authority in Vikram Deo Singh Tomar v. State of Bihar13,
this Court reproduced paragraphs 24 and 25 from Gian
Kaur‘s case and opined that the said paragraphs simply mean
that the view taken in Rathinam’s case to the effect that the
‗right to life‘ includes the ‗right to die‘ is not correct and para
25 specifically mentions that the debate even in such cases to
permit physician-assisted termination of life is inconclusive.
The Court further observed that it was held in Gian Kaur that
there is no ‗right to die‘ under Article 21 of the Constitution
and the right to life includes the right to live with human
dignity but in the case of a dying person who is terminally ill
or in permanent vegetative state, he may be allowed a
premature extinction of his life and it would not amount to a
crime. Thereafter, the Court took note of the submissions of
13 1988 Supp. SCC 734 : AIR 1988 SC 1782
33
the learned amicus curiae to the effect that the decision to
withdraw life support is taken in the best interests of the
patient by a body of medical persons. The Court observed that
it is not the function of the Court to evaluate the situation and
form an opinion on its own. The Court further noted that in
England, the parens patriae jurisdiction over adult mentally
incompetent persons was abolished by statute and the Court
has no power now to give its consent and in such a situation,
the Court only gives a declaration that the proposed omission
by doctors is not unlawful.
27. After so stating, the Court addressed the legal issues,
namely, active and passive euthanasia. It noted the
legislations prevalent in Netherlands, Switzerland, Belgium,
U.K., Spain, Austria, Italy, Germany, France and United States
of America. It also noted that active euthanasia is illegal in all
States in USA, but physician-assisted death is legal in the
States of Oregon, Washington and Montana. The Court also
referred to the legal position in Canada. Dealing with passive
euthanasia, the two-Judge Bench opined that passive
euthanasia is usually defined as withdrawing medical
34
treatment with a deliberate intention of causing the patient‘s
death. An example was cited by stating that if a patient
requires kidney dialysis to survive, not giving dialysis although
the machine is available is passive euthanasia and similarly,
withdrawing the machine where a patient is in coma or on
heart-lung machine support will ordinarily result in passive
euthanasia. The Court also put non-administration of life
saving medicines like antibiotics in certain situations on the
same platform of passive euthanasia. Denying food to a
person in coma or PVS has also been treated to come within
the ambit of passive euthanasia. The Court copiously referred
to the decision in Airedale. In Airedale case, as has been
noted in Aruna Shanbaug, Lord Goff observed that
discontinuance of artificial feeding in such cases is not
equivalent to cutting a mountaineer‘s rope or severing the air
pipe of a deep sea diver. The real question has to be not
whether the doctor should take a course in which he will
actively kill his patient but whether he should continue to
provide his patient with medical treatment or care which, if
continued, will prolong his life.
35
28. Lord Browne–Wilkinson was of the view that removing
the nasogastric tube in the case of Anthony Bland cannot be
regarded as a positive act causing death. The tube by itself,
without the food being supplied through it, does nothing. Its
non-removal by itself does not cause death since by itself, it
does not sustain life. The learned Judge observed that removal
of the tube would not constitute the actus reus of murder
since such an act by itself would not cause death.
29. Lord Mustill observed:-
―Threaded through the technical arguments
addressed to the House were the strands of a much
wider position, that it is in the best interests of the
community at large that Anthony Bland’s life should
now end. The doctors have done all they can.
Nothing will be gained by going on and much will be
lost. The distress of the family will get steadily
worse. The strain on the devotion of a medical staff
charged with the care of a patient whose condition
will never improve, who may live for years and who
does not even recognise that he is being cared for,
will continue to mount. The large resources of skill,
labour and money now being devoted to Anthony
Bland might in the opinion of many be more
fruitfully employed in improving the condition of
other patients, who if treated may have useful,
healthy and enjoyable lives for years to come.‖
36
30. The two-Judge Bench further observed that the decision
in Airedale by the House of Lords has been followed in a
number of cases in U.K. and the law is now fairly well settled
that in the case of incompetent patients, if the doctors act on
the basis of notified medical opinion and withdraw the
artificial life support system in the patient‘s best interest, the
said act cannot be regarded as a crime. The learned Judges
posed the question as to who is to decide what is that patient‘s
best interest where he is in a PVS and, in that regard, opined
that it is ultimately for the Court to decide, as parens patriae,
as to what is in the best interest of the patient, though the
wishes of close relatives and next friend and the opinion of
medical practitioners should be given due weight in coming to
its decision. For the said purpose, reference was made to the
opinion of Balcombe J. in Re J (A Minor) (Wardship: Medical
Treatment)14 whereby it has been stated that the Court as
representative of the Sovereign and as parens patriae will
adopt the same standard which a reasonable and responsible
parent would do.
14 [1991] 2 WLR 140: [1990] 3 All ER 930: [1991] Fam 33
37
31. The two-Judge Bench referred to the decisions of the
Supreme Court of United States in Washington v.
Glucksberg15 and Vacco v. Quill16 which addressed the issue
whether there was a federal constitutional road to assisted
suicide. Analysing the said decisions and others, the Court
observed that the informed consent doctrine has become
firmly entrenched in American Tort Law and, as a logical
corollary, lays foundation for the doctrine that the patient who
generally possesses the right to consent has the right to refuse
treatment.
32. In the ultimate analysis, the Court opined that the
Airedale case is more apposite to be followed. Thereafter, the
Court adverted to the law in India and ruled that in Gian
Kaur case, this Court had approved the decision of the House
of Lords in Airedale and observed that euthanasia could be
made lawful only by legislation. After so stating, the learned
Judges opined:-
―104. It may be noted that in Gian Kaur case
although the Supreme Court has quoted with
approval the view of the House of Lords in Airedale
15 138 L Ed 2d 772 : 521 US 702 (1997)
16 138 L Ed 2d 834 : 521 US 793 (1997)
38
case, it has not clarified who can decide whether life
support should be discontinued in the case of an
incompetent person e.g. a person in coma or PVS.
This vexed question has been arising often in India
because there are a large number of cases where
persons go into coma (due to an accident or some
other reason) or for some other reason are unable to
give consent, and then the question arises as to who
should give consent for withdrawal of life support.
This is an extremely important question in India
because of the unfortunate low level of ethical
standards to which our society has descended, its
raw and widespread commercialisation, and the
rampant corruption, and hence, the Court has to be
very cautious that unscrupulous persons who wish
to inherit the property of someone may not get him
eliminated by some crooked method.‖
33. After so stating, the two-Judge Bench dwelled upon the
concept of brain dead and various other aspects which
included withdrawal of life support of a patient in PVS and, in
that context, ruled thus:-
―125. In our opinion, if we leave it solely to the
patient‘s relatives or to the doctors or next friend to
decide whether to withdraw the life support of an
incompetent person there is always a risk in our
country that this may be misused by some
unscrupulous persons who wish to inherit or
otherwise grab the property of the patient.
Considering the low ethical levels prevailing in our
society today and the rampant commercialisation
and corruption, we cannot rule out the possibility
that unscrupulous persons with the help of some
unscrupulous doctors may fabricate material to
39
show that it is a terminal case with no chance of
recovery. There are doctors and doctors. While
many doctors are upright, there are others who can
do anything for money (see George Bernard Shaw‘s
play The Doctor’s Dilemma). The commercialisation
of our society has crossed all limits. Hence we have
to guard against the potential of misuse (see Robin
Cook‘s novel Coma). In our opinion, while giving
great weight to the wishes of the parents, spouse, or
other close relatives or next friend of the
incompetent patient and also giving due weight to
the opinion of the attending doctors, we cannot
leave it entirely to their discretion whether to
discontinue the life support or not. We agree with
the decision of Lord Keith in Airedale case5 that the
approval of the High Court should be taken in this
connection. This is in the interest of the protection
of the patient, protection of the doctors, relatives
and next friend, and for reassurance of the patient‘s
family as well as the public. This is also in
consonance with the doctrine of parens patriae
which is a well-known principle of law.‖
34. After so laying down, the Court referred to the authorities
in Charan Lal Sahu v. Union of India 17 and State of
Kerala and another v. N.M. Thomas and others 18 and
further opined that the High Court can grant approval for
withdrawing life support of an incompetent person under
Article 226 of the Constitution because Article 226 gives
abundant power to the High Court to pass suitable orders on
17 (1990) 1 SCC 613
18 (1976) 2 SCC 310
40
the application filed by the near relatives or next friend or the
doctors/hospital staff praying for permission to withdraw the
life support of an incompetent person. Dealing with the
procedure to be adopted by the High Court when such
application is filed, the Court ruled that when such an
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:-
―134. … 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
41
of the doctor‘s committee to them as soon as it is
available. After hearing them, the High Court Bench
should give its verdict.
135. The above procedure should be followed all
over India until Parliament makes legislation on this
subject.
136. The High Court should give its decision
speedily at the earliest, since delay in the matter
may result in causing great mental agony to the
relatives and persons close to the patient. The High
Court should give its decision assigning specific
reasons in accordance with the principle of ―best
interest of the patient‖ laid down by the House of
Lords in Airedale case. The views of the near
relatives and committee of doctors should be given
due weight by the High Court before pronouncing a
final verdict which shall not be summary in nature.‖
35. We must note here that the two-Judge Bench declined to
grant the permission after perusing the medical reports. For
the sake of completeness, we think it apt to reproduce the
reasoning:-
―122. From the above examination by the team of
doctors, it cannot be said that Aruna Shanbaug is
dead. Whatever the condition of her cortex, her
brainstem is certainly alive. She does not need a
heart-lung machine. She breathes on her own
without the help of a respirator. She digests food,
and her body performs other involuntary functions
without any help. From the CD (which we had
screened in the courtroom on 2-3-2011 in the
presence of the counsel and others) it appears that
42
she can certainly not be called dead. She was
making some sounds, blinking, eating food put in
her mouth, and even licking with her tongue
morsels on her mouth. However, there appears little
possibility of her coming out of PVS in which she is
in. In all probability, she will continue to be in the
state in which she is in till her death.‖
D.4 The Reference:
36. The aforesaid matter was decided when the present Writ
Petition was pending for consideration. The present petition
was, thereafter, listed before a three-Judge Bench which noted
the submissions advanced on behalf of the petitioner and also
that of the learned Additional Solicitor General on behalf of the
Union of India. Reliance was placed on the decision in Aruna
Shanbaug. The three-Judge Bench reproduced paragraphs 24
and 25 from Gian Kaur and noted that the Constitution
Bench did not express any binding view on the subject of
euthanasia, rather it reiterated that the legislature would be
the appropriate authority to bring the change.
37. After so holding, it referred to the understanding of Gian
Kaur in Aruna Shanbaug by the two-Judge Bench and
reproduced paragraphs 21 and 101 from the said judgment:-
43
―21. We have carefully considered paras 24 and
25 in Gian Kaur case and we are of the opinion
that all that has been said therein is that the
view in Rathinam case that the right to life
includes the right to die is not correct. We cannot
construe Gian Kaur case to mean anything
beyond that. In fact, it has been specifically
mentioned in para 25 of the aforesaid decision
that ‘the debate even in such cases to permit
physician-assisted termination of life is
inconclusive’. Thus it is obvious that no final view
was expressed in the decision in Gian Kaur case
beyond what we have mentioned above.
x x x x
―101. The Constitution Bench of the Supreme
Court in Gian Kaur v. State of Punjab held that
both euthanasia and assisted suicide are not
lawful in India. That decision overruled the
earlier two-Judge Bench decision of the Supreme
Court in P. Rathinam v. Union of India. The Court
held that the right to life under Article 21 of the
Constitution does not include the right to die
(vide SCC para 33). In Gian Kaur case the
Supreme Court approved of the decision of the
House of Lords in Airedale case and observed that
euthanasia could be made lawful only by
legislation.‖
(Emphasis supplied)
38. Commenting on the said analysis, the three-Judge Bench
went on to say:-
―13. Insofar as the above paragraphs are concerned,
Aruna Shanbaug aptly interpreted the decision of
44
the Constitution Bench in Gian Kaur and came to
the conclusion that euthanasia can be allowed in
India only through a valid legislation. However, it is
factually wrong to observe that in Gian Kaur, the
Constitution Bench approved the decision of the
House of Lords in Airedale N.H.S. Trust v. Bland.
Para 40 of Gian Kaur, clearly states that :
―40. … Even though it is not necessary to deal
with physician-assisted suicide or euthanasia
cases, a brief reference to this decision cited at the
Bar may be made.‖
(Emphasis supplied)
Thus, it was a mere reference in the verdict and it
cannot be construed to mean that the Constitution
Bench in Gian Kaur approved the opinion of the
House of Lords rendered in Airedale. To this extent,
the observation in para 101 of Aruna Shanbaug is
incorrect.‖
39. From the aforesaid, it is clear that the three-Judge Bench
expressed the view that the opinion of the House of Lords in
Airedale has not been approved in Gian Kaur (supra) and to
that extent, the observation in Aruna Shanbaug (supra) is
incorrect. After so stating, the three-Judge Bench opined that
Aruna Shanbaug (supra) upholds the authority of passive
euthanasia and lays down an elaborate procedure for
executing the same on the wrong premise that the
Constitution Bench in Gian Kaur (supra) had upheld the
45
same. Thereafter, considering the important question of law
involved which needs to be reflected in the light of social, legal,
medical and constitutional perspectives, in order to have a
clear enunciation of law, it referred the matter for
consideration by the Constitution Bench of this Court for the
benefit of humanity as a whole. The three-Judge bench further
observed that it was refraining from framing any specific
questions for consideration by the Constitution Bench as it
would like the Constitution Bench to go into all the aspects of
the matter and lay down exhaustive guidelines. That is how
the matter has been placed before us.
E. Our analysis of Gian Kaur:
40. It is the first and foremost duty to understand what has
been stated by the Constitution Bench in Gian Kaur‘s case. It
has referred to the decision in Airedale (supra) that has been
recapitulated in Aruna Shanbaug case which was a case
relating to withdrawal of artificial measures of continuance of
life by the physician. It is relevant to mention here that the
Constitution Bench in Gian Kaur categorically noted that it
was not necessary to deal with physician–assisted suicide or
46
euthanasia cases though a brief reference to the decisions
cited by the Bar was required to be made. The Constitution
Bench noted that Airedale held that in the context of
existence in the persistent vegetative state of no benefit to the
patient, the principle of sanctity of life, which is the concern of
the State, was not an absolute one. The larger bench further
noticed that in Airedale, it had been stated that in such cases
also, the existing crucial distinction between cases in which a
physician decides not to provide or to continue to provide, for
his patient, treatment or care which could or might prolong
his life, and those in which he decides, for example, by
administering a lethal drug actively to bring his patient‘s life to
an end, was indicated. Thereafter, while again referring to
Airedale case, the larger bench observed that it was a case
relating to withdrawal of artificial measures for continuance of
life by the physician. After so stating, the Court reproduced
the following passage from the opinion of Lord Goff of
Chieveley:-
―... But it is not lawful for a doctor to administer a
drug to his patient to bring about his death, even
47
though that course is prompted by a humanitarian
desire to end his suffering, however great that
suffering may be : See Reg v. Cox, (unreported), 18
September (1992). So to act is to cross the Rubicon
which runs between on the one hand the care of
the living patient and on the other hand euthanasia
- actively causing his death to avoid or to end his
suffering. Euthanasia is not lawful at common law.
It is of course well known that there are many
responsible members of our society who believe that
euthanasia should be made lawful; but that result
could, I believe, only be achieved by legislation
which expresses the democratic will that so
fundamental a change should be made in our law,
and can, if enacted, ensure that such legalised
killing can only be carried out subject to appropriate
supervision and control....‖
(Emphasis supplied in Gian Kaur)
41. After reproducing the said passage, the Court opined
thus:-
―41. The desirability of bringing about a change was
considered to be the function of the legislature by
enacting a suitable law providing therein adequate
safeguards to prevent any possible abuse.‖
42. At this stage, it is necessary to clear the maze whether
the Constitution Bench in Gian Kaur had accepted what has
been held in Airedale. On a careful and anxious reading of
Gian Kaur, it is noticeable that there has been narration,
reference and notice of the view taken in Airedale case. It is
48
also worth noting that the Court was concerned with the
constitutional validity of Section 309 IPC that deals with
attempt to commit suicide and Section 306 IPC that provides
for abetment to commit suicide. As noted earlier, the
Constitution Bench, while distinguishing the case of a dying
man who is terminally ill or in a persistent vegetative state and
his termination or premature extinction of life, observed that
the said category of cases may fall within the ambit of right to
die with dignity as a part of right to life with dignity when
death due to termination of natural life is inevitable and
imminent and the process of natural death has commenced.
The Constitution Bench further opined that the said cases do
not amount to extinguishing the life but only amount to
accelerating the process of natural death which has already
commenced and, thereafter, the Constitution Bench stated
that the debate with regard to physician assisted suicide
remains inconclusive. The larger Bench has reiterated that the
cases pertaining to premature extinction of life during the
process of certain natural death of patients who are terminally
ill or in persistent vegetative state were of assistance to
49
interpret Article 21 of the Constitution to include therein the
right to curtail the natural span of life. On a seemly
understanding of the judgment in Gian Kaur, we do not find
that it has decried euthanasia as a concept. On the contrary,
it gives an indication that in such situations, it is the
acceleration of the process of dying which may constitute a
part of right to life with dignity so that the period of suffering
is reduced. We are absolutely conscious that a judgment is not
to be construed as a statute but our effort is to understand
what has been really expressed in Gian Kaur. Be it clarified,
it is understood and appreciated that there is a distinction
between a positive or overt act to put an end to life by the
person living his life and termination of life so that an
individual does not remain in a vegetative state or, for that
matter, when the death is certain because of terminal illness
and he remains alive with the artificially assisted medical
system. In Gian Kaur, while dealing with the attempt to
commit suicide, the Court clearly held that when a man
commits suicide, he has to undertake certain positive overt
acts and the genesis of those acts cannot be tested to or be
50
included within the protection of the expression ―right to life‖
under Article 21 of the Constitution. It was also observed that
a dignified procedure of death may include the right of a dying
man to also die with dignity when the life is ebbing out. This
is how the pronouncement in Gian Kaur has to be
understood. It is also not the ratio of the authority in Gian
Kaur that euthanasia has to be introduced only by a
legislation. What has been stated in paragraph 41 of Gian
Kaur is what has been understood to have been held in
Airedale‘s case. The Court has neither expressed any
independent opinion nor has it approved the said part or the
ratio as stated in Airedale. There has been only a reference to
Airedale‘s case and the view expressed therein as regards
legislation. Therefore, the perception in Aruna Shanbaug that
the Constitution Bench has approved the decision in
Airedale is not correct. It is also quite clear that Gian Kaur
does not lay down that passive euthanasia can only be
thought of or given effect to by legislation. Appositely
understood, it opens an expansive sphere of Article 21 of the
Constitution. Therefore, it can be held without any hesitation
51
that Gian Kaur has neither given any definite opinion with
regard to euthanasia nor has it stated that the same can be
conceived of only by a legislation.
F. Our analysis of Aruna Shanbaug qua legislation:
43. Having said this, we shall focus in detail what has been
stated in Aruna Shanbaug. In paragraph 101 which has
been reproduced hereinbefore, the two-Judge Bench noted
that Gian Kaur has approved the decision of the House of
Lords in Airedale and observed that euthanasia could be
made lawful only by legislation. This perception, according to
us, is not correct. As already stated, Gian Kaur does not lay
down that passive euthanasia could be made lawful only by
legislation. In paragraph 41 of the said judgment, the
Constitution Bench was only adverting to what has been
stated by Lord Goff of Chieveley in Airedale‘s case. However,
this expression of view of Aruna Shanbaug which has not
been accepted by the referral Bench makes no difference to
our present analysis. We unequivocally express the opinion
that Gian Kaur is not a binding precedent for the purpose of
52
laying down the principle that passive euthanasia can be
made lawful ―only by legislation.‖
G. The Distinction between Active and Passive
Euthanasia:
44. As a first step, it is imperative to understand the concept
of euthanasia before we enter into the arena of analysis of the
expanded right of Article 21 in Gian Kaur and the
understanding of the same. Euthanasia is basically an
intentional premature termination of another person‘s life
either by direct intervention (active euthanasia) or by
withholding life-prolonging measures and resources (passive
euthanasia) either at the express or implied request of that
person (voluntary euthanasia) or in the absence of such
approval/consent (non-voluntary euthanasia). Aruna
Shanbaug has discussed about two categories of euthanasia -
active and passive. While dealing with active euthanasia, also
known as ―positive euthanasia‖ or ―aggressive euthanasia‖, it
has been stated that the said type of euthanasia entails a
positive act or affirmative action or act of commission entailing
the use of lethal substances or forces to cause the intentional
53
death of a person by direct intervention, e.g., a lethal injection
given to a person with terminal cancer who is in terrible
agony. Passive euthanasia, on the other hand, also called
―negative euthanasia‖ or ―non-aggressive euthanasia‖, entails
withdrawing of life support measures or withholding of
medical treatment for continuance of life, e.g., withholding of
antibiotics in case of a patient where death is likely to occur as
a result of not giving the said antibiotics or removal of the
heart lung machine from a patient in coma. The two-Judge
Bench has also observed that the legal position across the
world seems to be that while active euthanasia is illegal unless
there is a legislation permitting it, passive euthanasia is legal
even without legislation, provided certain conditions and
safeguards are maintained. The Court has drawn further
distinction between voluntary euthanasia and non-voluntary
euthanasia in the sense that voluntary euthanasia is where
the consent is taken from the patient and non-voluntary
euthanasia is where the consent is unavailable, for instances
when the patient is in coma or is otherwise unable to give
consent. Describing further about active euthanasia, the
54
Division Bench has observed that the said type of euthanasia
involves taking specific steps to cause the patient‘s death such
as injecting the patient with some lethal substance, i.e.,
sodium pentothal which causes, in a person, a state of deep
sleep in a few seconds and the person instantly dies in that
state. That apart, the Court has drawn a distinction between
euthanasia and physician assisted dying and noted that the
difference lies in the fact as to who administers the lethal
medication. It has been observed that in euthanasia, a
physician or third party administers it while in physician
assisted suicide, it is the patient who does it though on the
advice of the doctor. Elaborating further, the two-Judge
Bench has opined that the predominant difference between
―active‖ and ―passive‖ euthanasia is that in the former, a
specific act is done to end the patient‘s life while the latter
covers a situation where something is not done which is
necessary in preserving the patient‘s life. The main idea
behind the distinction, as observed by the Bench, is that in
passive euthanasia, the doctors are not actively killing the
patient, they are merely not saving him and only accelerating
55
the conclusion of the process of natural death which has
already commenced.
45. The two-Judge Bench, thereafter, elaborated on passive
euthanasia and gave more examples of cases within the ambit
of passive euthanasia. The learned Judges further categorized
passive euthanasia into voluntary passive euthanasia and
non-voluntary passive euthanasia. The learned Judges
described voluntary passive euthanasia as a situation where a
person who is capable of deciding for himself decides that he
would prefer to die because of various reasons whereas nonvoluntary
passive euthanasia has been described to mean that
a person is not in a position to decide for himself, e.g., if he is
in coma or PVS.
46. While scrutinizing the distinction between active and
passive euthanasia, the paramount aspect is ―foreseeing the
hastening of death‖. The said view has been propagated in
several decisions all over the world. The Supreme Court of
Canada, in the case of Rodriguez v. British Columbia
56
(Attorney General)19, drew the distinction between these two
forms of euthanasia on the basis of intention. Echoing a
similar view, the Supreme Court of the United States affirmed
the said distinction on the basis of ―intention‖ in the case of
Vacco (supra) wherein Chief Justice Rehnquist observed that
the said distinction coheres with the fundamental legal
principles of causation and intention. In case when the death
of a patient occurs due to removal of life-supporting measures,
the patient dies due to an underlying fatal disease without any
intervening act on the part of the doctor or medical
practitioner, whereas in the cases coming within the purview
of active euthanasia, for example, when the patient ingests
lethal medication, he is killed by that medication.
47. This distinction on the basis of ―intention‖ further finds
support in the explanation provided in the case In the matter
of Claire C. Conroy20 wherein the Court made an observation
that people who refuse life-sustaining medical treatment may
not harbour a specific intent to die, rather they may fervently
19
85 C.C.C. (3d) 15 : (1993) 3 S.C.R. 519
20 98 N.J. 321 (1985) : (1985) 486 A.2d 1209 (N.J.)
57
wish to live but do so free of unwanted medical technology,
surgery or drugs and without protracted suffering.
48. Another distinction on the basis of ―action and nonaction‖
was advanced in the Airedale case. Drawing a crucial
distinction between the two forms of euthanasia, Lord Goff
observed that passive euthanasia includes cases in which a
doctor decides not to provide, or to continue to provide, for his
patient, treatment or care which could prolong his life and
active euthanasia involves actively ending a patient‘s life, for
example, by administering a lethal drug. As per the
observations made by Lord Goff, the former can be considered
lawful either because the doctor intends to give effect to his
patient‘s wishes by withholding the treatment or care, or even
in certain circumstances in which the patient is incapacitated
from giving his consent. However, active euthanasia, even
voluntary, is impermissible despite being prompted by the
humanitarian desire to end the suffering of the patient.
49. It is perhaps due to the distinction evolved between these
two forms of euthanasia, which has gained moral and legal
58
sanctity all over, that most of the countries today have
legalized passive euthanasia either by way of legislations or
through judicial interpretation but there remains uncertainty
whether active euthanasia should be granted legal status.
H. Euthanasia : International Position:
H.1 U.K. Decisions:
H.1.1 Airedale Case:
50. In the obtaining situation, we shall now advert to the
opinions stated in Airedale case. In the said case, one
Anthony Bland, a supporter of Liverpool Football Club, who
had gone to Hillsborough Ground, suffered severe injuries as a
result of which supply to his brain was interrupted.
Eventually, he suffered an irreversible damage to the brain as
a consequence of which he got into a condition of persistent
vegetative state (PVS). He became incapable of voluntary
movement and could feel no pain. He was not in a position to
feel or communicate. To keep him alive, artificial means were
taken recourse to. In such a state of affairs, the treating
doctors and the parents of Bland felt that no fruitful purpose
would be served by continuing the medical aid. As there were
59
doubts with regard to stoppage of medical care which may
incur a criminal liability, a declaration from the British High
Court was sought to resolve the doubts. The Family Division
of the High Court granted the declaration which was affirmed
by the Court of Appeal. The matter travelled to the House of
Lords.
51. Lord Keith of Kinkel opined that regard should be had to
the whole artificial regime which kept Anthony Bland alive and
it was incorrect to direct attention exclusively to the fact that
nourishment was being provided. In his view, the
administration of nourishment by the means adopted involved
the application of a medical technique.
52. Lord Keith observed that in general, it would not be
lawful for a medical practitioner who assumed responsibility
for the care of an unconscious patient simply to give up
treatment in circumstances where continuance of it would
confer some benefit on the patient. On the other hand, a
medical practitioner is under no duty to continue to treat such
a patient where a large body of informed and responsible
60
medical opinion is to the effect that no benefit at all would be
conferred by continuance of treatment. Existence in a
vegetative state with no prospect of recovery is, by that
opinion, regarded as not being a benefit, and that, if not
unarguably correct, at least forms a proper basis for the
decision to discontinue treatment and care. He was of the
further opinion that since existence in PVS is not a benefit to
the patient, the principle of sanctity of life is no longer an
absolute one. It does not compel a medical practitioner to treat
a patient, who will die if not treated, contrary to the express
wishes of the patient. It does not compel the temporary
keeping alive of patients who are terminally ill where to do so
would merely prolong their suffering. On the other hand, it
forbids the taking of active measures to cut short the life of a
terminally ill patient.
53. Lord Keith further stated that it does no violence to the
principle of sanctity of life to hold that it is lawful to cease to
give medical treatment and care to a PVS patient who has
been in that state for over three years considering that to do so
involves invasive manipulation of the patient's body to which
61
he has not consented and which confers no benefit upon him.
He also observed that the decision whether or not the
continued treatment and care of a PVS patient confers any
benefit on him is essentially one for the practitioners in
charge.
54. Lord Goff of Chieveley also held that the principle of
sanctity of life is not an absolute one and there is no absolute
rule that the patient's life must be prolonged by such
treatment or care, if available, regardless of the
circumstances.
55. Lord Goff observed that though he agreed that the
doctor's conduct in discontinuing life support can properly be
categorised as an omission, yet discontinuation of life support
is, for the present purposes, no different from not initiating life
support in the first place as in such a case, the doctor is
simply allowing his patient to die in the sense that he is
desisting from taking a step which might, in certain
circumstances, prevent his patient from dying as a result of
his pre-existing condition; and as a matter of general
62
principle, an omission such as this will not be unlawful unless
it constitutes a breach of duty to the patient.
56. The learned Law Lord further observed that the doctor's
conduct is to be differentiated from that of, for example, an
interloper who maliciously switches off a life support machine
in the sense that although the interloper performs the same
act as the doctor who discontinues life support, yet the doctor,
in discontinuing life support, is simply allowing his patient to
die of his pre-existing condition, whereas the interloper is
actively intervening to stop the doctor from prolonging the
patient's life, and such conduct cannot possibly be categorised
as an omission. This distinction as per Lord Goff appears to be
useful in the context as it can be invoked to explain how
discontinuance of life support can be differentiated from
ending a patient's life by a lethal injection. Lord Goff stated
that the reason for this difference is that the law considers
discontinuance of life support to be consistent with the
doctor's duty to care for his patient, but it does not, for
reasons of policy, consider that it forms any part of his duty to
63
give his patient a lethal injection to put the patient out of his
agony.
57. Emphasising on the patient's best interest principle, Lord
Goff referred to F v. West Berkshire Health Authority 21
wherein the House of Lords stated the legal principles
governing the treatment of a patient who, for the reason that
he was of unsound mind or that he had been rendered
unconscious by accident or by illness, was incapable of stating
whether or not he consented to the treatment or care. In such
circumstances, a doctor may lawfully treat such a patient if he
acts in his best interests, and indeed, if the patient is already
in his care, he is under a duty so to treat him.
58. Drawing an analogy, Lord Goff opined that a decision by
a doctor whether or not to initiate or to continue to provide
treatment or care which could or might have the effect of
prolonging such a patient's life should also be governed by the
same fundamental principle of the patient's best interest. The
learned Law Lord further stated that the doctor who is caring
for such a patient cannot be put under an absolute obligation
21 [1989] 2 All ER 545 : [1990] 2 AC 1
64
to prolong his life by any means available to the doctor,
regardless of the quality of the patient's life. Common
humanity requires otherwise as do medical ethics and good
medical practice accepted in the United Kingdom and
overseas. Lord Goff said that the doctor's decision to take or
not to take any step must be made in the best interests of the
patient (subject to his patient's ability to give or withhold his
consent).
59. Lord Goff further stated that in such cases, the question
is not whether it is in the best interests of the patient that he
should die, rather the correct question for consideration is
whether it is in the best interests of the patient that his life
should be prolonged by the continuance of such form of
medical treatment or care. In Lord Goff‘s view, the correct
formulation of the question is of particular importance in such
cases as the patient is totally unconscious and there is no
hope whatsoever of any amelioration of his condition. Lord
Goff opined that if the question is asked whether it is in the
best interests of the patient to continue the treatment which
has the effect of artificially prolonging his life, that question
65
can sensibly be answered to the effect that the patient's best
interests no longer require such a treatment to be continued.
60. Lord Goff opined that medical treatment is neither
appropriate nor requisite simply to prolong a patient's life
when such treatment has no therapeutic purpose of any kind
and such treatment is futile because the patient is
unconscious and there is no prospect of any improvement in
his condition. Thereafter, the learned Law Lord observed that
regard should also be had to the invasive character of the
treatment and to the indignity to which a patient is subjected
by prolonging his life by artificial means which, in turn,
causes considerable distress to his family. In such cases, Lord
Goff said that it is the futility of the treatment which justifies
its termination and in such circumstances, a doctor is not
required to initiate or to continue life- prolonging treatment or
care keeping in mind the best interests of the patient.
61. Lord Goff, referring to West Berkshire Health
Authority (supra), said that it was stated therein that where a
doctor provides treatment to a person who is incapacitated
66
from saying whether or not he consents to it, the doctor must,
when deciding on the form of treatment, act in accordance
with a responsible and competent body of relevant professional
opinion on the principles set down in Bolam v. Friern
Hospital Management Committee22. Lord Goff opined that
this principle must equally be applicable to decisions to
initiate or to discontinue life support as it is to other forms of
treatment. He also referred to a Discussion Paper on
Treatment of Patients in Persistent Vegetative State issued in
September, 1992 by the Medical Ethics Committee of the
British Medical Association pertaining to four safeguards in
particular which, in the Committee's opinion, should be
observed before discontinuing life support for such patients,
which were: (1) every effort should be made at rehabilitation
for at least six months after the injury; (2) the diagnosis of
irreversible PVS should not be considered confirmed until at
least 12 months after the injury with the effect that any
decision to withhold life-prolonging treatment will be delayed
for that period; (3) the diagnosis should be agreed by two other
22 [1957] 1 W.L.R. 582 : [1957] 2 All ER 118
67
independent doctors; and (4) generally, the wishes of the
patient's immediate family will be given great weight.
62. According to him, the views expressed by the
Committee on the subject of consultation with the relatives of
PVS patients are consistent with the opinion expressed by the
House of Lords in West Berkshire Health Authority (supra)
that it is good practice for the doctor to consult relatives. Lord
Goff observed that the Committee was firmly of the opinion
that the relatives' views would not be determinative of the
treatment inasmuch as if that would have been the case, the
relatives would be able to dictate to the doctors what is in the
best interests of the patient which cannot be right. Even so, a
decision to withhold life-prolonging treatment such as
artificial feeding must require close cooperation with those
close to the patient and it is recognised that, in practice, their
views and the opinions of doctors will coincide in many cases.
63. Thereafter, Lord Goff referred to American cases, namely,
Re Quinlan23 and Superintendent of Belchertown State
23
355 A. 2d 647 : (1976) 70 NJ 10
68
School v. Saikewicz24 wherein the American Courts adopted
what is called the substituted judgment test which involves a
detailed inquiry into the patient's views and preferences. As
per the substituted judgment test, when the patient is
incapacitated from expressing any view on the question
whether life-prolonging treatment should be withheld, an
attempt is made to determine what decision the patient
himself would have made had he been able to do so. In later
American cases concerning PVS patients, it has been held that
in the absence of clear and convincing evidence of the patient's
wishes, the surrogate decision-maker has to implement as far
as possible the decision which the incompetent patient would
have made if he was competent.
64. However, Lord Goff acknowledged that any such test
(substituted judgment test) does not form part of English law
in relation to incompetent adults on whose behalf nobody has
power to give consent to medical treatment. In contrast,
England followed a straightforward test based on the best
interests of the patient coined by the House of Lords in West
24
(1977) 373 Mass 728 : 370 N.E. 2d 417 (1977)
69
Berkshire Health Authority (supra). He opined that the
same test (patient's best interest) should be applied in the
case of PVS patients where the question is whether lifeprolonging
treatment should be withheld. The learned Law
Lord further observed that consistent with the best interests
test, anything relevant to the application of the test may also
be taken into account and if the personality of the patient is
relevant to the application of the test (as it may be in cases
where the various relevant factors have to be weighed), it may
be taken into account as was done in Re J. (A Minor)
(Wardship: Medical Treatment) (supra). But where the
question is whether life support should be withheld from a
PVS patient, it is difficult to see how the personality of the
patient can be relevant, though it may be of comfort to his
relatives if they believe, as in the present case, and indeed
may well be so in many other cases, that the patient would
not have wished his life to be artificially prolonged if he was
totally unconscious and there was no hope of improvement in
his condition.
70
65. As regards the extent to which doctors should, as a
matter of practice, seek the guidance of the court by way of an
application for declaratory relief before withholding lifeprolonging
treatment from a PVS patient, Lord Goff took note
of the judgment of Sir Stephen Brown P, the President of the
Family Division, wherein he held that the opinion of the court
should be sought in all cases of similar nature. Lord Goff also
noted that Sir Thomas Bingham M.R. in the Court of Appeal
expressed his agreement with Sir Stephen Brown P. in the
following words:-
"This was in my respectful view a wise ruling,
directed to the protection of patients, the protection
of doctors, the reassurance of patients' families and
the reassurance of the public. The practice
proposed seems to me desirable. It may very well be
that with the passage of time a body of experience
and practice will build up which will obviate the
need for application in every case, but for the time
being I am satisfied that the practice which the
President described should be followed.‖
66. It is worthy to mention that Lord Goff was of the view
that there was a considerable cost involved in obtaining
guidance from the court in cases of such nature. He took note
of the suggestions forwarded by Mr. Francis, the counsel for
71
the respondents, to the effect that reference to the court was
required in certain specific cases, i.e., (1) where there was
known to be a medical disagreement as to the diagnosis or
prognosis, and (2) problems had arisen with the patient‘s
relatives-disagreement by the next of kin with the medical
recommendation; actual or apparent conflict of interest
between the next of kin and the patient; dispute between
members of the patient‘s family; or absence of any next of kin
to give consent. Lord Goff said that the President of the Family
Division should be able to relax the present requirement so as
to limit applications for declarations only to those cases in
which there is a special need for the procedure to be invoked.
67. Lord Mustill observed that an argument had been
advanced that it was in the best interest of the community at
large that Anthony Bland‘s life should end. The doctors had
done all they could have done. It was a lose-lose situation as
nothing would be gained by continuing Bland‘s treatment and
much would be lost. The distress of Bland‘s family members
would steadily get worse and so would be the strain of the
medical staff charged with the care of Bland despite the fact
72
that Bland's condition would never improve and he would
never recognize that he was being cared for. Further, the
learned Law Lord observed that large resources in terms of
skill, labour and money had been applied for maintaining
Bland in his present condition which, in the opinion of many,
could be fruitfully employed in improving the conditions of
other patients who, if treated, may have useful, healthy and
enjoyable lives for years to come.
68. Lord Lowry, agreeing with the reasoning of Lord Goff of
Chieveley with whom the other learned Law Lords were also in
general agreement, dismissed the appeal. In coming to this
conclusion, Lord Lowry opined that the court, in reaching a
decision according to law, ought to give weight to informed
medical opinion both on the point whether to continue the
artificial feeding regime of a patient in PVS and also on the
question of what is in the best interests of a patient. Lord
Lowry rejected the idea that informed medical opinion in these
respects was merely a disguise which, if accepted, would
legalise euthanasia. Lord Lowry also rejected the Official
Solicitor's argument that the doctors were under a "duty to
73
feed" their patients in PVS as in the instant case, the doctors
overwhelmingly held the opposite view which had been upheld
by the courts below. The doctors considered that it was in the
patient's best interests that they should stop feeding him. Lord
Lowry observed that the learned Law Lords had gone further
by saying that the doctors are not entitled to feed a patient in
PVS without his consent which cannot be obtained.
69. Lord Lowry further opined that there is no proposed
guilty act in stopping the artificial feeding regime inasmuch as
if it is not in the interests of an insentient patient to continue
the life- supporting care and treatment, the doctor would be
acting unlawfully if he continued the care and treatment and
would perform no guilty act by discontinuing it. There is a gap
between the old law on the one hand and new medicine and
new ethics on the other. It is important, particularly in the
area of criminal law which governs conduct, that the society's
notions of what the law is and what is right should coincide.
One role of the legislator, as per Lord Lowry, is to detect any
disparity between these notions and to take appropriate action
to close the gap.
74
70. Lord Browne-Wilkinson observed that the ability to
sustain life artificially is a relatively recent phenomenon.
Existing law may not provide an acceptable answer to the new
legal questions which it raises.
71. In the opinion of the learned Law Lord, there exists no
doubt that it is for the Parliament and not the courts to decide
the broader issues raised by cases of such nature. He
observed that recent developments in medical science have
fundamentally changed the meaning of death. In medicine, the
cessation of breathing or of heartbeat is no longer death
because by the use of a ventilator, lungs which in the unaided
course of nature stop breathing can be made to breathe
artificially thereby sustaining the heartbeat. Thus, people like
Anthony Bland, who would have previously died through
inability to swallow food, can be kept alive by artificial feeding.
This has led the medical profession, in Lord BrowneWilkinson's
view, to redefine death in terms of brain stem
death, i.e., the death of that part of the brain without which
the body cannot function at all without assistance. He further
said that if the judges seek to develop new law to regulate the
75
new circumstances, the law so laid down will reflect the
judges' views on the underlying ethical questions, questions
on which there is a legitimate division of opinion. He
proceeded to state that where a case raises wholly new moral
and social issues, it is neither for the judges to develop new
principles of law nor would it be legitimate for the Judges to
arrive at a conclusion as to what is for the benefit of one
individual whose life is in issue.
72. For the said reasons, the learned Law Lord observed that
it is imperative that the moral, social and legal issues raised
by the case at hand should be considered by the Parliament
and only if the Parliament fails to act, the judge-made law
will, by necessity, provide a legal answer to each new question
as and when it arises.
73. The function of the court, in Lord Browne-Wilkinson's
view, in such circumstances is to determine a particular case
in accordance with the existing law and not to develop new
law laying down a new regimen. He held that it is for the
Parliament to address the wider problems which such a case
raises and lay down principles of law generally applicable to
76
the withdrawal of life support systems. He explained why the
removal of the nasogastric tube in the present case could not
be regarded as a positive act causing death since the tube
itself, without the food being supplied through it, does
nothing. The removal of the tube by itself does not cause
death since it does not sustain life by itself. Therefore, the
removal of the tube would not constitute the actus reus of
murder since such positive act would not be the cause of
death.
74. Thus, Lord Browne-Wilkinson observed that in case of an
adult who is mentally competent, the artificial feeding regime
would be unlawful unless the patient consented to it as a
mentally competent patient can, at any time, put an end to life
support systems by refusing his consent to their continuation.
He also observed that the House of Lords in West Berkshire
Health Authority (supra) developed the principle based on
the concept of necessity under which a doctor can lawfully
treat a patient who cannot consent to such treatment if it is in
the best interests of the patient to receive such treatment. The
learned Law Lord opined that the correct answer to the case at
77
hand depends on the extent of the right to lawfully continue to
invade the bodily integrity of Anthony Bland without his
consent. To determine the extent of the said right, Lord
Browne-Wilkinson observed that it can be deduced from West
Berkshire Health Authority (supra) wherein both Lord
Brandon of Oakbrook and Lord Goff made it clear that the
right to administer invasive medical care is wholly dependent
upon such care being in the best interests of the patient and
moreover, a doctor's decision whether to continue invasive
care is in the best interests of the patient has to be assessed
with reference to the test laid down in Bolam (supra).
75. Lord Browne-Wilkinson held that if there comes a stage
where a responsible doctor comes to the reasonable
conclusion (which accords with the views of a responsible body
of medical opinion) that further continuance of an intrusive
life support system is not in the best interests of the patient,
the doctor can no longer lawfully continue that life support
system as to do so would constitute the crime of battery and
the tort of trespass.
78
76. In Lord Browne-Wilkinson‘s view, the correct legal
question in such cases is not whether the court thinks it is in
the best interests of the patient in PVS to continue to receive
intrusive medical care but whether the doctor responsible has
arrived at a reasonable and bona fide belief that it is not in the
best interests of the patient to continue to receive artificial
medical regime.
77. Accordingly, Lord Browne-Wilkinson observed that on an
application to the court for a declaration that the
discontinuance of medical care will be lawful, the sole concern
of the courts is to be satisfied that the doctor's decision to
discontinue is in accordance with a respectable body of
medical opinion and that it is reasonable. Adverting to various
passages, Lord Browne-Wilkinson dismissed the appeal.
78. It is pertinent to mention here that in adopting the ―best
interests‖ principle in Airedale, the House of Lords followed
its earlier decision in In re F (Mental Patient :
Sterilisation] 25 and in adopting the omission/commission
distinction, it followed the approach of the Court of Appeal in
25 [1990] 2 AC 1 : [1989] 2 WLR 1025 : [1989] 2 All ER 545
79
In re B (A Minor) (Wardship : Medical Treatment)26 and In
re J (A Minor) (Wardship : Medical Treatment) 27 which
raised the question of medical treatment for severely disabled
children. In the context of cases where the patients are unable
to communicate their wishes, it is pertinent to mention the
observations made by Lord Goff in the Airedale case. As
observed by Lord Goff, the correct question in cases of this
kind would be ―whether it is in his best interests that
treatment which has the effect of artificially prolonging his life
should be continued‖. Thus, it was settled in the case of
Airedale that it was lawful for the doctors to discontinue
treatment if the patient refuses such treatment. And in case
the patient is not in a situation permitting him to
communicate his wishes, then it becomes the responsibility of
the doctor to act in the ―best interest‖ of the patient.
H.1.2 Later cases:
79. With reference to the ongoing debate pertaining to
assisted dying, Lord Steyn in the case of R (on the
26 [1981] 1 WLR 1424 : [1990] 3 All ER 927
27 [1991] Fam 33 : [1990] 3 All ER 930 : [1991] 2 WLR 140
80
application of Pretty) v. Director of Public Prosecutions28
explained that on one hand is the view which finds support in
the Roman Catholic Church, Islam and other religions that
human life is sacred and the corollary is that euthanasia and
assisted suicide are always wrong, while on the other hand, as
observed by Lord Steyn, is the belief defended by millions that
the personal autonomy of individuals is predominant and it is
the moral right of individuals to have a say over the time and
manner of their death. Taking note of the imminent risk in
legalizing assisted dying, Lord Steyn took note of the
utilitarian argument that the terminally ill patients and those
suffering great pain from incurable illnesses are often
vulnerable and not all families, whose interests are at stake,
are wholly unselfish and loving and there exists the probability
of abuse in the sense that such people may be persuaded that
they want to die or that they ought to want to die. Further,
Lord Steyn observed that there is also the view that if the
genuine wish of a terminally ill patient to die is expressed by
the patient, then they should not be forced against their will to
28 [2002] 1 All ER 1 : [2001] UKHL 61
81
endure a life that they no longer wish to endure. Without
expressing any view on the unending arguments on either
side, Lord Steyn noted that these wide-ranging arguments are
ancient questions on which millions have taken diametrically
opposite views and still continue to do. In the case of In re B
(Consent to Treatment – Capacity)29, the primacy of patient
autonomy, that is, the competent patient‘s right to decide for
herself whether to submit to medical treatment over other
imperatives, such as her best interests objectively considered,
was recognized thereby confirming the right of the competent
patient to refuse medical treatment even if the result is death
and thus, a competent, ventilator-dependent patient sought
and won the right to have her ventilator turned off.
80. Taking a slightly divergent view from Airedale, Lord
Neuberger in R (on the application of Nicklinson and
another) v. Ministry of Justice30 observed that the difference
between administering fatal drug to a person and setting up a
machine so that the person can administer the drug to himself
is not merely a legal distinction but also a moral one and,
29 [2002] 1 FLR 1090 : [2002] 2 All ER 449
30 [2014] UKSC 38
82
indeed, authorizing a third party to switch off a person‘s life
support machine, as in Airedale, is a more drastic
interference and a more extreme moral step than authorizing a
third party to set up a lethal drug delivery system to enable a
person, only if he wishes, to activate the system to administer
a lethal drug. Elaborating further on this theory, the Law Lord
explained that in those cases which are classified as
―omission‖, for instance, switching off a life support machine
as in Airedale and Re B (Treatment), the act which
immediately causes death is that of a third party which may
be wrong whereas if the final act is that of a person who
himself carries it out pursuant to a voluntary, clear, settled
and informed decision, that may be the permissible side of the
line as in the latter case, the person concerned had not been
―killed‖ by anyone but had autonomously exercised his right to
end his life. The Law Lord, however, immediately clarified that
it is not intended to cast any doubt on the correctness of the
decisions in Airedale and Re B (Treatment).
81. Suffice it to say, he concurred with the view in Airedale
case which he referred to as Bland case. Lord Mance agreed
83
with Lord Neuberger and Lord Sumption. In his opinion, he
referred to Airedale case and thereafter pointed out that a
blanket prohibition was unnecessary and stated in his
observations that persons in tragic position represent a
distinct and relatively small group, and that by devising a
mechanism enabling careful prior review (possibly involving
the Court as well as medical opinion), the vulnerable can be
distinguished from those capable of forming a free and
informed decision to commit suicide. Lord Mance
acknowledged that the law and courts are deeply engaged in
the issues of life and death and made a reference to the
observations of Lord Neuberger.
82. We may note with profit that the prayer of Mr. Nicklinson
and Mr. Lamb were rejected by the Court of Appeal.
83. Lord Mance referred to the expression by Rehnquist CJ
in Washington (supra) in a slightly different context that
there is ―an earnest and profound debate about the morality,
legality, and practicality of …. assisted suicide‖ and ―our
holding permits this debate to continue as it should in a
democratic society‖.
84
84. Lord Wilson concurred with the judgment rendered by
Lord Neuberger, referred to Airedale case and said:-
―As Hoffmann LJ suggested in his classic judgment
in the Court of Appeal in Airedale NHS Trust v
Bland [1993] AC 789 at 826, a law will forfeit
necessary support if it pays no attention to the
ethical dimension of its decisions. In para 209 below
Lord Sumption quotes Hoffmann LJ‘s articulation of
that principle but it is worth remembering that
Hoffmann LJ then proceeded to identify two other
ethical principles, namely those of individual
autonomy and of respect for human dignity, which
can run the other way.‖
And further:-
―In the Pretty case, at para 65, the ECHR was later
to describe those principles as of the very essence of
the ECHR. It was in the light (among other things)
of the force of those two principles that in the Bland
case the House of Lords ruled that it was lawful in
certain circumstances for a doctor not to continue
to provide life-sustaining treatment to a person in a
persistent vegetative state…‖
200. I agree with the observation of Lord Neuberger
at para 94 that, in sanctioning a course leading to
the death of a person about which he was unable to
have a voice, the decision in the Bland case was
arguably more extreme than any step which might
be taken towards enabling a person of full capacity
to exercise what must, at any rate now, in the light
of the effect given to article 8 of the ECHR in the
Haas case at para 51, cited at para 29 above, be
regarded as a positive legal right to commit suicide.
Lord Sumption suggests in para 212-213 below that
85
it remains morally wrong and contrary to public
policy for a person to commit suicide. Blackstone, in
his Commentaries on the Laws of England, Book 4,
Chapter 14, wrote that suicide was also a spiritual
offence ―in evading the prerogative of the Almighty,
and rushing into his immediate presence uncalled
for‖. If expressed in modern religious terms, that
view would still command substantial support and a
moral argument against committing suicide could
convincingly be cast in entirely non-religious terms.
Whether, however, it can be elevated into an overall
conclusion about moral wrong and public policy is
much more difficult.‖
85. Lord Sumption commenced the judgment stating that
English judges tend to avoid addressing the moral foundations
of law. It is not their function to lay down principles of
morality and the attempt leads to large generalisations which
are commonly thought to be unhelpful. He further observed
that in some cases, however, it is unavoidable and this is one
of them. He referred to the opinion of Hoffmann LJ in
Airedale case and the concept of sanctity of life and,
eventually, reproduced a passage from Hoffmann LJ and
opined:-
―215. Why should this be so? There are at least
three reasons why the moral position of the suicide
(whom I will call ―the patient‖ from this point on,
although the term may not always be apt) is
different from that of a third party who helps him to
86
kill himself. In the first place, the moral quality of
their decisions is different. A desire to die can only
result from an overpowering negative impulse
arising from perceived incapacity, failure or pain.
This is an extreme state which is unlikely to be
shared by the third party who assists. Even if the
assister is moved by pure compassion, he inevitably
has a greater degree of detachment. This must in
particular be true of professionals such as doctors,
from whom a high degree of professional objectivity
is expected, even in situations of great emotional
difficulty. Secondly, whatever right a person may
have to put an end to his own life depends on the
principle of autonomy, which leaves the disposal of
his life to him. The right of a third party to assist
cannot depend on that principle. It is essentially
based on the mitigating effect of his compassionate
motive. Yet not everyone seeking to end his life is
equally deserving of compassion. The choice made
by a person to kill himself is morally the same
whether he does it because he is old or terminally
ill, or because he is young and healthy but fed up
with life. In both cases his desire to commit suicide
may be equally justified by his autonomy. But the
choice made by a third party who intervenes to help
him is very different. The element of compassion is
much stronger in the former category than in the
latter. Third, the involvement of a third party raises
the problem of the effect on other vulnerable people,
which the unaided suicide does not. If it is lawful for
a third party to encourage or assist the suicide of a
person who has chosen death with a clear head,
free of external pressures, the potential arises for
him to encourage or assist others who are in a less
good position to decide. Again, this is a more
significant factor in the case of professionals, such
as doctors or carers, who encounter these dilemmas
regularly, than it is in the case of, say, family
87
members confronting them for what will probably be
the only time in their lives.‖
86. Dealing with the appeal by Nicklinson, Lord Sumption
referred to the view of the Canadian Supreme Court in
Rodriguez (supra) and opined:-
―….the issue is an inherently legislative issue for
Parliament, as the representative body in our
constitution, to decide. The question what
procedures might be available for mitigating the
indirect consequences of legalising assisted
suicide, what risks such procedures would entail,
and whether those risks are acceptable, are not
matters which under our constitution a court
should decide.‖
87. Dealing with Martin‘s appeal, Lord Sumption dismissed
the same. While doing so, he said:-
―256. This state of English law and criminal
practice does not of course resolve all of the
problems arising from the pain and indignity of
the death which was endured by Tony Nicklinson
and is now faced by Mr Lamb and Martin. But it
is worth reiterating these well-established
propositions, because it is clear that many
medical professionals are frightened by the law
and take an unduly narrow view of what can
lawfully be done to relieve the suffering of the
terminally ill under the law as it presently
stands. Much needless suffering may be
occurring as a result. It is right to add that there
is a tendency for those who would like to see the
existing law changed, to overstate its difficulties.
This was particularly evident in the submissions
88
of Dignity and Choice in Dying. It would be
unfortunate if this were to narrow yet further the
options open to those approaching death, by
leading them to believe that the current law and
practice is less humane and flexible than it really
is.‖
88. Lord Hughes agreed with the reasoning of Lord Sumption
and dismissed the private appeals and allowed the Appeals
preferred by the Director of Public Prosecutions. Lord Clarke
concurred with the reasoning given by Lord Sumption, Lord
Reed and Lord Hughes. Lord Reed agreed with the view with
regard to the dismissal of the appeals but observed some
aspects with regard to the issue of compatibility.
89. Lord Lady Hale entirely agreed with the judgment of Lord
Neuberger. Lord Kerr in his opinion stated:-
―358. I agree with Lord Neuberger that if the store
put on the sanctity of life cannot justify a ban on
suicide by the able-bodied, it is difficult to see how
it can justify prohibiting a physically incapable
person from seeking assistance to bring about the
end of their life. As one of the witnesses for one of
the interveners, the British Humanist Association,
Professor Blackburn, said, there is ‗no defensible
moral principle‘ in denying the appellants the
means of achieving what, under article 8 and by all
the requirements of compassion and humanity, they
should be entitled to do. To insist that these
unfortunate individuals should continue to endure
the misery that is their lot is not to champion the
89
sanctity of life; it is to coerce them to endure
unspeakable suffering.‖
And again:-
―360. If one may describe the actual administration
of the fatal dose as active assistance and the setting
up of a system which can be activated by the
assisted person as passive assistance, what is the
moral objection to a person actively assisting
someone‘s death, if passive assistance is
acceptable? Why should active assistance give rise
to moral corruption on the part of the assister (or,
for that matter, society as a whole), but passive
assistance not? In both cases the assister‘s aid to
the person who wishes to die is based on the same
conscientious and moral foundation. That it is that
they are doing what the person they assist cannot
do; providing them with the means to bring about
their wished-for death. I cannot detect the moral
distinction between the individual who brings a fatal
dose to their beloved‘s lips from the person who sets
up a system that allows their beloved to activate the
release of the fatal dose by the blink of an eye.‖
Eventually, Lady Hale dismissed the appeal and allowed
the appeals of the Director of Public Prosecutions.
H.2 The legal position in the United States:
90. In the United States of America, active euthanasia is
illegal but physician-assisted death is legal in the States of
Oregon, Washington and Montana. A distinction has been
drawn between euthanasia and physician-assisted suicide. In
90
both Oregon and Washington, only self-assisted dying is
permitted. Doctor-administered assisted dying and any form of
assistance to help a person commit suicide outside the
provisions of the legislation remains a criminal offence.
91. As far as the United States of America is concerned, we
think it appropriate to refer to Cruzan (supra). The said case
involved a 30 year old Missouri woman who was lingering in a
permanent vegetative state as a result of a car accident.
Missouri requires 'clear and convincing evidence' of patients'
preferences and the Missouri Supreme Court, reversing the
decision of the state trial court, rejected the parents' request to
impose a duty on their daughter's physician to end lifesupport.
The United States Supreme Court upheld that States
can require 'clear and convincing evidence' of a patient's desire
in order to oblige physicians to respect this desire. Since
Nancy Cruzan had not clearly expressed her desire to
terminate life support in such a situation, physicians were not
obliged to follow the parents' request.
92. Chief Justice Rehnquist, in his opinion, stated:-
91
―Every human being of adult years and sound mind
has a right to determine what shall be done with his
own body, and a surgeon who performs an
operation without his patient's consent commits an
assault, for which he is liable in damages.‖
He further proceeded to state:-
―The logical corollary of the doctrine of informed
consent is that the patient generally possesses the
right not to consent, that is, to refuse treatment.
Until about 15 years ago and the seminal decision
in In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert.
denied sub nom. Garger v. New Jersey, 429 U.S. 922
(1976), the number of right-to-refuse-treatment
decisions were relatively few. Most of the earlier
cases involved patients who refused medical
treatment forbidden by their religious beliefs, thus
implicating First Amendment rights as well as
common law rights of self-determination. More
recently, however, with the advance of medical
technology capable of sustaining life well past the
point where natural forces would have brought
certain death in earlier times, cases involving the
right to refuse life-sustaining treatment have
burgeoned.‖
93. Meeting the submissions on behalf of the petitioner, the
learned Chief Justice opined:-
―The difficulty with petitioners' claim is that, in a
sense, it begs the question: an incompetent person
is not able to make an informed and voluntary
choice to exercise a hypothetical right to refuse
treatment or any other right. Such a "right" must be
exercised for her, if at all, by some sort of surrogate.
Here, Missouri has in effect recognized that, under
92
certain circumstances, a surrogate may act for the
patient in electing to have hydration and nutrition
withdrawn in such a way as to cause death, but it
has established a procedural safeguard to assure
that the action of the surrogate conforms as best it
may to the wishes expressed by the patient while
competent. Missouri requires that evidence of the
incompetent's wishes as to the withdrawal of
treatment be proved by clear and convincing
evidence. The question, then, is whether the United
States Constitution forbids the establishment of this
procedural requirement by the State. We hold that it
does not.‖
94. The learned Chief Justice came to hold that there was no
clear and convincing evidence to prove that the patient‘s desire
was not to have hydration and nutrition. In the ultimate
analysis, it was stated:-
―No doubt is engendered by anything in this record
but that Nancy Cruzan's mother and father are
loving and caring parents. If the State were required
by the United States Constitution to repose a right
of "substituted judgment" with anyone, the Cruzans
would surely qualify. But we do not think the Due
Process Clause requires the State to repose
judgment on these matters with anyone but the
patient herself. Close family members may have a
strong feeling -- a feeling not at all ignoble or
unworthy, but not entirely disinterested, either --
that they do not wish to witness the continuation of
the life of a loved one which they regard as
hopeless, meaningless, and even degrading. But
there is no automatic assurance that the view of
close family members will necessarily be the same
93
as the patient's would have been had she been
confronted with the prospect of her situation while
competent. All of the reasons previously discussed
for allowing Missouri to require clear and convincing
evidence of the patient's wishes lead us to conclude
that the State may choose to defer only to those
wishes, rather than confide the decision to close
family members.‖
The aforesaid decision has emphasized on ―bodily
integrity‖ and ―informed consent‖.
95. The question that was presented before the Court was
whether New York‘s prohibition on assisted suicide violates the
Equal Protection Clause of the Fourteenth Amendment. The
Court held that it did not and in the course of the discussion,
Chief Justice Rehnquist held:-
―The Court of Appeals, however, concluded that
some terminally ill people—those who are on lifesupport
systems— are treated differently from those
who are not, in that the former may ―hasten death‖
by ending treatment, but the latter may not ―hasten
death‖ through physician-assisted suicide. 80 F. 3d,
at 729. This conclusion depends on the submission
that ending or refusing lifesaving medical treatment
―is nothing more nor less than assisted suicide.‖
Ibid. Unlike the Court of Appeals, we think the
distinction between assisting suicide and
withdrawing life-sustaining treatment, a distinction
widely recognized and endorsed in the medical
profession 6 and in our legal traditions, is both
important and logical; it is certainly rational.‖
94
Dealing with the conclusion in Cruzan (supra), it was
held:-
―This Court has also recognized, at least implicitly,
the distinction between letting a patient die and
making that patient die. In Cruzan v. Director, Mo.
Dept. of Health, 497 U. S. 261, 278 (1990), we
concluded that ―[t]he principle that a competent
person has a constitutionally protected liberty
interest in refusing unwanted medical treatment
may be inferred from our prior decisions,‖ and we
assumed the existence of such a right for purposes
of that case, id., at 279. But our assumption of a
right to refuse treatment was grounded not, as the
Court of Appeals supposed, on the proposition that
patients have a general and abstract ―right to
hasten death,‖ 80 F. 3d, at 727–728, but on wellestablished,
traditional rights to bodily integrity and
freedom from unwanted touching, Cruzan, 497 U.
S., at 278–279; id., at 287– 288 (O‘Connor, J.,
concurring). In fact, we observed that ―the majority
of States in this country have laws imposing
criminal penalties on one who assists another to
commit suicide.‖ Id., at 280. Cruzan therefore
provides no support for the notion that refusing lifesustaining
medical treatment is ―nothing more nor
less than suicide.‖
From the aforesaid passages, it is crystal clear that the
U.S. Supreme Court has recognized that there is a distinction,
in the context of the prevalent law, between letting a patient
die and making that patient die. Right to refuse treatment is
not grounded on the proposition that the patients have general
95
and abstract right to hasten death. The learned Chief Justice
has also endorsed the view of the American Medical
Association emphasizing the fundamental difference between
refusing life-sustaining treatment and demanding a life-ending
treatment.
96. In Vacco (supra), while ruling that a New York ban on
physician assisted suicide was constitutional, the Supreme
Court of the United States applied the standard of intent to
the matter finding that a doctor who withdraws life support at
the request of his patient intends only to respect his patient‘s
wishes. This, the Court said, is in sharp contrast to a doctor
who honours a patient‘s request to end life which necessarily
requires more than an intent to respect the patient‘s wishes,
i.e., it requires the intent to kill the patient. A major difference,
the Court determined, in the two scenarios is that the former
may cause the patient to die from underlying causes while the
latter will cause the patient to die. The Court noted that the
law plainly recognized the difference between ―killing‖ and
―letting die‖. It also recognised that the State of New York had,
as a matter of policy, a compelling interest in forbidding
96
assisted suicide, while allowing a patient to refuse life support
was simply an act of protecting a common law right which was
the right to retain bodily integrity and preserve individual
antonomy since the prevention of ―unwanted touching‖ was, in
the opinion of the Court, a very legitimate right to protect.
H.3 Australian Jurisdiction:
97. Moving to Australian jurisdiction, in Hunter and New
England Area Health Service v. A31, the Supreme Court of
New South Wales considered the validity of a common law
advance directive (there being no legislative provisions for such
directives in NSW) given by Mr. A refusing kidney dialysis.
One year after making the directive, Mr. A was admitted to a
hospital emergency department in a critical state with
decreased level of consciousness. His condition deteriorated to
the point that he was being kept alive by mechanical
ventilation and kidney dialysis. The hospital sought a judicial
declaration to determine the validity of his advance directive.
The Court, speaking through McDougall J., confirmed the
directive and held that the hospital must respect the advance
31 [2009] NSWSC 761
97
directive. Applying the common law principle, the Court
observed:-
―A person may make an 'advance care directive': a
statement that the person does not wish to receive
medical treatment, or medical treatment of specified
kinds. If an advance care directive is made by a
capable adult, and it is clear and unambiguous, and
extends to the situation at hand, it must be
respected. It would be a battery to administer
medical treatment to the person of a kind prohibited
by the advance care directive.‖
98. In Brightwater Care Group (Inc.) v. Rossiter 32 , the
Court was concerned with an anticipatory refusal of treatment
by Mr. Rossiter, a man with quadriplegia who was unable to
undertake any basic human function including taking
nutrition or hydration orally. Mr. Rossiter was not terminally
ill, dying or in a vegetative state and had full mental capacity.
He had ‗clearly and unequivocally‘ indicated that he did not
wish to continue to receive medical treatment which, if
discontinued, would inevitably lead to his death. Martin, CJ,
considering the facts and the common law principle, held :-
―At common law, the answers to the questions
posed by this case are clear and straightforward.
32 [2009] WASC 229 : 40 WAR 84
98
They are to the effect that Mr Rossiter has the right
to determine whether or not he will continue to
receive the services and treatment provided by
Brightwater and, at common law, Brightwater would
be acting unlawfully by continuing to provide
treatment [namely the administration of nutrition
and hydration via a tube inserted into his stomach]
contrary to Mr Rossiter's wishes.‖
99. In Australian Capital Territory v. JT33, an application
to stop medical treatment, other than palliative care, was
rejected. The man receiving treatment suffered from paranoid
schizophrenia and was, therefore, held not mentally capable of
making a decision regarding his treatment. Chief Justice
Higgins found that it would be unlawful for the service
providers to stop providing treatment. The Chief Justice
distinguished this situation from Rossiter as the patient
lacked ‗both understanding of the proposed conduct and the
capacity to give informed consent to it‘. It is clear that mental
capacity is the determining factor in cases relating to selfdetermination.
Since the right of self-determination requires
the ability to make an informed choice about the future, the
requirement of mental capacity would be an obvious
prerequisite. Chief Justice Higgins undertook a detailed
33 [2009] ACTSC 105
99
analysis and rightly distinguished Auckland Area Health
Board v. Attorney-General34 in which a court similarly bound
to apply the human right to life and the prohibition on cruel
and degrading treatment found that futile treatment could be
withdrawn from a patient in a persistent vegetative state. He
agreed with Howie J. in Messiha v. South East Health35 that
futility of treatment could only be determined by consideration
of the best interests of the patient and not by reference to the
convenience of medical cares or their institutions.
100. The above decision basically considered the
circumstances in which technically futile treatment may be
withdrawn from patients at their direct or indirect request or
in their best interests.
H.4 Legal Position in Canada:
101. In Canada, physician-assisted suicide is illegal as per
Section 241(b) of the Criminal Code of Canada. The Supreme
Court of Canada in Rodriguez (supra) has drawn a distinction
between ―intentional actor‖ and ―merely foreseeing‖.
Delivering the judgment on behalf of the majority, Justice
34 [1993] NZLR 235
35 [2004] NSWSC 1061
100
Sopinka rejected the argument that assisted suicide was
similar to the withdrawal of life-preserving treatment at the
patient‘s request. He also rejected the argument that the
distinction between assisted suicide and accepted medical
treatment was even more attenuated in the case of palliative
treatment which was known to hasten death. He observed:-
―The distinction drawn here is one based upon
intention - in the case of palliative care the
intention is to ease pain, which has the effect of
hastening death, while in the case of assisted
suicide, the intention is undeniably to cause
death.‖
He added:-
―In my view, distinctions based on intent are
important, and in fact form the basis of our
criminal law. While factually the distinction may, at
times, be difficult to draw, legally it is clear.‖
102. The Supreme Court of Canada in Carter v. Canada
(Attorney General)36 held that the prohibition on physicianassisted
death in Canada (in Sections 14 and 241(b) of the
Canadian Criminal Code) unjustifiably infringed the right to
life, liberty and security of the person in Article 7 of the
Charter of Rights and Freedoms in the Canadian Constitution.
36 2015 SCC 5
101
103. The Supreme Court declared the infringing provisions of
the Criminal Code void insofar as they prohibit physicianassisted
death for a competent adult person who (1) clearly
consents to the termination of life; and (2) has a grievous and
irremediable medical condition (including an illness, disease or
disability) that causes enduring suffering that is intolerable to
the individual in the circumstances of his or her condition.
‗Irremediable‘, it should be added, does not require the patient
to undertake treatments that are not acceptable to the
individual.
104. After the Supreme Court‘s decision, the Canadian
Government appointed a Special Joint Committee on
Physician-Assisted Dying to ‗make recommendations on the
framework of a federal response on physician assisted dying in
consonance with the Constitution, the Charter of Rights and
Freedoms, and the priorities of Canadians‘. The Special Joint
Committee released its report in February 2016 recommending
a legislative framework which would regulate ‗medical
assistance in dying‘ by imposing both substantive and
procedural safeguards, namely:-
102
Substantive Safeguards:
A grievous and irremediable medical condition (including
an illness, disease or disability) is required;
Enduring suffering that is intolerable to the individual in
the circumstances of his or her condition is required;
Informed consent is required;
Capacity to make the decision is required at the time of
either the advance or contemporaneous request; and
Eligible individuals must be insured persons eligible for
publicly funded health care services in Canada.
Procedural Safeguards:
Two independent doctors must conclude that a person is
eligible;
A request must be in writing and witnessed by two
independent witnesses;
A waiting period is required based, in part, on the
rapidity of progression and nature of the patient‘s
medical condition as determined by the patient‘s
attending physician;
Annual report analyzing medical assistance in dying
cases are to be tabled in Parliament;
and
Support and services, including culturally and spiritually
appropriate end-of-life care services for indigenous
patients, should be improved to ensure that requests are
based on free choice, particularly for vulnerable people.
103
105. It should be noted that physician assisted dying has
already been legalized in the province of Quebec. Quebec
passed an Act respecting end-of-life care (the Quebec Act) in
June 2014 with most of the Act coming into force on 10
December, 2015. The Quebec Act provides a ‗framework for
end-of-life care‘ which includes ‗continuous palliative sedation‘
and ‗medical aid in dying‘ defined as ‗administration by a
physician of medications or substances to an end-of-life
patient, at the patient‘s request, in order to relieve their
suffering by hastening death. In order to be able to access
medical aid in dying under the Quebec Act, a patient must:-
(1) be an insured person within the meaning of the Health
Insurance Act (Chapter A-29);
(2) be of full age and capable of giving consent to care;
(3) be at the end of life;
(4) suffer from a serious and incurable illness;
(5) be in an advanced state of irreversible decline in
capability; and
(6) experience constant and unbearable physical or
psychological suffering
104
(7) which cannot be relieved in a manner the patient deems
tolerable.
106. The request for medical aid in dying must be signed by
two physicians. The Quebec Act also established a
Commission on end-of-life care to provide oversight and advice
to the Minister of Health and Social Services on the
implementation of the legislation regarding end-of-life care.
H.5 Other Jurisdictions:
107. Presently, we think it appropriate to deal with certain
legislations in other countries and the decisions in other
jurisdictions. In Aruna Shanbaug, the Court has in detail
referred to the legislations in Netherlands, i.e., the
Termination of Life on Request and Assisted Suicide (Review
Procedures) Act, 2002 that regulates euthanasia. The
provisions of the said Act lay down that euthanasia and
physician-assisted suicide are not punishable if the attending
physician acts in accordance with the criteria of due care. As
the two-Judge Bench has summarized, this criteria concern
the patient‘s request, the patient‘s suffering (unbearable and
105
hopeless), the information provided to the patient, the
presence of reasonable alternatives, consultation of another
physician and the applied method of ending life. To
demonstrate their compliance, the Act requires physicians to
report euthanasia to a Review Committee. It has been
observed that the said Act legalizes euthanasia and physicianassisted
suicide in very specific cases under three specific
conditions and euthanasia remains a criminal offence in cases
not meeting the laid down specific conditions with the
exception of several situations that are not subject to
restrictions of law at all because they are considered normal
medical practice. The three conditions are : stopping or not
starting a medically useless (futile) treatment, stopping or not
starting a treatment at the patient‘s request and speeding up
death as a side effect of treatment necessary for alleviating
serious suffering.
108. Reference has been made to the Swiss Criminal Code
where active euthanasia has been regarded as illegal. Belgium
has legalized the practice of euthanasia with the enactment of
the Belgium Act on Euthanasia of May 28th, 2002 and the
106
patients can wish to end their life if they are under constant
and unbearable physical or psychological pain resulting from
an accident or an incurable illness. The Act allows adults who
are in a ‗futile medical condition of constant and unbearable
physical or mental suffering that cannot be alleviated‘ to
request voluntary euthanasia. Doctors who practise
euthanasia commit no offence if the prescribed conditions and
procedure is followed and the patient has the legal capacity
and the request is made voluntarily and repeatedly with no
external pressure.
109. Luxembourg too has legalized euthanasia with the
passing of the Law of 16th March, 2009 on Euthanasia and
Assisted Suicide (Lux.). The law permits euthanasia and
assisted suicide in relation to those with incurable conditions
with the requirements including repeated requests and the
consent of two doctors and an expert panel.
110. The position in Germany is that active assisted suicide is
illegal. However, this is not the case for passive assisted
suicide. Thus, in Germany, if doctors stop life-prolonging
measures, for instance, on the written wishes of a patient, it is
107
not considered as a criminal offence. That apart, it is legal for
doctors in Germany to administer painkillers to a dying
patient to ease pain. The said painkillers, in turn, cause low
breathing that may lead to respiratory arrest and, ultimately,
death.
H.6 International considerations and decisions of the
European Court of Human Rights (ECHR):
111. Certain relevant obligations when discussing voluntary
euthanasia are contained in the International Covenant on
Civil and Political Rights (ICCPR). The following rights in the
ICCPR have been considered by the practice of voluntary
euthanasia:
right to life (Article 6)
freedom from cruel, inhuman or degrading treatment
(Article 7)
right to respect for private life (Article 17)
freedom of thought, conscience and religion (Article 18).
112. Right to life under Article 6(1) of the ICCPR provides:
Every human being has the inherent right to life. This right
shall be protected by law. No one shall be arbitrarily deprived
of his life. The second sentence of Article 6(1) imposes a
positive obligation on the States to provide legal protection of
108
the right to life. However, the subsequent reference to life not
being ‗arbitrarily deprived‘ operates to limit the scope of the
right (and therefore the States‘ duty to ensure the right).
Comments from the UN Human Rights Committee suggest
that laws allowing for voluntary euthanasia are not necessarily
incompatible with the States‘ obligation to protect the right to
life.
113. The UN Human Rights Committee has emphasised that
laws allowing for euthanasia must provide effective procedural
safeguards against abuse if they are to be compatible with the
State‘s obligation to protect the right to life. In 2002, the UN
Committee considered the euthanasia law introduced in the
Netherlands. The Committee stated that:-
―where a State party seeks to relax legal protection
with respect to an act deliberately intended to put
an end to human life, the Committee believes that
the Covenant obliges it to apply the most rigorous
scrutiny to determine whether the State party‘s
obligations to ensure the right to life are being
complied with (articles 2 and 6 of the Covenant).‖
114. The European Court of Human Rights (ECHR) has
adopted a similar position to the UN Human Rights Committee
when considering euthanasia laws and the right to life in
109
Article 2 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms (European
Convention). According to the ECHR, the right to life in Article
2 cannot be interpreted as conferring a right to die or a right
to self determination in terms of choosing death rather than
life. However, the ECHR has held that a State‘s obligation to
protect life under that Article does not preclude it from
legalising voluntary euthanasia, provided adequate safeguards
are put in place and adhered to. In Pretty v. United Kingdom
(application no. 2346/02) 37 , the ECHR ruled that the
decision of the applicant to avoid what she considered would
be an undignified and distressing end to her life was part of
the private sphere covered by the scope of Article 8 of the
Convention. The Court affirmed that the right of an individual
to decide how and when to end her life, provided that the said
individual was in a position to make up her own mind in that
respect and to take the appropriate action, was one aspect of
the right to respect for private life under Article 8 of the
Convention. The Court, thus, recognised, with conditions, a
37 [2002] ECHR 423 (29 April, 2002)
110
sort of right to self-determination as to one‘s own death, but
the existence of this right is subject to two conditions, one
linked to the free will of the person concerned and the other
relating to the capacity to take appropriate action. However,
respect for the right to life compels the national authorities to
prevent a person from putting an end to life if such a decision
is not taken freely and with full knowledge.
115. In Hass v. Switzerland (application no. 31322/07)38,
the ECHR explained that:-
―creates for the authorities a duty to protect
vulnerable persons, even against actions by which
they endanger their own lives… this latter Article
obliges the national authorities to prevent an
individual from taking his or her own life if the
decision has not been taken freely and with full
understanding of what is involved‖.
Accordingly, the ECHR concluded that:-
―the right to life guaranteed by Article 2 of the
Convention obliges States to establish a procedure
capable of ensuring that a decision to end one‘s life
does indeed correspond to the free will of the
individual concerned.‖
38 [2011] ECHR 2422: (2011) 53 EHRR 33
111
116. In a recent decision regarding end of life issues, Lambert
and others v. France (application no. 46043/14) 39 , the
ECHR considered whether the decision to withdraw artificial
nutrition and hydration of Vincent Lambert violated the right
to life in Article 2. Vincent Lambert was involved in a serious
road accident which left him tetraplegic and with permanent
brain damage. He was assessed in expert medical reports as
being in a chronic vegetative state that required artificial
nutrition and hydration to be administered via a gastric tube.
117. Mr. Lambert‘s parents applied to the ECHR alleging that
the decision to withdraw his artificial nutrition and hydration
breached, inter alia, the State‘s obligations under Article 2 of
the European Convention. The ECHR highlighted that Article 2
imposes on the States both a negative obligation (to refrain
from the ‗intentional‘ taking of life) and a positive obligation (to
‗take appropriate steps to safeguard the lives of those within
its jurisdiction‘). The Court held that the decision of a doctor
to discontinue life-sustaining treatment (or ‗therapeutic
abstention‘) did not involve the State‘s negative obligation
39 [2015] ECHR 185
112
under Article 2 and, therefore, the only question for the Court
under Article 2 was whether it was consistent with the State‘s
positive obligation.
118. The ECHR emphasized that ‗the Convention has to be
read as a whole‘, and, therefore:-
―in a case such as the present one reference should
be made, in examining a possible violation of Article
2, to Article 8 of the Convention and to the right to
respect for private life and the notion of personal
autonomy which it encompasses.‖
119. The Court noted that there was a consensus among
European member States ‗as to the paramount importance of
the patient‘s wishes in the decision-making process, however
those wishes are expressed‘. It identified that in dealing with
end of life situations, States have some discretion in terms of
striking a balance between the protection of the patients‘ right
to life and the protection of the right to respect their private
life and their personal autonomy. The Court considered that
the provisions of the Law of 22 April 2005 ‗on patients‘ rights
and the end of life‘ promulgated in France making changes in
the French Code of Public Health, as interpreted by the
113
Conseil d’Etat, constituted a legal framework which was
sufficiently clear to regulate with precision the decisions taken
by doctors in situations such as in Mr. Lambert‘s case. The
Court found the legislative framework laid down by domestic
law, as interpreted by the Conseil d’État, and the decisionmaking
process which had been conducted in meticulous
fashion, to be compatible with the requirements of the State‘s
positive obligation under Article 2. With respect to negative
obligations, the ECHR observed that the ―therapeutic
abstention‖ (that is, withdrawal and withholding of medical
treatment) lacks the intention to end the patient‘s life and
rather, a doctor discontinuing medical treatment from his or
her patient merely intends to ―allow death to resume its
natural course and to relieve suffering‖. Therefore, as long as
therapeutic abstention as authorised by the French Public
Health Code is not about taking life intentionally, the ECHR
opined that France had not violated its negative obligation to
―refrain from the intentional taking of life‖.
120. When considering the State‘s positive obligations to
protect human life, the ECHR noted that the regulatory
114
framework developed in the Public Health Code and the
decision of the Conseil d’ Etat established several ―important
safeguards‖ with respect to therapeutic abstention and the
regulation is, therefore, ―apt to ensure the protection of
patients‘ lives.‖
121. All this compelled the ECHR to conclude that there was
no violation of the State‘s positive obligation to protect human
life which, together with the absence of violation of negative
obligations, resulted in the conclusion that ―there would be no
violation of Article 2 of the Convention in the event of
implementation of the Conseil d’ Etat judgment.‖ Thus, the
ECHR in the Lambert (supra) case struck the balance between
the sanctity of life on the one hand and the notions of quality
of life and individual autonomy on the other.
I. The 241st Report of The Law Commission of India on
Passive Euthanasia:
122. After the judgment of Aruna Shanbaug was delivered,
the Law Commission of India submitted its 241st report which
dealt with ‗Passive Euthanasia – A Relook‘. The report in its
introduction has dealt with the origin of the concept of
115
euthanasia. It states that the word ―Euthanasia‖ is derived
from the Greek words ―eu‖ and ―thanotos‖ which literally mean
―good death‖ and is otherwise described as ―mercy killing‖.
The word euthanasia, as pointed out in the Report, was used
by Francis Bacon in the 17th Century to refer to an easy,
painless and happy death as it is the duty and responsibility
of the physician to alleviate the physical suffering of the body
of the patient. A reference has also been made in the Report
to the meaning given to the term by the House of Lords. The
Select Committee on ―Medical Ethics‖ in England defined
Euthanasia as ―a deliberate intervention undertaken with the
express intention of ending a life to relieve intractable
suffering‖. Impressing upon the voluntary nature of
euthanasia, the report has rightly highlighted the clarification
as provided by the European Association of Palliative Care
(EAPC) Ethics Task Force in a discussion on Euthanasia in
2003 to the effect that ―medicalised killing of a person without
the person‘s consent, whether non-voluntary (where the
person is unable to consent) or involuntary (against the
person‘s will) is not euthanasia: it is a murder.‖
116
123. The Commission in its report referred to the observations
made by the then Chairman of the Law Commission in his
letter dated 28th August, 2006 addressed to the Hon‘ble
Minister which was extracted. It is pertinent to reproduce the
same:-
―A hundred years ago, when medicine and
medical technology had not invented the artificial
methods of keeping a terminally ill patient alive by
medical treatment, including by means of
ventilators and artificial feeding, such patients were
meeting their death on account of natural causes.
Today, it is accepted, a terminally ill person has a
common law right to refuse modern medical
procedures and allow nature to take its own course,
as was done in good old times. It is well-settled law
in all countries that a terminally ill patient who is
conscious and is competent, can take an ‗informed
decision‘ to die a natural death and direct that he or
she be not given medical treatment which may
merely prolong life. There are currently a large
number of such patients who have reached a stage
in their illness when according to well-informed
body of medical opinion, there are no chances of
recovery. But modern medicine and technology may
yet enable such patients to prolong life to no
purpose and during such prolongation, patients
could go through extreme pain and suffering.
Several such patients prefer palliative care for
reducing pain and suffering and do not want
medical treatment which will merely prolong life or
postpone death.‖
117
124. The report rightly points out that a rational and
humanitarian outlook should have primacy in such a complex
matter. Recognizing that passive euthanasia, both in the case
of competent and incompetent patients, is being allowed in
most of the countries subject to the doctor acting in the best
interests of the patient, the report summarized the broad
principles of medical ethics which shall be observed by the
doctor in taking the decision. The said principles as obtained
in the report are the patient‘s autonomy (or the right to selfdetermination)
and beneficence which means following a
course of action that is best for the patient uninfluenced by
personal convictions, motives or other considerations. The
Report also refers to the observations made by Lord Keith in
Airedale case providing for a course to safeguard the patient‘s
best interest. As per the said course, which has also been
approved by this Court, the hospital/medical practitioner
should apply to the Family Division of the High Court for
endorsing or reversing the decision taken by the medical
practitioners in charge to discontinue the treatment of a PVS
patient. With respect to the ongoing debates on ―legalizing
118
euthanasia‖, the Report reiterates the observations made in
Airedale that euthanasia (other than passive euthanasia) can
be legalized by means of legislation only.
125. The Report, in upholding the principle of the patient‘s
autonomy, went on to state:-
―…the patient (competent) has a right to refuse
medical treatment resulting in temporary
prolongation of life. The patient‘s life is at the brink
of extinction. There is no slightest hope of recovery.
The patient undergoing terrible suffering and worst
mental agony does not want his life to be prolonged
by artificial means. She/he would not like to spend
for his treatment which is practically worthless.
She/he cares for his bodily integrity rather than
bodily suffering. She/he would not like to live 28
like a ‗cabbage‘ in an intensive care unit for some
days or months till the inevitable death occurs. He
would like to have the right of privacy protected
which implies protection from interference and
bodily invasion. As observed in Gian Kaur‘s case,
the natural process of his death has already
commenced and he would like to die with peace and
dignity. No law can inhibit him from opting such
course. This is not a situation comparable to
suicide, keeping aside the view point in favour of
decriminalizing the attempt to suicide. The doctor or
relatives cannot compel him to have invasive
medical treatment by artificial means or treatment.‖
126. The Report supports the view of several authorities
especially Lord Browne-Wilkinson (in Airedale case) and
119
Justice Cardozo that in case of any forced medical intervention
on the body of a patient, the surgeon/doctor is guilty of
‗assault‘ or ‗battery‘. The Report also laid emphasis on the
opinion of Lord Goff placing the right of self-determination on
a high pedestal. The said relevant observations of Lord Goff,
as also cited in the Report, are as follows:-
―I wish to add that, in cases of this kind, there is no
question of the patient having committed suicide,
nor therefore of the doctor having aided or abetted
him in doing so. It is simply that the patient has, as
he is entitled to do, declined to consent to treatment
which might or would have the effect of prolonging
his life, and the doctor has, in accordance with his
duty, complied with his patient's wishes.‖
127. We have referred to the report of the Law Commission
post Aruna Shanbaug only to highlight that there has been
affirmative thought in this regard. We have also been apprised
by Mr. Narasimha, learned Additional Solicitor General
appearing for the Union of India, that there is going to be a law
with regard to passive euthanasia.
120
J. Right to refuse treatment:
128. Deliberating on the issue of right to refuse treatment,
Justice Cardozo in Schloendorff v. Society of New York
Hospital40 observed:-
―Every human being of adult years and sound mind
has a right to determine what shall be done with his
own body; and a surgeon who performs the
operation without his patient‘s consent commits an
assault for which he is liable in damages.‖
129. In a somewhat different context, King C.J. in F v. R41
identified ―the paramount consideration that a person is
entitled to make his own decisions about his life‖. The said
statement was cited with approval by Mason CJ, Brennan,
Dawson, Toohey and McHugh, JJ. in Rogers v. Whitaker42.
Cardozo‘s statement has been cited and applied in many
cases. Thus, in Malette v. Shulman43, Robins J.A., speaking
with the concurrence of Catzman and Canthy JJA, said:-
―A competent adult is generally entitled to reject a
specific treatment or all treatment, or to select an
alternative form of treatment even if the decision
may entail risks as serious as death and may
40 (1914) 105 NE 92 : (1914) 211 NY 125
41 (1983) 33 SASR 189 at 193
42 [1992] HCA 58 : (1992) 175 CLR 479 at 487
43 67 DLR (4th) 321 (1990) : 72 OR (2d) 417
121
appear mistaken in the eyes of the medical
profession or of the community …. it is the patient
who has the final say on whether to undergo the
treatment.‖
130. The recognition of the freedom of competent adults to
make choices about their medical care necessarily
encompasses recognition of the right to make choices since
individual free choice and self-determination are themselves
fundamental constituents of life. Robins J.A. further clarified
in Malette at page 334:-
―To deny individuals freedom of choice with respect
to their health care can only lessen and not
enhance the value of life.‖
131. In the 21st century, with the advancement of technology
in medical care, it has become possible, with the help of
support machines, to prolong the death of patients for months
and even years in some cases. At this juncture, the right to
refuse medical treatment comes into the picture. A patient
(terminally ill or in a persistent vegetative state) exercising the
right to refuse treatment may ardently wish to live but, at the
same time, he may wish to be free from any medical surgery,
drugs or treatment of any kind so as to avoid protracted
122
physical suffering. Any such person who has come of age
and is of sound mind has a right to refuse medical treatment.
This right stands on a different pedestal as compared to
suicide, physician assisted suicide or even euthanasia. When a
terminally ill patient refuses to take medical treatment, it can
neither be termed as euthanasia nor as suicide. Albeit, both
suicide and refusal to take treatment in case of terminal
ailment shall result in the same consequences, that is, death,
yet refusal to take treatment by itself cannot amount to
suicide. In case of suicide, there has to be a self initiated
positive action with a specific intention to cause one‘s own
death. On the other hand, a patient‘s right to refuse treatment
lacks his specific intention to die, rather it protects the patient
from unwanted medical treatment. A patient refusing medical
treatment merely allows the disease to take its natural course
and if, in this process, death occurs, the cause for it would
primarily be the underlying disease and not any self initiated
act.
132. In Rodriguez (supra), Justice Sopinka, speaking for the
Supreme Court of Canada, held:-
123
―Canadian Court has recognized a common law
right of patients to refuse to consent to medical
treatment or to demand that the treatment, once
commenced, be withdrawn or discontinued. This
right has been specially recognized to exist even if
the withdrawal from or refusal of treatment may
result in death.‖
133. In Secretary, Department of Health and Community
Services (NT) v. JWB and SMB44, the High Court of Australia
acknowledged the fundamental right of personal inviolability.
Justice McHugh observed that the voluntary decision of an
adult person of sound mind as to what should be done to his
or her body must be respected. It was further observed that
under the doctrine of trespass, the common law respects and
protects the autonomy of adult persons and also accepts the
right to self-determination in respect of his or her body which
can be altered only with the consent of the person concerned.
134. There is a presumption of capacity whereby an adult is
presumed to have the capacity to consent to or to refuse
medical treatment unless and until that presumption is
rebutted. Butler-Sloss LJ, in Re MB (Medical Treatment)45,
stated that in deciding whether a person has the capacity to
44 (1992) 66 AJLR 300 : (1992) 175 CLR 218
45 [1997] EWCA Civ 3093 : [1997] 2 FLR 426
124
make a particular decision, the ultimate question is whether
that person suffers from some impairment or disturbance of
mental functioning so as to render him or her incapable of
making the decision. The consent may be vitiated if the
individual concerned may not have been competent in law to
give or refuse that consent; or even if the individual was
competent in law, the decision has been obtained by undue
influence or some other vitiating means; or the apparent
consent or refusal does not extend to the particular situation;
or the terms of the consent or refusal are ambiguous or
uncertain; or if the consent or refusal is based on incorrect
information or incorrect assumption. In circumstances where
it is practicable for a medical practitioner to obtain consent to
treatment, then, for the consent to be valid, it must be based
on full information, including as to its risks and benefits.
135. Where it is not practicable for a medical practitioner to
obtain consent for treatment and where the patient‘s life is in
danger if appropriate treatment is not given, then the
treatment may be administered without consent. This is
justified by what is sometimes called the ―emergency principle‖
125
or ―principle of necessity‖. Usually, the medical practitioner
treats the patient in accordance with his clinical judgment of
what is in the patient‘s best interests. Lord Goff of Chieveley
has rightly pointed out in F v. West Berkshire Health
Authority (supra) that for the principle of necessity to apply,
two conditions must be met:-
(a) There must be ―a necessity to act when it is not
practicable to communicate with the assisted person‖; and
(b) ―the action taken must be such as a reasonable person
would in all the circumstances take, acting in the best
interests of the assisted person.‖
136. However, Lord Goff pointed out that the principle of
necessity does not apply where the proposed action is contrary
to the known wishes of the assisted person to the extent that
he/she is capable of rationally forming such a wish. It follows
that the principle of necessity cannot be relied upon to justify
a particular form of medical treatment where the patient has
given an advance care directive specifying that he/she does
not wish to be so treated and where there is no reasonable
126
basis for doubting the validity and applicability of that
directive.
K. Passive Euthanasia in the context of Article 21 of the
Constitution:
137. We have to restrict our deliberation to the issue whether
euthanasia can come within the ambit and sweep of Article 21.
Article 21 reads as follows:-
―21. Protection of life and personal liberty.—No
person shall be deprived of his life or personal
liberty except according to procedure established by
law.‖
138. The word ‗liberty‘ is the sense and realization of choice of
the attributes associated with the said choice; and the term
‗life‘ is the aspiration to possess the same in a dignified
manner. The two are intrinsically interlinked. Liberty impels
an individual to change and life welcomes the change and the
movement. Life does not intend to live sans liberty as it would
be, in all possibility, a meaningless survival. There is no doubt
that no fundamental right is absolute, but any restraint
imposed on liberty has to be reasonable. Individual liberty aids
in developing one‘s growth of mind and assert individuality.
She/he may not be in a position to rule others but
127
individually, she/he has the authority over the body and
mind. The liberty of personal sovereignty over body and mind
strengthens the faculties in a person. It helps in their
cultivation. Roscoe Pound, in one of his lectures, has aptly
said:-
―… although we think socially, we must still think of
individual interests, and of that greatest of all
claims which a human being may make, the claim
to assert his individuality, to exercise freely the will
and the reason which God has given him. We must
emphasize the social interest in the moral and
social life of the individual, but we must remember
that it is the life of a free-willing being.‖
139. Liberty allows freedom of speech, association and
dissemination without which the society may face hurdles in
attaining the requisite maturity. History is replete with
narratives how the thoughts of individuals, though not
accepted by the contemporaneous society, later on gained not
only acceptance but also respect. One may not agree with
Kantian rigorism, but one must appreciate that without the
said doctrine, there could not have been dissemination of
further humanistic principles. There is a danger in
discouraging free thinking and curtailing the power of
128
imagination. Holmes in Adkins v. Children’s Hospital46 has
observed:-
―It is merely an example of doing what you want to
do, embodied in the word ―liberty‖.‖
140. The concept of liberty perceives a hazard when it feels it
is likely to become hollow. This necessarily means that there
would be liberty available to individuals subject to permissible
legal restraint and it should be made clear that in that
restraint, free ideas cannot be imprisoned by some kind of
unknown terror. Liberty cannot be a slave because it
constitutes the essential marrow of life and that is how we
intend to understand the conception of liberty when we read it
in association with the term ‗life‘ as used in Article 21 of the
Constitution. The great American playwright Tennessee
Williams has said:-
―To be free is to have achieved your life.‖
141. Life as envisaged under Article 21 has been very broadly
understood by this Court. In Board of Trustees of the Port
of Bombay v. Dilipkumar Raghavendranath Nadkarni and
46 261 US 525, 568(1923)
129
others47, the Court has held that the expression ―life‖ does not
merely connote animal existence or a continued drudgery
through life. The expression ‗life‘ has a much wider meaning
and, therefore, where the outcome of a departmental enquiry
is likely to adversely affect the reputation or livelihood of a
person, some of the finer graces of human civilization which
make life worth living would be jeopardized and the same can
be put in jeopardy only by law which inheres fair procedures.
142. In Maneka Gandhi v. Union of India and another48,
Krishna Iyer J., in his own inimitable style, states that among
the great guaranteed rights, life and liberty are the first among
equals carrying a universal connotation cardinal to a decent
human order and protected by constitutional armour. Once
liberty under Article 21 is viewed in a truncated manner,
several other freedoms fade out automatically. To sum up,
personal liberty makes for the worth of the human person.
Travel makes liberty worthwhile. ‗Life‘ is a terrestrial
opportunity for unfolding personality, rising to higher status,
moving to fresh woods and reaching out to reality which
47 (1983) 1 SCC 124
48 (1978) 1 SCC 248
130
makes our earthly journey a true fulfilment – not a tale told by
an idiot full of sound and fury signifying nothing, but a fine
frenzy rolling between heaven and earth. The spirit of man is
at the root of Article 21. In the absence of liberty, other
freedoms are frozen.
143. In State of Andhra Pradesh v. Challa Ramkrishna
Reddy and others49, this Court held that right to life is one of
the basic human rights and it is guaranteed to every person by
Article 21 of the Constitution and not even the State has the
authority to violate that right. A prisoner, whether a convict or
under-trial or a detenu, does not cease to be a human being.
Even when lodged in jail, he continues to enjoy all his
fundamental rights including the right to life guaranteed to
him under the Constitution. The Court further ruled that on
being convicted of crime and deprived of their liberty in
accordance with the procedure established by law, prisoners
still retain the residue of constitutional rights.
144. Having said so, we are required to advert to the issue
whether passive euthanasia can only be conceived of through
49 AIR 2000 SC 2083 : (2000) 5 SCC 712
131
legislation or this Court can, for the present, provide for the
same. We have already explained that the ratio laid down in
Gian Kaur does not convey that the introduction of passive
euthanasia can only be by legislation. In Aruna Shanbaug,
the two-Judge Bench has placed reliance on the Constitution
Bench judgment in Gian Kaur to lay down the guidelines. If,
eventually, we arrive at the conclusion that passive euthanasia
comes within the sweep of Article 21 of the Constitution, we
have no iota of doubt that this Court can lay down the
guidelines.
145. We may clearly state here that the interpretation of the
Constitution, especially fundamental rights, has to be dynamic
and it is only such interpretative dynamism that breathes life
into the written words. As far as Article 21 is concerned, it is
imperative to mention that dynamism can, of course, infuse
life into life and liberty as used in the said Article.
146. In this regard, we may reproduce a couple of
paragraphs from Central Inland Water Transport
132
Corporation Limited and another v. Brojo Nath Ganguly
and another50. They read as under:-
―25. The story of mankind is punctuated by
progress and retrogression. Empires have risen and
crashed into the dust of history. Civilizations have
nourished, reached their peak and passed away. In
the year 1625, Carew, C.J., while delivering the
opinion of the House of Lords in Re the Earldom of
Oxford in a dispute relating to the descent of that
Earldom, said:
―... and yet time hath his revolution, there
must be a period and an end of all temporal
things, finis rerum, an end of names and
dignities, and whatsoever is terrene....‖
The cycle of change and experiment, rise and fall,
growth and decay, and of progress and
retrogression recurs endlessly in the history of man
and the history of civilization. T.S. Eliot in the First
Chorus from ―The Rock‖ said:
―O perpetual revolution of configured stars,
O perpetual recurrence of determined seasons,
O world of spring and autumn, birth and dying;
The endless cycle of idea and action,
Endless invention, endless experiment.‖
26. The law exists to serve the needs of the society
which is governed by it. If the law is to play its
allotted role of serving the needs of the society, it
must reflect the ideas and ideologies of that society.
It must keep time with the heartbeats of the society
and with the needs and aspirations of the people. As
50 (1986) 3 SCC 156
133
the society changes, the law cannot remain
immutable. The early nineteenth century essayist
and wit, Sydney Smith, said: ―When I hear any man
talk of an unalterable law, I am convinced that he is
an unalterable fool.‖ The law must, therefore, in a
changing society march in tune with the changed
ideas and ideologies‖
[Emphasis added]
147. We approve the view in the aforesaid passages. Having
approved the aforesaid principle, we are obliged to state that
the fundamental rights in their connotative expanse are bound
to engulf certain rights which really flow from the same. In
M. Nagaraj and others v. Union of India and others51, the
Constitution Bench has ruled:-
―19. The Constitution is not an ephemeral legal
document embodying a set of legal rules for the
passing hour. It sets out principles for an expanding
future and is intended to endure for ages to come
and consequently to be adapted to the various
crises of human affairs. Therefore, a purposive
rather than a strict literal approach to the
interpretation should be adopted. A constitutional
provision must be construed not in a narrow and
constricted sense but in a wide and liberal manner
so as to anticipate and take account of changing
conditions and purposes so that a constitutional
provision does not get fossilised but remains flexible
enough to meet the newly emerging problems and
challenges.‖
51 (2006) 8 SCC 212
134
And again:-
―29. … constitutionalism is about limits and
aspirations. According to Justice Brennan,
interpretation of the Constitution as a written text is
concerned with aspirations and fundamental
principles. In his article titled ―Challenge to the
Living Constitution‖ by Herman Belz, the author
says that the Constitution embodies aspiration to
social justice, brotherhood and human dignity. It is
a text which contains fundamental principles. …‖
148. In this context, we may make a reference to a threeJudge
Bench decision in V.C. Rangadurai v. D. Gopalan and
others52 wherein the majority, while dealing with Section 35(3)
of the Advocates Act, 1961, stated:-
―8. … we may note that words grow in content with
time and circumstance, that phrases are flexible in
semantics, that the printed text is a set of vessels
into which the court may pour appropriate judicial
meaning. That statute is sick which is allergic to
change in sense which the times demand and the
text does not countermand. That court is superficial
which stops with the cognitive and declines the
creative function of construction. So, we take the
view that 'quarrying' more meaning is permissible
out of Section 35(3) and the appeal provisions, in
the brooding background of social justice, sanctified
by Article 38, and of free legal aid enshrined by
Article 39A of the Constitution.‖
52 (1979) 1 SCC 308
135
The learned Judges went on to say:-
―11. … Judicial 'Legisputation' to borrow a telling
phrase of J. Cohen, is not legislation but application
of a given legislation to new or unforeseen needs
and situations broadly falling within the statutory
provision. In that sense, 'interpretation is
inescapably a kind of legislation' (The Interpretation
and Application of Statutes, Read Dickerson, p.
238). Ibid. p. 238. This is not legislation stricto
sensu but application, and is within the court's
province.‖
149. The aforesaid authorities clearly show the power that
falls within the province of the Court. The language employed
in the constitutional provision should be liberally construed,
for such provision can never remain static. It is because
stasticity would mar the core which is not the intent.
K.1 Individual Dignity as a facet of Article 21:
150. Dignity of an individual has been internationally
recognized as an important facet of human rights in the year
1948 itself with the enactment of the Universal Declaration of
Human Rights. Human dignity not only finds place in the
Preamble of this important document but also in Article 1 of
the same. It is well known that the principles set out in UDHR
are of paramount importance and are given utmost weightage
136
while interpreting human rights all over the world. The first
and foremost responsibility fixed upon the State is the
protection of human dignity without which any other right
would fall apart. Justice Brennan in his book The Constitution
of the United States: Contemporary Ratification has referred to
the Constitution as "a sparkling vision of the supremacy of the
human dignity of every individual."
151. In fact, in the case of Christine Goodwin v. the United
Kingdom53 the European Court of Human Rights, speaking in
the context of the Convention for the Protection of Human
Rights and Fundamental Freedoms, has gone to the extent of
stating that "the very essence of the Convention is respect for
human dignity and human freedom". In the South African
case of S v. Makwanyane 54 O' Regan J. stated in the
Constitutional Court that "without dignity, human life is
substantially diminished."
152. Having noted the aforesaid, it is worthy to note that our
Court has expanded the spectrum of Article 21. In the latest
53 [2002] ECHR 588
54 1995 (3) SA 391
137
nine-Judge Bench decision in K.S. Puttaswamy and another
v. Union of India and others55, dignity has been reaffirmed
to be a component under the said fundamental right. Human
dignity is beyond definition. It may at times defy description.
To some, it may seem to be in the world of abstraction and
some may even perversely treat it as an attribute of egotism or
accentuated eccentricity. This feeling may come from the roots
of absolute cynicism. But what really matters is that life
without dignity is like a sound that is not heard. Dignity
speaks, it has its sound, it is natural and human. It is a
combination of thought and feeling, and, as stated earlier, it
deserves respect even when the person is dead and described
as a ‗body‘. That is why, the Constitution Bench in M. Nagaraj
(supra) lays down:-
―….It is the duty of the State not only to protect the
human dignity but to facilitate it by taking positive
steps in that direction. No exact definition of human
dignity exists. It refers to the intrinsic value of every
human being, which is to be respected. It cannot be
taken away. It cannot give (sic be given). It simply
is. Every human being has dignity by virtue of his
existence. …‖
55 (2017) 10 SCC 1
138
153. The concept and value of dignity requires further
elaboration since we are treating it as an inextricable facet of
right to life that respects all human rights that a person
enjoys. Life is basically self-assertion. In the life of a person,
conflict and dilemma are expected to be normal phenomena.
Oliver Wendell Holmes, in one of his addresses, quoted a line
from a Latin poet who had uttered the message, ―Death plucks
my ear and says, Live- I am coming‖. That is the significance
of living. But when a patient really does not know if he/she is
living till death visits him/her and there is constant suffering
without any hope of living, should one be allowed to wait?
Should she/he be cursed to die as life gradually ebbs out from
her/his being? Should she/he live because of innovative
medical technology or, for that matter, should he/she
continue to live with the support system as people around
him/her think that science in its progressive invention may
bring about an innovative method of cure? To put it
differently, should he/she be ―guinea pig‖ for some kind of
experiment? The answer has to be an emphatic ―No‖ because
such futile waiting mars the pristine concept of life, corrodes
139
the essence of dignity and erodes the fact of eventual choice
which is pivotal to privacy. Recently, in K.S. Puttaswamy
(supra), one of us (Dr. Chandrachud J.), while speaking about
life and dignity, has observed:-
―118. Life is precious in itself. But life is worth living
because of the freedoms which enable each
individual to live life as it should be lived. The best
decisions on how life should be lived are entrusted
to the individual. They are continuously shaped by
the social milieu in which individuals exist. The
duty of the State is to safeguard the ability to take
decisions — the autonomy of the individual — and
not to dictate those decisions. ―Life‖ within the
meaning of Article 21 is not confined to the integrity
of the physical body. The right comprehends one‘s
being in its fullest sense. That which facilitates the
fulfilment of life is as much within the protection of
the guarantee of life.
119. To live is to live with dignity. The draftsmen of
the Constitution defined their vision of the society in
which constitutional values would be attained by
emphasising, among other freedoms, liberty and
dignity. So fundamental is dignity that it permeates
the core of the rights guaranteed to the individual
by Part III. Dignity is the core which unites the
fundamental rights because the fundamental rights
seek to achieve for each individual the dignity of
existence. Privacy with its attendant values assures
dignity to the individual and it is only when life can
be enjoyed with dignity can liberty be of true
substance. Privacy ensures the fulfilment of dignity
and is a core value which the protection of life and
liberty is intended to achieve.‖
140
154. In Mehmood Nayyar Azam v. State of Chhattisgarh
and others56, a two-Judge Bench held thus:-
―Albert Schweitzer, highlighting on Glory of Life,
pronounced with conviction and humility, "the
reverence of life offers me my fundamental principle
on morality". The aforesaid expression may appear
to be an individualistic expression of a great
personality, but, when it is understood in the
complete sense, it really denotes, in its conceptual
essentiality, and connotes, in its macrocosm, the
fundamental perception of a thinker about the
respect that life commands. The reverence of life is
insegragably associated with the dignity of a human
being who is basically divine, not servile. A human
personality is endowed with potential infinity and it
blossoms when dignity is sustained. The sustenance
of such dignity has to be the superlative concern of
every sensitive soul. The essence of dignity can
never be treated as a momentary spark of light or,
for that matter, 'a brief candle', or 'a hollow bubble'.
The spark of life gets more resplendent when man is
treated with dignity sans humiliation, for every man
is expected to lead an honourable life which is a
splendid gift of "creative intelligence"‖
155. The aforesaid authority emphasizes the seminal value of
life that is inherent in the concept of life. Dignity does not
recognize or accept any nexus with the status or station in life.
The singular principle that it pleasantly gets beholden to is the
integral human right of a person. Law gladly takes cognizance
56 (2012) 8 SCC 1
141
of the fact that dignity is the most sacred possession of a man.
And the said possession neither loses its sanctity in the
process of dying nor evaporates when death occurs. In this
context, reference to a passage from Vikas Yadav v. State of
Uttar Pradesh and others57 is note worthy. The two Judge
Bench of this Court, while dealing with the imposition of a
fixed term sentence under Section 302 IPC, took note of the
fact that the High Court had observed the magnitude of
vengeance of the accused and the extent to which they had
gone to destroy the body of the deceased. Keeping in view the
findings of the High Court, this Court stated:-
―From the evidence brought on record as well as the
analysis made by the High Court, it is demonstrable
about the criminal proclivity of the accused persons,
for they have neither the respect for human life nor
did they have any concern for the dignity of a dead
person. They had deliberately comatosed the feeling
that even in death a person has dignity and when
one is dead deserves to be treated with dignity. That
is the basic human right. The brutality that has
been displayed by the accused persons clearly
exposes the depraved state of mind.‖
57 (2016) 9 SCC 541
142
The aforesaid passage shows the pedestal on which the
Court has placed the dignity of an individual.
156. Reiterating that dignity is the most fundamental aspect of
right to life, it has been held in the celebrated case of Francis
Coralie Mullin v. The Administrator, Union Territory of
Delhi58:-
"We think that the right to life includes the right to
live with human dignity and all that goes along with
it, namely, the bare necessaries of life such as
adequate nutrition, clothing and shelter and
facilities for reading, writing and expressing one-self
in diverse forms, freely moving about and mixing
and commingling with fellow human beings. Of
course, the magnitude and content of the
components of this right would depend upon the
extent of the economic development of the country,
but it must, in any view of the matter, include the
right to the basic necessities of life and also the
right to carry on such functions and activities as
constitute the bare minimum expression of the
human-self. Every act which offends against or
impairs human dignity would constitute deprivation
protanto of this right to live and it would have to be
in accordance with reasonable, fair and just
procedure established by law which stands the test
of other fundamental rights. Now obviously, any
form of torture or cruel, inhuman or degrading
treatment would be offensive to human dignity and
constitute an inroad into this right to live and it
would, on this view, be prohibited by Article 21
unless it is in accordance with procedure prescribed
58 (1981) 1 SCC 608
143
by law, but no law which authorises and no
procedure which leads to such torture or cruel,
inhuman or degrading treatment can ever stand the
test of reasonableness and non-arbitrariness: it
would plainly be unconstitutional and void as being
violative of Articles 14 and 21. It would thus be seen
that there is implicit in Article 21 the right to
protection against torture or cruel, inhuman or
degrading treatment which is enunciated in Article
5 of the Universal Declaration of Human Rights and
guaranteed by Article 7 of the International
Covenant on Civil and Political Rights."
157. In National Legal Services Authority v. Union of
India and others59, the Apex Court has held that there is a
growing recognition that the true measure of development of a
nation is not economic growth; it is human dignity.
158. In Shabnam v. Union of India and another60, it has
been further held that:-
"This right to human dignity has many elements.
First and foremost, human dignity is the dignity of
each human being 'as a human being'. Another
element, which needs to be highlighted, in the
context of the present case, is that human dignity is
infringed if a person's life, physical or mental
welfare is armed. It is in this sense torture,
humiliation, forced labour, etc. all infringe on
human dignity.‖
59 (2014) 5 SCC 438
60 (2015) 6 SCC 702
144
159. In Gian Kaur (supra), the Constitution Bench indicates
acceleration of the conclusion of the process of death which
has commenced and this indication, as observed by us, allows
room for expansion. In the said case, the Court was primarily
concerned with the question of constitutional validity of Sections
306 and 309 of IPC. The Court was conscious of the fact that the
debate on euthanasia was not relevant for deciding the question
under consideration. The Court, however, in no uncertain terms
expounded that the word "life" in Article 21 has been construed
as life with human dignity and it takes within its ambit the "right
to die with dignity" being part of the "right to live with dignity".
Further, the "right to live with human dignity" would mean
existence of such a right upto the end of natural life which would
include the right to live a dignified life upto the point of death
including the dignified procedure of death. While adverting to the
situation of a dying man who is terminally ill or in a persistent
vegetative state where he may be permitted to terminate it by a
premature extinction of his life, the Court observed that the said
category of cases may fall within the ambit of "right to die with
dignity" as part of the right to live with dignity when death due to
145
the termination of natural life is certain and imminent and the
process of natural death has commenced, for these are not cases
of extinguishing life but only of accelerating the conclusion of the
process of natural death which has already commenced. The
sequitur of this exposition is that there is little doubt that a
dying man who is terminally ill or in a persistent vegetative state
can make a choice of premature extinction of his life as being a
facet of Article 21 of the Constitution. If that choice is
guaranteed being part of Article 21, there is no necessity of any
legislation for effectuating that fundamental right and more so
his natural human right. Indeed, that right cannot be an
absolute right but subject to regulatory measures to be
prescribed by a suitable legislation which, however, must be
reasonable restrictions and in the interests of the general public.
In the context of the issue under consideration, we must make it
clear that as part of the right to die with dignity in case of a dying
man who is terminally ill or in a persistent vegetative state, only
passive euthanasia would come within the ambit of Article 21
and not the one which would fall within the description of active
euthanasia in which positive steps are taken either by the
146
treating physician or some other person. That is because the
right to die with dignity is an intrinsic facet of Article 21. The
concept that has been touched deserves to be concretised, the
thought has to be realized. It has to be viewed from various
angles, namely, legal permissibility, social and ethical ethos
and medical values.
160. The purpose of saying so is only to highlight that the law
must take cognizance of the changing society and march in
consonance with the developing concepts. The need of the
present has to be served with the interpretative process of law.
However, it is to be seen how much strength and sanction can
be drawn from the Constitution to consummate the changing
ideology and convert it into a reality. The immediate needs are
required to be addressed through the process of interpretation
by the Court unless the same totally falls outside the
constitutional framework or the constitutional interpretation
fails to recognize such dynamism. The Constitution Bench in
Gian Kaur, as stated earlier, distinguishes attempt to suicide
and abetment of suicide from acceleration of the process of
natural death which has commenced. The authorities, we
147
have noted from other jurisdictions, have observed the
distinctions between the administration of lethal injection or
certain medicines to cause painless death and nonadministration
of certain treatment which can prolong the life
in cases where the process of dying that has commenced is not
reversible or withdrawal of the treatment that has been given
to the patient because of the absolute absence of possibility of
saving the life. To explicate, the first part relates to an overt
act whereas the second one would come within the sphere of
informed consent and authorized omission. The omission of
such a nature will not invite any criminal liability if such
action is guided by certain safeguards. The concept is based
on non-prolongation of life where there is no cure for the state
the patient is in and he, under no circumstances, would have
liked to have such a degrading state. The words ―no cure‖ have
to be understood to convey that the patient remains in the
same state of pain and suffering or the dying process is
delayed by means of taking recourse to modern medical
technology. It is a state where the treating physicians and the
family members know fully well that the treatment is
148
administered only to procrastinate the continuum of breath of
the individual and the patient is not even aware that he is
breathing. Life is measured by artificial heartbeats and the
patient has to go through this undignified state which is
imposed on him. The dignity of life is denied to him as there is
no other choice but to suffer an avoidable protracted
treatment thereby thus indubitably casting a cloud and
creating a dent in his right to live with dignity and face death
with dignity, which is a preserved concept of bodily autonomy
and right to privacy. In such a stage, he has no old memories
or any future hopes but he is in a state of misery which
nobody ever desires to have. Some may also silently think that
death, the inevitable factum of life, cannot be invited. To meet
such situations, the Court has a duty to interpret Article 21 in
a further dynamic manner and it has to be stated without any
trace of doubt that the right to life with dignity has to include
the smoothening of the process of dying when the person is in
a vegetative state or is living exclusively by the administration
of artificial aid that prolongs the life by arresting the dignified
and inevitable process of dying. Here, the issue of choice also
149
comes in. Thus analysed, we are disposed to think that such a
right would come within the ambit of Article 21 of the
Constitution.
L. Right of self-determination and individual autonomy:
161. Having dealt with the right to acceleration of the process
of dying a natural death which is arrested with the aid of
modern innovative technology as a part of Article 21 of the
Constitution, it is necessary to address the issues of right of
self-determination and individual autonomy.
162. John Rawls says that the liberal concept of autonomy
focuses on choice and likewise, self-determination is
understood as exercised through the process of choosing61.
The respect for an individual human being and in particular
for his right to choose how he should live his own life is
individual autonomy or the right of self- determination. It is
the right against non-interference by others, which gives a
competent person who has come of age the right to make
decisions concerning his or her own life and body without any
61 Rawls, John, Political Liberalism 32, 33, New York: Columbia University Press, 1993.
150
control or interference of others. Lord Hoffman, in Reeves v.
Commissioner of Police of the Metropolis62 has stated:-
"Autonomy means that every individual is sovereign
over himself and cannot be denied the right to
certain kinds of behaviour, even if intended to cause
his own death."
163. In the context of health and medical care decisions, a
person's exercise of self-determination and autonomy involves
the exercise of his right to decide whether and to what extent
he/she is willing to submit himself/herself to medical
procedures and treatments, choosing amongst the available
alternative treatments or, for that matter, opting for no
treatment at all which, as per his or her own understanding, is
in consonance with his or her own individual aspirations and
values.
164. In Airedale (supra), Lord Goff has expressed that it is
established that the principle of self-determination requires
that respect must be given to the wishes of the patient so that
if an adult patient of sound mind refuses, however
unreasonably, to consent to treatment or care by which
62[2000] 1 AC 360, 379
151
his/her life would or might be prolonged, the doctors
responsible for his/her care must give effect to his/her wishes,
even though they do not consider it to be in his/her best
interests to do so and to this extent, the principle of sanctity of
human life must yield to the principle of self-determination.
Lord Goff further says that the doctor's duty to act in the best
interests of his patient must likewise be qualified with the
patient's right of self determination. Therefore, as far as the
United Kingdom is concerned, it is generally clear that
whenever there is a conflict between a capable adult's exercise
of the right of self-determination and the State's interest in
preserving human life by treating it as sanctimonious, the
right of the individual must prevail.
165. In the United States, the aspect of self-determination and
individual autonomy is concretised in law as all fifty States
along with the District of Columbia, the capital, which is
commonly referred as Washington D.C., have passed
legislations upholding different forms of Advance Directives. In
the United States, even before the enactment of the said laws,
152
a terminally ill person was free to assert the right to die as an
ancillary right to the constitutionally protected right to
privacy. In In Re Quinlan (supra), where a 21 year old girl in
chronic PVS was on ventilator support, the Court, while
weighing Quinlan's right to privacy qua the State's interest in
preserving human life, found that as the degree of bodily
invasion increases and the prognosis for the patient's recovery
dims, the patient's right to privacy increases and the State's
interest weakens. The Supreme Court of New Jersey finally
ruled that the unwritten constitutional right of privacy was
broad enough to encompass a patient's decision to decline
medical treatment in certain circumstances. Again, in Re
Jobes63, which was also a case concerned with a PVS patient,
the Court, following the decision in In Re Quinlan, upheld the
principle of self determination and autonomy of an
incompetent person.
166. The Canadian Criminal Code asserts and protects the
sanctity of life in a number of ways which directly confront the
autonomy of the terminally ill in their medical decision
63 (1987) 108 N.J. 394
153
making. However, the Supreme Court of Canada in Reibl v.
Hughes64 approved an oft-quoted statement of Cardozo J. in
Scholoendorf (supra) that "every human being of adult years
and sound mind has a right to determine what shall be done
with his own body" and Chief Justice Laskin in Reibl (supra)
has further added that battery would lie where surgery or
treatment was performed without consent or where apart from
emergency situations, surgery or medical treatment was given
beyond that to which there was consent. Thus, the Supreme
Court of Canada suggested that competent adults have the
right to make their own medical decisions even if such
decisions are unwise.
167. In Aruna Shanbaug (supra), this Court has observed that
autonomy means the right to self-determination where the
informed patient has a right to choose the manner of his
treatment. To be autonomous the patient should be competent to
make decisions and choices. In the event that he is incompetent
to make choices, his wishes expressed in advance in the form of
a Living Will, or the wishes of surrogates acting on his behalf
64 [1980 2 SCR 880 at 890-891
154
('substituted judgment') are to be respected. The surrogate is
expected to represent what the patient may have decided had
he/she been competent or to act in the patient's best interest. It
is expected that a surrogate acting in the patient's best interest
follows a course of action because it is best for the patient, and
is not influenced by personal convictions, motives or other
considerations.
168. Thus, enquiring into common law and statutory rights
of terminally ill persons in other jurisdictions would indicate
that all adults with the capacity to consent have the common
law right to refuse medical treatment and the right of self
determination.
169. We may, however, add a word of caution that doctors
would be bound by the choice of self-determination made by
the patient who is terminally ill and undergoing a prolonged
medical treatment or is surviving on life support, subject to
being satisfied that the illness of the patient is incurable and
there is no hope of his being cured. Any other consideration
cannot pass off as being in the best interests of the patient.
155
M. Social morality, medical ethicality and State interest:
170. Having dwelt upon the issue of self-determination, we
may presently delve into three aspects, namely, social
morality, medical ethicality and the State interest. The
aforesaid concepts have to be addressed in the constitutional
backdrop. We may clearly note that the society at large may
feel that a patient should be treated till he breathes his last
breath and the treating physicians may feel that they are
bound by their Hippocratic oath which requires them to
provide treatment and save life and not to put an end to life by
not treating the patient. The members of the family may
remain in a constant state of hesitation being apprehensive of
many a social factor which include immediate claim of
inheritance, social stigma and, sometimes, the individual guilt.
The Hippocratic oath taken by a doctor may make him feel
that there has been a failure on his part and sometimes also
make him feel scared of various laws. There can be allegations
against him for negligence or criminal culpability.
171. In this regard, two aspects are to be borne in mind.
First, withdrawal of treatment in an irreversible situation is
156
different from not treating or attending to a patient and
second, once passive euthanasia is recognized in law regard
being had to the right to die with dignity when life is ebbing
out and when the prolongation is done sans purpose, neither
the social morality nor the doctors‘ dilemma or fear will have
any place. It is because the sustenance of dignity and selfrespect
of an individual is inhered in the right of an individual
pertaining to life and liberty and there is necessity for this
protection. And once the said right comes within the shelter of
Article 21 of the Constitution, the social perception and the
apprehension of the physician or treating doctor regarding
facing litigation should be treated as secondary because the
primacy of the right of an individual in this regard has to be
kept on a high pedestal.
172. It is to be borne in mind that passive euthanasia
fundamentally connotes absence of any overt act either by the
patient or by the doctors. It also does not involve any kind of
overt act on the part of the family members. It is avoidance of
unnecessary intrusion in the physical frame of a person, for
the inaction is meant for smooth exit from life. It is paramount
157
for an individual to protect his dignity as an inseparable part
of the right to life which engulfs the dignified process of dying
sans pain, sans suffering and, most importantly, sans
indignity.
173. There are philosophers, thinkers and also scientists who
feel that life is not confined to the physical frame and
biological characteristics. But there is no denial of the fact that
life in its connotative expanse intends to search for its
meaning and find the solution of the riddle of existence for
which some lean on atheism and some vouchsafe for faith and
yet some stand by the ideas of an agnostic. However, the legal
fulcrum has to be how Article 21 of the Constitution is
understood. If a man is allowed to or, for that matter, forced to
undergo pain, suffering and state of indignity because of
unwarranted medical support, the meaning of dignity is lost
and the search for meaning of life is in vain.
N. Submissions of the States
174. In this context, we may reflect on the submissions
advanced on behalf of certain States. As stated earlier, there
158
is a categorical assertion that protection of human life is
paramount and it is obligatory on behalf of the States to
provide treatment and to see that no one dies because of lack
of treatment and to realise the principles enshrined in Chapter
IV of the Constitution. Emphasis has been laid on the State
interest and the process of abuse that can take place in
treating passive euthanasia as permissible in law. To
eliminate the possibility of abuse, safeguards can be taken
and guidelines can be framed. But on the plea of possibility of
abuse, the dignity in the process of dying being a facet of
Article 21 should not be curbed.
Mr. Datar, learned senior counsel in the course of
arguments, has advanced submissions in support of passive
euthanasia and also given suggestions spelling out the
guidelines for advance directive and also implementation of
the same when the patient is hospitalized. The said aspect
shall be taken into consideration while giving effect to the
advance directive and also taking steps for withdrawal of
medical support.
159
O. Submissions of Intervenor (Society for the Right to
Die with Dignity):
175. Mr. Mohta, learned counsel appearing for the intervenor,
that is, Society for the Right to Die with Dignity, has drawn
our attention to certain articles and submitted that from the
days of Plato to the time of Sir Thomas More and other
thinkers, painless and peaceful death has been advocated. He
would also submit that ancient wisdom of India taught people
not to fear death but to aspire for deathlessness and conceive
it as ―Mahaprasthana‖. It is his submission that in the modern
State, the State interest should not over-weigh the individual
interest in the sphere of a desire to die a peaceful death which
basically conveys refusal of treatment when the condition of
the individual suffering from a disease is irreversible. The
freedom of choice in this sphere, as Mr. Mohta would put it,
serves the cause of humanitarian approach which is not the
process to put an end to life by taking a positive action but to
allow a dying patient to die peaceably instead of prolonging the
process of dying without purpose that creates a dent in his
dignity.
160
176. The aforesaid argument, we have no hesitation to say,
has force. It is so because it is in accord with the
constitutional precept and fosters the cherished value of
dignity of an individual. It saves a helpless person from
uncalled for and unnecessary treatment when he is considered
as merely a creature whose breath is felt or measured because
of advanced medical technology. His ―being‖ exclusively rests
on the mercy of the technology which can prolong the
condition for some period. The said prolongation is definitely
not in his interest. On the contrary, it tantamounts to
destruction of his dignity which is the core value of life. In our
considered opinion, in such a situation, an individual interest
has to be given priority over the State interest.
P. Advance Directive/Advance Care Directive/Advance
Medical Directive:
177. In order to overcome the difficulty faced in case of
patients who are unable to express their wishes at the time of
taking the decision, the concept of Advance Medical Directives
emerged in various countries. The proponents of Advance
Medical Directives contend that the concept of patient
161
autonomy for incompetent patients can be given effect to, by
giving room to new methods by which incompetent patients
can beforehand communicate their choices which are made
while they are competent. Further, it may be argued that
failure to recognize Advance Medical Directives would amount
to non-facilitation of the right to have a smoothened dying
process. That apart, it accepts the position that a competent
person can express her/his choice to refuse treatment at the
time when the decision is required to be made.
178. Advance Directives for health care go by various names
in different countries though the objective by and large is the
same, that is, to specify an individual's health care decisions
and to identify persons who will take those decisions for the
said individual in the event he is unable to communicate his
wishes to the doctor.
179. The Black's Law Dictionary defines an advance medical
directive as, "a legal document explaining one's wishes about
medical treatment if one becomes incompetent or unable to
communicate‖. A living will, on the other hand, is a document
prescribing a person's wishes regarding the medical treatment
162
the person would want if he was unable to share his wishes
with the health care provider.
180. Another type of advance medical directive is medical
power of attorney. It is a document which allows an individual
(principal) to appoint a trusted person (agent) to take health
care decisions when the principal is not able to take such
decisions. The agent appointed to deal with such issues can
interpret the principal's decisions based on their mutual
knowledge and understanding.
181. Advance Directives have gained lawful recognition in
several jurisdictions by way of legislation and in certain
countries through judicial pronouncements. In vast majority of
the States in USA, it is mandatory for the doctors to give effect
to the wishes of the patients as declared by them in their
advance directives. California was the first State to legally
sanction living will. The United States Congress in 1990, with
the objective of protecting the fundamental principles of selfautonomy
and self-determination, enacted the Patient SelfDetermination
Act (PSDA) which acknowledged the rights of
the patient to either refuse or accept treatment. Following this,
163
all 50 States enacted legislations adopting advance directives.
Apart from this, several States of USA also permit the patients
to appoint a health care proxy which becomes effective only
when the patient is unable to make decisions.
182. In order to deal with the technicalities and intricacies
associated with an instrument as complex as an Advance
Directive, several derivatives/versions have evolved over time.
The National Right to Life Committee (NRLC) in the United
States came up with a version of a living will which was called
'Will to Live" which is a safeguard of the lives of patients who
wish to continue treatment and not refuse life-sustaining
treatment. This form of active declaration gains importance in
cases where the will of the patient cannot be deciphered with
certainty and the Courts order withdrawal of life supporting
treatment where they deem the life of the patient as not
worthwhile.
183. Yet another measure for finding and accessing the
patient's advance directive was the setting up of the U.S.
Living Will Registry. As per this model, it was obligatory on the
part of the hospital administration to ask a patient, who would
164
be admitted, if he/she had an advance directive and store the
same on their medical file. A special power to the Advance
Directives introduced by Virginia was the "Ulysses Clause"
which accords protection in situations when the patient goes
into relapse in his/her condition, that is, schizophrenia and
refuses treatment which they would not refuse if not for the
said relapse.
184. A new type of advance directive is the "Do Not
Resuscitate Order" (DNRO) in Florida which is a form of
patient identification device developed by the Department of
Health to identify people who do not wish to be resuscitated in
the event of respiratory or cardiac arrest. In Florida State of
United States, where an unconscious patient with the phrase
"Do Not Resuscitate" tattooed on his chest was brought in
paramedics, the doctors were left in a conundrum whether the
message was not to provide any medical treatment to the
patient and ultimately, the doctors opted not to perform any
medical procedure and the patient, thereafter, died. This case
highlights the dynamics involved in the concept of advanced
directives due to the intricacies surrounding the concept.
165
185. The Mental Capacity Act governs the law relating to
advance directives in the UK. Specific guidelines as to the
manner in which the advance directive should be drafted and
the necessary conditions that need to be fulfilled in order to
give effect to the directives have been categorically laid out in
the said piece of legislation. A few specific requirements in
case of refusal of life sustaining treatment is the verification of
the decision-maker that the refusal operates even if life is at
risk and that the directive should be in the written form and
signed and witnessed. However, an advance directive refusing
food and water has not been recognized under this statute.
Further, the Act recognizes the rights of the patient to appoint
a health care proxy who is referred to as "lasting power of
attorney". In order for the proxy decision-maker so appointed
to be competent to consent or refuse life-sustaining treatment
of the decision-maker, an express provision delegating the said
authority should be a part of the advance directive. In general,
as per the settled law vide the decision in Airedale, life
sustaining treatment including artificial nutrition and
hydration can be withdrawn if the patient consents to it and in
166
case of incompetent patients, if it is in their best interest to do
so.
186. Australia too, by way of legislation, has well established
principles governing Advance Health Directives. Except
Tasmania, all states have a provision for Advance Directives.
The Advance Directives as postulated by the different
legislations in each State in Australia differ in nature and their
binding effect but the objective of every type remains the same,
that is, preservation of the patient's autonomy. There are
several circumstances when the advance health care directives
or certain provisions contained therein become inoperative.
187. In Queensland, the directive becomes inoperative if the
medical health practitioner is of the opinion that giving effect
to the directive is inconsistent with good medical practice or in
case of a change in circumstances, including new advances in
medicine, medical practice and technology, to the extent that
giving effect to the directive is inappropriate.
188. In the State of Victoria, an advance directive ceases to
apply due to a change in the condition of the patient to the
extent that the condition in relation to which the advance
167
directive was given no longer exists. Further, South Australia
permits a medical practitioner to refuse to comply with a
certain provision in an advance directive in case he/she has
enough reason to believe that the patient did not intend the
provision to apply in certain conditions or the provision would
not reflect the present wishes of the patient. In Western
Australia, the occurrence of a change in circumstances which
either the decision maker could have never anticipated at the
time of making the directive or which could have the effect on
a reasonable person in the position of the decision maker to
change his/her mind regarding the treatment decision would
invalidate the said treatment decision in the directive. In
Northern Territory, an advance consent direction is
disregarded in case giving effect to it would result in such
unacceptable pain and suffering to the patient or would be so
unjustifiable and rather it is more reasonable to override the
wishes of the patient. Furthermore, if the medical practitioner
is of the opinion that the patient would have never intended
the advance consent direction to apply in the circumstances,
then the advance consent direction need not be complied with.
168
189. Canada does not have a federal legislation exclusively to
regulate advance directives. Rather, there are eleven different
provincial approaches governing the law on passive
euthanasia and advance directives in Canada. The provinces
of Alberta, Saskatchewan, Manitoba, Prince Edward Island,
Newfoundland and Labrador and Northwest Territories have a
provision for both proxy and instructional directives, whereas,
the States of British Columbia, Ontario, Quebec and Yukon
provide only for appointment of a proxy while simultaneously
recognizing the binding nature of previously given
instructions. The respective legislations of the
provinces/territories differ from one another on several
criteria, for instance, minimum age requirement and other
formalities to be complied with, such as written nature of the
advance directive, etc. Furthermore, some of the provinces
mandate a prior consultation with a lawyer. Wishes orally
expressed have also been recognized by some provinces.
190. Having dealt with the principles in vogue across the
globe, we may presently proceed to deal with the issue of
advance medical directive which should be ideal in our
169
country. Be it noted, though the learned counsel for the
petitioner has used the words ―living will‖, yet we do not intend
to use the said terminology. We have already stated that
safeguards and guidelines are required to be provided. First,
we shall analyse the issue of legal permissibility of the advance
medical directive. In other jurisdictions, the concepts of ―living
will‖ and involvement of Attorney are stipulated. There is no
legal framework in our country as regards the Advance
Medical Directive but we are obliged to protect the right of the
citizens as enshrined under Article 21 of the Constitution. It is
our constitutional obligation. As noticed earlier, the two-Judge
Bench in Aruna Shanbaug (supra) has provided for
approaching the High Court under Article 226 of the
Constitution. The directions and guidelines to be given in this
judgment would be comprehensive and would also cover the
situation dealt with Aruna Shanbaug case.
191. In our considered opinion, Advance Medical Directive
would serve as a fruitful means to facilitate the fructification of
the sacrosanct right to life with dignity. The said directive, we
think, will dispel many a doubt at the relevant time of need
170
during the course of treatment of the patient. That apart, it
will strengthen the mind of the treating doctors as they will be
in a position to ensure, after being satisfied, that they are
acting in a lawful manner. We may hasten to add that Advance
Medical Directive cannot operate in abstraction. There has to
be safeguards. They need to be spelt out. We enumerate them
as follows:-
(a) Who can execute the Advance Directive and how?
(i) The Advance Directive can be executed only by
an adult who is of a sound and healthy state of
mind and in a position to communicate, relate
and comprehend the purpose and consequences
of executing the document.
(ii) It must be voluntarily executed and without any
coercion or inducement or compulsion and after
having full knowledge or information.
(iii) It should have characteristics of an informed
consent given without any undue influence or
constraint.
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(iv) It shall be in writing clearly stating as to when
medical treatment may be withdrawn or no
specific medical treatment shall be given which
will only have the effect of delaying the process
of death that may otherwise cause him/her
pain, anguish and suffering and further put
him/her in a state of indignity.
(b) What should it contain?
(i) It should clearly indicate the decision relating to
the circumstances in which withholding or
withdrawal of medical treatment can be resorted
to.
(ii) It should be in specific terms and the
instructions must be absolutely clear and
unambiguous.
(iii) It should mention that the executor may revoke
the instructions/authority at any time.
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(iv) It should disclose that the executor has
understood the consequences of executing such
a document.
(v) It should specify the name of a guardian or close
relative who, in the event of the executor
becoming incapable of taking decision at the
relevant time, will be authorized to give consent
to refuse or withdraw medical treatment in a
manner consistent with the Advance Directive.
(vi) In the event that there is more than one valid
Advance Directive, none of which have been
revoked, the most recently signed Advance
Directive will be considered as the last
expression of the patient‘s wishes and will be
given effect to.
(c) How should it be recorded and preserved?
(i) The document should be signed by the executor
in the presence of two attesting witnesses,
preferably independent, and countersigned by
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the jurisdictional Judicial Magistrate of First
Class (JMFC) so designated by the concerned
District Judge.
(ii) The witnesses and the jurisdictional JMFC shall
record their satisfaction that the document has
been executed voluntarily and without any
coercion or inducement or compulsion and with
full understanding of all the relevant information
and consequences.
(iii) The JMFC shall preserve one copy of the
document in his office, in addition to keeping it
in digital format.
(iv) The JMFC shall forward one copy of the
document to the Registry of the jurisdictional
District Court for being preserved. Additionally,
the Registry of the District Judge shall retain the
document in digital format.
(v) The JMFC shall cause to inform the immediate
family members of the executor, if not present at
174
the time of execution, and make them aware
about the execution of the document.
(vi) A copy shall be handed over to the competent
officer of the local Government or the Municipal
Corporation or Municipality or Panchayat, as the
case may be. The aforesaid authorities shall
nominate a competent official in that regard who
shall be the custodian of the said document.
(vii) The JMFC shall cause to handover copy of the
Advance Directive to the family physician, if any.
(d) When and by whom can it be given effect to?
(i) In the event the executor becomes terminally ill
and is undergoing prolonged medical treatment
with no hope of recovery and cure of the ailment,
the treating physician, when made aware about
the Advance Directive, shall ascertain the
genuineness and authenticity thereof from the
jurisdictional JMFC before acting upon the
same.
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(ii) The instructions in the document must be given
due weight by the doctors. However, it should be
given effect to only after being fully satisfied that
the executor is terminally ill and is undergoing
prolonged treatment or is surviving on life
support and that the illness of the executor is
incurable or there is no hope of him/her being
cured.
(iii) If the physician treating the patient (executor of
the document) is satisfied that the instructions
given in the document need to be acted upon, he
shall inform the executor or his guardian / close
relative, as the case may be, about the nature of
illness, the availability of medical care and
consequences of alternative forms of treatment
and the consequences of remaining untreated.
He must also ensure that he believes on
reasonable grounds that the person in question
understands the information provided, has
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cogitated over the options and has come to a
firm view that the option of withdrawal or refusal
of medical treatment is the best choice.
(iv) The physician/hospital where the executor has
been admitted for medical treatment shall then
constitute a Medical Board consisting of the
Head of the treating Department and at least
three experts from the fields of general medicine,
cardiology, neurology, nephrology, psychiatry or
oncology with experience in critical care and
with overall standing in the medical profession
of at least twenty years who, in turn, shall visit
the patient in the presence of his guardian/close
relative and form an opinion whether to certify
or not to certify carrying out the instructions of
withdrawal or refusal of further medical
treatment. This decision shall be regarded as a
preliminary opinion.
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(v) In the event the Hospital Medical Board certifies
that the instructions contained in the Advance
Directive ought to be carried out, the
physician/hospital shall forthwith inform the
jurisdictional Collector about the proposal. The
jurisdictional Collector shall then immediately
constitute a Medical Board comprising the Chief
District Medical Officer of the concerned district
as the Chairman and three expert doctors from
the fields of general medicine, cardiology,
neurology, nephrology, psychiatry or oncology
with experience in critical care and with overall
standing in the medical profession of at least
twenty years (who were not members of the
previous Medical Board of the hospital). They
shall jointly visit the hospital where the patient
is admitted and if they concur with the initial
decision of the Medical Board of the hospital,
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they may endorse the certificate to carry out the
instructions given in the Advance Directive.
(vi) The Board constituted by the Collector must
beforehand ascertain the wishes of the executor
if he is in a position to communicate and is
capable of understanding the consequences of
withdrawal of medical treatment. In the event
the executor is incapable of taking decision or
develops impaired decision making capacity,
then the consent of the guardian nominated by
the executor in the Advance Directive should be
obtained regarding refusal or withdrawal of
medical treatment to the executor to the extent
of and consistent with the clear instructions
given in the Advance Directive.
(vii) The Chairman of the Medical Board nominated
by the Collector, that is, the Chief District
Medical Officer, shall convey the decision of the
Board to the jurisdictional JMFC before giving
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effect to the decision to withdraw the medical
treatment administered to the executor. The
JMFC shall visit the patient at the earliest and,
after examining all aspects, authorise the
implementation of the decision of the Board.
(viii) It will be open to the executor to revoke the
document at any stage before it is acted upon
and implemented.
(e) What if permission is refused by the Medical Board?
(i) If permission to withdraw medical treatment is
refused by the Medical Board, it would be open
to the executor of the Advance Directive or his
family members or even the treating doctor or
the hospital staff to approach the High Court by
way of writ petition under Article 226 of the
Constitution. If such application is filed before
the High Court, the Chief Justice of the said
High Court shall constitute a Division Bench to
decide upon grant of approval or to refuse the
180
same. The High Court will be free to constitute
an independent Committee consisting of three
doctors from the fields of general medicine,
cardiology, neurology, nephrology, psychiatry or
oncology with experience in critical care and
with overall standing in the medical profession
of at least twenty years.
(ii) The High Court shall hear the application
expeditiously after affording opportunity to the
State counsel. It would be open to the High
Court to constitute Medical Board in terms of its
order to examine the patient and submit report
about the feasibility of acting upon the
instructions contained in the Advance Directive.
(iii) Needless to say that the High Court shall render
its decision at the earliest as such matters
cannot brook any delay and it shall ascribe
reasons specifically keeping in mind the
principles of "best interests of the patient".
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(f) Revocation or inapplicability of Advance Directive
(i) An individual may withdraw or alter the
Advance Directive at any time when he/she has the
capacity to do so and by following the same
procedure as provided for recording of Advance
Directive. Withdrawal or revocation of an Advance
Directive must be in writing.
(ii) An Advance Directive shall not be applicable to
the treatment in question if there are reasonable
grounds for believing that circumstances exist
which the person making the directive did not
anticipate at the time of the Advance Directive and
which would have affected his decision had he
anticipated them.
(iii) If the Advance Directive is not clear and
ambiguous, the concerned Medical Boards shall not
give effect to the same and, in that event, the
182
guidelines meant for patients without Advance
Directive shall be made applicable.
(iv) Where the Hospital Medical Board takes a
decision not to follow an Advance Directive while
treating a person, then it shall make an application
to the Medical Board constituted by the Collector for
consideration and appropriate direction on the
Advance Directive.
192. It is necessary to make it clear that there will be cases
where there is no Advance Directive. The said class of persons
cannot be alienated. In cases where there is no Advance
Directive, the procedure and safeguards are to be same as
applied to cases where Advance Directives are in existence and
in addition there to, the following procedure shall be followed:-
(i) In cases where the patient is terminally ill and
undergoing prolonged treatment in respect of ailment
which is incurable or where there is no hope of being
cured, the physician may inform the hospital which,
in turn, shall constitute a Hospital Medical Board in
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the manner indicated earlier. The Hospital Medical
Board shall discuss with the family physician and the
family members and record the minutes of the
discussion in writing. During the discussion, the
family members shall be apprised of the pros and
cons of withdrawal or refusal of further medical
treatment to the patient and if they give consent in
writing, then the Hospital Medical Board may certify
the course of action to be taken. Their decision will be
regarded as a preliminary opinion.
(ii) In the event the Hospital Medical Board certifies the
option of withdrawal or refusal of further medical
treatment, the hospital shall immediately inform the
jurisdictional Collector. The jurisdictional Collector
shall then constitute a Medical Board comprising the
Chief District Medical Officer as the Chairman and
three experts from the fields of general medicine,
cardiology, neurology, nephrology, psychiatry or
oncology with experience in critical care and with
184
overall standing in the medical profession of at least
twenty years. The Medical Board constituted by the
Collector shall visit the hospital for physical
examination of the patient and, after studying the
medical papers, may concur with the opinion of the
Hospital Medical Board. In that event, intimation shall
be given by the Chairman of the Collector nominated
Medical Board to the JMFC and the family members
of the patient.
(iii) The JMFC shall visit the patient at the earliest and
verify the medical reports, examine the condition of
the patient, discuss with the family members of the
patient and, if satisfied in all respects, may endorse
the decision of the Collector nominated Medical Board
to withdraw or refuse further medical treatment to the
terminally ill patient.
(iv) There may be cases where the Board may not take a
decision to the effect of withdrawing medical treatment of
the patient on the Collector nominated Medical Board may
185
not concur with the opinion of the hospital Medical Board.
In such a situation, the nominee of the patient or the family
member or the treating doctor or the hospital staff can seek
permission from the High Court to withdraw life support by
way of writ petition under Article 226 of the Constitution in
which case the Chief Justice of the said High Court shall
constitute a Division Bench which shall decide to grant
approval or not. The High Court may constitute an
independent Committee to depute three doctors from the
fields of general medicine, cardiology, neurology,
nephrology, psychiatry or oncology with experience in
critical care and with overall standing in the medical
profession of at least twenty years after consulting the
competent medical practitioners. It shall also afford an
opportunity to the State counsel. The High Court in such
cases shall render its decision at the earliest since such
matters cannot brook any delay. Needless to say, the High
Court shall ascribe reasons specifically keeping in mind the
principle of "best interests of the patient"..
186
193. Having said this, we think it appropriate to cover a vital
aspect to the effect the life support is withdrawn, the same shall
also be intimated by the Magistrate to the High Court. It shall be
kept in a digital format by the Registry of the High Court apart
from keeping the hard copy which shall be destroyed after the
expiry of three years from the death of the patient.
194. Our directions with regard to the Advance Directives and
the safeguards as mentioned hereinabove shall remain in force
till the Parliament makes legislation on this subject.
Q. Conclusions in seriatim:
195. In view of the aforesaid analysis, we record our
conclusions in seriatim:-
(i) A careful and precise perusal of the judgment
in Gian Kaur (supra) case reflects the right of a
dying man to die with dignity when life is ebbing
out, and in the case of a terminally ill patient or a
person in PVS, where there is no hope of recovery,
accelerating the process of death for reducing the
187
period of suffering constitutes a right to live with
dignity.
(ii) The Constitution Bench in Gian Kaur (supra)
has not approved the decision in Airedale (supra)
inasmuch as the Court has only made a brief
reference to the Airedale case.
(iii) It is not the ratio of Gian Kaur (supra) that
passive euthanasia can be introduced only by
legislation.
(iv) The two-Judge bench in Aruna Shanbaug
(supra) has erred in holding that this Court in Gian
Kaur (supra) has approved the decision in Airedale
case and that euthanasia could be made lawful only
by legislation.
(v) There is an inherent difference between active
euthanasia and passive euthanasia as the former
entails a positive affirmative act, while the latter
relates to withdrawal of life support measures or
188
withholding of medical treatment meant for
artificially prolonging life.
(vi) In active euthanasia, a specific overt act is
done to end the patient‘s life whereas in passive
euthanasia, something is not done which is
necessary for preserving a patient's life. It is due to
this difference that most of the countries across the
world have legalised passive euthanasia either by
legislation or by judicial interpretation with certain
conditions and safeguards.
(vii) Post Aruna Shanbaug (supra), the 241st
report of the Law Commission of India on Passive
Euthanasia has also recognized passive euthanasia,
but no law has been enacted.
(viii) An inquiry into common law jurisdictions
reveals that all adults with capacity to consent have
the right of self- determination and autonomy. The
said rights pave the way for the right to refuse
189
medical treatment which has acclaimed universal
recognition. A competent person who has come of
age has the right to refuse specific treatment or all
treatment or opt for an alternative treatment, even if
such decision entails a risk of death. The
'Emergency Principle' or the 'Principle of Necessity'
has to be given effect to only when it is not
practicable to obtain the patient's consent for
treatment and his/her life is in danger. But where a
patient has already made a valid Advance Directive
which is free from reasonable doubt and specifying
that he/she does not wish to be treated, then such
directive has to be given effect to.
(ix) Right to life and liberty as envisaged under
Article 21 of the Constitution is meaningless unless
it encompasses within its sphere individual dignity.
With the passage of time, this Court has expanded
the spectrum of Article 21 to include within it the
190
right to live with dignity as component of right to life
and liberty.
(x) It has to be stated without any trace of doubt
that the right to live with dignity also includes the
smoothening of the process of dying in case of a
terminally ill patient or a person in PVS with no
hope of recovery.
(xi) A failure to legally recognize advance medical
directives may amount to non-facilitation of the
right to smoothen the dying process and the right to
live with dignity. Further, a study of the position in
other jurisdictions shows that Advance Directives
have gained lawful recognition in several
jurisdictions by way of legislation and in certain
countries through judicial pronouncements.
(xii) Though the sanctity of life has to be kept on
the high pedestal yet in cases of terminally ill
persons or PVS patients where there is no hope for
191
revival, priority shall be given to the Advance
Directive and the right of self-determination.
(xiii) In the absence of Advance Directive, the
procedure provided for the said category
hereinbefore shall be applicable.
(xiv) When passive euthanasia as a situational
palliative measure becomes applicable, the best
interest of the patient shall override the State
interest.
196. We have laid down the principles relating to the
procedure for execution of Advance Directive and provided the
guidelines to give effect to passive euthanasia in both
circumstances, namely, where there are advance directives
and where there are none, in exercise of the power under
Article 142 of the Constitution and the law stated in Vishaka
and Others v. State of Rajasthan and Others 65 . The
directive and guidelines shall remain in force till the
Parliament brings a legislation in the field.
65 (1997) 6 SCC 241
192
197. The Writ Petition is, accordingly, disposed of. There shall
be no order as to costs.
………………………….CJI
(Dipak Misra)
..…………….…………….J.
(A.M. Khanwilkar)
New Delhi;
March 09, 2018
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 215 OF 2005
COMMON CAUSE (A REGD. SOCIETY) .....PETITIONER(S)
VERSUS
UNION OF INDIA AND ANOTHER .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
Michael Kirby, a former Judge of the Australian High Court,
while discussing about the role of judiciary in the context of HIV
law1
, talks about the consciousness with which the judiciary is
supposed to perform its role. In this hue, while discussing about
the responsibility of leadership which the society imposes upon
Judges, he remarks: “Nowhere more is that responsibility tested
than when a completely new and unexpected problem presents
itself to society. All the judges’ instincts for legality, fairness and
reasonableness must then be summoned up, to help lead society
towards an informed, intelligent and just solution to the problem.”
1 ‘The Role of Judiciary and HIV Law’ – Michael Kirby, published in the book titled ‘HIV Law,
Ethics and Human Rights’, edited by D.C. Jayasuriya.
Writ Petition (Civil) No. 215 of 2005 Page 1 of 112
The problem at hand, just solution whereof is imminently needed,
is that of Euthanasia. This Court is required to summon up
instincts for legality, fairness and reasonableness in order to find
just solution to the problem. In this process, the Court is duty
bound to look into the relevant provisions of the Constitution of
India, particularly those pertaining to the fundamental rights, and
to discharge the task of expounding those basic human rights
enshrined in the Chapter relating to Fundamental Rights. The
issue of euthanasia, with the seminal importance that is attached
to it, has thrown the challenge of exposition, development and
obligation of the constitutional morality and exhorts the Court to
play its creative role so that a balanced approach to an otherwise
thorny and highly debatable subject matter is found.
2) The Courts, in dispensation of their judicial duties of deciding
cases, come across all types of problems which are brought
before them. These cases may be broadly classified into three
categories: (i) the easy cases, (ii) the intermediate cases, and (iii)
the hard cases. Professor Ronald Dworkin2
has argued that each
legal problem has one lawful solution and even in the hard cases,
the Judge is never free to choose among alternatives that are all
inside the bounds of law. This may not be entirely correct
2 Dworkin, “Judicial Discretion,” 6 J. of Phil. 624 (1963)
Writ Petition (Civil) No. 215 of 2005 Page 2 of 112
inasmuch as judicial discretion does exist. This is true, at least, in
solving ‘hard cases’
3
. It is found that meaning of certain legal
norms, when applied with respect to a given system of facts, is so
simple and clear that their application involves no judicial
discretion. These are termed as the ‘easy cases’. This may even
apply to ‘intermediate cases’. These would be those cases where
both sides appear to have a legitimate legal argument supporting
their position and a conscious act of interpretation is noted,
before a Judge can conclude which side is right in law and there
is only one lawful situation. However, when it comes to the hard
cases, the Court is faced with number of possibilities, all of which
appear to be lawful within the context of the system. In these
cases, judicial discretion exists as the choice is not between
lawful and unlawful, but between lawful and lawful. A number of
lawful solutions exist. In this scenario, the Court is supposed to
ultimately choose that solution which is in larger public interest.
In other words, there are limitations that find the Court with
respect to the manner in which it choses among possibilities
(procedural limitations) and with respect to the considerations it
takes into account in the choice (substantive limitations). Thus,
discretion when applied to a cout of justice means sound
3 See Aharon Barak: Judicial Discretion, Yale University Press.
Writ Petition (Civil) No. 215 of 2005 Page 3 of 112
discretion guided by law. It must be govered by legal rules. To
quote Justice Cardozo:
“Given freedom of choice, how shall the choice be
guided? Complete freedom – unfettered and undirected
– there never is. A thousand limitations – the product
some of statute, some of precedent, some of vague
tradition or of an immemorial technique – encompass
and hedge us even when we think of ourselves as
ranging freely and at large. The inscrutable force of
professional opinion presses upon us like the
atmosphere, though we are heedless of its weight.
Narrow at best is any freedom that is allotted to us4
3) Thus, though the judicial discretion is with the Court, the same is
limited and not absolute. The Court is not entitled to weigh any
factor as it likes. It has to act within the framework of the
limitations, and after they have been exhausted, there is a
freedom of choice which can also described as ‘sovereign
prerogative of choice’5
. Instant case falls in the category of ‘hard
cases’ and the Court has endeavoured to make a choice, after
evaluating all the pros and cons, which in its wisdom is the “just
result” of the contentious issue.
4) Adverting to the Indian precedents in the first instance, we have
before us two direct judgments of this Court which may throw
some light on the subject and demonstrate as to how this topic
has been dealt with so far. The first judgment is that of a
4 B. Cardozo: The Growth of the Law 144 (1924), at 60-61
5 Justice O. Holmes opined this expression in ‘Collected Legal Papers’ 239 (1921)
Writ Petition (Civil) No. 215 of 2005 Page 4 of 112
Constitution Bench in the case titled Gian Kaur v. State of
Punjab6
. Second case is known as Aruna Ramachandra
Shanbaug v. Union of India and Others7
, which is a Division
Bench judgment that takes note of Gian Kaur and premised
thereupon goes much farther in accepting passive euthanasia as
a facet of Article 21 of the Constitution.
5) In the instant case, while making reference to the Constitution
Bench vide its order dated February 25, 20148
, the three Judge
Bench has expressed its reservation in the manner the ratio of
the Constitution Bench in Gian Kaur is applied by the Division
Bench in Aruna Ramachandra Shanbaug. This reference order
accepts that Aruna Ramachandra Shanbaug rightly interpreted
the decision in Gian Kaur insofar as it held that euthanasia can
be allowed in India only through a valid legislation. However, the
reference order declares that Aruna Ramachandra Shanbaug
has committed a factual error in observing that in Gian Kaur the
Constitution Bench approved the decision of the House of Lords
in Airedale N.H.S. Trust v. Bland9
. As per the reference order,
Gian Kaur merely referred to the said judgment which cannot be
construed to mean that the Constitution Bench in Gian Kaur
6 (1996) 2 SCC 648
7 (2011) 4 SCC 454
8 Reported as (2014) 5 SCC 338
9 (1993) 2 WLR 316 (HL)
Writ Petition (Civil) No. 215 of 2005 Page 5 of 112
approved the opinion of the House of Lords rendered in Bland.
The reference order also accepts the position that in Gian Kaur
the Constitution Bench approved that ‘right to live with dignity’
under Article 21 of the Constitution will be inclusive of ‘right to die
with dignity’. However, it further notes that the decision does not
arrive at a conclusion for validity of euthanasia, be it active or
passive. Therefore, the only judgment that holds the field in India
is Aruna Ramachandra Shanbaug, which upholds the validity of
passive euthanasia and lays down an elaborate procedure for
executing the same on ‘the wrong premise that the Constitution
Bench in Gian Kaur had upheld the same’.
6) The aforesaid discussion contained in the reference order
prompted the reference court to refer the matter to the
Constitution Bench. No specific questions were framed for
consideration by the Constitution Bench. However, importance of
the issue has been highlighted in the reference order in the
following manner:
“17. In view of the inconsistent opinions rendered
in Aruna Shanbaug and also considering the important
question of law involved which needs to be reflected in
the light of social, legal, medical and constitutional
perspectives, it becomes extremely important to have
a clear enunciation of law. Thus, in our cogent opinion,
the question of law involved requires careful
consideration by a Constitution Bench of this Court for
the benefit of humanity as a whole.
Writ Petition (Civil) No. 215 of 2005 Page 6 of 112
18. We refrain from framing any specific questions for
consideration by the Constitution Bench as we invite
the Constitution Bench to go into all the aspects of the
matter and lay down exhaustive guidelines in this
regard. Accordingly, we refer this matter to a
Constitution Bench of this Court for an authoritative
opinion.”
7) I have given a glimpse of the narratives for the simple reason that
the Hon’ble the Chief Justice, in his elaborate opinion, has
already discussed this aspect in detail. Likewise, it can be found
in the separate judgments authored by my esteemed brethren –
Chandrachud, J. and Bhushan, J. Those judgments discuss in
detail the law laid down in Gian Kaur as well as Aruna
Ramachandra Shanbaug, including critique thereof. To avoid
repetition, I have eschewed that part of discussion. For the same
reason, I have also not ventured to discuss the law in some other
countries and historic judgments rendered by the courts of foreign
jurisdiction, as this aspect is also taken care of by them.
However, my analysis of the above two judgments is limited to the
extent it is necessitated for maintaining continuum and clarity of
thought.
8) At the outset, I say that I am in complete agreement with the
conclusion and also the directions given therein in the judgment
of the Hon’ble the Chief Justice and also with the opinions and
Writ Petition (Civil) No. 215 of 2005 Page 7 of 112
reasoning of my other two learned brothers. My purpose is not to
add my ink to the erudite opinion expressed in otherwise eloquent
opinions penned by my learned brothers. At the same time,
having regard to the importance of the issue involved, I am
provoked to express my own few thoughts, in my own way, which
I express hereinafter.
9) In the writ petition filed by the petitioner – Common Cause, it has
made the following prayers:
“a) declare ‘right to die with dignity’ as a fundamental
right within the fold of Right to Live with dignity
guaranteed under Article 21 of the Constitution of
India;
b) issue direction to the Respondent, to adopt suitable
procedures, in consultation with State Governments
where necessary, to ensure that persons of
deteriorated health or terminally ill should be able to
execute a document titled “MY LIVING WILL &
ATTORNEY AUTHORISATION” which can be
presented to hospital for appropriate action in event of
the executant being admitted to the hospital with
serious illness which may threaten termination of life
of the executants or in the alternative, issue
appropriate guidelines to this effect;
c) appoint an expert committee of experts including
doctors, social scientists and lawyers to study into the
aspect of issuing guidelines as to the Living Wills;
d) pass such other and further order/s as this Hon’ble
Court may deem fit and proper on the facts and in the
circumstances of the case.”
10) Having regard to the aforesaid prayers, the reference order and
the arguments which were addressed by Mr. Prashant Bhushan,
Writ Petition (Civil) No. 215 of 2005 Page 8 of 112
learned counsel who appeared for the petitioner, and Mr. Arvind
Datar, learned senior counsel who made elaborate submissions
on behalf of the interveners – Vidhi Centre for Legal Policy, and
Mr. R.R. Kishore, Advocate, who gave an altogether new
dimension to the seminal issue, I find that following
issues/questions of law of relevance need to be discussed:
(i) Whether the Right to Live under Article 21 of the
Constitution includes the Right to Die? {Now that attempt to
commit suicide is not a punishable offence under Section
309 of the Indian Penal Code, 1860 (for short, ‘IPC’) vide
Section 115 of the Mental Healthcare Act, 2017 (Act No. 10
of 2017)}
(ii) Whether the ‘right to die with dignity’ as a fundamental right
falls within the folds of the ‘right to live with dignity’ under
Article 21 of the Constitution?
(iii) Whether the observations in Aruna Ramachandra
Shanbaug that the Constitution Bench in Gian Kaur
permitted passive euthanasia stand correct?
(iv) Whether there exists inconsistency in the observations in
Aruna Ramachandra Shanbaug with regard to what has
been held in Gian Kaur?
(v) Whether mere reference to verdict in a judgment can be
Writ Petition (Civil) No. 215 of 2005 Page 9 of 112
construed to mean that the verdict is approved? {with
respect to Article 141 – What is binding?; whether the
Constitution Bench in Gian Kaur approved the decision of
the House of Lords in Bland?}
(vi) Whether the law on passive euthanasia, as held valid in
Aruna Ramachandra Shanbaug, holds true in the present
times as well? {The Treatment of Terminally-ill Patients Bill,
2016 is based on the aforementioned judgment}
(vii) Whether active euthanasia is legal in India?
(viii) Whether assisted suicide/physician administered suicide is
legal in India? {The 2016 bill in the current form, under
Clause 5(3) permits for physician assisted suicide}
(ix) Whether there exists a right to a Living Will/Advance
Directives? Whether there exists the fundamental right to
choose one’s own medical treatment? {With Right to
Privacy now a fundamental right under Article 21, the
principle of self-determination in India stands on a higher
footing than before}
(x) Definition of ‘Terminal Illness’.
11) It is not necessary for me to answer all the aforesaid questions. I
say so for the reason that all these aspects are dealt with by the
Writ Petition (Civil) No. 215 of 2005 Page 10 of 112
Hon’ble the Chief Justice in his opinion. Therefore, in this
‘addendum’, I would be focusing myself to the core issues.
EUTHANASIA DEFINED
12) The Oxford English Dictionary defines ‘euthanasia’ as ‘the
painless killing of a patient suffering from an incurable and painful
disease or in an irreversible coma’. The word appears to have
come into usage in the early 17th century and was used in the
sense of ‘easy death’. The term is derived from the Greek
‘euthanatos’, with ‘eu’ meaning well, and ‘thanatos’ meaning
death. In ancient Greece and Rome, citizens were entitled to a
good death to end the suffering of a terminal illness. To that end,
the City Magistrates of Athens kept a supply of poison to help the
dying ‘drink the hemlock’10
.
13) The above Greek definition of euthanasia apart, it is a loaded
term. People have been grappling with it for ages. Devised for
service in a rhetoric of persuasion, the term ‘euthanasia’ has no
generally accepted and philosophically warranted core meaning.
It is also defined as: killing at the request of the person killed.
That is how the Dutch medical personnel and civil authorities
define euthanasia. In Nazi discourse, euthanasia was any killing
carried out by medical means or medically qualified personnel,
10 Michael Manning, Euthanasia and Physician-Assisted Suicide (Paulist Press, 1998).
Writ Petition (Civil) No. 215 of 2005 Page 11 of 112
whether intended for the termination of suffering and/or of the
burden or indignity of a life not worth living (Lebensunwertes
Leben), or for some more evidently public benefit such as
eugenics (racial purity and hygiene), Lebensraum (living space
for Germans), and/or minimizing the waste of resources on
‘useless mouths’. Understandably, in today’s modern
democracies these Nazi ideas and practices cannot be
countenanced. Racist eugenics are condemned, though one
comes across discreet allusions to the burden and futility of
sustaining the severely mentally handicapped. The popular
conception which is widely accepted is that some sorts of life are
not worth living; life in such a state demeans the patient’s dignity,
and maintaining it (otherwise than at the patient’s express
request) insults that dignity; proper respect for the patient and the
patient’s best interests requires that that life be brought to an end.
In this thought process, the basic Greek ideology that it signifies
‘an easy and gentle death’ still remains valid. Recognition is to
the Human Rights principle that ‘right to life’ encompasses ‘right
to die with dignity’.
14) In common parlance, euthanasia can be of three types, namely,
‘voluntary euthanasia’ which means killing at the request of a
Writ Petition (Civil) No. 215 of 2005 Page 12 of 112
person killed which is to be distinguished from ‘non-voluntary
euthanasia’, where the person killed is not capable of either
making or refusing to make such a request. Second type of
euthanasia would be involuntary euthanasia where the person
killed is capable of making such a request but has not done so11
.
These terms can be described as under:
(i) Voluntary Euthanasia: People concerned to legalize the
termination of life on medical grounds have always concentrated
on Voluntary Euthanasia (this implies that the patient specifically
requests that his life be ended.) It is generally agreed that the
request must come from someone who is either; (a) in intolerable
pain or (b) who is suffering from an illness which is agreed as
being terminal. It may be prior to the development of the illness
in question or during its course. In either case it must not result
from any pressure from relatives or those who have the patients
in their care. Both active and passive euthanasia can be termed
as forms of voluntary euthanasia.
(ii) Non-Voluntary Euthanasia: Seen by some as sub-variety of
voluntary euthanasia. This involves the death, ostensibly for his
own good, of someone who cannot express any views on the
matter and who must, therefore, use some sort of proxy request
11 These definitions of voluntary, non-voluntary and involuntary euthanasia correspond to those
employed by the House of Lords Select Committee on Medical Ethics (Walton Committee)
Writ Petition (Civil) No. 215 of 2005 Page 13 of 112
that his/her life be ended. This form of Euthanasia is that which
most intimately concerns the medical profession. Selective nontreatment
of the new-born or the doctor may be presented with
demented and otherwise senilely incompetent patients. In
practice, non-voluntary euthanasia presents only as an arguable
alternative to non treatment.
(iii) Involuntary Euthanasia: It involves ending the patient’s life
in the absence of either a personal or proxy invitation to do so.
The motive ‘The relief of suffering’ may be the same as voluntary
euthanasia-but its only justification - “a paternalistic decision as to
what is best for the victim of the disease.” In extreme cases it
could be against the patient’s wishes or could be just for social
convenience. It is examples of the latter which serve as warnings
as to those who would invest the medical professional with more
or unfettered powers over life and death12
.
15) Contrary to the above, in legal parlance, euthanasia has since
come to be recognised as of two distinct types: the first is active
euthanasia, where death is caused by the administration of a
lethal injection or drugs. Active euthanasia also includes
physician-assisted suicide, where the injection or drugs are
supplied by the physician, but the act of administration is
12 See Euthanasia and Its Legality and Legitimacy from Indian and International Human Right
Instruments Perspectives published in Human Rights & Social Justice by Muzafer Assadi
Writ Petition (Civil) No. 215 of 2005 Page 14 of 112
undertaken by the patient himself. Active euthanasia is not
permissible in most countries. The jurisdictions in which it is
permissible are Canada, the Netherlands, Switzerland and the
States of Colorado, Vermont, Montana, California, Oregon and
Washington DC in the United States of America. Passive
euthanasia occurs when medical practitioners do not provide lifesustaining
treatment (i.e. treatment necessary to keep a patient
alive) or remove patients from life sustaining treatment. This
could include disconnecting life support machines or feeding
tubes or not carrying out life saving operations or providing life
extending drugs. In such cases, the omission by the medical
practitioner is not treated as the cause of death; instead, the
patient is understood to have died because of his underlying
condition.
16) In Aruna Ramachandra Shanbaug, the Court recognised these
two types of euthanasia i.e. active and passive. It also noted that
active euthanasia is impermissible, which was so held by the
Constitution Bench in Gian Kaur. Therefore, without going into
further debate on differential that is assigned to the term
euthanasia, ethically, philosophically, medically etc., we would be
confining ourselves to the aforesaid legal meaning assigned to
Writ Petition (Civil) No. 215 of 2005 Page 15 of 112
active and passive euthanasia. Thus, insofar as active
euthanasia is concerned, this has to be treated as legally
impermissible, at least for the time being. It is more so, as there
is absence of any statutory law permitting active euthanasia. If at
all, legal provisions in the form of Sections 306 and 307 IPC etc.
point towards its criminality. The discussion henceforth,
therefore, would confine to passive euthanasia.
PASSIVE EUTHANASIA AND ARUNA RAMACHANDRA SHANBAUG
17) In Aruna Ramachandra Shanbaug, a two Judges’ Bench of this
Court discussed in much greater detail various nuances of
euthanasia by referring to active and passive euthanasia as well
as voluntary and involuntary euthanasia; legality and
permissibility thereof; relationship of euthanasia vis-a-vis offences
concerned under the IPC and doctor assisted death; etc.
18) The Court also took note of legislations in some countries relating
to euthanasia or physician assisted death. Thereafter, it
discussed in detail the judgment in Bland wherein the House of
Lords had permitted the patient to die. Ratio of Bland was culled
out in the following manner:
“Airedale (1993) decided by the House of Lords has
been followed in a number of cases in UK, and the law
is now fairly well settled that in the case of
incompetent patients, if the doctors act on the basis of
Writ Petition (Civil) No. 215 of 2005 Page 16 of 112
informed medical opinion, and withdraw the artificial
life support system if it is in the patient’s best interest,
the said act cannot be regarded as a crime.”
19) The Court was of the opinion that this should be permitted when
the patient is in a Persistent Vegitative State (PVS) and held that
it is ultimately for the Court to decide, as parens patriae, as to
what is in the best interest of the patient. The wishes of the close
relatives and next friends and opinion of the medical practitioners
should be given due weight by the Court in coming to its decision.
The Court then noted the position of euthanasia with reference to
Section 306 (abetment of suicide) and Section 309 (attempt to
commit suicide) of the IPC, inasmuch as, even allowing passive
euthanasia may come in conflict with the aforesaid provisions
which make such an act a crime. While making a passing
observation that Section 309 should be deleted by the Parliament
as it has become anachronistic, the Court went into the vexed
question as to who can decide whether life support should be
discontinued in the case of an incompetent person, e.g. a person
in coma or PVS. The Court pointed out that it was a vexed
question, both because of its likely misuse and also because of
advancement in medical science. It noted:
“104. It may be noted that in Gian Kaur case although
the Supreme Court has quoted with approval the view
of the House of Lords in Airedale case, it has not
Writ Petition (Civil) No. 215 of 2005 Page 17 of 112
clarified who can decide whether life support should
be discontinued in the case of an incompetent person
e.g. a person in coma or PVS. This vexed question
has been arising often in India because there are a
large number of cases where persons go into coma
(due to an accident or some other reason) or for some
other reason are unable to give consent, and then the
question arises as to who should give consent for
withdrawal of life support. This is an extremely
important question in India because of the unfortunate
low level of ethical standards to which our society has
descended, its raw and widespread
commercialisation, and the rampant corruption, and
hence, the Court has to be very cautious that
unscrupulous persons who wish to inherit the property
of someone may not get him eliminated by some
crooked method.
105. Also, since medical science is advancing fast,
doctors must not declare a patient to be a hopeless
case unless there appears to be no reasonable
possibility of any improvement by some newly
discovered medical method in the near future. In this
connection we may refer to a recent news item which
we have come across on the internet of an Arkansas
man Terry Wallis, who was 19 years of age and newly
married with a baby daughter when in 1984 his truck
plunged through a guard rail, falling 25 feet. He went
into coma in the crash in 1984, but after 24 years he
has regained consciousness. This was perhaps
because his brain spontaneously rewired itself by
growing tiny new nerve connections to replace the
ones sheared apart in the car crash. Probably the
nerve fibres from Terry Wallis' cells were severed but
the cells themselves remained intact, unlike Terri
Schiavo, whose brain cells had died (see Terri
Schiavo case on Google). However, we make it clear
that it is experts like medical practitioners who can
decide whether there is any reasonable possibility of a
new medical discovery which could enable such a
patient to revive in the near future.”
20) It held that passive euthanasia would be permissible when a
person is ‘dead’ in clinical sense. It chose to adopt the standard
Writ Petition (Civil) No. 215 of 2005 Page 18 of 112
of ‘brain death’, i.e. when there is an ‘irreversible cessation of all
functions of the entire brain, including the brain stem’. The Court
took note of President’s Committee on Bioethics in the United
States of America which had come up with a new definition of
‘brain death’ in the year 2008, according to which a person was
considered to be braindead when he could no longer perform the
fundamental human work of an organism. Three such situations
contemplated in that definition are the following:
“(1) openness to the world, that is receptivity to stimuli
and signals from the surrounding environment,
(2) the ability to act upon the world to obtain
selectively what it needs, and
(3) the basic felt need that drives the organism to
act ... to obtain what it needs.”
21) The Court held that when the aforesaid situation is reached, a
person can be presumed to be dead. In paragraph 115 of the
judgment, the position is summed up as under:
“When this situation is reached, it is possible to
assume that the person is dead, even though he or
she, through mechanical stimulation, may be able
to breathe, his or her heart might be able to beat,
and he or she may be able to take some form of
nourishment. It is important, thus, that it be
medically proved that a situation where any human
functioning would be impossible should have been
reached for there to be a declaration of brain death
—situations where a person is in a persistent
vegetative state but can support breathing, cardiac
functions, and digestion without any mechanical aid
are necessarily those that will not come within the
ambit of brain death.”
Writ Petition (Civil) No. 215 of 2005 Page 19 of 112
22) The Court clarified that brain death was not the same as PVS
inasmuch as in PVS the brain stem continues to work and so
some degree of reactions may occur, though the possibility of
regaining consciousness is relatively remote.
23) The Court further opined that position in the case of euthanasia
would be slightly different and pointed out that the two
circumstances in which it would be fair to disallow resuscitation of
a person who is incapable of expressing his or her consent to the
termination of his or her life. These are:
“(a) When a person is only kept alive mechanically
i.e. when not only consciousness is lost, but the
person is only able to sustain involuntary
functioning through advanced medical technology—
such as the use of heart-lung machines, medical
ventilators, etc.
(b) When there is no plausible possibility of the
person ever being able to come out of this stage.
Medical “miracles” are not unknown, but if a person
has been at a stage where his life is only sustained
through medical technology, and there has been no
significant alteration in the person's condition for a
long period of time—at least a few years—then
there can be a fair case made out for passive
euthanasia.”
24) Taking a clue from the judgment in Vishaka and Others v. State
of Rajasthan and Others13, the Court laid down the law, while
allowing passive euthanasia, i.e. the circumstances when there
13 (1997) 6 SCC 241
Writ Petition (Civil) No. 215 of 2005 Page 20 of 112
could be withdrawal of life support of a patient in PVS. This is
stated in paragraph 124 of the judgment, which we reproduce
below:
“124. There is no statutory provision in our country as
to the legal procedure for withdrawing life support to a
person in PVS or who is otherwise incompetent to
take a decision in this connection. We agree with Mr
Andhyarujina that passive euthanasia should be
permitted in our country in certain situations, and we
disagree with the learned Attorney General that it
should never be permitted. Hence, following the
technique used in Vishaka case [Vishaka v. State of
Rajasthan, we are laying down the law in this
connection which will continue to be the law until
Parliament makes a law on the subject:
(i) A decision has to be taken to discontinue life
support either by the parents or the spouse or other
close relatives, or in the absence of any of them, such
a decision can be taken even by a person or a body of
persons acting as a next friend. It can also be taken by
the doctors attending the patient. However, the
decision should be taken bona fide in the best interest
of the patient.
In the present case, we have already noted that Aruna
Shanbaug's parents are dead and other close relatives
are not interested in her ever since she had the
unfortunate assault on her. As already noted above, it
is the KEM Hospital staff, who have been amazingly
caring for her day and night for so many long years,
who really are her next friends, and not Ms Pinki Virani
who has only visited her on few occasions and written
a book on her. Hence it is for the KEM Hospital staff to
take that decision. KEM Hospital staff have clearly
expressed their wish that Aruna Shanbaug should be
allowed to live.
Mr Pallav Shishodia, learned Senior Counsel,
appearing for the Dean, KEM Hospital, Mumbai,
submitted that Ms Pinki Virani has no locus standi in
this case. In our opinion it is not necessary for us to go
into this question since we are of the opinion that it is
Writ Petition (Civil) No. 215 of 2005 Page 21 of 112
the KEM Hospital staff who is really the next friend of
Aruna Shanbaug.
We do not mean to decry or disparage what Ms Pinki
Virani has done. Rather, we wish to express our
appreciation of the splendid social spirit she has
shown. We have seen on the internet that she has
been espousing many social causes, and we hold her
in high esteem. All that we wish to say is that however
much her interest in Aruna Shanbaug may be it cannot
match the involvement of the KEM Hospital staff who
have been taking care of Aruna day and night for 38
years.
However, assuming that the KEM Hospital staff at
some future time changes its mind, in our opinion in
such a situation KEM Hospital would have to apply to
the Bombay High Court for approval of the decision to
withdraw life support.
(ii) Hence, even if a decision is taken by the near
relatives or doctors or next friend to withdraw life
support, such a decision requires approval from the
High Court concerned as laid down in Airedale case.
In our opinion, this is even more necessary in our
country as we cannot rule out the possibility of
mischief being done by relatives or others for
inheriting the property of the patient.”
25) It can be discerned from the reading of the said judgment that
court was concerned with the question as to whether one can
seek right to die? This question has been dealt with in the context
of Article 21 of the Constitution, namely, whether this provision
gives any such right. As is well-known, Article 21 gives ‘right to
life’ and it is guaranteed to all the citizens of India. The question
was as to whether ‘right to die’ is also an integral part of ‘right to
Writ Petition (Civil) No. 215 of 2005 Page 22 of 112
life’. In Gian Kaur this ‘right to die’ had not been accepted as an
integral part of ‘right to life’. The Court in Aruna Ramachandra
Shanbaug maintained this position insofar as an active
euthanasia is concerned. However, passive euthanasia, under
certain circumstances, has been accepted.
26) It may be pertinent to mention that the petitioner (Aruna) in the
said case was working as a nurse in the King Edward Memorial
Hospital (KEM), Parel, Mumbai. The tragic incident happened on
the evening of 27th November, 1973. Aruna was attacked by a
sweeper in the hospital who wrapped a dog chain around her
neck and yanked her back with it. He tried to rape her but on
finding that she was menstruating, he sodomized her. To
immobilize her during this act, he twisted the chain around her
neck. She was found unconscious by one cleaner on the next
day. Her body was on the floor and blood was all over the floor.
The incident did not allow oxygen to reach her brain as a result of
which her brain got damaged.
27) The petition was filed by Ms. Pinki Virani as next friend of Aruna
Shanbaug. According to facts of the case, Aruna has been
surviving on mashed food as she was not able to chew or taste
any food and she could not move her hands or legs. It is alleged
Writ Petition (Civil) No. 215 of 2005 Page 23 of 112
that there is not the slightest possibility of any improvement in her
condition and her body lies on the bed in the KEM Hospital like a
dead animal, and this has been the position for the last 36 years.
The prayer of the petitioner was that the respondents be directed
to stop feeding Aruna, and let her die peacefully.
28) The court appointed a team of three eminent and qualified
doctors to investigate and report on the medical condition of
Aruna. The team included, Dr. J.V. Divatia14, Dr. Roop
Gursahani15 and Dr. Nilesh Shah16. The team of doctors studied
her medical history and observed that Aruna would get
uncomfortable if the room in which she was located was over
crowded, she was calm when fewer people were around her. In
fact, the hospital staff had taken care and was willing to continue
to do so. Moreover, Aruna’s body language did not suggest that
she wants to die. Therefore, the doctors opined that there is no
need for euthanasia in the instant case.
29) Reliance was placed on the landmark judgment of the House of
Lords in Bland, where for the first time in the English history, the
right to die was allowed through the withdrawal of life support
14 Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial
Hospital, Mumbai.
15 Consultant Neurologist at P.D. Hinduja, Mumbai.
16 Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation
Medical College and General Hospital.
Writ Petition (Civil) No. 215 of 2005 Page 24 of 112
systems including food and water. This case placed the authority
to decide whether a case is fit or not for euthanasia in the hands
of the court. In this case, Aruna did not have the capacity to
consent for the proposed medical process. Therefore, the next
big question that was to be answered was who should decide on
her behalf.
30) Since, there was no relative traced directly, nor did she have any
frequent visitor who could relate to her, it was extremely crucial
for the court to declare who should decide on her behalf. As there
was lack of acquaintance, it was decided by beneficence.
Beneficence is acting in the interest that is best for the patient,
and is not influenced by personal convictions, motives or other
considerations. Public interest and the interests of the state were
also considered in the said matter.
31) On the aforesaid principle of beneficence and studying the
position in some other countries, the court in its judgment said,
the right to take decision on behalf of Aruna was vested with the
hospital and its management and not Ms. Pinki. The court also
said that allowing euthanasia would mean reversing the efforts of
the hospital and its staff. In order to ensure that there is no
misuse of this technique, the Supreme Court has vested the
Writ Petition (Civil) No. 215 of 2005 Page 25 of 112
power with the High Court to decide if life is to be terminated or
not.
32) Thus, the Supreme Court allowed passive euthanasia in certain
conditions, subject to the approval by the High Court following the
due procedure. It held that when an application for passive
euthanasia 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. 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.
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
committee to them as soon as it is available. After hearing them,
the High Court Bench should give its verdict. The above
procedure should be followed all over India until Parliament
makes legislation on this subject. I am not carrying out the
critique of this judgment at this stage and the manner in which it
has been analysed by those who are the proponents of passive
euthanasia and those who are against it. It is, more so, when my
Writ Petition (Civil) No. 215 of 2005 Page 26 of 112
Brother, Chandrachud, J., has dealt with this aspect in detail in
his discourse. In any case, as noted above, in view of the
reference order dated February 25, 2014, the validity of this
aspect has to be examined, which exercise is undertaken by me
at an appropriate stage.
EUTHANASIA: A COMPLEX CONCEPT
33) As discussed hereinafter, issue of euthanasia is a complexed and
complicated issue over which there have been heated debates,
not only within the confines of courts, but also among elites,
intelligentsia and academicians alike. Some of these
complexities may be captured at this stage itself.
34) The legal regime webbed by various judgments rendered by this
Court would reflect that the Indian position on the subject is
somewhat complex and even complicated to certain extend. First,
let us touch the topic from the constitutional angle.
35) Article 21 of the Constitution mandates that no person shall be
deprived of his life or personal liberty, except according to the
procedure established by law. This Article has been interpreted
by the Court in most expansive terms, particularly when it comes
to the meaning that is assigned to ‘right to life’. It is not
necessary to take stock of various faces of right to life defined by
Writ Petition (Civil) No. 215 of 2005 Page 27 of 112
this Court. What is important for our purpose is to point out that
right to life has been treated as more than ‘mere animal
existence’. In Kharak Singh v. State of U.P. & Ors.17 it was held
that the word ‘life’ in Article 21 means right to live with human
dignity and it does not merely connote continued drudgery. It
takes within its fold “some of the finer graces of human
civilisation, which makes life worth living” and that the expanded
concept of life would mean the “tradition, culture and heritage” of
the concerned person. This concept has been reiterated and
reinforced, time and again, in a series of judgments. It may not
be necessary to refer to those judgments. Suffice is to mention
that a nine Judge Constitution Bench of this Court in K.S.
Puttaswamy and Another v. Union of India and Others18 has
taken stock of all important judgments which have echoed the
message enshrined in Kharak Singh’s case. We may, however,
point out that in the case of C.E.S.E. Limited and Others v.
Subhash Chandra Bose and Others19, Justice K. Ramaswamy
observed that physical and mental health have to be treated as
integral part of right to life, because without good health the civil
and political rights assured by our Constitution cannot be
17
(1964) 1 SCR 332
18 (2017) 10 SCC 1
19 (1992) 1 SCC 441
Writ Petition (Civil) No. 215 of 2005 Page 28 of 112
enjoyed. Though Justice Ramaswamy rendered minority opinion
in that case, on the aforesaid aspect, majority opinion was not
contrary to the views expressed by Justice Ramaswamy. Thus,
Article 21 recognizes right to live with human dignity20
.
36) The question that arises at this juncture is as to whether right to
life enshrined in Article 21 of the Constitution includes right to die.
If such a right is recognised, that would provide immediate
answer to the issue involved, which is pertaining to voluntary or
passive euthanasia. However, the judgments of this Court, as
discussed hereinafter, would demonstrate that no straightforward
answer is discernible and, as observed above, the position
regarding euthanasia is somewhat complex in the process.
37) It would be interesting to point out that in Rustom Cavasjee
Cooper v. Union of India21 the Court held that what is true of one
fundamental right is also true of another fundamental right. This
Court also made a specific observation that there cannot be
serious dispute about the proposition that fundamental rights
have their positive as well as negative aspect. For example,
freedom of speech and expression includes freedom not to
speak. Likewise, freedom of association and movement includes
20 Aspects of human dignity as right to life in the context of euthanasia shall be discussed in
greater detail at the relevant stage.
21 (1970) 1 SCC 248
Writ Petition (Civil) No. 215 of 2005 Page 29 of 112
freedom not to join any association or move anywhere. Freedom
of business includes freedom not to do any business. In this
context, can it be said that right to life includes right to die or right
to terminate ones own life? The Constitution Bench in Gian
Kaur, however, has taken a view that right to live will not include
right not to live.
38) We have already pointed out that Section 306 of the IPC makes
abetment to suicide as a punishable offence. Likewise, Section
309 IPC makes attempt to commit suicide as a punishable
offence. Intention to commit suicide is an essential ingredient in
order to constitute an offence under this provision. Thus, this
provision specifically prohibits a person from terminating his life
and negates right to die. Constitutional validity of this provision,
on the touchstone of Article 21, was the subject matter of Gian
Kaur’s case22. The Court held Sections 306 and 309 IPC to be
constitutionally valid. While so holding, the Court observed that
when a man commits suicide, he has to undertake certain
22 It may be noted that the Delhi High Court in State v. Sanjay Kumar, (1985) Crl.L.J. 931, and the
Bombay High Court in Maruti Sharipati Dubai v. State of Maharashtra, (1987) Crl.L.J. 743, had
taken the view that Section 309 of IPC was unconstitutional, being violative of Articles 14 and 21
of the Constitution. On the other hand, the Andhra Pradesh High Court in C. Jagadeeswar v.
State of Andhra Pradesh, (1983) Crl.L.J. 549, had upheld the validity of Section 309 holding that
it did not offend either Article 14 or Article 21 of the Constitution. A Division Bench of this Court
in R. Rathinam v. Union of India and Another, (1994) 3 SCC 394, had held that Section 309 IPC
deserves to be effaced from the statute book to humanise our penal laws, terming this provision
as cruel and irrational, which results in punishing a person again who had already suffered
agony and would be undergoing ignominy because of his failure to commit suicide. It is in this
backdrop Gian Kaur’s case was referred to and decided by the Constitution Bench.
Writ Petition (Civil) No. 215 of 2005 Page 30 of 112
positive overt acts and the genesis of those acts cannot be traced
to, or be included within the protection of the ‘right to life’ under
Article 21. The significant aspect of ‘sanctity of life’ is also not to
be overlooked. Article 21 is a provision guaranteeing protection
of life and personal liberty and by no stretch of imagination can
‘extinction of life’ be read to be included in ‘protection of life’.
Whatever may be the philosophy of permitting a person to
extinguish his life by committing suicide, the Court found it difficult
to construe Article 21 to include within it the ‘right to die’ as a part
of the fundamental right guaranteed therein. ‘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 legal position which stands as of today is that
right to life does not include right to die. It is in this background
we have to determine the legality of passive euthanasia.
39) Matter gets further complicated when it is examined in the context
of morality of medical science (Hippocratic Oath). Every doctor is
supposed to take specific oath that he will make every attempt to
safe the life of the patient whom he/she is treating and who is
under his/her treatment. The Hippocratic Oath goes on to say:
“I swear by Apollo the Healer, by Asclepius, by
Writ Petition (Civil) No. 215 of 2005 Page 31 of 112
Hygieia, by Panacea, and by all the gods and
goddesses, making them my witnesses, that I will
carry out, according to my ability and judgment,
this oath and this indenture.
To hold my teacher in this art equal to my own parents;
to make him partner in my livelihood; when he is in need
of money to share mine with him; to consider his family
as my own brothers, and to teach them this art, if they
want to learn it, without fee or indenture; to impart
precept, oral instruction, and all other instruction to my
own sons, the sons of my teacher, and to indentured
pupils who have taken the physician’s oath, but to
nobody else.
I will use treatment to help the sick according to my
ability and judgment, but never with a view to injury and
wrong-doing. Neither will I administer a poison to
anybody when asked to do so, nor will I suggest such a
course. Similarly I will not give to a woman a pessary to
cause abortion. But I will keep pure and holy both my life
and my art. I will not use the knife, not even, verily, on
sufferers from stone, but I will give place to such as are
craftsmen therein.
Into whatsoever houses I enter, I will enter to help the
sick, and I will abstain from all intentional wrong-doing
and harm, especially from abusing the bodies of man or
woman, bond or free. And whatsoever I shall see or hear
in the course of my profession, as well as outside my
profession in my intercourse with men, if it be what
should not be published abroad, I will never divulge,
holding such things to be holy secrets.
Now if I carry out this oath, and break it not, may I gain
for ever reputation among all men for my life and for my
art; but if I break it and forswear myself, may the
opposite befall me.”
40) This oath, thus, puts a moral and professional duty upon a doctor
to do everything possible, till the last attempt, to save the life of a
patient. If that is so, would it not be against medical ethics to let a
person die by withdrawing medical aid or, even for that matter, life
Writ Petition (Civil) No. 215 of 2005 Page 32 of 112
supporting instruments. Paradoxically, advancement in medical
science has compounded the issue further. There has been a
significant advancement in medical science. Medical scientists
have been, relentlessly and continuously, experimenting and
researching to find out better tools for not only curing the disease
with which human beings suffer from time to time, noble attempt
is to ensure that human life is prolonged and in the process of
enhancing the expectancy of life, ailments and sufferings
therefrom are reduced to the minimal. There is, thus, a fervent
attempt to impress the quality of life. It is this very advancement
in the medical science which creates dilemma at that juncture
when, in common perception, life of a person has virtually
become unlivable but the medical doctors, bound by their
Hippocratic Oath, want to still spare efforts in the hope that there
may still be a chance, even if it is very remote, to bring even such
a person back to life. The issue, therefore, gets compounded
having counter forces of medical science, morality and ethical
values, the very concept of life from philosophical angle. In this
entire process, as indicated in the beginning and demonstrated in
detail at the appropriate stage, the vexed question is to be
ultimately decided taking into consideration the normative law,
and in particular, the constitutional values.
Writ Petition (Civil) No. 215 of 2005 Page 33 of 112
41) Then, there is also a possibility of misuse and it becomes a
challenging task to ensure that passive euthanasia does not
become a tool of corruption and a convenient mode to ease out
the life of a person who is considered inconvenient. This aspect
would be touched upon at some length at the appropriate stage.
This point is highlighted at this juncture just to demonstrate the
complexity of the issue.
42) I may add that the issue is not purely a legal one. It has moral
and philosophical overtones. It has even religious overtones. As
Professor Upendra Baxi rightly remarks that judges are, in fact,
not jurisprudes. At the same time, it is increasingly becoming
important that some jurisprudential discussion ensues while
deciding those cases which have such more and philosophical
overtones as well. Such an analyses provides not only legal
basis for the conclusions arrived at but it also provides logical
commonsense justification as well. Obviously, whenever the
court is entering into a new territory and is developing a new legal
norm, discussion on normative jurisprudence assumes greater
significance as the court is called upon to decide what the legal
norm should be. At the same time, this normative jurisprudence
discourse has to be preceded by analytical jurisprudence, which
Writ Petition (Civil) No. 215 of 2005 Page 34 of 112
is necessary for the court to underline existing nature of law.
That would facilitate knowing legal framework of what is the
current scenario and, in turn, help in finding the correct answers.
When we discuss about the philosophical aspects of the subject
matter, it is the ‘value of life’ which becomes the foremost focus of
discussion. The discussion which follows hereinafter keeps in
mind these parameters.
THE TWO ISSUES
43) As already stated above, as of now insofar ‘active euthanasia’ is
concerned, it is legally impermissible. Our discussion centres
around ‘passive euthanasia’. Another aspect which needs to be
mentioned at this stage is that in the present petition filed by the
petitioner, the petitioner wants that ‘advance directive’ or ‘living
will’ should be legally recognised. In this backdrop, two important
questions arise for considerations, viz.,
(I) whether passive euthanasia, voluntary or even, in certain
circumstances, involuntary, is legally permissible? If so
under what circumstances (this question squarely calls for
answer having regards to the reference order made in the
instant petition)? and
(II) whether a ‘living will’ or ‘advance directive’ should be legally
Writ Petition (Civil) No. 215 of 2005 Page 35 of 112
recognised and can be enforced? If so, under what
circumstances and what precautions are required while
permitting it?
44) Answers to these questions have been provided in the judgment
of Hon’ble The Chief Justice, with excellent discourse on all
relevant aspects in an inimitable and poetic style. I entirely agree
with the reasoning and outcome. In fact, with the same fervour
and conclusion, separate judgments are written by my brothers,
Dhananjay Chandrachud and Ashok Bhushan, JJ. exhibiting
expected eloquence and erudition. I have gone through those
opinions and am in complete agreement thereby. In this
scenario, in my own way, I intend to deal with the aforesaid
questions on the following hypothesis:
(i) Issue of passive euthanasia is highly debatable,
controversial and complex (already indicated above).
(ii) It is an issue which cannot be put strictly within the legal
confines, but has social, philosophical, moral and even religious
overtones.
(iii) When the issue of passive euthanasia is considered on the
aforesaid parameters, one would find equally strong views on
both sides. That is the reason which makes it a thorny and
Writ Petition (Civil) No. 215 of 2005 Page 36 of 112
complex issue and brings within the category of ‘hard cases’.
(iv) In this entire scenario when the issue is considered in the
context of dignity of the person involved, one may tend to tilt in
favour of permitting passive euthanasia.
(v) At the same time, in order to achieve a balance, keeping in
view the competing and conflicting interests, care can be taken to
confine permissibility of passive euthanasia only in rare cases,
particularly, when the patient is declared ‘brain dead’ or ‘clinically
dead’ with virtually no chances of revival.
(vi) In this process, as far as ‘living will’ or ‘advance directive’ is
concerned, that needs to be permitted, along with certain
safeguards. It would not only facilitate prevention of any misuse
but take care of many apprehensions expressed about
euthanasia.
With the outlining of the structured process as aforesaid, I
proceed to discuss these aspects in detail hereinafter.
45) As pointed out above, Aruna Ramachandra Shanbaug decides
that passive euthanasia, even involuntary, in certain
circumstances would be justified. The reference order in the
instant case, however, mentions that for coming to this
conclusion, the Bench relied upon Gian Kaur, but that case does
Writ Petition (Civil) No. 215 of 2005 Page 37 of 112
not provide any such mandate. In this backdrop, we take up the
first question about the legality of passive euthanasia.
FIRST ISSUE
Whether passive euthanasia, voluntary or even, in
certain circumstances, involuntary, is legally
permissible? If so under what circumstances (this
question squarely calls for answer having regards to
the reference order made in the instant petition)?
46) I intend to approach this question by discussing the following
facets thereof:
(a) Philosophy of euthanasia
(b) Morality of euthanasia
(c) Dignity in euthanasia
(d) Economics of euthanasia
(A) Philosophy of Euthanasia
“I am the master of my fate; I am the captain of my soul”
- William Ernest Henley23
“Death is our friend … he delivers us from agony. I do
not want to die of a creeping paralysis of my faculties – a
defeated man.”
- Mahatma Gandhi24
“When a man’s circumstances contain a preponderance
of things in accordance with nature, it is appropriate for
him to remain alive; when possess or sees in prospect a
majority of contrary, it is appropriate for him to depart
from life.”
- Marcus Tullius Cicero
23 As quoted in P. Rathinam v. Union of India & Anr., (1994) 3 SCC 394
24 Same as in 14 above.
Writ Petition (Civil) No. 215 of 2005 Page 38 of 112
“Euthanasia, and especially physician-assisted suicide,
appears as the ultimate post-modern demand for dignity
in an era of technologically-mediated death.”
- Dr. Jonathan Moreno
47) The afore-quoted sayings of some great persons bring out a
fundamental truth with universal applicability. Every persons
wants to lead life with good health and all kinds of happiness. At
the same time, nobody wants any pain, agony or sufferings when
his or her life span comes to an end and that person has to meet
death. The following opening stanza from a song in a film
captures this message beautifully:
ररोतत हहए आतत हहसब, हहंसतत हहआ जरो जतएगत
वरो मक़द्दर ह कत ससकन्दर जतनतमन कहलतएगत
“Every person in this world comes crying. However, that person
who leaves the world laughing/smiling will be the luckiest of all”
(Hindi Film – Muqaddar Ka Sikandar)
48) It became unbearable for young prince Siddharth when he, for the
first time, saw an old crippled man in agony and a dead body
being taken away. He did not want to encounter such a situation
in his old life and desired to attain Nirvana which prompted him to
renounce the world so that he could find the real purpose of life;
could lead a life which is worth living; and depart this world
peacefully. He successfully achieved this purpose of life and
became Gautam Buddha. There are many such similar
Writ Petition (Civil) No. 215 of 2005 Page 39 of 112
examples.
Life is mortal. It is transitory. It is as fragile as any other
object. It is a harsh reality that no human being, or for that
matter, no living being, can live forever. Every creature who takes
birth on this planet earth has to die one day. Life has a limited
shelf age. In fact, unlike the objects and articles which are
produced by human beings and may carry almost same life span,
insofar as humans themselves are concerned, span of life is also
uncertain. Nobody knows how long he/she will be able to live.
The gospel truth is that everybody has to die one day,
notwithstanding the pious wish of a man to live forever25. As
Woody Allen said once: ‘I do not want to achieve immortality
through my work. I want to achieve it through not dying’. At the
same time, nobody wants to have a tragic end to life. We all want
to leave the world in a peaceful manner. In this sense, the term
‘euthanasia’ which has its origin in Greek language signifies ‘an
easy and gentle death’.
49) According to Charles I. Lugosi, the sanctity of life ethic no longer
dominates American medical philosophy. Instead, quality of life
has become the modern approach to manage human life that is
25 It is well known that medical scientists are intensely busy in finding the ways to become ageless
and immortal, but till date have remained unsuccessful in achieving this dream.
Writ Petition (Civil) No. 215 of 2005 Page 40 of 112
at the margin of utility26. It is interesting to note that the issue of
euthanasia was debated in India in 1928. Probably this was the
first public debate on euthanasia to be reported. A Calf in
Gandhi’s ashram was ailing under great pain. In spite of every
possible treatment and nursing…the condition of the calf was so
bad that it could not even change its side or even it could not be
lifted about in order to prevent pressure ulcers/sores. It could not
even take nourishment and was tormented by flies. The surgeon
whose advice was sought in this matter declared the case to be
past help and past hope. After painful days of hesitation and
discussions with the managing committee of Goseva Sangh and
the inmates of the ashram, Gandhi made up his mind to end the
life of the calf in a painless way as possible. There was a
commotion in orthodox circles and Gandhi critically examined the
question through his article which appeared in Navajivan (dated
30-9-1928) and Young India (4-10-1928). Probably this was the
first public debate on euthanasia and animal/veterinary
euthanasia and the debate also covered the issue of human
euthanasia. It is equally interesting to note that Gandhi and his
critics discussed the issue of ‘painlessly ending the life to end
suffering’ without using the term ‘euthanasia’. But, he meant the
26 Charles I. Lugosi, ‘Natural Disaster, Unnatural Deaths: The Killings on the Life Care Floors at
Tenet’s Memorial Centre after Hurricane Katrina’, Issues in Law and Medicine, Vol. 23, Summer,
2007.
Writ Petition (Civil) No. 215 of 2005 Page 41 of 112
same. Further it is more interesting to learn that at various
instances Gandhiji had touched upon the issues of the present
day debates on Voluntary euthanasia, Non-voluntary euthanasia,
Involuntary euthanasia, as well as passive euthanasia, active
euthanasia, physician-assisted euthanasia and the rejection or
‘termination of treatment’. Gandhi advocated the development of
positive outlook towards life and strived for the humane nursing
and medical care even when cure was impossible. It was the way
he analysed Karma and submitted to the will of the God.
50) Mahatma Gandhi said:
“In these circumstances I felt that humanity demanded that
the agony should be ended by ending life itself. The matter was
placed before the whole ashram. At the discussion a worthy
neighbour vehemently opposed the idea of killing even to end
pain. The ground of his opposition was that one has no right to
take away life which one cannot create. His argument seemed
to me to be pointless here. It would have point if the taking of life
was actuated by self-interest. Finally, in all humility but with the
clearest of convictions, I got in my presence a doctor kindly to
administer the calf a quietus by means of a position injection.
The whole thing was over in less than two minutes.
But the question may very legitimately be put to me: would I
Writ Petition (Civil) No. 215 of 2005 Page 42 of 112
apply the same principle to human beings? Would I like it to be
applied in my own case? My reply is ‘yes’; the same law holds
good in both the cases. The law, ‘as with one so with all’, admits
of no exceptions, or the killing of the calf was wrong and violent.
In practice, however, we do not cut short the sufferings of our
ailing dear ones by death because, as a rule, we have always
means at our disposal to help them and they have the capacity to
think and decide for themselves. But supposing that in the case
of an ailing friend, I am unable to render any aid whatever and
recovery is out of question and the patient is lying in an
unconscious state in the throes of agony, then I would not see
any himsa in putting an end to his suffering by death.
Just as a surgeon does not commit himsa but practices the
purest ahimsa when he wields his knife, one may find it
necessary, under certain imperative circumstances, to go a step
further and sever life from the body in the interest of the sufferer.
It may be objected that whereas the surgeon performs his
operation to save the life of the patient, in the other case we do
just the reverse. But on a deeper analysis it will be found that the
ultimate object sought to be served in both the cases is the
same, namely, to relieve the suffering soul within from pain. In
the one case you do it by severing the diseased portion from the
Writ Petition (Civil) No. 215 of 2005 Page 43 of 112
body, in the other you do it by severing from the soul the body
that has become an instrument of torture to it. In either case it is
the relief of the soul within from pain that is aimed at, the body
without the life within being incapable of feeling either pleasure or
pain.
To conclude then, to cause pain or wish ill to or to take the
life of any living being out of anger or a selfish intent, is himsa.
On the other hand, after a calm and clear judgment to kill or
cause pain to a living being from a pure selfless intent may be
the purest form of ahimsa. Each such case must be judged
individually and on its own merits. The final test as to its violence
or non-violence is after all the intent underlying the act.”
51) Ethical Egoism propounded in modern times by Thomas
Hobbes in “Leviathan” also operates from the general rule that if
any action increases my own good, then it is right. Ethical
egoism in the context of euthanasia would mean that if a person
wants or does not want to end his/her life using euthanasia, this
desire is presumed to be motivated by a need for self benefit, and
is therefore an ethical action27
. The perspective of the world
community is gradually shifting from sanctity of life to quality of
27
John Keown, Euthanasia, Ethics and Public Policy, (Cambridge: Cambridge
University Press, (2002) p. 37
Writ Petition (Civil) No. 215 of 2005 Page 44 of 112
life sustained and preserved.
52) Philosophers believe that we have to control switch that can end
it all, on request. In medical/legal parlance, it is called
euthanasia: ‘an easy and gentle death’. Philosophically, this
debate is about our right, when terminally ill, to choose how to
die. It is about the right to control how much we have to suffer
and when and how we die. It is about having some control over
our dying process in a system that can aggressively prolong life
with invasive technology. Luckily, we also have the technology
that allows us to experience a gentle death on our own terms,
rather than by medically set terms. In his famous essay on
Liberty, John Stuart Mill argues strongly for our right to selfdetermination.
He writes: “over himself, over his own body and
mind, the individual is sovereign...he is the person most
interested in his own well being.” These words were written over
a century ago.
53) Philosophically, therefore, one may argue that if a person who is
undergoing miserable and untold sufferings and does not want to
continue dreadful agony and is terminally ill, he should be free to
make his choice to terminate his life and to put an end to his life
so that he dies peacefully.
Writ Petition (Civil) No. 215 of 2005 Page 45 of 112
54) At the same time, Buddhism, Jainism and Hinduism are against
euthanasia. However, their concept of ‘good death’ is extremely
interesting – specially principles of Buddhism as they are echoed
in the present day understanding of euthanasia. Without
elaborating and to put it in nutshell:
Buddhism, Jainism, and Hinduism, in particular, embrace
the concept of the good death as a means of achieving dignity
and spiritual fulfilment at the end of life without resorting to
artificially shortening its span.
Buddhists believe that human existence is rare and rebirth
as a human is rarer still. Consequently it is best approached
cautiously without attempting to exert control over the dying
process. At the point of dying, a Buddhist should ideally be
conscious, rational and alert.
Traditional Hindu religious culture also emphasizes the
good death as a reflection of the quality of life that preceded it. If
a good, dignified death is attained, it is perceived as evidence of
having lived a worthy life because “the manner of one’s passing
out-weighs all previous claims and intimations of one’s moral
worth”28
.
28
T N Madan, “Dying with Dignity” (1992) 35 (4) Social Science and Medicine 425–32.
Writ Petition (Civil) No. 215 of 2005 Page 46 of 112
“a good death certifies a good life”29
.
The good death is achieved when death occurs in full
consciousness, in a chosen place and at a chosen time; and
As with Buddhism great significance is attached to the
element of choice and the maintenance of control,30 so if at all
possible, “one must be in command and should not be overtaken
by death. To be so overtaken is the loss of dignity”.31 Thus the
final moments of life should be calm, easy and peaceful if dignity
is to be preserved.
Many of the insights of these traditional religions are echoed
in the modern Western understanding of euthanasia, as a means
of achieving death with dignity, which focuses on avoiding
dependence and loss of control. Choosing to deliberately end
one’s life allows control over the time, place and method of one’s
dying and explains why euthanasia appears to offer death with
dignity. Rather than active euthanasia these ancient religions
advocate calm, control and compassion as a means of achieving
dignity.
(B) Morality of Euthanasia
55) At the outset, I would like to clarify that while discussing a
29 T N Madan, “Living and Dying” in Non-Renunciation: Themes and Interpretations of the Hindu
Culture (New Delhi, Oxford University Press, 1987).
30 J Parry, Death and the Regeneration of Life (Cambridge, Cambridge University Press, 1982)
31 T N Madan, “Dying with Dignity” (1992) 35 (4) Social Science and Medicine 425–32.
Writ Petition (Civil) No. 215 of 2005 Page 47 of 112
particular norm of law, the law per se is to be applied and,
generally speaking, it is not the function of the Courts to look into
the moral basis of law. At the same time, some legal norms,
particularly those which are jurisprudentially expounded by the
Courts or developed as common law principles, would have
moral backing behind them. In that sense moral aspects of an
issue may assume relevance. This relevancy and rationale is
quite evident in the discussion about euthanasia. In fact, the very
concept of dignity of life is substantially backed by moral
overtones. We may remind ourselves with the following classical
words uttered by Immanuel Kant:
“We must not expect a good constitution because those
who make it are moral men. Rather it is because of a
good constitution that we may expect a society
composed of moral men.”
56) It is well known that Justice Holmes’ legal philosophy revolved
around its central theme that law and morals are to be kept apart,
maintaining a sharp distinction between them. Notwithstanding,
even he accepted that under certain circumstances distinction
between law and morals loses much of its importance. To quote:
“I do not say say that there is not a wider point of
view from which the distinction between law and
morals becomes of secondary importance, as all
mathematical distinctions vanish in the presence of
the infinite”.32
32 Justice Holmes: The Path of the Law, 10 Harvard Law review 457-78, at p. 459 (1897)
Writ Petition (Civil) No. 215 of 2005 Page 48 of 112
57) Euthanasia is one such critical issue where the law relating to it
cannot be divorced from morality. Lon L. Fuller33 has argued with
great emphasis that it is the morality that makes the law possible.
He also points towards morality as the substantive aims of law. In
fact, as would be noticed later, the conceptualisation of doctrine
of dignity by Ronald Dworkin is supported with moral ethos. With
the aid of dignity principle, he has argued in favour of euthanasia.
Likewise, and ironically, John Finnis, Professor of Law and Legal
Philosophy Emeritus in the University of Oxford, while opposing
euthanasia, also falls back on the morality conception thereof. It
is this peculiar feature which drives us to discuss the issue of
euthanasia from the stand point of morality.
58) Influenced primarily by the aforesaid considerations, I deem it
relevant to indulge into discussion on morality.
59) When we come to the moral aspects of ‘end of life’ issues, we
face the situation of dilemma. On the one hand, it is an accepted
belief that every human being wants to die peacefully. Nobody
wants to undergo any kind of suffering in his last days. So much
so a person who meets his destiny by sudden death or easy
death is often considered as a person who would have lived his
life by practicing moral and ethical values. Rightly or wrongly, it is
33 Lon L. Fuller: The Morality of Law (Revised Edition), Yale University Press
Writ Petition (Civil) No. 215 of 2005 Page 49 of 112
perceived that such a person who exhibited graceful behaviour
while living his life is bestowed grace by the death when time to
depart came. However, it does not happen to most of the people.
Ageing is a natural phenomena. No doubt, as the person
advances in age, he becomes mature in his wisdom. However,
old age brings, along with it, various ailments and diseases as
well. Physical health and physical functioning declines over the
life course, particularly, in later life. A rise in chronic disease and
other conditions such as arthritis, high blood pressure and obesity
can cause loss in function and lead to generally decreasing
trajectory for health over the lifespan. Thus, ageing has both
positive and negative aspects. This ageing leads to extinction of
human life which may generally be preceded by grave sickness
and disease.
60) Horace, Roman poet in his poem on the ‘Ages of Man’ wrote
quiet scathingly of the attributes of old age:
“Many ills encompass an old man, whether because he
seeks, gain, and then miserably holds aloof from His
store and fears to use it, because, in all that he does, he
lacks fire and courage, is dilatory and slow to form
hopes, is sluggish and greedy of a longer life, peevish,
surly, given to praising the days he spent as a boy, and
to reproving and condemning the young.
(Ars Poetica, pp.169-74)
We find a more contemporary echo of this in William
Shakespeare’s (1564-1616) famous verse ‘All the
Writ Petition (Civil) No. 215 of 2005 Page 50 of 112
World’s a Stage’:
all the word’s stage, and all the men and women merely
players;
they have their exits and their entrances,
and one man in his time plays many parts,
his acts being seven ages....Last scene of all,
that ends this strange eventful history,
is second childishness and mere oblivion,
sans teeth, sans eyes, sans taste, sans everything.
(As You Like It, Act II, scene VII)”
It may, however, be added (for the sake of clarification) that
advent of disease is not the confines of old age only. One may
become terminally ill at any age. Such a disease may be
acquired even at birth.
61) The moral dilemma is that it projects both the sides--protracted as
well as intractable. On the one hand, it is argued by those who
are the proponents of a liberal view that a right to life must
include a concomitant right to choose when the life becomes
unbearable and not so worth living, when such a stage comes
and the sufferer feels that that the life has become useless, he
should have right to die. Opponents, on the other hand, project
‘Sanctity of Life’ (SOL) as the most important factor and argue
that this ‘SOL’ principle is violated by self-styled angles of death.
Protagonists on ‘SOL’ principle believe that life should be
preserved at all costs and the least which is expected is that
Writ Petition (Civil) No. 215 of 2005 Page 51 of 112
there should not be a deliberate destruction of human life, though
it does not demand that life should always be prolonged as long
as possible.
62) It might therefore be argued, as Emily Jackson (2008) cogently
does, that the law’s recognition that withdrawal of life-prolonging
treatment is sometimes legitimate is not so much an exception to
the SOL principle, as an embodiment of it.
63) In the most secular judicial interpretation of the SOL doctrine yet,
Denman J of the UKHL explicated thus:
“in respect a person’s death, we are also respecting their
life – giving it sanctity...A view that life must be preserved
at all costs does not sanctify life.,..to care for the dying,
to love and cherish them, and to free them from suffering
rather than simply to postpone death is to have
fundamental respect for the sanctity of life and its end.”
64) Hence, as the process of dying is an inevitable consequence of
life, the right to life necessarily implies the right to have nature
take its course and to die a natural death. It also encompasses a
right, unless the individual so wishes, not to have life artificially
maintained by the provision of nourishment by abnormal artificial
means which have no curative effect and which are intended
merely to prolong life.
65) A moral paradox which emerges is beautifully described by
Writ Petition (Civil) No. 215 of 2005 Page 52 of 112
Sushila Rao34, in the following words:
“Several commentators have justified the active/passive
distinction by averring that there is an important moral
difference between killing a patient by administering, say,
a lethal injection, and withdrawing treatment which is
currently keeping her alive. Active euthanasia, runs the
argument, interferes with nature’s dominion, whereas
withdrawal of treatment restores to nature her dominion.
Here too, an absolutist version of the SOL principle rears
its unseemly head. In a plethora of cases in the UK, a
course of action which would lead to the patient’s action
which would lead to the patient’s death was held to be
compatible with the “best interests” test. Indeed, a
majority in the House of Lords in Bland explicitly
accepted that the doctor’s intention in withdrawing
artificial nutrition and hydration was, in Lord BrowneWilkinson’s
words, to “bring about the death of Anthony
Bland”. Lord Lowry said that “the intention to bring about
the patient’s death is there” and Lord Mustill admitted
that “the proposed conduct has the aim.. of terminating
the life of Anthony Bland”. I each case, however, life
could be brought to an end only because the doctors
had recourse to a course of action which could plausibly
be described as a “failure to prolong life”.
The SOL principle thus works insidiously to ensure that
only certain types of death—namely, those achieved by
suffocation, dehydration, starvation and infection,
through the withdrawal or withholding of, respectively,
ventilation, ratification nutrition and hydration, and
antibiotics-can lawfully be brought about. More crucially,
the SOL principle prohibits doctors from acting to
achieve that end quickly, and more humanly, by the
administration of a single lethal injection.
Lord Browne-Wilkinson lamented this paradox in Bland
in the following words:
“How can it be lawful to allow a patient to die slowly,
though painlessly, over a period of weeks from lack of
food but unlawful to produce his immediate death by a
lethal injection, thereby saving his family from yet
34
Sushila Rao : Economic and Political Weekly, Vol. 46, No. 18 (April 30-May 6, 2011), pp. 13-16
Writ Petition (Civil) No. 215 of 2005 Page 53 of 112
another ordeal to add to the tragedy that has already
struck them? I find it difficult to find a moral answer to
that question.
As Simon Blackburn (2001) puts it, differentiating
between withdrawal of treatment and killing may salve
some consciences, but it is very doubtful whether it
ought to. It often condemns the subject to a painful,
lingering death, fighting for breath or dying of thirst, while
those who could do something stand aside, withholding
a merciful death.”
66) Interestingly, Sushila Rao concludes that even the active-passive
distinction is not grounded much in morality and ethics as in
‘reasons of policy’.
67) John Finnis strongly believes that moral norms rule out the central
case of euthanasia and discards the theory of terminating
people’s life on the ground that doing so would be benefecial by
alleviating human suffering or burdens. He also does not agree
that euthanasia would benefit ‘other people’ at least by alleviating
their proportionately greater burdens35
.
68) Moral discourse of John Finnis proceeds on the ‘intention of the
person who is facing such a situation’. He draws distinction
between what one intends (and does) and what one accepts as
35 According to John Finnis, there is no real and morally relevant distinction between active
euthanasia and passive euthanasia inasmuch as one employs the method of deliberate
omissions (or forbearances or abstentions) in order to terminate life (passive euthanasia) and
other employs ‘a deliberate intervention’ for the same purpose (active euthanasia). In this
sense, in both the cases, it is an intentional act whether by omission or by intervention, to put an
end to somebody’s life and, therefore, morally wrong.
Writ Petition (Civil) No. 215 of 2005 Page 54 of 112
foreseen side effects is significant by giving importance to free
choice. There would be free choice, he argues, only when one is
rationally motivated towards incompatible alternative possible
purposes. Therefore, there may be a possibility that a person
may choose euthanasia but not as a free choice and it would be
morally wrong. In a situation where that person is not in a
position to make a choice (for e.g. when he is in comma) this
choice shall be exercised by others which, according to him,
violates the autonomy of the person involved. It is significant to
mention that Finnis accepts that autonomy of the patient or
prospective patient counts. It reads:
“Is this to say that the autonomy of the patient or
prospective patient counts for nothing? By no means.
Where one does not know that the requests are suicidal
in intent, one can rightly, as a healthcare professional or
as someone responsible for the care of people, give full
effect to requests to withhold specified treatments or
indeed any and all treatments, even when one considers
the requests misguided and regrettable. For one is
entitled and indeed ought to honour these people's
autonomy, and can reasonably accept their death as a
side effect of doing so.”36
69) He, however, explains thereafter that even if such a decision is
taken, said person would be proceeding on one or both of two
philosophically and morally erroneous judgments: (i) that human
life in certain conditions or circumstances retains no intrinsic
36 John Finnis: “Human Rights and Common Good: Collected Essays”, Volume III
Writ Petition (Civil) No. 215 of 2005 Page 55 of 112
value and dignity; and/or (ii) that the world would be a better
place if one’s life were intentionally terminated. And each of
these erroneous judgments has very grave implications for
people who are in poor shape and/or whose existence creates
serious burdens for others.
It is, thus, clear that taking shelter of same morality
principles, jurists have reached opposing conclusions. Whereas
euthanasia is morally impermissible in the estimation of some,
others treat it as perfectly justified. As would be noted later, riding
on these very moral principles, Dworkin developed the dignity of
life argument and justified euthanasia.
The aforesaid discussion on the philosophy of euthanasia,
coupled with its morality aspect, brings out the conflicting views.
Though philosophical as well as religious overtones may indicate
that a person does not have right to take his life, it is still
recognised that a human being is justified in his expectation to
have a peaceful and dignified death. Opposition to euthanasia,
on moral grounds, proceeds primarily on the basis that neither the
concerned person has a right to take his own life, which is God’s
creation, nor anybody else has this right. However, one startling
feature which is to be noted in this opposition is that while
opposing euthanasia, no segregated discussion on active and
Writ Petition (Civil) No. 215 of 2005 Page 56 of 112
passive euthanasia is made. It also does not take into
consideration permissibility of passive euthanasia under certain
specific circumstances. Clarity on this aspect is achieved when
we discus the issue of euthanasia in the context of dignity.
(C) Dignity in Euthanasia
70) This Court acknowledges its awareness of the sensitive and
emotional nature of euthanasia controversy, and the vigours of
opposing views, even within the medical fraternity, and seemingly
absolute convictions that the subject inspires. This is so
demonstrated above while discussing philosophical, moral,
ethical and religious overtones of the subject involved. These
valid aspects, coupled with one’s attitude towards life and family
and their values, are likely to influence and to colour one’s
thinking and conclusions about euthanasia. Notwithstanding the
same, these aspects make the case as ‘hard case’. However, at
the end of the day, the Court is to resolve the issue by
constitutional measurements, free of emotion and of predilection.
One has to bear in mind what Justice Oliver Wendell Holmes Jr.
said in his dissenting judgment in Lochner v. New York37, which
is reproduced below:
“[The Constitution] is made for people of fundamentally
differing views, and the accident of our finding certain
37 198 US 45, 76 (1905)
Writ Petition (Civil) No. 215 of 2005 Page 57 of 112
opinions natural and familiar or novel and even shocking
ought not to conclude our judgment upon the question
whether statutes embodying them conflict with the
Constitution of the United States.”
71) With these preliminary remarks we return to the doctrine of dignity
as an aspect of Article 21 of the Constitution, a brief reference to
which has already been made above.
72) Let me first discuss certain aspects of human dignity in general.
Insofar as concept of human dignity is concerned, it dates back to
thousands of years. Historically, human dignity, as a concept,
found its origin in different religions which is held to be an
important component of their theological approach. Later, it was
also influenced by the views of philosophers who developed
human dignity in their contemplations38. Jurisprudentially, three
types of models for determining the content of the constitutional
value of human dignity are recognised. These are: (i) Theological
Model, (ii) Philosophical Model, and (iii) Constitutional Model.
Legal scholars were called upon to determine the theological
basis of human dignity as a constitutional value and as a
constitutional right. Philosophers also came out with their views
justifying human dignity as core human value. Legal
understanding is influenced by theological and philosophical
38 Though western thinking is that the concept of human dignity has 2500 years' history, in many
eastern civilizations including India human dignity as core human value was recognised
thousands of years ago
Writ Petition (Civil) No. 215 of 2005 Page 58 of 112
views, though these two are not identical. Aquinas, Kant as well
as Dworkin discussed the jurisprudential aspects of human
dignity. Over a period of time, human dignity has found its way
through constitutionalism, whether written or unwritten.
Theological Model of Dignity
'Amritasya Putrah Vayam'
[We are all begotten of the immortal.] This is how Hinduism
introduces human beings.
'Every individual soul is potentially divine'
– proclaimed Swami Vivekananda
73) Hinduism doesn't recognize human beings as mere material
beings. Its understanding of human identity is more ethicalspiritual
than material. That is why a sense of immortality and
divinity is attributed to all human beings in Hindu classical
literature.
74) Professor S.D. Sharma, sums up the position with following
analysis39:
“Consistent with the depth of Indian metaphysics, the
human personality was given a metaphysical
interpretation. This is not unknown to the modern
occidental philosophy. The concept of human
personality in Kant's philosophy of law is metaphysical
entity but Kant was not able to reach the subtler
unobserved element of personality, which was the
basic theme of the concept of personality in Indian
legal philosophy”
39 Prof. S.D. Sharma : “Administration of Justice in Ancient Bharat”, (1988).
Writ Petition (Civil) No. 215 of 2005 Page 59 of 112
75) It is on the principle that the soul that makes the body of all living
organisms its abode is in fact an integral part of the Divine Whole
– Paramaatman – that the Vedas declare unequivocally:
Ajyesthaaso Akanisthaasa Yete; Sam Bhraataro Vaavrudhuh
Soubhagaya
[No one is superior or inferior; all are brothers; all should strive for
the interest of all and progress collectively]
– RigVeda, Mandala-5, Sukta-60, Mantra-5
76) Even in Islam, tradition of human rights became evident in the
medieval ages. Being inspired by the tenets of the Holy Koran, it
preaches the universal brotherhood, equality, justice and
compassion. Islam believes that man has special status before
God. Because man is a creation of God, he should not be
harmed. Harm to a human being is harm to a God. God, as an
act of love, created man and he wishes to grant him recognition,
dignity and authority. Thus, in Islam, human dignity stems from
the belief that man is a creation of God – the creation that God
loves more than any other.
77) The Bhakti and Sufi traditions too in their own unique ways
popularized the idea of universal brotherhood. It revived and
regenerated the cherished Indian values of truth, righteousness,
justice and morality.
Writ Petition (Civil) No. 215 of 2005 Page 60 of 112
78) Christianity believes that the image of God is revealed in Jesus
and through him to human kind. God is rational and determines
his goals for himself. Man was created in the image of God, and
he too is rational and determines his own goals, subject to the
God as a rational creation. Man has freedom of will. This is his
dignity. He is free to choose his goals, and he himself is a goal.
His supreme goal is to know God. Thus he is set apart from a
slave and from all the creations under him. When a man sins, he
loses his human dignity. He becomes an object40
.
Philosophical Model of Dignity
79) The modern conception of human dignity was affected by the
philosophy of Kant41. Kant's moral theory is divided into two
parts: ethics and right (jurisprudence). The discussion of human
dignity took place within his doctrine of ethics and does not
appear in his jurisprudence42. Kant's jurisprudence features the
concept of a person's right to freedom as a human being.
80) According to Kant, a person acts ethically when he acts by force
of a duty that a rational agent self-legislates onto his own will.
This self-legislated duty is not accompanied by any right or
coercion, and is not correlative to the rights of others. For Kant,
40 Based on the approach of Thomas Aquinas (1225-1274) in his work Summa Theologia
41 See Toman E. Hill, 'Humanity as an End in itself' (1980) 91 Ethics 84
42 See Pfordten, 'On the Dignity of Man in Kant'
Writ Petition (Civil) No. 215 of 2005 Page 61 of 112
ethics includes duties to oneself (e.g. to develop one's talents)
and to others (e.g. to contribute to their happiness). This ability is
the human dignity of man. This is what makes a person different
than an object. This ability makes a person into an end, and
prevents her from being a mere means in the hands of another.
81) Professor Upendra Baxi in his First Justice H.R. Khanna
Memorial Lecture43, on the topic Protection of Dignity of Individual
under the Constitution of India has very aptly remarked that
dignity notions, like the idea of human rights, are supposed to be
the gifts of the West to the Rest, though, this view is based on the
prescribed ignorance of the rich traditions of non-European
countries. He, then, explains Eurocentric view of human dignity
by pointing out that it views dignity in terms of personhood (moral
agency) and autonomy (freedom of choice). Dignity here is to be
treated as 'empowerment' which makes a triple demand in the
name of respect for human dignity, namely:
1. Respect for one's capacity as an agent to make one's own
free choices.
2. Respect for the choices so made.
3. Respect for one's need to have a context and conditions in
which one can operate as a source of free and informed
43 Delivered on 25th February, 2010 at Indian Institute of Public Administration, New Delhi.
Writ Petition (Civil) No. 215 of 2005 Page 62 of 112
choice.
82) To the aforesaid, Professor Baxi adds:
“I still need to say that the idea of dignity is a
metaethical one, that is it marks and maps a difficult
terrain of what it may mean to say being 'human' and
remaining 'human', or put another way the relationship
between 'self', 'others', and 'society'. In this formulation
the word 'respect' is the keyword: dignity is respect for
an individual person based on the principle of freedom
and capacity to make choices and a good or just
social order is one which respects dignity via assuring
'contexts' and 'conditions' as the 'source of free and
informed choice'. Respect for dignity thus conceived
is empowering overall and not just because it, even if
importantly, sets constraints state, law, and
regulations.”
83) Jeremy Waldron44 opines that dignity is a sort of status-concept: it
has to do with the standing (perhaps the formal legal standing or
perhaps, more informally, the moral presence) that a person has
in a society and in her dealings with others. He has ventured
even to define this term “dignity” in the following manner:
“Dignity is the status of a person predicated on the fact
that she is recognized as having the ability to control
and regulate her actions in accordance with her own
apprehension of norms and reasons that apply to her;
it assumes she is capable of giving and entitled to give
an account of herself (and of the way in which she is
regulating her actions and organizing her life), an
account that others are to pay attention to; and it
means finally that she has the wherewithal to demand
that her agency and her presence among us as
human being be taken seriously and accommodated
in the lives of others, in others' attitudes and actions
towards her, and in social life generally”.
44 See Article of Jeremy Waldron : “How Law Protects Dignity”
Writ Petition (Civil) No. 215 of 2005 Page 63 of 112
84) Kant, on the other hand, has initially used dignity as a 'value idea',
though in his later work he also talks of 'respect' which a person
needs to accord to other person, thereby speaking of it more as a
matter of status.
Constitutional Perspective of Dignity
85) The most important lesson which was learnt as a result of Second
World War was the realization by the Governments of various
countries about the human dignity which needed to be cherished
and protected. It is for this reason that in the U.N. Charter, 1945,
adopted immediately after the Second World War, dignity of the
individuals was mentioned as of core value. The almost
contemporaneous Universal Declaration of Human Rights (1948)
echoed same sentiments.
86) Article 3 of the Geneva Conventions explicitly prohibits “outrages
upon personal dignity”. There are provisions to this effect in
International Covenant on Civil and Political Rights (Article 7) and
the European Convention of Human Rights (Article 3) though
implicit. However, one can easily infer the said implicit message
in these documents about human dignity. The ICCPR begins its
preamble with the acknowledgment that the rights contained in
the covenant “derive from the inherent dignity of the human
Writ Petition (Civil) No. 215 of 2005 Page 64 of 112
person”. And some philosophers say the same thing. Even if this
is not a connection between dignity and law as such, it certainly
purports to identify a wholesale connection between dignity and
the branch of law devoted to human rights. One of the key facets
of twenty-first century democracies is the primary importance
they give to the protection of human rights. From this
perspective, dignity is the expression of a basic value accepted in
a broad sense by all people, and thus constitutes the first
cornerstone in the edifice of human rights. Therefore, there is a
certain fundamental value to the notion of human dignity, which
some would consider a pivotal right deeply rooted in any notion of
justice, fairness, and a society based on basic rights.
87) Aharon Barak, former Chief Justice of the Supreme Court of
Israel, attributes two roles to the concept of human dignity as a
constitutional value, which are:
1. Human dignity lays a foundation for all the human rights as
it is the central argument for the existance of human rights.
2. Human dignity as a constitutional value provides meaning to
the norms of the legal system. In the process, one can discern
that the principle of purposive interpretation exhorts us to
interpret all the rights given by the Constitution, in the light of the
human dignity. In this sense, human dignity influences the
Writ Petition (Civil) No. 215 of 2005 Page 65 of 112
purposive interpretation of the Constitution. Not only this, it also
influences the interpretation of every sub-constitutional norm in
the legal system. Moreover, human dignity as a constitutional
value also influences the development of the common law.
88) Within two years of the adoption of the aforesaid Universal
Declaration of Human Rights that all human beings are born free
and equal in dignity and rights, India attained independence and
immediately thereafter Members of the Constituent Assembly
took up the task of framing the Constitution of this Country. It was
but natural to include a Bill of Rights in the Indian Constitution
and the Constitution Makers did so by incorporating a Chapter on
Fundamental Rights in Part III of the Constitution. However, it
would be significant to point out that there is no mention of
“dignity” specifically in this Chapter on Fundamental Rights. So
was the position in the American Constitution. In America, human
dignity as a part of human rights was brought in as a Judge-made
doctrine. Same course of action followed as the Indian Supreme
Court read human dignity into Articles 14 and 21 of the
Constitution.
89) Before coming to the interpretative process that has been
developed by this Court in evolving the aura of human dignity
Writ Petition (Civil) No. 215 of 2005 Page 66 of 112
predicated on Articles 14 and 21 of the Constitution, I am
provoked to discuss as to how Dworkin perceives interpretative
process adopted by a Judge.
90) Dworkin, being a philosopher – jurist, was aware of the idea of a
Constitution and of a constitutional right to human dignity. In his
book, Taking Rights Seriously, he noted that everyone who takes
rights seriously must give an answer to the question why human
rights vis-a-vis the State exist. According to him, in order to give
such an answer one must accept, as a minimum, the idea of
human dignity. As he writes:
“Human dignity....associated with Kant, but defended
by philosophers of different schgools, supposes that
there are ways of treating a man that are inconsistent
with recognizing him as a full member of the human
community, and holds that such treatment is
profoundly unjust.”45
91) In his Book, “Is Democracy Possible Here?”46 Dworkin develops
two principles about the concept of human dignity. First principle
regards the intrinsic value of every person, viz., every person has
a special objective value which value is not only important to that
person alone but success or failure of the lives of every person is
important to all of us. The second principle, according to
Dworkin, is that of personal responsibility. According to this
45 Ibid., 1
46 Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate (Princeton
University Press, 2006).
Writ Petition (Civil) No. 215 of 2005 Page 67 of 112
principle, every person has the responsibility for success in his
own life and, therefore, he must use his discretion regarding the
way of life that will be successful from his point of view. Thus,
Dworkin's jurisprudence of human dignity is founded on the
aforesaid two principles which, together, not only define the basis
but the conditions for human dignity. Dworkin went on to develop
and expand these principles in his book, Justice for Hedgehogs
(2011)47
.
92) When speaking of rights, it is impossible to envisage it without
dignity. In his pioneering and all inclusive “Justice for
Hedgehogs”, he proffered an approach where respect for human
dignity, entails two requirements; first, self-respect, i.e., taking the
objective importance of one’s own life seriously; this represents
the free will of the person, his capacity to think for himself and to
control his own life and second, authenticity, i.e., accepting a
“special, personal responsibility for identifying what counts as
success” in one’s own life and for creating that life “through a
coherent narrative” that one has chosen.48 According to Dworkin,
these principles form the fundamental criteria supervising what
we should do in order to live well.49 They further explicate the
47 Ibid 13
48 Kenneth W. Simons, Dworkin’s Two Principle of Dignity: An unsatisfactory Nonconsequentialist Account of
Interpersonal Moral Duties, 90 Boston law Rev. 715 (2010)
49 Ibid
Writ Petition (Civil) No. 215 of 2005 Page 68 of 112
rights that individuals have against their political community,50 and
they provide a rationale for the moral duties we owe to others.
This notion of dignity, which Dworkin gives utmost importance to,
is indispensable to any civilised society. It is what is
constitutionally recognised in our country and for good reason.
Living well is a moral responsibility of individuals; it is a continuing
process that is not a static condition of character but a mode that
an individual constantly endeavours to imbibe. A life lived without
dignity, is not a life lived at all for living well implies a conception
of human dignity which Dworkin interprets includes ideals of selfrespect
and authenticity.
93) This constitutional value of human dignity, has been beautifully
illustrated by Aharon Barak, as under:
“Human dignity as a constitutional value is the factor
that unites the human rights into one whole. It ensures
the normative unity of human rights. This normative
unity is expressed in the three ways: first, the value of
human dignity serves as a normative basis for
constitutional rights set out in the constitution; second,
it serves as an interpretative principle for determining
the scope of constitutional rights, including the right to
human dignity; third, the value of human dignity has
an important role in determining the proportionality of
a statute limiting a constitutional right.”51
94) We have to keep in mind that while expounding the aforesaid
notion of dignity, Dworkin was not interpreting any Constitution.
50 Supra 15
51 Aharon Barak, Human Dignity : The Constitutional Value and the Constitutional Right
Writ Petition (Civil) No. 215 of 2005 Page 69 of 112
This notion of dignity, as conceptualised by Dworkin, fits like a
glove in our constitutional scheme. In a series of judgments,
dignity, as an aspect of Article 21, stands firmly recognised. Most
of the important judgments have been taken note of and
discussed in K.S. Puttaswamy52
.
95) In K.S. Puttaswamy, the Constitution Bench has recognised the
dignity of existence. Liberty and autonomy are regarded as the
essential attributes of a life with dignity. In this manner, sanctity
of life also stands acknowledged, as part of Article 21 of the
Constitution. That apart, while holding the right of privacy as an
intrinsic part of right to life and liberty in Article 21, various facets
thereof are discussed by the learned Judges in their separate
opinions. A common theme which flows in all these opinions is
that that privacy recognises the autonomy of the individual; every
person has right to make essential choices which affect the
course of life; he has to be given full liberty and freedom in order
to achieve his desired goals of life; and the concept of privacy is
contained not merely in personal liberty, but also in the dignity of
the individual. Justice Chelameshwar, in K.S. Puttaswamy,
52 Prem Shankar Shukla v. UT of Delhi, (1980) 3 SCC 526; Francis Coralie Mullin v. UT of Delhi,
(1981) 1 SCC 608; Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161; Khedat
Mazdoor Chetna Sangath v. State of Madhya Pradesh, (1994) 6 SCC 260; M. Nagaraj v. Union
of India, (2006) 8 SCC 212, Maharashtra University of Health Sciences v. Satchikitsa Prasarak
Mandal, (2010) 3 SCC 786; Selvi v. State of Karnataka, (2010) 7 SCC 263; Mehmood Nayyar
Azam v. State of Chhattisgarh, (2012) 8 SCC 1; Shabnam v. Union of India, (2015) 6 SCC 702;
Jeeja Ghosh v. Union of India, (2016) 7 SCC 761.
Writ Petition (Civil) No. 215 of 2005 Page 70 of 112
made certain specific comments which are reflective of
euthanasia, though this term is not specifically used. He
observed: “forced feeding of certain persons by the State raises
concerns of privacy and individual’s right to refuse life prolonging
medical treatment or terminate his life is another freedom which
falls within the zone of privacy.”
96) Liberty by itself, which is a facet of Article 21 of the Constitution,
duly recognised in K.S. Puttaswamy, ensures and guarantees
such a choice to the individual. In fact, the entire structure of civil
liberties presupposes that freedom is worth fostering. The very
notion of liberty is considered as good for the society. It is also
recognised that there are some rights, encompassing liberty,
which are needed in order to protect freedom. David Feldman53
beautifully describes as to why freedom (or liberty) is given:
“The guiding principle for many liberal rights theorists
may be seen as respect for individuals’ own aspirations,
as a means of giving the fullest expression to each
individual’s moral autonomy. A fundamental principle
entailed by respect for moral autonomy is that individuals
should prima facie be free to select their own ideas of the
Good, and develop a plan for life, or day-to-day strategy,
accordingly. Their choice of goods should be
constrained only to the extent necessary to protect
society and the similar liberties of other people. The law
should protect at least the basic liberties, that is, those
necessary to the pursuit of any socially acceptable
conception of the good life. This is the approach which
John Rawls adopts in A Theory of Justice. It requires
that basic liberties be given considerable respect, and
53 David Feldman: Civil Liberties & Human Rights in England & Wales
Writ Petition (Civil) No. 215 of 2005 Page 71 of 112
that they should have priority over the pursuit of social
goods (such as economic development) perhaps even to
the extent of giving them the status of entrenched,
constitutional rights, in order to shield them from
challenge in the day-to-day rough and tumble of political
contention. This gives liberty a priority over other values,
which, whether viewed as a description of liberal society
or as a prescription for its improvement, is very
controversial. Philosophers have doubted whether there
are adequate grounds for the priority of liberty. Professor
H.L.A. Hart has argued that (at least in a society where
there is limited abundance of wealth and resources) it is
rational to prefer basic freedoms to an improvement I
material conditions only if one harbours the ideal of ‘a
public-spirited citizen who prizes political activity and
service to others as among the chief goods of life and
could not contemplate as tolerable an exchange of the
opportunities of such activity for mere material goods or
contentment’.
A rather different thesis runs through Professor Joseph
Raz’s book, The Morality of Freedom: people are
autonomous moral actors, and autonomy is given
expression primarily through making one’s own
decisions, but such freedom is valuable partly because it
advances social ends. Raz points out that the
identification of basic liberties therefore depends, in pat
at least, on governmental notions of the public good. In
respect of rights to freedom of expression, privacy,
freedom of religion, and freedom from discrimination, for
example, ‘one reason for affording special protection to
individual interests is that thereby one also protects a
collective good, an aspect of a public culture’. At the
same time, certain social goods are needed if freedom is
to have value. Freedom is useful only if the social and
economic structure of society provides a sufficient range
of choices to allow people’s capacity for choice to be
exercised. Accordingly, freedom is seen as a collective
rather than an individual good. This may constrain the
range of freedoms and the purposes to which they may
morally be put: a decision to make a freedom into a
constitutional right is an expression of the collective
political culture of a community. This thesis does not
make the morality of freedom depend on people striving
for perfection: individuals may not always, or ever, think
about the moral consequences of their decisions, or may
consciously make decisions which do not make for selfWrit
Petition (Civil) No. 215 of 2005 Page 72 of 112
improvement. Instead, it looks only for a social
commitment to the idea of the moral significance of
individual choice. Raz marries the idea of the individual
to that of society by recognizing that individual freedom
of choice is contingent on social arrangements.”
97) In his Article, Life’s Dominion, Ronald Dworkin, while building the
hypothesis on dignity concept, exhorts that people must decide
about their own death, or someone else’s in three main kind of
situations, namely, (i) conscious and competent: it is a situation
where a person is suffering from some serious illness because of
which he is incapacitated but he is still conscious and also
competent to decide about his fate, he should be given a choice
to decide as to whether he wants to continue to get the treatment;
(ii) unconscious: where the patient is unconscious and dying,
doctors are often forced to decide whether to continue life support
for him or not under certain circumstances relatives have to take
a decision. However, at times, unconscious patients are not
about to die. At the same time, they are either in coma or in PVS.
In either case, they are conscious. In such a situation, where
recovery is impossible, it should be left to the relatives to decide
as to whether they want the patient to remain on life support
(ventilator, etc.); and (iii) conscious but incompetent. These
factors may support, what is known as ‘living will’ or ‘advance
directive’, which aspect is dealt with specifically while answering
Writ Petition (Civil) No. 215 of 2005 Page 73 of 112
the second issue.
98) When a person is undergoing untold suffering and misery
because of the disease with which he is suffering and at times
even unable to bear the same, continuing to put him on artificial
machines to prolong his vegetable life would amount to violating
his dignity. These are the arguments which are raised by some
jurists and sociologists54
.
99) There is a related, but interesting, aspect of this dignity which
needs to be emphasised. Right to health is a part of Article 21 of
the Constitution. At the same time, it is also a harsh reality that
everybody is not able to enjoy that right because of poverty etc.
The State is not in a position to translate into reality this right to
health for all citizens. Thus, when citizens are not guaranteed the
right to health, can they be denied right to die in dignity?
100) In the context of euthanasia, ‘personal autonomy’ of an individual,
as a part of human dignity, can be pressed into service. In
National Legal Services Authority v. Union of India and
Others55, this Court observed:
“Article 21, as already indicated, guarantees the
protection of “personal autonomy” of an individual. In
54 (I) Morris: Voluntary Euthanasia
(ii) LW Sumner: Dignity through Thick and Thin, in Sebastian Muders, “Human Dignity and
Assisted Death (Oxford University Press, 2017).
55 (2014) 5 SCC 438
Writ Petition (Civil) No. 215 of 2005 Page 74 of 112
Anuj Garg v. Hotel Assn. of India [(2008) 3 SCC 1]
(SCC p. 15, paras 34-35), this Court held that
personal autonomy includes both the negative right of
not to be subject to interference by others and the
positive right of individuals to make decisions about
their life, to express themselves and to choose which
activities to take part in. Self-determination of gender
is an integral part of personal autonomy and selfexpression
and falls within the realm of personal
liberty guaranteed under Article 21 of the Constitution
of India.”
101) In addition to personal autonomy, other facets of human dignity,
namely, ‘self expression’ and ‘right to determine’ also support the
argument that it is the choice of the patient to receive or not to
receive treatment.
102) We may again mention that talking particularly about certain hard
cases involving moral overtones, Dworkin specifically discussed
the issues pertaining to abortion and euthanasia with emphasis
that both supporters and critics accept the idea of sanctity of life.
Decisions regarding death – whether by abortion or by
euthanasia – affect our human dignity. In Dworkin's opinion,
proper recognition of human dignity leads to the recognition of the
freedom of the individual. Freedom is a necessary condition for
self worth. Dworkin adds: “Because we cherish dignity, we insist
on freedom .… Because we honour dignity, we demand
democracy.”56
56 Ibid., at 239
Writ Petition (Civil) No. 215 of 2005 Page 75 of 112
103) Dignity is, thus, the core value of life and dying in dignity stands
recognised in Gian Kaur. It becomes a part of right of self
determination.
104) The important message behind Dworkin’s concept of human
dignity can be summarised in the following manner:
(1) He describes belief in individual human dignity as the most
important feature of Western political culture giving people the
moral right “to confront the most fundamental questions about
the meaning and value of their own lives”57
.
(2) In an age when people value their independence and strive
to live independent and fulfilled lives it is important “that life ends
appropriately, that death keeps faith with the way we want to
have lived”58
.
(3) Death is “not only the start of nothing but the end of
everything”59 and, therefore, it should be accomplished in a
manner compatible with the ideals sought during life.
105) Taking into consideration the conceptual aspects of dignity and
the manner in which it has been judicially adopted by various
judgments, following elements of dignity can be highlighted (in
57 R Dworkin, Life’s Dominion (London, Harper-Collins, 1993) at 166.
58 R Dworkin, Life’s Dominion (London, HarperCollins, 1993) at 179.
59 Ibid.
Writ Petition (Civil) No. 215 of 2005 Page 76 of 112
the context of death with dignity):
(I) Encompasses self-determination; implies a quality of life
consistent with the ability to exercise self-determined choices;
(ii) Maintains/ability to make autonomous choices; high regard
for individual autonomy that is pivotal to the perceived quality of a
person’s life;
(iii) Self-control (retain a similar kind of control over dying as
one has exercised during life – a way of achieving death with
dignity);
(iv) Law of consent: The ability to choose - orchestrate the timing
of their own death;
(v) Dignity may be compromised if the dying process is
prolonged and involves becoming incapacitated and dependent;
(vi) Respect for human dignity means respecting the intrinsic
value of human life;
(vii) Avoidance of dependency;
(viii) Indefinite continuation of futile physical life is regarded as
undignified;
(ix) Dignity commands emphatic respect60;
Reason and emotion are both significant in treatment
decisions, especially at the end of life where compassion
60 A Kolnai, “Dignity”, in R S Dillon (ed.) Dignity, Character, and Self-Respect (London, Routledge, 1995)
53–75, at 55.
Writ Petition (Civil) No. 215 of 2005 Page 77 of 112
is a natural response to appeals made on the basis of
stifled self-determination;
Compassion represents a collision of “imaginative
insight” and empathy; and
Compassion is here distinguished from pity, which is
regarded as “inappropriate to the dignity of the
autonomous person, especially its overtones of
paternalism”,61 because compassion is believed to
provoke an active, and by implication positive,
response.62
(x) Dignity engenders a sense of serenity and
powerfulness, fortified by “qualities of composure, calmness,
restraint, reserve, and emotions or passions subdued and
securely controlled without being negated or dissolved”63; and
(x) Observer’s Dignity aspect:
a person possessed of dignity at the end of life, might
induce in an observer a sense of tranquility and
admiration which inspires images of power and selfassertion
through restraint and poised composure; and
dignity clearly does play a valuable role in contextualizing
61 R S Downie, K S Calman, Healthy Respect: Ethics in Health Care (Oxford, Oxford University Press,
1994) at 51–53.
62 Ibid.
63 A Kolnai, “Dignity”, in R S Dillon (ed.) Dignity, Character, and Self-Respect (London, Routledge, 1995)
53–75, at 56.
Writ Petition (Civil) No. 215 of 2005 Page 78 of 112
people’s perceptions of death and dying, especially as it
appears to embody a spirit of self-determination that
advocates of voluntary euthanasia crave.
106) Once we examine the matter in the aforesaid perspective, the
inevitable conclusion would be that passive euthanasia and death
with dignity are inextricably linked, which can be summed up with
the following pointers:
(i) The opportunity to die unencumbered by the intrusion of
medical technology and before experiencing loss of
independence and control, appears to many to extend the
promise of a dignified death. When medical technology
intervenes to prolong dying like this it does not do so
unobtrusively;
(ii) Today many patients insist on more than just a right to
health care in general. They seek a right to choose specific
types of treatment, able to retain control throughout the entire
span of their lives and to exercise autonomy in all medical
decisions concerning their welfare and treatment;
(iii) A dreadful, painful death on a rational but incapacitated
terminally ill patient are an affront to human dignity.
107) The aforesaid discussion takes care of those who oppose
Writ Petition (Civil) No. 215 of 2005 Page 79 of 112
euthanasia on moral and ethical principles. We feel that at least
the case for passive euthanasia is made out. Certain moral
dilemma as to what is the exact stage when such a decision to
withdraw medical support, would still remain. At times, a
physician would be filled with profound ethical uncertainties when
a person is suffering unbearable pain and agony, the question
would be as to whether such suffering has reached the stage
where it is incurable and, therefore, decision should be taken to
allow such person to pass away in peace and dignity of hastening
the process of death or the situation may be reversible, though
chances thereof are far remote. Dr. R.R. Kishore, who
possesses medical as well as law degree at the same time, lists
the following questions which a physician will have to answer
while taking such a decision:
(i) Is it professionally permissible to kill or to help in dying a
terminally ill and incurable patient?
(ii) How does such a decision affect the person concerned and
the society in general?
(iii) What are the values that are attracted in such situations?
(iv) How to assess that the individual’s urge to die is based on
cool and candid considerations and is not an impulsive act
reflecting resources constraints, inadequate care or
Writ Petition (Civil) No. 215 of 2005 Page 80 of 112
discrimination?
(v) What are the practical risks involved in case a decision is
taken to terminate the life of the patient?
(vi) Where should the physician look for guidance in situations
of such moral dilemma?
(vii) Does the physician’s or the patient’s religion play any role in
decision making process?
108) What are the parameters to be kept in mind and the dangers
which may be encountered while taking decision on the aforesaid
questions, is beautifully explained by Dr. R.R. Kishore64 in the
following words:
“Contemporary world order is founded on reason, equity
and dignity. Reason envisages definition and
distinctness. What is the distinction between ‘killing’ and
‘letting die’? or, in other words, what is the difference
between ‘causing death’ and ‘denial to prevent death’?
Also, can the prolongation of life be ever ‘unnecessary’?
And, if yes, what are the criteria to determine the life’s
worth? Equity mandates equality of opportunity,
balancing of interests and optimization of resources.
This means addressing questions such as; for how long
one should live? Who should die first? What should be
the ideal method of terminating one’s life? Dignity
imposes obligation to preserve life at all costs and in the4
event of an individual’s conscious expression to end his
life, contemplates a valid purpose and truly informed
consent. Deo0ntologically, in the context of sanctity of
life, there is not much of conflict between secular and
religious concepts as both consider life as sacred and
worthy of protection. But, the differences appear in the
face of application of advanced technology which has the
64 Dr.R.R. Kishore,MD, LLB – End of Life Issues and the Moral Certainty: A Discovery through
Hinduism
Writ Petition (Civil) No. 215 of 2005 Page 81 of 112
potential of keeping alive the terminally ill and incurable
persons who would have otherwise died. Since the
technological resources are not unlimited prioritization
becomes a functional imperative, bringing in the
concepts of worth and utility. In other words, the
questions like whose life is more precious and worthy of
protection have to be answered. This is a formidable
task, attracting multiple and diverse perspectives, moral
as well as strategic, leading to heterogeneous
approaches and despite agreement on fundamental
issue of value of life the decisions may seem to be at
variance. A fair and objective decision in such
circumstances may be a difficult exercise and any
liberalization is fraught with following apprehensions:
Danger of abuse
Enhanced vulnerability to the poor
Slippery slope outcome
Weakening of protection of life notions
Any ethical model governing end of life decisions should
therefore be impervious to all extraneous forces such as,
the utilitarian bias, poverty, and subjectivity i.e.,
inadequate appreciation of socio-economic, family,
cultural and religious perspectives of the individual. The
poor and resourceless are likely to face deeper and more
severe pain and agony before dying and as such may
request their physicians to terminate their lives much
earlier than those who have better access to resource.
This poverty-death nexus makes an objective decision
difficult, constituting a formidable challenge to committed
physicians and others involved with the end of life issues.
Taking a decision on case to case basis, depending on
individual’s material constraints and inadequacies,
enhances the problem rather than solving it, as it reduces
the life from an eternal bliss to a worldly award,
subjecting its preservation to socio-economic exigencies.
For these reasons many feel that the safer and more
respectable course to improve death is to provide good
palliative care and emotional support rather than
assisting the end of life. The moral ambiguities
notwithstanding, decision to assist or not to assist the act
of dying by correctly interpreting the patient’s wish and
the accompanying circumstances, including the moral
dictates, constitutes a practical problem. Let us see how
Hinduism addresses these issues.”
Writ Petition (Civil) No. 215 of 2005 Page 82 of 112
109) In the article, End of Life Issues and the Moral Certainty65
, the
author after posing the moral dilemma, noted above, discusses
the approach to find the solutions.
110) I had indicated at the earlier stage that Hippocratic Oath, coupled
with ethical norms of medical profession, stand in the way of
euthanasia. It brings about a situation of dilemma insofar as
medical practitioner is concerned. On the one hand his duty is to
save the life of a person till he is alive, even when the patient is
terminally ill and there are no chances of revival. On the other
hand, the concept of dignity and right to bodily integrity, which
recognises legal right of autonomy and choice to the patient (or
even to his relations in certain circumstances, particularly when
the patient is unconscious or incapacitated to take a decision)
may lead to exercising his right of euthanasia.
111) Dignity implies, apart from a right to life enjoyment of right to be
free of physical interference. At common law, any physical
interference with a person is, prima facie, tortious. If it interferes
with freedom of movement, it may constitute a false
imprisonment. If it involves physical touching, it may constitute a
battery. If it puts a person in fear of violence, it may amount to an
65 See Footnote 63.
Writ Petition (Civil) No. 215 of 2005 Page 83 of 112
assault. For any of these wrongs, the victim may be able to
obtain damages.
112) When it comes to medical treatment, even there the general
common law principle is that any medical treatment constitutes a
trespass to the person which must be justified, by reference
either to the patient’s consent or to the necessity of saving life in
circumstances where the patient is unable to decide whether or
not to consent.
113) Rights with regard to medical treatment fall essentially into two
categories: first, rights to receive or be free of treatment as
needed or desired, and not to be subjected involuntarily to
experimentation which, irrespective of any benefit which the
subjects may derive, are intended to advance scientific
knowledge and benefit people other than the subject in the long
term; secondly, rights connected incidentally with the provision of
medical services, such as rights to be told the truth by one’s
doctor.
114) Having regard to the aforesaid right of the patients in common
law, coupled with the dignity and privacy rights, it can be said that
passive euthanasia, under those circumstances where patient is
in PVS and he is terminally ill, where the condition is irreversible
Writ Petition (Civil) No. 215 of 2005 Page 84 of 112
or where he is braindead, can be permitted. On the aforesaid
reasoning, I am in agreement with the opinion of the other
members of this Bench in approving the judgment in Aruna
Ramachandra Shanbaug.
(D) Economics of Euthanasia
115) This is yet another reason for arriving at the same conclusion.
116) When we consider the matter of euthanasia in the context of
economic principles, it becomes another reason to support the
aforesaid conclusion. This aspect can be dealt with in two ways.
117) First, because of rampant poverty where majority of the persons
are not able to afford health services, should they be forced to
spend on medical treatment beyond their means and in the
process compelling them to sell their house property, household
things and other assets which may be means of livelihood
Secondly, when there are limited medical facilities available,
should a major part thereof be consumed on those patients who
have no chances of recovery? In Economic & Political Weekly
dated February 10, 2018, it is reported:
“India is one of the worst India is one of the worst
countries to die in, especially for those suffering from
terminal illnesses. In 2015, the Economist Intelligence
Unit brought out a Quality of Death Index, which
ranked India 67th out of the 80 countries it had
Writ Petition (Civil) No. 215 of 2005 Page 85 of 112
surveyed. In December 2017, a joint report published
by the World Health Organization and the World Bank
revealed that 49 million Indians are pushed into
poverty every year due to out-of-pocket expenditure
on healthcare, accounting for half of the 100 million
who meet such a fate worldwide. India’s Central
Bureau of Health Intelligence data puts the figure even
higher. This unconscionable situation is the direct
outcome of the sorry state of our public health system.
India’s spending on health is among the lowest in the
world. The Economic Survey 2017–18shows that the
government spends only 1.4% of its gross domestic
product (GDP) on health. The 2017 National Health
Policy, which otherwise exudes piety in its
abstractions, aims to increase government
expenditure to 2.5% of GDP by 2025. By all accounts,
this is too little too late.
The situation improves only marginally for the betteroff
sections. With over 90% of intensive care units in
the private healthcare sector, it is largely this section
that can access expensive treatments. But this does
not improve end-of-life situations for them. Awareness
and training in palliative care remain grossly
inadequate. For those making profit in the private
healthcare sector, there is no incentive to provide such
treatment. Instead, treatment for the terminally ill
continues to involve prolonging life with expensive,
invasive, and painful treatment with very little concern
for the patients themselves or their families.”
118) Some of the apprehensions expressed in ethical debates about
euthanasia can be answered when the ethical debate about
euthanasia is not divorced from an economic consideration of
cost and benefits of euthanasia to society. P.R. Ward66 argues
that ethics is concerned with individuals and, therefore, does not
take into account the societal perspective. On the other hand,
economics is sought to be concerned with relative costs and
66 Healthcare rationing: can we afford to ignore euthanasia? Health Services Management
Research 1997; 10; 32-41
Writ Petition (Civil) No. 215 of 2005 Page 86 of 112
benefits to society and can help to determine if euthanasia is of
benefit to the majority in society. According to him, the net benefit
to the individual (from ethical considerations) can be compared
with the net benefit to society (from economics), and that both
can be included in an overall decision rule for whether or not to
legalise euthanasia. Ward draws on the health economics
literature (for example, Mooney67) to suggest that a positive
answer to this question ins implicit in many health-rationing
decisions and is applicable to the euthanasia decision. He also
asserts that ‘introducing an economic perspective is not
incompatible with ethical issues’.
119) No doubt, protagonists of ethical aspects of euthanasia oppose
the aforesaid view. According to them, euthanasia also involves
the specific act of a medical professional killing a patient and the
ethical status of this act has implications both for individuals and
for society. Their counter argument, therefore, is that to be able
to make an economic assessment of euthanasia, we would have
to be able to evaluate the cost and benefits of this act of killing.
However, even they accept that if the act of killing by euthanasia
is ethically acceptable in some circumstances, it would be
appropriate to consider the net benefits of the act to the individual
67 Mooney, G. The Valuation of Human Life. London: Macmillan Press, 1977
Writ Petition (Civil) No. 215 of 2005 Page 87 of 112
patient along with the wider economic considerations68. In the
instant case, we have come to the conclusion that under certain
circumstances, i.e. when the patient is in PVS or braindead/
clinically dead, at least passive euthanasia would even be
ethically acceptable, on the application of doctrine of dignity. In
such a situation, the economic considerations would strengthen
the aforesaid conclusion.
120) At times, for deciding legal issues, economic analysis of law
assumes importance69. It is advocated that one of the main
reasons which should prompt philosophers of law to undertake
economic analysis seriously is that the most basic notion in the
analysis – efficiency or Pareto optimality70 - was originally
introduced to help solve a serious objection to widely held moral
theory, utilitarian. Utilitarians hold that the principle of utility is the
criterion of the right conduct. If one has to evaluate policies in
virtue of their effect on individual welfare or utility, one norm of
utility has to be compared with that of another. We may clarify
that this economic principle has been applied in a limited sense
only as a supporting consideration with the aim to promote
68 See – Economics and Euthanasia by Stephen Heasell, Department of Economics and Politics,
Nottingham Trent University, and David Paton, Nottingham University Business School.
69 This aspect is discussed in some detail by this Court in Shivashakti Sugars Ltd. v. Shree
Renuka Sugar Limited and Other, (2017) 7 SCC 729
70 Jeffrie G. Murphy & Jules L. Coleman: Philosophy of Law (An introduction to Jurisprudence)
Writ Petition (Civil) No. 215 of 2005 Page 88 of 112
efficiency.
121) If we understand correctly the logic behind opposition to
euthanasia, particularly, passive euthanasia, it proceeds on the
basis that third person should not have right to take a decision
about one’s life and, more importantly, it is difficult to ascertain, at
a particular stage, as to whether time has come to take such a
decision, namely, withdraw the medical support. Insofar as latter
aspect is concerned, we feel that in Aruna Ramachandra
Shanbaug, this Court has taken due care in prescribing the
circumstances, namely, when the person is in a Permanent
Vegetative State (PVS) with no reversible chance or when he is
‘brain dead’ or ‘clinically dead’. Insofar as first aspect is
concerned, the subject matter of the present writ petition takes
care of that.
THE SECOND ISSUE
122) With this, we advert to the second question formulated above,
which is as under:
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?
123) In this writ petition, the petitioner has sought a direction to the
Writ Petition (Civil) No. 215 of 2005 Page 89 of 112
respondents to adopt suitable procedures to ensure that persons
of deteriorated health or terminally ill should be able to execute a
document titled ‘living will and/or advance authorisation’ which
can be presented to the hospital for appropriate action in the
event of the executant being admitted to the hospital with serious
illness which may threaten termination of life of the executant. In
nutshell, the petitioner wants that citizens should have right to
decide in advance not to accept any kind of treatment at a stage
when they are terminally ill. Expressing this in advance in a
document is known as ‘living will’ or ‘advance directive’, whereby
the aforesaid self-determination of the person is to be acted upon
when he reaches PVS or his brain dead/clinically dead.
124) It is an undisputed that Doctors’ primary duty is to provide
treatment and save life but not in the case when a person has
already expressed his desire of not being subjected to any kind of
treatment. It is a common law right of people, of any civilized
country, to refuse unwanted medical treatment and no person can
force him/her to take any medical treatment which the person
does not desire to continue with. The foundation of the aforesaid
right has already been laid down by this Court in Aruna
Ramachandra Shanbaug while dealing with the issue of
Writ Petition (Civil) No. 215 of 2005 Page 90 of 112
‘involuntary passive euthanasia’. To quote:
“66. 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. Similarly, if a patient is in coma or on a
heart-lung machine, withdrawing of the machine will
ordinarily result in passive euthanasia. Similarly not
giving life-saving medicines like antibiotics in certain
situations may result in passive euthanasia. Denying
food to a person in coma or PVS may also amount to
passive euthanasia.
67. As already stated above, euthanasia can be both
voluntary or non-voluntary. In voluntary passive
euthanasia a person who is capable of deciding for
himself decides that he would prefer to die (which may
be for various reasons e.g. that he is in great pain or
that the money being spent on his treatment should
instead be given to his family who are in greater need,
etc.), and for this purpose he consciously and of his
own free will refuses to take life-saving medicines. In
India, if a person consciously and voluntarily refuses
to take life-saving medical treatment it is not a crime...
xxx xxx xxx
78. ... First, it is established that the principle of selfdetermination
requires that respect must be given to
the wishes of the patient, so that if an adult patient of
sound mind refuses, however unreasonably, to
consent to treatment or care by which his life would or
might be prolonged, the doctors responsible for his
care must give effect to his wishes, even though they
do not consider it to be in his best interests to do so
[see Schloendorff v. Society of New York Hospital [211
NY 125 : 105 NE 92 (1914)] , NE at p. 93, per
Cardozo, J.; S. v. McC. (Orse S.) and M (D.S.
Intervener) [1972 AC 24 (HL)], W v. W; AC at p. 43,
per Lord Reid; and Sidaway v. Board of Governors of
the Bethlem Royal Hospital [1985 AC 871 : (1985) 2
WLR 480 : (1985) 1 All ER 643 (HL)] AC at p. 882, per
Lord Scarman]. To this extent, the principle of the
sanctity of human life must yield to the principle of
self-determination [see (Court of Appeal transcript in
Writ Petition (Civil) No. 215 of 2005 Page 91 of 112
the present case, at p. 38 F per Hoffmann, L.J.)], and,
for present purposes perhaps more important, the
doctor's duty to act in the best interests of his patient
must likewise be qualified. On this basis, it has been
held that a patient of sound mind may, if properly
informed, require that life support should be
discontinued: see Nancy B. v. Hotel Dieu de Quebec
[(1992) 86 DLR (4th) 385 (Que SC)] . Moreover the
same principle applies where the patient's refusal to
give his consent has been expressed at an earlier
date, before he became unconscious or otherwise
incapable of communicating it; though in such
circumstances especial care may be necessary to
ensure that the prior refusal of consent is still properly
to be regarded as applicable in the circumstances
which have subsequently occurred [see e.g. T. (Adult:
Refusal of Treatment), In re [1993 Fam 95 : (1992) 3
WLR 782 : (1992) 4 All ER 649 (CA)] ]. I wish to add
that, in cases of this kind, there is no question of the
patient having committed suicide, nor therefore of the
doctor having aided or abetted him in doing so. It is
simply that the patient has, as he is entitled to do,
declined to consent to treatment which might or would
have the effect of prolonging his life, and the doctor
has, in accordance with his duty, complied with his
patient's wishes...”
125) The aforesaid principle has also been recognised by this Court in
its Constitution Bench judgment passed in Gian Kaur wherein it
was held that although ‘Right to Life’ under Article 21 does not
include ‘Right to Die’, but ‘Right to live with dignity’ includes ‘Right
to die with dignity’. To quote:
“24. Protagonism of euthanasia on the view that
existence in persistent vegetative state (PVS) is not a
benefit to the patient of a terminal illness being
unrelated to the principle of “sanctity of life” or the
“right to live with dignity” is of no assistance to
determine the scope of Article 21 for deciding whether
the guarantee of “right to life” therein includes the
“right to die”. The “right to life” including the right to live
Writ Petition (Civil) No. 215 of 2005 Page 92 of 112
with human dignity would mean the existence of such
a right up to the end of natural life. This also includes
the right to a dignified life up to the point of death
including a dignified procedure of death. In other
words, this may include the right of a dying man to
also die with dignity when his life is ebbing out. But the
“right to die” with dignity at the end of life is not to be
confused or equated with the “right to die” an
unnatural death curtailing the natural span of life.
25. A question may arise, in the context of a dying
man who is terminally ill or in a persistent vegetative
state that he may be permitted to terminate it by a
premature extinction of his life in those circumstances.
This category of cases may fall within the ambit of the
“right to die” with dignity as a part of right to live with
dignity, when death due to termination of natural life is
certain and imminent and the process of natural death
has commenced. These are not cases of extinguishing
life but only of accelerating conclusion of the process
of natural death which has already commenced. The
debate even in such cases to permit physicianassisted
termination of life is inconclusive. It is
sufficient to reiterate that the argument to support the
view of permitting termination of life in such cases to
reduce the period of suffering during the process of
certain natural death is not available to interpret Article
21 to include therein the right to curtail the natural
span of life.”
126) In fact, the Law Commission of India was asked to consider on
the feasibility of making legislation on euthanasia, taking into
account the earlier 196th Report of the Law Commission as well
as the judgment of this Court in Aruna Ramachandra
Shanbaug. In August, 2012, Law Commission came out with a
detailed 241st Report on the issue of passive euthanasia, wherein
it approved the concept of Right to Self Determination also. The
Law Commission made some important observations in its report
Writ Petition (Civil) No. 215 of 2005 Page 93 of 112
such as:
“2.4 The following pertinent observations made by
the then Chairman of the Law Commission in the
forwarding letter dated 28 August 2006 addressed
to the Hon’ble Minister are extracted below:
“A hundred years ago, when medicine and
medical technology had not invented the
artificial methods of keeping a terminally ill
patient alive by medical treatment, including
by means of ventilators and artificial feeding,
such patients were meeting their death on
account of natural causes. Today, it is
accepted, a terminally ill person has a common
law right to refuse modern medical procedures
and allow nature to take its own course, as was
done in good old times. It is well-settled law in
all countries that a terminally ill patient who is
conscious and is competent, can take an
‘informed decision’ to die a natural death and
direct that he or she be not given medical
treatment which may merely prolong life. There
are currently a large number of such patients
who have reached a stage in their illness when
according to well-informed body of medical
opinion, there are no chances of recovery. But
modern medicine and technology may yet
enable such patients to prolong life to no
purpose and during such prolongation, patients
could go through extreme pain and suffering.
Several such patients prefer palliative care for
reducing pain and suffering and do not want
medical treatment which will merely prolong
life or postpone death.”
xxx xxx xxx
5.2 The 196th Report of the Law Commission stated
the fundamental principle that a terminally ill but
competent patient has a right to refuse treatment
including discontinuance of life sustaining measures
and the same is binding on the doctor, “provided that
the decision of the patient is an ‘informed decision’ ”.
‘Patient’ has been defined as a person suffering from
terminal illness. “Terminal illness” has also been
defined under Section 2 (m). The definition of a
‘competent patient’ has to be understood by the
definition of ‘incompetent patient’. ‘Incompetent
Writ Petition (Civil) No. 215 of 2005 Page 94 of 112
patient’ means a patient who is a minor or a person of
unsound mind or a patient who is unable to weigh,
understand or retain the relevant information about his
or her medical treatment or unable to make an
‘informed decision’ because of impairment of or a
disturbance in the functioning of the mind or brain or a
person who is unable to communicate the informed
decision regarding medical treatment through speech,
sign or language or any other mode (vide Section 2(d)
of the Bill, 2006). “Medical Treatment” has been
defined in Section 2(i) as treatment intended to
sustain, restore or replace vital functions which, when
applied to a patient suffering from terminal illness,
would serve only to prolong the process of dying and
includes life sustaining treatment by way of surgical
operation or the administration of medicine etc. and
use of mechanical or artificial means such as
ventilation, artificial nutrition and cardio resuscitation.
The expressions “best interests” and “informed
decision” have also been defined in the proposed Bill.
“Best Interests”, according to Section 2(b), includes
the best interests of both on incompetent patient and
competent patient who has not taken an informed
decision and it ought not to be limited to medical
interests of the patient but includes ethical, social,
emotional and other welfare considerations. The term
‘informed decision’ means, as per Section 2 (e) “the
decision as to continuance or withholding or
withdrawing medical treatment taken by a patient who
is competent and who is, or has been informed about
– (i) the nature of his or her illness, (ii) any alternative
form of treatment that may be available, (iii) the
consequences of those forms of treatment, and (iv)
the consequences of remaining untreated.
xxx xxx xxx
5.8 The Law Commission of India clarified that where
a competent patient takes an ‘informed decision’ to
allow nature to have its course, the patient is, under
common law, not guilty of attempt to commit suicide
(u/s 309 IPC) nor is the doctor who omits to give
treatment, guilty of abetting suicide (u/s 306 IPC) or of
culpable homicide (u/s 299 read with Section 304 of
IPC).
xxx xxx xxx
Writ Petition (Civil) No. 215 of 2005 Page 95 of 112
7.2 In this context, two cardinal principles of medical
ethics are stated to be patient autonomy and
beneficence (vide P. 482 of SCC in Aruna’s case):
1. “Autonomy means the right to self-determination,
where the informed patient has a right to choose the
manner of his treatment. To be autonomous, the
patient should be competent to make decision and
choices. In the event that he is incompetent to make
choices, his wishes expressed in advance in the form
of a living will, OR the wishes of surrogates acting on
his behalf (substituted judgment) are to be respected.
The surrogate is expected to represent what the
patient may have decided had she/she been
competent, or to act in the patient’s best interest.
2. Beneficence is acting in what (or judged to be) in
the patient’s best interest. Acting in the patient’s best
interest means following a course of action that is best
for the patient, and is not in influenced by personal
convictions, motives or other considerations……..
xxx xxx xxx
11.2 The discussion in the foregoing paras and the
weighty opinions of the Judges of highest courts as
well as the considered views of Law Commission (in
196th report) would furnish an answer to the above
question in clearest terms to the effect that legally and
constitutionally, the patient (competent) has a right to
refuse medical treatment resulting in temporary
prolongation of life. The patient’s life is at the brink of
extinction. There is no slightest hope of recovery. The
patient undergoing terrible suffering and worst mental
agony does not want his life to be prolonged by
artificial means. She/he would not like to spend for his
treatment which is practically worthless. She/he cares
for his bodily integrity rather than bodily suffering.
She/he would not like to live like a ‘cabbage’ in an
intensive care unit for some days or months till the
inevitable death occurs. He would like to have the right
of privacy protected which implies protection from
interference and bodily invasion. As observed in Gian
Kaur’s case, the natural process of his death has
already commenced and he would like to die with
peace and dignity. No law can inhibit him from opting
Writ Petition (Civil) No. 215 of 2005 Page 96 of 112
such course. This is not a situation comparable to
suicide, keeping aside the view point in favour of
decriminalizing the attempt to suicide. The doctor or
relatives cannot compel him to have invasive medical
treatment by artificial means or treatment. If there is
forced medical intervention on his body, according to
the decisions cited supra (especially the remarks of
Lord Brown Wilkinson in Airdale’s case), the doctor /
surgeon is guilty of ‘assault’ or ‘battery’. In the words
of Justice Cardozo, “every human being of adult years
and sound mind has a right to determine what shall be
done with his own body and a surgeon who performs
an operation without his patient’s consent commits an
assault for which he is liable in damages.” Lord Goff in
Airedale’s case places the right to self determination
on a high pedestal. He observed that “in the
circumstances such as this, the principle of sanctity of
human life must yield to the principle of self
determination and the doctor’s duty to act in the best
interests of the patient must likewise be qualified by
the wish of the patient.” The following observations of
Lord Goff deserve particular notice:
“I wish to add that, in cases of this kind, there is
no question of the patient having committed
suicide, nor therefore of the doctor having aided
or abetted him in doing so. It is simply that the
patient has, as he is entitled to do, declined to
consent to treatment which might or would have
the effect of prolonging his life, and the doctor
has, in accordance with his duty, complied with
his patient's wishes.”
127) And finally, the Law Commission in its 241st Report gave
Summary of Recommendations as under:
“14. Summary of Recommendations
14.1 Passive euthanasia, which is allowed in many
countries, shall have legal recognition in our
country too subject to certain safeguards, as
suggested by the 17th Law Commission of India
and as held by the Supreme Court in Aruna
Ramachandra’s case [(2011) 4 SCC 454)]. It is not
objectionable from legal and constitutional point of
Writ Petition (Civil) No. 215 of 2005 Page 97 of 112
view.
14.2 A competent adult patient has the right to
insist that there should be no invasive medical
treatment by way of artificial life sustaining
measures / treatment and such decision is binding
on the doctors / hospital attending on such patient
provided that the doctor is satisfied that the patient
has taken an ‘informed decision’ based on free
exercise of his or her will. The same rule will apply
to a minor above 16 years of age who has
expressed his or her wish not to have such
treatment provided the consent has been given by
the major spouse and one of the parents of such
minor patient.
14.3 As regards an incompetent patient such as a
person in irreversible coma or in Persistent
Vegetative State and a competent patient who has
not taken an ‘informed decision’, the doctor’s or
relatives’ decision to withhold or withdraw the
medical treatment is not final. The relatives, next
friend, or the doctors concerned / hospital
management shall get the clearance from the High
Court for withdrawing or withholding the life
sustaining treatment. In this respect, the
recommendations of Law Commission in 196th
report is somewhat different. The Law Commission
proposed an enabling provision to move the High
Court.
14.4 The High Court shall take a decision after
obtaining the opinion of a panel of three medical
experts and after ascertaining the wishes of the
relatives of the patient. The High Court, as parens
patriae will take an appropriate decision having
regard to the best interests of the patient.
14.5 Provisions are introduced for protection of
medical practitioners and others who act according
to the wishes of the competent patient or the order
of the High Court from criminal or civil action.
Further, a competent patient (who is terminally ill)
refusing medical treatment shall not be deemed to
be guilty of any offence under any law.
14.6 The procedure for preparation of panels has
been set out broadly in conformity with the
recommendations of 17th Law Commission.
Advance medical directive given by the patient
Writ Petition (Civil) No. 215 of 2005 Page 98 of 112
before his illness is not valid.
14.7 Notwithstanding that medical treatment has
been withheld or withdrawn in accordance with the
provisions referred to above, palliative care can be
extended to the competent and incompetent
patients. The Governments have to devise schemes
for palliative care at affordable cost to terminally ill
patients undergoing intractable suffering.
14.8 The Medical Council of India is required issue
guidelines in the matter of withholding or
withdrawing of medical treatment to competent or
incompetent patients suffering from terminal
illness.
14.9 Accordingly, the Medical Treatment of
Terminally Ill Patients (Protection of Patients and
Medical Practitioners) Bill, 2006, drafted by the 17th
Law Commission in the 196th Report has been
modified and the revised Bill is practically an
amalgam of the earlier recommendations of the
Law Commission and the views / directions of the
Supreme Court in Aruna Ramachandra case. The
revised Bill is at Annexure I.”
128) I am also of the view that such an advance authority is akin to
well recognised common law right to refuse medical treatment
(See: Re T (Adult: Refusal of Medical Treatment71), Re B
(Adult: Refusal of Medical Treatment72), Crazan v. Director,
Missouri Department of Health73
, Malette v. Shulam74
.
129) In a recent landmark judgment of the nine Judge Constitution
Bench in the case of K.S. Puttaswamy authoritatively held that
right to life enshrined in Article 21 includes right to privacy. One
71 (1992) 4 All ER 649
72 (2002) 2 All ER 449
73 497 U.S. 261 (1990)
74 67 DLR (4th) 321
Writ Petition (Civil) No. 215 of 2005 Page 99 of 112
of the facet of this right acknowledged is an individual’s decision
to refuse life prolonging medical treatment or terminate his life.
Justice Chelameswar in his separate opinion has described the
same in the following manner:
“373. Concerns of privacy arise when the State seeks
to intrude into the body of subjects. [Skinner v.
Oklahoma, 1942 SCC OnLine US SC 125 : 86 L Ed
1655 : 316 US 535 (1942)“20. There are limits to the
extent to which a legislatively represented majority
may conduct biological experiments at the expense of
the dignity and personality and natural powers of a
minority—even those who have been guilty of what
the majority defines as crimes.” (SCC OnLine US SC
para 20)—Jackson, J.] Corporeal punishments were
not unknown to India, their abolition is of a recent
vintage. Forced feeding of certain persons by the
State raises concerns of privacy. An individual's rights
to refuse life prolonging medical treatment or
terminate his life is another freedom which falls within
the zone of the right to privacy. I am conscious of the
fact that the issue is pending before this Court. But in
various other jurisdictions, there is a huge debate on
those issues though it is still a grey area. [ For the
legal debate in this area in US, See Chapter 15.11 of
American Constitutional Law by Laurence H. Tribe,
2nd Edn.] A woman's freedom of choice whether to
bear a child or abort her pregnancy are areas which
fall in the realm of privacy. Similarly, the freedom to
choose either to work or not and the freedom to
choose the nature of the work are areas of private
decision-making process. The right to travel freely
within the country or go abroad is an area falling within
the right to privacy. The text of our Constitution
recognised the freedom to travel throughout the
country under Article 19(1)(d). This Court has already
recognised that such a right takes within its sweep the
right to travel abroad. [Maneka Gandhi v. Union of
India, (1978) 1 SCC 248] A person's freedom to
choose the place of his residence once again is a part
of his right to privacy [Williams v. Fears, 1900 SCC
OnLine US SC 211 : 45 L Ed 186 : 179 US 270 (1900)
—“8. Undoubtedly the right of locomotion, the right to
Writ Petition (Civil) No. 215 of 2005 Page 100 of 112
remove from one place to another according to
inclination, is an attribute of personal liberty….” (SCC
OnLine US SC para 8)] recognised by the Constitution
of India under Article 19(1)(e) though the predominant
purpose of enumerating the above-mentioned two
freedoms in Article 19(1) is to disable both the federal
and State Governments from creating barriers which
are incompatible with the federal nature of our country
and its Constitution. The choice of appearance and
apparel are also aspects of the right to privacy. The
freedom of certain groups of subjects to determine
their appearance and apparel (such as keeping long
hair and wearing a turban) are protected not as a part
of the right to privacy but as a part of their religious
belief. Such a freedom need not necessarily be based
on religious beliefs falling under Article 25.
Informational traces are also an area which is the
subject-matter of huge debate in various jurisdictions
falling within the realm of the right to privacy, such
data is as personal as that of the choice of
appearance and apparel. Telephone tappings and
internet hacking by State, of personal data is another
area which falls within the realm of privacy. The instant
reference arises out of such an attempt by the Union
of India to collect biometric data regarding all the
residents of this country. The above-mentioned are
some of the areas where some interest of privacy
exists. The examples given above indicate to some
extent the nature and scope of the right to privacy.”
NATURE OF LIVING WILL OR ADVANCE DIRECTIVE
130) Advance directives are instruments through which persons
express their wishes at a prior point in time, when they are
capable of making an informed decision, regarding their medical
treatment in the future, when they are not in a position to make an
informed decision, by reason of being unconscious or in a PVS or
in a coma. A medical power of attorney is an instrument through
which persons nominate representatives to make decisions
Writ Petition (Civil) No. 215 of 2005 Page 101 of 112
regarding their medical treatment at a point in time when the
persons executing the instrument are unable to make informed
decisions themselves. Clause 11 of the draft Treatment of
Terminally-III Patients (Protection of Patients and Medical
Practitioners) Bill, 2016 states that advance directives or medical
power of attorney shall be void and of no effect and shall not be
binding on any medical practitioner. This blanket ban, including
the failure even to give some weight to advance directives while
making a decision about the withholding or withdrawal of lifesustaining
treatment is disproportionate. It does not constitute a
fair, just or reasonable procedure, which is a requirement for the
imposition of a restriction on the right to life (in this case,
expressed as the right to die with dignity) under Article 21.
131) At this juncture, we may again reiterate that on the one hand
autonomy of an individual gives him right to choose his destiny
and, therefore, he may decide before hand, in the form of
advance directive, at what stage of his physical condition he
would not like to have medical treatment, and on the other hand,
there are dangers of misuse thereof as well. David Feldman
explained the same in the following manner:
“...However, while it is undoubtedly a criminal act to do
anything intending to hasten another person’s death,
there is no absolute duty on a doctor to try to save the life
Writ Petition (Civil) No. 215 of 2005 Page 102 of 112
of a patient, for two reasons.
The first is that any treatment is prima facie a trespass to
the person, and if the patient is adult and competent to
consent it will be unlawful without that consent. A doctor
therefore acts lawfully – indeed, could not lawfully act
otherwise – when he withholds treatment at the request
of a terminally ill patient. This has been called passive,
as distinct from active, euthanasia. To ensure that
medical staff know of their wishes, some people have
executed what are sometimes called ‘living wills’, giving
directions to medical staff to withhold treatment in
specified circumstances, and making their wishes known
to anyone who might be appointed as their
representative in the event that they become in capable
for any reason. The efficacy of such prior indications was
accepted, obiter, by Lord Goff in Airedale NHS Trust v.
Bland, above. In such circumstances, the patient
voluntarily accepts non-treatment while in a state to do
so rationally. However, where there is the slightest doubt
about the wishes of a patient, that patient should be
treated, because the paternalism which decides for
someone else when it is best to die is effectively denying
them the opportunity to make the most of their lives as
autonomous individuals. Furthermore, it would seem to
be wrong in principle to put pressure to bear on a patient
to elect to die. In those states of the USA where
voluntary euthanasia is lawful, the ethical problems for
patients, doctors, next of kin, and nursing staff are
immense. Where the patient is not mentally competent
to confirm the choice to die at the time when the choice is
about to be given effect, it will also be impossible to know
whether the choice expressed earlier was truly voluntary,
whether the consent was informed, and whether or not
the patients would want to reconsider were he able to do
so. In the Netherlands, where it is lawful to practice
voluntary euthanasia, it seems that the procedural
safeguards designed to protect people against
involuntary euthanasia are very hard to enforce and are
regularly flouted.
Secondly, the doctrine of double effect allows the doctor
to take steps which carry a substantial risk to life in order
to treat, in good faith and with the patient’s consent,
some disease or symptom. This is essential, because
virtually any treatment carries some risk to the patient. It
is particularly relevant to the euthanasia issue in cases
Writ Petition (Civil) No. 215 of 2005 Page 103 of 112
where the primary object (e.g. pain control in terminal
cancer treatment) can only be achieved by administering
drugs at a level which is likely to shorten life, but
enhances the quality of life while it lasts. A trade-off
between length of life and quality of life is permissible.”
132) At the same time, possibility of misuse cannot be held to be a
valid ground for rejecting advance directive, as opined by the Law
Commission of India as well in its 196th and 241st Report.
Instead, attempt can be made to provide safeguards for exercise
of such advance directive. For example, Section 5 of the Mental
Healthcare Act, 2017 recognises the validity of advance directives
for the treatment of mental illness under the Mental Healthcare
Act, 2017. The draft Mental Healthcare Regulations have
recently been made available for public comment by the Ministry
of Health and Family Welfare. These prescribe the form in which
advance directives may be made. Part II, Chapter 1 of the
Regulations allow a Nominated Representative to be named in
the Advance Directive. An advance directive is to be in writing
and signed by two witnesses attesting to the fact that the
Directive was executed in their presence. A Directive to be
registered with the Mental Health Review Board. It may be
changed as many times as desired by the person executing it and
the treating mental health professional must be informed of such
change. Similarly, Section 3 of the Transplantation of Human
Writ Petition (Civil) No. 215 of 2005 Page 104 of 112
Organs and Tissues Act, 1994 allows persons to authorise the
removal of human organs and tissues from their body before
death. The form in which this authorisation is to be made is
prescribed in Form 7 of the Transplantation of Human Organs
and Tissues Rules, 2014. This is also to be in writing and in the
presence of two witnesses. A copy of the pledge is to be retained
at the institution where the pledge is made and the person
making the pledge has the option to withdraw the pledge at any
time. Where such authorisation had been made, the person
lawfully in charge of the donor’s body after his death is required
to grant the concerned medical practitioner all reasonable
facilities for the removal of human organs or tissues, unless such
person has reason to believe that the donor had substantially
revoked his authority.
133) Mr. Datar, learned counsel appearing for the intervenor, has also
brought to our notice various safeguards for advance directive
provided in other jurisdiction in many ways i.e. by prescribing the
form that the directive must take, by specifying who may act as
witnesses, by allowing the possibility of amendment and by
allowing the validity of the directive to be challenged. Some of
these examples are as follows:
Writ Petition (Civil) No. 215 of 2005 Page 105 of 112
(a) In U.K., under Section 24 of the Mental Capacity Act, 2005, a
person above the age of 18 years who has capacity may execute
an advance directive. A person is said to lack capacity if in
relation to a matter at the material time, he is unable to make a
decision for himself because of an impairment of or disturbance in
the functioning of the mind or brain. In Netherlands, under Article
2 of the Termination of Life on Request and Assisted Suicide
(Review Procedures) Act, patients aged 16 or above may make
advance directives. In Germany, the authorisation of the court is
required for the termination of treatment in the case of minors. In
Switzerland, persons with mental illnesses are considered
exceptions and cannot discontinue medical treatment if it is an
expression or symptom of their mental illness. In Hungary,
pregnant women may not refuse treatment if it is seen that they
are able to carry the pregnancy.
(b) Section 25 of the Mental Capacity Act, an advance decision
to refuse life-sustaining treatment must be in writing. It must be
signed by the patient or someone on his behalf and signed by a
witness. It must also include a written statement by the patient
that the decision will apply to the specific treatment even if the
patient’s life is at risk. Under Article 7: 450 of the Dutch Civil
Code, an advance directive should be in written form, dated and
Writ Petition (Civil) No. 215 of 2005 Page 106 of 112
signed to be valid. Section 110Q of the Western Australia
Guardianship and Administration Act, 1990 requires advance
directives to be signed in the presence of two witnesses, who
must both be at least 18 years of age and one of whom must be a
person authorised to witness legal documents under the relevant
law. Section 15 of the South Australia Advance Directives Act,
2013 sets out requirements for ‘suitable’ witnesses under the Act.
A person may not be a witness if she is appointed as a substitute
decision-maker under the advance directive, has a direct or
indirect interest in the estate of the person executing the advance
directive or is a health practitioner responsible for the health care
of the person executing the advance directive. Similar
disqualifications for witnesses are prescribed in the Oregon Death
with Dignity Act, 2002 when a person makes a written request for
medication for the purpose of ending her life in a humane and
dignified manner.
(c) Under Section 24(3) of the UK Mental Capacity Act, 2005, a
person may alter or withdraw an advance decision at any time he
has the capacity to do so. Under Section 25(2)(c), an advance
decision will not be applicable if a person has done anything else
clearly inconsistent with the advance decision. Under Section
3.06 of the Oregon Death with Dignity Act, 2005, a person may
Writ Petition (Civil) No. 215 of 2005 Page 107 of 112
rescind her written request for medicating at any time regardless
of her mental state. To allow for a change of mind, Section 3.08
also requires at least 15 days to lapse between the patient’s initial
oral request and the writing of a prescription, while a minimum of
48 hours must elapse between the patient’s written request and
the writing of a prescription. Under Section 110S of the Western
Australia Guardianship and Administration Act, 1990, a treatment
decision in an advance directive does not operate if
circumstances exist or have arisen that the maker of that directive
could not reasonably have anticipated at the time of making the
directive and that would have caused a reasonable person in the
maker’s position to have changed her mind about the directive.
While determining whether such circumstances have arisen, the
age of the maker and the period that has elapsed between the
time at which the directive was made and the circumstances that
have arisen are factors that must be taken into account while
determining the validity of the directive.
(d) Section 26(4) of the UK Mental Capacity Act permits courts to
make a declaration as to whether the advance decision exists, is
valid, and applicable to a treatment. Under Article 373 of the
Swiss Civil Code, ‘any person closely related to the patient can
contact the adult protection authority in writing and claim that...
Writ Petition (Civil) No. 215 of 2005 Page 108 of 112
the patient decree is not based on the patient’s free will.’ Under
Section 110V, 110W, 110X, 110Y and 110Z of the Western
Australia Guardianship and Administration Act, 1990, any person
who has a ‘proper interest’ in the matter, in the view of the State
Administrative Tribunal, may apply to it for a declaration with
respect to the validity of an advance directive. It can also
interpret the terms of the directive, give directions to give effect to
it or revoke a treatment decision in the directive.
134) Mr. Datar has suggested that this Court should frame the
guidelines to cover the following aspects:
(a) Who will be competent to execute an advance directive?
(b) In what form will an advance directive have to be issued in
order to be valid?
(c) Who is to ensure that an advance directive is properly
obeyed?
(d) What legal consequences follow from the non-obedience to an
advance directive?
(e) In what circumstances can a doctor refuse to enforce an
advance directive?
135) He has given the following suggestions on the aforesaid aspects:
(a) Only adult persons, above the age of eighteen years and of
Writ Petition (Civil) No. 215 of 2005 Page 109 of 112
sound mind at the time at which the advance directive is executed
should be deemed to be competent. This should include persons
suffering from mental disabilities provided they are of sound mind
at the time of executing an advance directive.
(b) Only written advance directives that have been executed
properly with the notarised signature of the person executing the
advance directive, in the presence of two adult witnesses shall be
valid and enforceable in the eyes of the law. The form should
require a reaffirmation that the person executing such directives
has made an informed decision. Only those advance directives
relating to the withdrawal or withholding of life-sustaining
treatment should be granted legal validity. The determination that
the executor of the advance directive is no longer capable of
making the decision should be made in accordance with relevant
medical professional regulations or standard treatment
guidelines, as also the determination that the executor’s life
would terminate in the absence of life-sustaining treatment. The
constitution of a panel of experts may also be considered to make
this determination. The use of expert committees or ethics
committees in other jurisdictions is discussed at Para 28 of these
written submissions.
(c) Primary responsibility for ensuring compliance with the
Writ Petition (Civil) No. 215 of 2005 Page 110 of 112
advance directive should be on the medical institution where the
person is receiving such treatment.
(d) If a hospital refuses to recognise the validity of an advance
directive, the relatives or next friend may approach the
jurisdictional High Court seeking a writ or mandamus against the
concerned hospital to execute the directive. The High Court may
examine whether the directive has been properly executed,
whether it is still valid (i.e. whether or not circumstances have
fundamentally changed since its execution, making it invalid)
and/or applicable to the particular circumstances or treatment.
(e) No hospital or doctor should be made liable in civil or criminal
proceedings for having obeyed a validly executed advance
directive.
(f) Doctors citing conscientious objection to the enforcement of
advance directives on the grounds of religion should be permitted
not to enforce it, taking into account their fundamental right under
Article 25 of the Constitution. However, the hospital will still
remain under this obligation.
136) All these suggestions and various aspects of advance directives
have been elaborately considered and detailed directions are
given by the Hon’ble the Chief Justice in his judgment, with which
Writ Petition (Civil) No. 215 of 2005 Page 111 of 112
I duly concur. In summation, I say that this Court has, with utmost
sincerity, 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.
137) My last remarks are a pious hope 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.
.....................................J.
(A.K. SIKRI)
NEW DELHI;
MARCH 09, 2018.
Writ Petition (Civil) No. 215 of 2005 Page 112 of 112
PART A
1
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 215 OF 2005
COMMON CAUSE (A REGD. SOCIETY) .... PETITIONER
VERSUS
UNION OF INDIA & ANR ..... RESPONDENTS
J U D G M E N T
Dr D Y CHANDRACHUD, J
A Introduction: On Death and Dying
1 Life and death are inseparable. Every moment of our lives, our bodies
are involved in a process of continuous change. Millions of our cells perish as
nature regenerates new ones. Our minds are rarely, if ever, constant. Our
thoughts are fleeting. In a physiological sense, our being is in a state of flux,
change being the norm. Life is not disconnected from death. To be, is to die.
PART A
2
From a philosophical perspective, there is no antithesis between life and
death. Both constitute essential elements in the inexorable cycle of existence.
2 Living in the present, we are conscious of our own mortality. Biblical
teaching reminds us that:
“There is a time for everything, and a season for every activity
under the heavens : a time to be born and a time to die, a
time to plant, and a time to uproot, a time to kill and a time to
heal, a time to wear down and a time to build, a time to weep
and a time to laugh, a time to mourn and a time to dance.”
(Ecclesiastes 3)
3 The quest of each individual to find meaning in life reflects a human
urge to find fulfilment in the pursuit of happiness. The pursuit of happiness is
nurtured in creative pleasures and is grounded in things as fundamental as
the freedom to think, express and believe, the right to self-determination, the
liberty to follow a distinctive way of life, the ability to decide whether or not to
conform and the expression of identity.
4 Human beings through the ages have been concerned with death as
much as with dying. Death represents a culmination, the terminal point of life.
Dying is part of a process: the process of living, which eventually leads to
death. The fear of death is a universal feature of human existence. The fear is
associated as much with the uncertainty of when death will occur as it is, with
the suffering that may precede it. The fear lies in the uncertainty of when an
PART A
3
event which is certain will occur. Our fears are enhanced by the experience of
dying that we share with those who were a part of our lives but have gone
before us. As human beings, we are concerned with the dignity of our
existence. The process through which we die bears upon that dignity. A
dignified existence requires that the days of our lives which lead up to death
must be lived in dignity; that the stages through which life leads to death
should be free of suffering; and that the integrity of our minds and bodies
should survive so long as life subsists. The fear of an uncertain future
confronts these aspirations of a dignified life. The fear is compounded by the
fact that as we age, we lose control over our faculties and over our ability to
take decisions on the course of our future. Our autonomy as persons is
founded on the ability to decide: on what to wear and how to dress, on what to
eat and on the food that we share, on when to speak and what we speak, on
the right to believe or not to believe, on whom to love and whom to partner,
and to freely decide on innumerable matters of consequence and detail to our
daily lives. Ageing leaves individuals with a dilution of the ability to decide. The
fear of that loss is ultimately, a fear of the loss of freedom. Freedom and
liberty are the core of a meaningful life. Ageing brings dependency and a loss
of control over our ability to shape what we wish to happen to us.
5 The progression of life takes its toll on the human body and the mind.
As we age, simple tasks become less simple and what seemed to be a matter
of course may become less so. Human beings then turn ever more to the
PART A
4
substance that matters. As events, relationships, associations and even
memories fall by the way, we are left with a lonesome remnant of the person,
which defines the core of our existence. The quest of finding meaning in that
core is often a matter of confronting our fears and tragedies.
6 The fear of pain and suffering is perhaps even greater than the
apprehension of death. To be free of suffering is a liberation in itself. Hence
the liberty to decide how one should be treated when the end of life is near is
part of an essential attribute of personhood. Our expectations define how we
should be treated in progressing towards the end, even when an individual is
left with little or no comprehension near the end of life.
7 Dilemmas relating to the end of life have been on the frontline of debate
across the world in recent decades. The debate has presented “a complex
maze of dilemmas for all - the doctor, the lawyer, the patient and the patient’s
relatives”1 and straddles issues of religion, morality, bio-medical ethics and
constitutional law. It has involved “issues ranging from the nature and
meaning of human life itself, to the most fundamental principles on which our
societies are and should be based”2
.
1
“The Dilemmas of Euthanasia”, Bio-Science (August 1973), Vol. 23, No. 8, at page 459
2
Margaret A. Somerville, “Legalising euthanasia: why now?”, The Australian Quarterly (Spring 1996), Vol. 68,
No. 3, at page 1
PART A
5
8 There is an “ongoing struggle between technology and the law”; as
“medical technology has become more advanced, it has achieved the capability
both to prolong human life beyond its natural endpoint and to better define
when that endpoint will occur”.3
Medical science has contributed in a significant
way to enhancing the expectancy of life. Diseases once considered fatal have
now become treatable. Medical research has redefined our knowledge of
ailments – common and uncommon; of their links with bodily functions and the
complex relationship between mental processes and physical well-being.
Science which affects the length of life also has an impact on the quality of the
years in our lives. Prolonging life should, but does not necessarily result in, a
reduction of suffering. Suffering has a bearing on the quality of life. The quality
of life depends upon the life in our years. Adding to the length of life must bear
a functional nexus with the quality of life. Human suffering must have
significance not only in terms of how long we live but also in terms of how well
we live.
9 Modern medicine has advanced human knowledge about the body and
the mind. Equipped with the tools of knowledge, science has shown the ability
to reduce human suffering. Science has also shown an ability to prolong life.
Yet in its ability to extend life, medical science has an impact on the quality of
life, as on the nature and extent of human suffering. Medical interventions
come with costs, both emotional and financial. The ability of science to
3 Christopher N. Manning, “Live And Let Die: Physician-Assisted Suicide And The Right To Die”, Harvard Journal
of Law and Technology (1996), Vol. 9, No. 2, at page 513
PART A
6
prolong life must face an equally important concern over its ability to impact on
the quality of life. While medical science has extended longevity, it has come
with associated costs of medical care and the agony which accompanies an
artificially sustained life. Medical ethics must grapple with the need to bring
about a balance between the ability of science to extend life with the need for
science to recognise that all knowledge must enhance a meaningful
existence.
10 There is “no consensus as to the rights and wrongs of helping someone
to die”4
, as the legal status of euthanasia has been subjected to social, ethical
and moral norms that have been handed down to us. Decisions regarding the
end of life can be ethically more problematic when the individual is no longer
mentally competent to make his or her own decisions.5 The existential and
metaphysical issues involved in this debate, include the fear of the unknown,
the uncertainty of when death will occur, the scarcity of health care, freedom
or coercion in choosing to receive or not to receive medical treatment, the
dignity and degradation of ageing and being able to care for oneself
independently.6
11 Does the law have a role in these complex questions of life and death?
If it does, what are the boundaries which judges – as interpreters of law –
4 Alan Norrie, “Legal Form and Moral Judgement: Euthanasia and Assisted Suicide” in R.A. Duff, et al (ed), The
Structures of the Criminal Law (Oxford University Press, 2011), at page 134
5 Elizabeth Wicks, The Right to Life and Conflicting Interests (Oxford University Press, 2010), at page 199
6 Elizabeth M. Andal Sorrentino, “The Right To Die?”, Journal of Health and Human Resources Administration
(Spring,1986), Vol. 8, No. 4, page 361
PART A
7
must observe while confronting these issues of living and dying? The law,
particularly constitutional law, intervenes when matters governing freedom,
liberty, dignity and individual autonomy are at stake. To deny a role for
constitutional law would be to ignore our own jurisprudence and the primary
role which it assigns to freedom and dignity. This case presents itself before
the Court as a canvass bearing on the web of life: on the relationship between
science, medicine and ethics and the constitutional values of individual dignity
and autonomy. Among the issues which we confront are:
(i) Does an individual have a constitutionally recognized right to refuse
medical treatment or to reject a particular form of medical treatment;
(ii) If an individual does possess such a right, does a right inhere in the
individual to determine what course of action should be followed in the
future if she or he were to lose control over the faculties which enable
them to accept or refuse medical treatment;
(iii) Does the existence of a right in the individual impose a corresponding
duty on a medical professional who attends to the individual, to respect
the right and what, if any, are the qualifications of that duty;
(iv) Does the law permit a medical practitioner to withhold or refuse medical
treatment towards the end of life to an individual who is no longer in
control of his or her faculties in deference to a desire expressed while in
a fit state of mind; and
PART A
8
(v) Would a withholding or refusal of medical treatment be permissible so
as to allow life to take its natural course, bereft of an artificial
intervention, when there is no realistic hope of return to a normal life.
12 This Court has to consider euthanasia and its impact “not only at an
individual level”, but also at the “institutional, governmental and societal
levels”.7 The impact has to be analyzed not only in the context of the present
era, but has to be contemplated for the future as well. The judge is not a
soothsayer. Nor does the law have predictive tools at its command which can
approximate those available to a scientist. Constitutional principle must have
an abiding value. It can have that value if it is firmly grounded in the distilled
experience of the past, is flexible to accommodate the concerns of the present
and allows room for the unforeseeable future. The possibility of the abuse of
euthanasia and the effect that legalising euthanasia would have on intangible
societal fabrics and institutions is of utmost concern.
13 Contemporary writing on the subject reminds us about how serious
these issues are and of how often they pose real dilemmas in medicine. They
are poignantly brought out by Dr Atul Gawande in his acclaimed book, “Being
Mortal”:
“If to be human is to be limited, then the role of caring
professions and institutions - from surgeons to nursing homes
- ought to be aiding people in their struggle with those limits.
Sometimes we can offer a cure, sometimes only a salve,
7
Ibid
PART A
9
sometimes not even that. But whatever we can offer, our
interventions, and the risks and sacrifices they entail, are
justified only if they serve the large aims of a person's life.
When we forget that, the suffering we inflict can be barbaric.
When we remember it, the good we do can be breathtaking."8
He reminds us of how much people value living with dignity over merely living
longer:
“A few conclusions become clear when we understand this:
that our most cruel failure in how we treat the sick and the
aged is the failure to recognize that they have priorities
beyond merely being safe and living longer; that the chance
to shape one’s story is essential to sustaining meaning in life;
that we have the opportunity to refashion our institutions, our
culture, and our conversations in ways that transform the
possibilities for the last chapters of everyone’s lives.”9
14 Dr Henry Marsh, a neurosurgeon in the UK has significantly titled his
provocative memoir “Admissions” (2017). Speaking of euthanasia, he
observes:
“We have to choose between probabilities, not certainties,
and that is difficult. How probable is it that we will gain how
many extra years of life, and what might the quality of those
years be, if we submit ourselves to the pain and
unpleasantness of treatment? And what is the probability that
the treatment will cause severe side effects that outweigh any
possible benefits? When we are young it is usually easy to
decide – but when we are old, and reaching the end of our
likely lifespan? We can choose, at least in theory, but our
inbuilt optimism and love of life, our fear of death and the
difficulty we have in looking at it steadily, make this very
difficult. We inevitably hope that we will be one of the lucky
ones, one of the long-term survivors, at the good and not the
bad tail-end of the statisticians’ normal distribution. And yet it
has been estimated that in the developed world, 75 per cent
of our lifetime medical costs are incurred in the last six
8 Atul Gawande, Being Mortal: Medicine and What Matters in the End (Hamish Hamilton, 2014), at page 260
9
Ibid, at page 243
PART B
10
months of our lives. This is the price of hope, hope which, by
the laws of probability, is so often unrealistic. And thus we
often end up inflicting both great suffering on ourselves and
unsustainable expense on society.” 10
These are but a few of the examples of emerging literature on the subject.
15 The central aspect of the case is the significance which the Constitution
attaches to the ability of every individual in society to make personal choices
on decisions which affect our lives. Randy Pausch, a Professor at Stanford
had this to say in a book titled “The Last Lecture” (2008),
11 a discourse
delivered by him in the shadow of a terminal illness.
“We cannot change the cards we are dealt, just how we play
the hand”.
We may not be masters of our destiny. Nor can we control what life has in
store. What we can determine is how we respond to our trials and tribulations.
B The reference
16 On 25 February 2014, three Judges of this Court opined that the issues
raised in this case need to be considered by a Constitution Bench. The
referring order notes that the case involves “social, legal, medical and
constitutional” perspectives which should be considered by five judges. At the
heart of the proceeding, is a declaration which Common Cause seeks that the
right to die with dignity is a fundamental right which arises from the right to live
10 Henry Marsh, Admissions: A Life in Brain Surgery, (Weidenfeld & Nicolson, 2017), at page 265-266
11 Randy Pausch and Jeffrey Zaslow, The Last Lecture, (Hodder & Stoughton, 2008), at page 17
PART B
11
with dignity. Article 21 of the Constitution is a guarantee against the
deprivation of life or personal liberty except according to the procedure
established by law. As our law has evolved, the right against the violation of
life and personal liberty has acquired much more than a formal content. It can
have true meaning, if only it includes the right to live with dignity. It is on this
premise that the court is urged to hold that death with dignity is an essential
part of a life of dignity. A direction is sought to the Union Government to adopt
suitable procedures to ensure that persons with “deteriorated health” or those
who are terminally ill should be able to execute a document in the form of “a
living will and attorney authorization” which can be presented to a hospital for
appropriate action if the person who has made it, is hospitalized with a serious
illness which may cause the end of life. The petitioner also seeks, in the
alternative, that this Court should issue guidelines and appoint an expert
committee consisting of doctors, social scientists and lawyers who will govern
the making of ‘living wills’.
17 Individuals who suffer from chronic disease or approach the end of the
span of natural life often lapse into terminal illness or a permanent vegetative
state. When a medical emergency leads to hospitalization, individuals in that
condition are sometimes deprived of their right to refuse unwanted medical
treatment such as feeding through hydration tubes or being kept on a
ventilator and other life support equipment. Life is prolonged artificially
resulting in human suffering. The petition is founded on the right of each
PART B
12
individual to make an informed choice. Documenting a wish in advance, not to
be subjected to artificial means of prolonging life, should the individual not be
in a position later to comprehend or decline treatment, is a manifestation of
individual choice and autonomy. The process of ageing is marked by a sense
of helplessness. Human faculties decline as we grow older. Social aspects of
ageing, such as the loss of friendships and associations combine with the
personal and intimate to enhance a sense of isolation. The boundaries and
even the limits of constitutional law will be tested as the needs of the ageing
and their concerns confront issues of ethics, morality and of dignity in death.
18 In support of its contention, the petitioner relies upon two decisions: a
decision rendered in 1996 by a Constitution Bench in Gian Kaur v State of
Punjab12 (“Gian Kaur”) and a decision of 2011 rendered by two judges in
Aruna Ramachandra Shanbaug v Union of India13 (“Aruna Shanbaug”).
The decision in Gian Kaur arose from a conviction for the abetment of
suicide. In an earlier decision rendered by two judges in 1994 - P Rathinam v
Union of India14 (“Rathinam”), penalising an attempt to commit suicide was
held to violate Article 21 on the foundation that the right to life includes the
right to die. The decision in Rathinam was held not to have laid down the
correct principle, in Gian Kaur. Hence the decision in Aruna Shanbaug noted
that Article 21 does not protect the right to die and an attempt to commit
suicide is a crime. However, in Aruna Shanbaug, the court held that since
12(1996) 2 SCC 648
13 (2011) 15 SCC 480
14 (1994) 3 SCC 394
PART B
13
Gian Kaur rules that the right to life includes living with human dignity, “in the
case of a dying person who is terminally ill or in a permanent vegetative state,
he may be permitted to terminate by a premature extinction of his life”, and
this would not be a crime. The Bench which decided Aruna Shanbaug was of
the view that Gian Kaur had “quoted with approval” the view of the House of
Lords in the UK in Airedale NHS Trust v Bland15 (“Airedale”).
19 When these judgments were placed before a Bench of three judges in
the present case, the court observed that there were “inherent
inconsistencies” in the judgment in Aruna Shanbaug. The referring order
accordingly opined that:
“Aruna Shanbaug (supra) aptly interpreted the decision of the
Constitution Bench in Gian Kaur (supra) and came to the
conclusion that euthanasia can be allowed in India only
through a valid legislation. However, it is factually wrong to
observe that in Gian Kaur (supra), the Constitution Bench
approved the decision of the House of Lords in Airedale v.
Bland: (1993) 2 W.L.R. 316 (H.L.). Para 40 of Gian Kaur
(supra), clearly states that "even though it is not necessary to
deal with physician assisted suicide or euthanasia cases, a
brief reference to this decision cited at the Bar may be
made..." Thus, it was a mere reference in the verdict and it
cannot be construed to mean that the Constitution Bench in
Gian Kaur (supra) approved the opinion of the House of Lords
rendered in Airedale (supra). To this extent, the observation
in Para 101 is incorrect.”
The referring order goes on to state that:
“In Paras 21 & 101, the Bench [in Aruna Shanbaug] was of
the view that in Gian Kaur (supra), the Constitution Bench
15(1993) 2 WLR 316 (H.L)
PART B
14
held that euthanasia could be made lawful only by a
legislation. Whereas in Para 104, the Bench contradicts its
own interpretation of Gian Kaur (supra) in Para 101 and
states that although this Court approved the view taken in
Airedale (supra), it has not clarified who can decide whether
life support should be discontinued in the case of an
incompetent person e.g., a person in coma or PVS. When, at
the outset, it is interpreted to hold that euthanasia could be
made lawful only by legislation where is the question of
deciding whether the life support should be discontinued in
the case of an incompetent person e.g., a person in coma or
PVS.”
The reason why the case merits evaluation by the Constitution Bench is
elaborated in the Order dated 25 February 2014. Simply put, the basis of the
reference to the Constitution Bench is that:
(i) Gian Kaur affirms the principle that the right to live with dignity includes
the right to die with dignity;
(ii) Gian Kaur has not ruled on the validity of euthanasia, active or passive;
(iii) Aruna Shanbaug proceeds on the erroneous premise that Gian Kaur
approved of the decision of the House of Lords in Airedale;
(iv) While Aruna Shanbaug accepts that euthanasia can be made lawful
only through legislation, yet the court accepted the permissibility of
passive euthanasia and set down the procedure which must be followed;
and
(v) Aruna Shanbaug is internally inconsistent and proceeds on a
misconstruction of the decision in Gian Kaur.
20 This being the basis of the reference, it is necessary to consider the
decisions in Gian Kaur and Aruna Shanbaug.
PART C
15
C Gian Kaur
21 Gian Kaur and Harbans Singh were spouses. They were convicted of
abetting the suicide of Kulwant Kaur and were held guilty of an offence under
Section 306 of the Penal Code. They were sentenced to six years’
imprisonment. The conviction was upheld by the High Court. The conviction
was assailed before this Court on the ground that Section 306 is
unconstitutional. It was argued that the constitutionality of Section 306 rested
on the two judge Bench decision in Rathinam, where Section 309 (penalising
the attempt to commit suicide) was held to be unconstitutional. While
Rathinam had rejected the challenge to the validity of Section 309 on the
ground that it was arbitrary (and violated Article 14), the provision was held to
be unconstitutional on the ground that it violated Article 21. The right to die
was found to inhere in the right to life, as a result of which Section 309 was
found to be invalid. The challenge in Gian Kaur was premised on the decision
in Rathinam: abetment of suicide by another (it was urged) is merely assisting
in the enforcement of the fundamental right under Article 21 and hence
Section 306 (like Section 309) would violate Article 21.
22 The Constitution Bench in Gian Kaur disapproved of the foundation of
Rathinam, holding that it was flawed. The Constitution Bench held thus:
“When a man commits suicide he has to undertake certain
positive overt acts and the genesis of those acts cannot be
traced to, or be included within the protection of the 'right to
life' under Article 21. The significant aspect of 'sanctity of life'
PART C
16
is also not to be overlooked. Article 21 is a provision
guaranteeing protection of life and personal liberty and by no
stretch of imagination can 'extinction of life' be read to be
included in 'protection of life'. Whatever may be the
philosophy of permitting a person to extinguish his life by
committing suicide, we find it difficult to construe Article 21 to
include within it the 'right to die' as a part of the fundamental
right guaranteed therein. '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'. With respect and
in all humility, we find no similarity in the nature of the other
rights, such as the right to 'freedom of speech' etc. to provide
a comparable basis to hold that the 'right to life' also includes
the 'right to die'. With respect, the comparison is inapposite,
for the reason indicated in the context of Article 21. The
decisions relating to other fundamental rights wherein the
absence of compulsion to exercise a right was held to be
included within the exercise of that right, are not available to
support the view taken in P. Rathinam qua Article 21.”
The Court further held that:
“To give meaning and content to the word 'life' in Article 21, it
has been construed as life with human dignity. Any aspect of
life which makes it dignified may be read into it but not that
which extinguishes it and is, therefore, inconsistent with the
continued existence of life resulting in effacing the right itself.
The 'right to die', if any, is inherently inconsistent with the
'right to life' as is 'death' with 'life'.”
Gian Kaur holds that life within the meaning of Article 21 means a life of
dignity. Extinguishment of life is (in that view) inconsistent with its continued
existence. Hence, as a matter of textual construction, the right to life has been
held not to include the right to die. In coming to that conclusion, it appears that
Gian Kaur emphasises two strands (which the present judgment will revisit at
a later stage). The first strand is the sanctity of life, which Article 21
recognises. Extinction of life, would in this view, in the manner which
Rathinam allowed, violate the sanctity of life. The second strand that emerges
PART C
17
from Gian Kaur is that the right to life is a natural right. Suicide as an
unnatural extinction of life is incompatible with it. The court distinguishes the
right to life under Article 21 from other rights which are guaranteed by Article
19 such as the freedom of speech and expression. While free speech may
involve the absence of a compulsion to exercise the right (the right not to
speak) this could not be said about the right to life. The Constitution Bench
noticed the debate on euthanasia in the context of individuals in a permanent
vegetative state. A scholarly article on the decision notes that the Constitution
Bench “seemed amenable to an exception being made for euthanasia in
cases of patients in a condition of PVS16
. This view of the decision in Gian
Kaur does find support in the following observations of the Constitution
Bench:
“Protagonism of euthanasia on the view that existence in
persistent vegetative state (PVS) is not a benefit to the patient
of a terminal illness being unrelated to the principle of ‘Sanctity
of life' or the 'right to live with dignity' is of no assistance to
determine the scope of Article 21 for deciding whether the
guarantee of 'right to life' therein includes the 'right to die'. The
'right to life' including the right to live with human dignity would
mean the existence of such a right up to the end of natural life.
This also includes the right to a dignified life up to the point of
death including a dignified procedure of death. In other words,
this may include the right of a dying man to also die with
dignity when his life is ebbing out. But the 'right to die' with
dignity at the end of life is not to be confused or equated with
the 'right to die' an unnatural death curtailing the natural span
of life.” (Para 24)
16Sushila Rao, “India and Euthanasia: The Poignant Case of Aruna Shanbaug”, Oxford Medical Law Review,
Volume 19, Issue 4 (1 December 2011), at pages 646–656
PART C
18
However, in the paragraph which followed, the Constitution Bench
distinguished between cases where a premature end to life may be
permissible, when death is imminent, from the right to commit suicide:
“A question may arise, in the context of a dying man, who is,
terminally ill or in a persistent vegetative state that he may be
permitted to terminate it by a premature extinction of his life in
those circumstances. This category of cases may fall within
the ambit of the 'right to die' with dignity as a part of right to
live with dignity, when death due to termination of natural life
is certain and imminent and the process of natural death has
commenced. These are not cases of extinguishing life but
only of accelerating conclusion of the process of natural death
which has already commenced. The debate even in such
cases to permit physician assisted termination of life is
inconclusive. It is sufficient to reiterate that the argument to
support the view of permitting termination of life in such cases
to reduce the period of suffering during the process of certain
natural death is not available to interpret Article 21 to include
therein the right to curtail the natural span of life.” (Para 25)
On this foundation, the Constitution Bench held that Article 21 does not
include the right to die. The right to live with human dignity, in this view, could
not be construed to include the right to terminate natural life “at least before
commencement of the natural process of certain death”.
This Court’s holding in Gian Kaur that the right to life does not include the
right to die in the context of suicide may require to be revisited in future in view
of domestic and international developments17 pointing towards
decriminalisation of suicide. In India, the Mental Healthcare Act 2017 has
17 “Humanization and Decriminalization of Attempt to Suicide”, Law Commission of India (Report No. 210, 2008);
Rajeev Ranjan, et al, “(De-) Criminalization of Attempted Suicide in India: A Review”, Industrial Psychiatry
Journal (2014), Vol. 23, issue 1, at page 4–9
PART C
19
created a “presumption of severe stress in cases of attempt to commit
suicide”. Section 115(1) provides thus:
“Notwithstanding anything contained in section 309 of the
Indian Penal Code any person who attempts to commit
suicide shall be presumed, unless proved otherwise, to have
severe stress and shall not be tried and punished under the
said Code.”
Under Section 115(2), the Act also mandates the Government to provide care,
treatment and rehabilitation to a person, having severe stress and who
attempted to commit suicide, to reduce the risk of recurrence. Section 115
begins with a non-obstante provision, specifically with reference to Section
309 of the Penal Code. It mandates (unless the contrary is proved by the
prosecution) that a person who attempts to commit suicide is suffering from
severe stress. Such a person shall not be tried and punished under the Penal
Code. Section 115 removes the element of culpability which attaches to an
attempt to commit suicide under Section 309. It regards a person who
attempts suicide as a victim of circumstances and not an offender, at least in
the absence of proof to the contrary, the burden of which must lie on the
prosecution. Section 115 marks a pronounced change in our law about how
society must treat and attempt to commit suicide. It seeks to align Indian law
with emerging knowledge on suicide, by treating a person who attempts
suicide being need of care, treatment and rehabilitation rather than penal
sanctions.
PART C
20
It may also be argued that the right to life and the right to die are not two
separate rights, but two sides of the same coin. The right to life is the right to
decide whether one will or will not continue living.18 If the right to life were only
a right to decide to continue living and did not also include a right to decide not
to continue living, then it would be a duty to live rather than a right to life. The
emphasis on life as a right and not as a duty or obligation has also been
expressed by several other legal scholars:
“When, by electing euthanasia, the individual has expressly
renounced his right to life, the state cannot reasonably assert
an interest in protecting that right as a basis for overriding the
individual's private decision to die. To hold otherwise makes
little more sense than urging a prohibition against destroying
or giving away one's private property simply because the
Constitution protects property as well as life. Although the
Constitution recognizes that human life is, to most persons, of
inestimable value and protects against its taking without due
process of law, nothing in that document compels a
person to continue living who does not desire to do so.
Such an interpretation effectively converts a right into an
obligation, a result the constitutional framers manifestly
did not intend.”19 (Emphasis supplied)
For the present case, we will leave the matter there, since neither side has
asked for reconsideration of Gian Kaur, it being perhaps not quite required for
the purposes of the reference.
23 At this stage, it is also necessary to note that the decision in Gian Kaur
contained a passing reference to the judgment of the House of Lords in
Airedale which dealt with the withdrawal of artificial measures for the
18 D Benatar, “Should there be a legal right to die?” Current Oncology (2010), Vol. 17, Issue 5, at pages 2-3
19 Richard Delgado, “Euthanasia Reconsidered-The Choice of Death as an Aspect of the Right of Privacy”,
Arizona Law Review (1975), Vol. 17, at page 474
PART D
21
continuance of life by a physician. In that context, it was held that a persistent
vegetative state was of no benefit to the patient and hence, the principle of
sanctity of life is not absolute. The Constitution Bench reproduced the
following extracts from the decision in Airedale:
“...But it is not lawful for a doctor to administer a drug to his
patient to bring about his death, even though that course is
prompted by a humanitarian desire to end his suffering,
however great that suffering may be : See Reg v. Cox,
(unreported), 18 September (1992). So to act is to cross the
Rubicon which runs between on the one hand the care of the
living patient and on the other hand euthanasia - actively
causing his death to avoid or to end his suffering. Euthanasia
is not lawful at common law. It is of course well known
that there are many responsible members of our society
who believe that euthanasia should be made lawful; but
that result could, I believe, only be achieved by
legislation which expresses the democratic will
that so fundamental a change should be made in our
law, and can, if enacted, ensure that such legalised
killing can only be carried out subject to appropriate
supervision and control.... (emphasis supplied by the
Bench). Making emphasis as above, this Court held that it is
in the realm of the legislature to enact a suitable law to
provide adequate safeguards regarding euthanasia”.
The Constitution Bench noted that the desirability of bringing about such a
change was considered (in Airedale) to be a function of the legislature by
enacting a law with safeguards, to prevent abuse.
D Aruna Shanbaug
24 Aruna Shanbaug was a nurse in a public hospital when she was
sexually assaulted in 1973. During the incident, she was strangled by the
attacker with a chain. The assault resulted in depriving the supply of oxygen to
PART D
22
her brain. Over a period of thirty seven years, she had not recovered from the
trauma and damage to the brain. She was forsaken by family and was cared
for over this period by the staff of the hospital. A petition under Article 32 was
instituted before this Court. The petitioner had authored a book on her saga
and instituted the proceedings claiming to be her “next friend”. The direction
which was sought was to stop feeding the patient and allow her to die a
natural death. Aruna Shanbaug was examined by a team of doctors
constituted by this Court who observed that while she was in a permanent
vegetative state, she was clearly not in coma.
25 A two Judge Bench of this Court held that Gian Kaur did not lay down a
final view on euthanasia:
“21. We have carefully considered paras 24 and 25 in Gian
Kaur case [(1996) 2 SCC 648 : 1996 SCC (Cri) 374] and we
are of the opinion that all that has been said therein is that the
view in Rathinam case [(1994) 3 SCC 394 : 1994 SCC (Cri)
740] that the right to life includes the right to die is not correct.
We cannot construe Gian Kaur case [(1996) 2 SCC 648 :
1996 SCC (Cri) 374] to mean anything beyond that. In fact, it
has been specifically mentioned in para 25 of the aforesaid
decision that “the debate even in such cases to permit
physician-assisted termination of life is inconclusive”. Thus it
is obvious that no final view was expressed in the decision
in Gian Kaur case [(1996) 2 SCC 648 : 1996 SCC (Cri) 374]
beyond what we have mentioned above.”(Id at page 487)
26 The decision in Aruna Shanbaug distinguishes between active and
passive euthanasia. Active euthanasia is defined as the administration of a
lethal substance or force to kill a person, such as for instance, a lethal
injection given to a person suffering from agony in a terminal state of cancer.
PART D
23
Passive euthanasia is defined to mean the withholding or withdrawing of
medical treatment necessary for continuance of life. This may consist of
withholding antibiotics without which the patient may die or the removing of
the patient from artificial heart/lung support. According to the court, a
comparative context of the position prevailing in other countries would indicate
that:
“39…The general legal position all over the world seems to
be that while active euthanasia is illegal unless there is
legislation permitting it, passive euthanasia is legal even
without legislation provided certain conditions and
safeguards are maintained.” (Id at page 491)
Voluntary euthanasia envisages the consent of the patient being taken
whereas non-voluntary euthanasia deals with a situation where the patient is
in a condition where he or she is unable to give consent. The Court noted that
a distinction is drawn between euthanasia and physician assisted death in the
form of a physician or third party who administers it. Physician assisted
suicide involves a situation where the patient carries out the procedure,
though on the advice of the doctor. The court in Aruna Shanbaug
distinguished between active and passive euthanasia:
“43. The difference between “active” and “passive” euthanasia
is that in active euthanasia, something is done to end the
patient's life while in passive euthanasia, something is not
done that would have preserved the patient's life. An important
idea behind this distinction is that in “passive euthanasia” the
doctors are not actively killing anyone; they are simply not
saving him.” (Id at page 492)
PART D
24
The above extract indicates that the decision is premised on the performance
of an act (in active euthanasia) and an omission (in passive euthanasia).
Active euthanasia, in the view of the court, would be an offence under Section
302 or at least under Section 304 while physician assisted suicide would be
an offence under Section 306 of the Penal Code. The decision adverted to the
judgment of the House of Lords in Airedale and then observed that:
“104. It may be noted that in Gian Kaur case [(1996) 2 SCC 648
: 1996 SCC (Cri) 374] although the Supreme Court has quoted
with approval the view of the House of Lords in Airedale
case [1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821
(CA and HL)] , it has not clarified who can decide whether life
support should be discontinued in the case of an incompetent
person e.g. a person in coma or PVS.” (Id at page 512)
Explaining the concept of brain death, the court held that passive euthanasia
depends upon two circumstances:
“117…(a) When a person is only kept alive mechanically i.e.
when not only consciousness is lost, but the person is only able
to sustain involuntary functioning through advanced medical
technology—such as the use of heart-lung machines, medical
ventilators, etc.
(b) When there is no plausible possibility of the person ever
being able to come out of this stage. Medical “miracles” are not
unknown, but if a person has been at a stage where his life is
only sustained through medical technology, and there has been
no significant alteration in the person's condition for a long
period of time—at least a few years—then there can be a fair
case made out for passive euthanasia.” (Id at page 517)
Noting that there is no statutory provision regulating the procedure for
withdrawing life support to a person in PVS or who is incompetent to take a
decision, the court ruled that passive euthanasia should be permitted in
PART D
25
certain situations. Until Parliament decides on the matter, the modalities to
regulate passive euthanasia would (according to the court) be as follows:
“124…(i) A decision has to be taken to discontinue life support
either by the parents or the spouse or other close relatives, or
in the absence of any of them, such a decision can be taken
even by a person or a body of persons acting as a next friend. It
can also be taken by the doctors attending the patient.
However, the decision should be taken bona fide in the best
interest of the patient…
(ii) Hence, even if a decision is taken by the near relatives or
doctors or next friend to withdraw life support, such a decision
requires approval from the High Court concerned as laid down
in Airedale case [1993 AC 789 : (1993) 2 WLR 316 : (1993) 1
All ER 821 (CA and HL)].” (Id at page 518-519)
27 The approval of the High Court was mandated to obviate the danger
that “this may be misused by some unscrupulous persons who wish to inherit
or otherwise grab the property of the patient”. Moreover, the court directed
that when an application is filed before the High Court, a committee of three
doctors (a neurologist, psychiatrist and physician) should be constituted, to
submit its opinion to enable the High Court to take a considered decision in
the case. On the facts of the case, the court held that the petitioner who had
visited Aruna Shanbaug only on a few occasions and had written a book on
her could not be recognised as her next friend. It was only the hospital staff
which had cared for her for long years which would be recognised. The
doctors and nursing staff had evinced an intent to allow her to live in their
care.
28 The decision in Aruna Shanbaug has proceeded on the hypothesis
that the Constitution Bench in Gian Kaur had “quoted with approval” the
PART D
26
decision of the House of Lords in Airedale. This hypothesis is incorrect. There
was only a passing reference to the decision of the House of Lords. In fact,
Gian Kaur prefaces its reference to Airedale with the following observation:
“40…Even though it is not necessary to deal with physicianassisted
suicide or euthanasia cases, a brief reference to this
decision cited at the Bar may be made.” (Id at page 665)
The decision in Gian Kaur referred to the distinction made in Airedale
between cases in which a physician decides not to provide or to continue to
provide treatment which would prolong life and cases in which a physician
decides to actively bring an end to the life of the patient by administering a
lethal drug. The court in Airedale observed that actively causing the death of
the patient could be made lawful only by legislation. It was this aspect which
was emphasised by the judgment in Gian Kaur. Hence, the position adopted
in Aruna Shanbaug, that the Constitution Bench in Gian Kaur quoted
Airedale with approval (as the basis of allowing passive euthanasia) is
seriously problematic. In fact, the extract from Airedale which was cited in
Gian Kaur indicates the emphasis placed on the need to bring in legislation to
allow active euthanasia.
29 In an incisive analysis20, Ratna Kapur argues that while focussing on
euthanasia, discussions on Aruna Shanbaug have ignored other
considerations regarding gender, sexual assault, what constitutes “caring”, the
20 Ratna Kapur, “The Spectre of Aruna Shanbaug”, The Wire (18 May 2015), available at
https://thewire.in/2005/the-spectre-of-aruna-shanbaug/
PART D
27
right to bodily integrity and workplace protection. A central issue is, according
to Kapur, the “politics of caring”, - who can care, has the capacity to care and
who is less caring or less capable of caring. The Supreme Court did not
accept Pinki Virani as the “next friend” but awarded guardianship to KEM
hospital staff on the ground that they had “an emotional bonding and
attachment” to Aruna Shanbaug and were her “real family.” Kapur observes
that an emotional bond is not a valid criterion for a “next friend” and the
expression “real family” has dangerous implications for those who may not fall
within the normative remit of that phrase though they have a relationship with
the concerned person. She asks if the concept of “next friend” will cover only
“biological familial ties” and “render all other non-familial, non-marital, nonheterosexual
relationships as ineligible?” She argues that decisions about life
and death should “rest on the anvil of dignity, and dignity is not a family value,
or linked to some essential gendered trait. It is a societal value and hence
needs to be delinked from the traditional frameworks of family and gender
stereotypes.” Kapur expresses concerns about how the focus on “care”
seemed to obscure a deeper and more important consideration regarding
women’s safety in the workplace. The attack on Aruna Shanbaug in KEM
hospital was indicative of how the workplace was unsafe for women, and yet
the staff of the same hospital were given her guardianship. This is especially
concerning given the fact that the dean of the hospital at the time refused to
allow a complaint of sodomy to go forward as he was more concerned about
the reputation of the institution. Kapur laments the fact that Aruna’s case was
PART D
28
not used to bring out the reform that it should have - stating that it should
‘have been a leading case on women’s rights where “caring” extended beyond
the physical support for the individual who was harmed, to taking active steps
to improve the working conditions for women, including addressing pervasive
and systemic sex discrimination and sexism.’ Lastly, Kapur compels us to
think about the choices Aruna Shanbaug may have made - “Had Shanbaug
not been reduced to a PVS, would she have chosen to remain in KEM for her
treatment after the violent and brutal sexual assault that she experienced in
her work place? Or would she have chosen to be treated elsewhere? Would
she have sued the hospital for failing to provide her a safe working
environment?” Thus, Kapur questions the very basis of making the hospital
the guardians by questioning why the hospital did not “care” when it mattered
the most - when the case of sexual assault and sodomy should have been
pursued by the hospital on behalf of its employee. By denying Aruna
Shanbaug the right to bodily integrity in life and the right to self-determination
in death, and by viewing her life from all lenses but from her own, ranging from
the “carers”, to the medical and legal profession and their views on
euthanasia, she “became nothing more than a spectre in her own story.”
30 Aruna Shanbaug also presents another problem- one of inconsistency.
Gian Kaur is construed as laying down only that the right to life does not
include the right to die and that the decision in Rathinam was incorrect. In that
context, it has been noticed that the Constitution Bench observed that the
PART D
29
debate overseas even in physician assisted termination of life is inconclusive.
Aruna Shanbaug finds, on the one hand, that “no final view was expressed”
in Gian Kaur beyond stating that the right to life does not include the right to
die. Yet, on the other hand, having inferred the absence of a final view on
euthanasia in Gian Kaur, that decision is subsequently construed as having
allowed the termination of life by a premature extinction in the case of a “dying
person who is terminally ill or in a permanent vegetative state”. Both lines of
reasoning cannot survive together.
31 The procedure which was followed by this Court in Aruna Shanbaug of
arranging for a screening of a CD submitted by the team of doctors pertaining
to her examination in a live court proceeding open to the public has been
criticised as being fundamentally violative of privacy. What transpired in the
court is set out in the following observations from the decision:
“11. On 2-3-2011, the matter was listed again before us and we
first saw the screening of the CD submitted by the team of
doctors along with their report. We had arranged for the
screening of the CD in the courtroom, so that all present in the
Court could see the condition of Aruna Shanbaug. For doing so,
we have relied on the precedent of the Nuremburg trials in which
a screening was done in the courtroom of some of the Nazi
atrocities during the Second World War.” (Id at page 476)
This aspect of the case is indeed disquieting. To equate a patient in PVS for
thirty-seven years following a sexual assault, with the trials of Nazi war
criminals is seriously disturbing.
PART D
30
32 Aruna Shanbaug rests on the distinction between an act and an
omission. The court seems to accept that the withdrawal of life support or a
decision not to provide artificial support to prolong life is an omission. In the
view of the court, an omission is what is “not done”. On the other hand, what is
actively done to end life is held to stand on a separate foundation. At this
stage, it would be necessary to note that the validity of the distinction between
what is passive and what is active has been the subject of a considerable
degree of debate. This would be dealt with in a subsequent part of this
judgment.
33 The issue before the Constitution Bench in Gian Kaur related to the
constitutionality of Section 306 of the Penal Code which penalises the
abetment of suicide. The challenge proceeded on the foundation that
penalising an attempt to commit suicide had been held to be unconstitutional
since the right to live included the right to die. The Constitution Bench
emphasised the value ascribed to the sanctity of life and came to the
conclusion that the right to die does not emanate from the right to life under
Article 21. Having held that the right to die is “inherently inconsistent” with the
right to life “as is death with life”, the Constitution Bench opined that the
debate on euthanasia was “of no assistance to determine the scope of Article
21” and to decide whether the right to life includes the right to die. The court
noted that the right to life embodies the right to live with human dignity which
postulates the existence of such a right “up to the end of natural life”. This, the
PART D
31
court observed included the right to lead a dignified life up to the point of death
and included a dignified procedure of death. Thus, in the context of the debate
on euthanasia, the Constitution Bench was careful in observing that the right
to a dignified life “may include” the right of an individual to die with dignity. A
premature termination of life of a person facing imminent death in a terminal
illness or in a permanent vegetative state was in the view of the court a
situation which “may fall” within the ambit of the right to die with dignity. The
debate on physician assisted termination of life was noted to be
“inconclusive”. The court observed that the argument to support the
termination of life in such cases to reduce the period of suffering during the
process of “certain natural death” was not available to interpret Article 21 as
embodying the right to curtail the natural span of life. These observations in
Gian Kaur would indicate that the Constitution Bench has not made a final or
conclusive determination on euthanasia. Indeed, the scope of the controversy
before the court did not directly involve that question. Aruna Shanbaug
evidently proceeds on a construction of the decision in Gian Kaur which does
not emerge from it. Aruna Shanbaug has inherent internal inconsistencies.
Hence, the controversy which has been referred to the Constitution Bench
would have to be resolved without regarding Aruna Shanbaug as having laid
down an authoritative principle of constitutional law.
PART E
32
E The distinction between the legality of active and passive euthanasia
34 In examining the legality of euthanasia, clarification of terminology is
essential. The discourse on euthanasia is rendered complex by the problems
of shifting and uncertain descriptions of key concepts. Central to the debate
are notions such as “involuntary”, “non-voluntary” and “voluntary”. Also
“active” and “passive” are used, particularly in combination with “voluntary”
euthanasia. In general, the following might be said: ·
• involuntary euthanasia refers to the termination of life against the will of
the person killed;
• non-voluntary euthanasia refers to the termination of life without the
consent or opposition of the person killed; ·
• voluntary euthanasia refers to the termination of life at the request of
the person killed; ·
• active euthanasia refers to a positive contribution to the acceleration of
death;
• passive euthanasia refers to the omission of steps which might
otherwise sustain life.
What is relatively straightforward is that involuntary euthanasia is illegal and
amounts to murder. However, the boundaries between active and passive
euthanasia are blurred since it is quite possible to argue that an omission
amounts to a positive act.
PART E
33
35 The expression ‘passive’ has been used to denote the withdrawal or
withholding of medical treatment. Implicit in this definition is the assumption
that both the withdrawal of or withholding treatment stand on the same ethical
or moral platform. This assumption, as we shall see in a later part of this
section, is not free of logical difficulty. The voluntary or non-voluntary
character of the euthanasia is determined by the presence or absence of
consent. Consent postulates that the individual is in a mental condition which
enables her to choose and to decide on a course of action and convey this
decision. Its voluntary nature is premised on its consensual character.
Euthanasia becomes non-voluntary where the individual has lost those
faculties of mind which enable her to freely decide on the course of action or
lost the ability to communicate the chosen course of action.
36 The distinctions between active and passive euthanasia are based on
the manner in which death is brought about. They closely relate (in the words
of Hazel Biggs in a seminal work on the subject) to the understanding and
consequences of the legal concepts of act and omission.21
37 As early as 1975, American philosopher and medical ethicist James
Rachels offered a radical critique of a distinction that was widely accepted by
medical ethicists at that time, that passive euthanasia or “letting die” was
21 Hazel Biggs, “Euthanasia, Death with Dignity and the Law”, Hart Publishing (2001), at page 12
PART E
34
morally acceptable while active euthanasia or “killing” was not.22 Even though
his paper did not change the prevalence of this distinction at the time it was
published, it paved the way by providing credibility for arguments to legalise
assisted suicide in the 1990s. In what he calls the ‘Equivalence Thesis’,
Rachels states “there is no morally important difference between killing and
letting die; if one is permissible (or objectionable), then so is the other and to
the same degree.”23 He does not offer a view on whether the practice of
euthanasia is acceptable or not. His central thesis is that both active and
passive euthanasia are morally equivalent- either both are acceptable or both
are not. Reichenbach for instance, asks: Supposing all else is equal, can a
moral judgment about euthanasia be made on the basis of it being active or
passive alone?24
. The ‘Equivalence thesis’ postulates that if a doctor lets a
patient die (commonly understood as passive euthanasia) for humane
reasons, he is in the same moral position as if he decided to kill the patient by
giving a lethal injection (commonly understood as active euthanasia) for
humane reasons.
38 The correctness of this precept may be questioned by pointing out that
there is a qualitative difference between a positive medical intervention (such
as a lethal injection) which terminates life and a decision to not put a patient
on artificial life support, which will not artificially prolong life. The former brings
22 James Rachels, “Active and Passive Euthanasia”, New England Journal of Medicine (January 9, 1975), at
page 78-80
23 James Rachels, End of Life: Euthanasia and Morality (Oxford University Press, 1986)
24 Bruce R. Reichenbach, “Euthanasia and the Active-Passive Distinction”, Bioethics (January 1987), Volume 1,
at pages 51–73
PART E
35
a premature extinction of life. The latter does not delay the end of life beyond
its natural end point. But, if the decision to proceed with euthanasia is the right
one based on compassion and the humanitarian impulse to reduce pain and
suffering, then the method used is not in itself important. Moreover, it is
argued that passive euthanasia often involves more suffering since simply
withholding treatment means that the patient may take longer to die and thus
suffer more. Passive euthanasia may become questionable where the
withholding or withdrawal of medical intervention may lead to a condition of
pain and suffering, often a lingering and cruel death. The avoidance of
suffering, which is the object and purpose of euthanasia, may hence not be
the result of passive euthanasia and the converse may result. Besides raising
troubling moral questions – especially where it is non-voluntary, it questions
the efficacy of passive euthanasia. Moreover, it raises a troubling issue of the
validity of the active-passive divide.
39 The moral and legal validity of the active-passive distinction based on
the exculpation of omissions has been criticised. One of the reasons for the
exculpation of omissions is based on the idea that our duty not to harm people
is generally stricter than our duty to help them.25 James Rachels offers a
compelling counter-argument to the argument that killing someone is a
violation of our duty not to do harm, whereas letting someone die is merely a
failure to help. He argues that our duty to help people is less stringent than the
25 James Rachels (Supra note 23), at pages 101-120
PART E
36
duty not to harm them only in cases where it would be very difficult to help
them or require a great amount of effort or sacrifice. However, when we think
of cases where it would be relatively simple to help someone and there would
be no great personal sacrifice required, the morally justifiable response would
be different. He provides a hypothetical example of a child drowning in a
bathtub, anyone standing next to the tub would have a strict moral duty to help
the child.26 Due to the equation between the child and the person standing
next to the bathtub (the proximity may be in terms of spatial distance or
relationship) the “alleged asymmetry” between the duty to help and the duty
not to do harm vanishes. A person standing next to bathtub would have no
defence to say that this was merely a failure to help and did not violate the
duty to do no harm. In cases of euthanasia since the patient is close at hand
and it is within the professional skills of the medical practitioner to keep him
alive, the alleged asymmetry has little relevance. The distinction is rendered
irrelevant even in light of the duty of care that doctors owe to their patients.
Against the background of the duty to care, the moral and legal status of not
saving a life due to failure to provide treatment, can be the same as actively
taking that life.27 A doctor who knowingly allows a patient who could be saved
to bleed to death might be accused of murder and medical negligence. The
nature of the doctor-patient relationship which is founded on the doctor’s duty
of care towards the patient necessitates that omissions on the doctor’s part
will also be penalised. When doctors take off life support, they can foresee
26 Ibid
27 Len Doyal and Lesley Doyal, “Why Active Euthanasia and Physician Assisted Suicide Should Be Legalised If
Death Is in a Patient’s Best Interest Then Death Constitutes a Moral Good”, British Medical Journal (2001), at
pages 1079–1080.
PART E
37
that death will be the outcome even though the timing of the death cannot be
determined. Thus, what must be deemed to be morally and legally important
must not be the emotionally appealing distinction between omission and
commission but the justifiability or otherwise of the clinical outcome. Indeed,
the distinction between omission and commission may be of little value in
some healthcare settings.28
40 This distinction leads to the result that even though euthanasia is
grounded in compassion and to relieve the patient of suffering, only certain
types of deaths can be lawful. If active euthanasia amounts to “killing”, the
operation of criminal law can lead to medical practitioners being exposed to
the indignity of criminal prosecutions and punishments.29 While passive
euthanasia can appear to save the dignity of medical practitioners, it is
perhaps at the expense of the patient’s dignity.30
41 A recent article by Rohini Shukla in the Indian Journal of Medical Ethics
(2016) points out two major flaws in Aruna Shanbaug regarding the
distinction between active and passive euthanasia.31 First, it fails to prioritise
the interest of the patient and is preoccupied with the effect of euthanasia on
everyone but the patient, and second, that it does not distinguish between the
terms “withholding and withdrawing and uses them interchangeably.”
28 Ibid
29 Hazel Biggs (Supra note 21), at Page 162
30 Ibid
31 Rohini Shukla, “Passive Euthanasia in India: a critique”, Indian Journal of Medical Ethics (Jan-Mar 2016), at
pages 35-38
PART E
38
Throughout the above judgment, the words “withholding” and “withdrawing”
are used interchangeably. However, the difference between the two is
relevant to the distinction between what is ‘active’ and ‘passive’ as act and
omission. Withholding life support implies that crucial medical intervention is
restrained or is not provided – an act of omission on the part of the doctor.
Withdrawing life support implies suspending medical intervention that was
already in use to sustain the patient’s life- an act of commission. If the basis of
distinction between active and passive euthanasia is that in passive
euthanasia the doctor only passively commits acts of omission, while in active
euthanasia the doctor commits acts of commission then withdrawing medical
treatment is an act of commission and therefore amounts to active euthanasia.
In both these cases, the doctor is aware that his/her commissions or
omissions will in all likelihood lead to the patient’s death. However, in passive
euthanasia death may not be the only consequence and the suffering that
passive euthanasia often entails such as suffocation to death or starvation till
death, raises the question of whether passive euthanasia, in such
circumstances, militates against the idea of death with dignity – the very basis
of legalising euthanasia.32 Shukla’s criticism needs careful attention since it
raises profound questions about the doctor-patient relationship and the
efficacy of the distinction in the context of death with dignity. If the divide
between active-passive is questioned, should both forms be disallowed or, in
32 Ibid
PART E
39
converse should both be allowed? More significantly, are both equally
amenable to judicially manageable standards?
Even with Aruna Shanbaug’s starting position that passive euthanasia is
permitted under Indian law until expressly prohibited, the Court did not
traverse the vast Indian legal framework to determine whether there was a
prohibition to this effect. Instead the court made an analogy (perhaps
incorrect) between a doctor conducting passive euthanasia and a person who
watches a building burning:
“An important idea behind this distinction is that in passive
euthanasia, the doctors are not actively killing anyone; they
are simply not saving him. While we usually applaud
someone who saves another person’s life, we do not normally
condemn someone for failing to do so. If one rushes into a
burning building and carries someone out to safety, he will
probably be called a hero. But, if someone sees a burning
building and people screaming for help, and he stands on the
sidelines – whether out of fear for his own safety, or the belief
that an inexperienced and ill-equipped person like himself
would only get in the way of the professional firefighters, or
whatever – if one does nothing, few would judge him for his
action. One would surely not be prosecuted for homicide
(Atleast, not unless one started the fire in the first place)…[T]
here can be no debate about passive euthanasia: You cannot
persecute someone for failing to save a life. Even if you think
it would be good for people to do X, you cannot make it illegal
for people to not do X, or everyone in the country who did not
do X today would have to be arrested.”
The example is inapposite because it begs the relationship between the
person who is in distress and the individual whose position as a caregiver
(actual or prospective) is being considered. The above example may suggest
a distinct outcome if the by-stander who is ill equipped to enter a burning
PART E
40
building is substituted by a fire-fighter on duty. Where there is a duty to care,
the distinction between an act and an omission may have questionable
relevance. Acts and omissions are not disjunctive or isolated events.
Treatment of the human body involves a continuous association between the
caregiver and receiver. The expert caregiver is involved in a continuous
process where medical knowledge and the condition of the patient as well as
the circumstances require the doctor to evaluate choices - choices on the
nature and extent of medical intervention, the wisdom about a course of action
and about what should or should not be done.
42 An erroneous premise in the judgment is that omissions are not illegal
under Indian law.33 Section 32 of the Indian Penal Code deals with illegal
omissions and states that “In every part of this Code, except where a contrary
intention appears from the context, words which refer to acts done, extend to
illegal omissions.” Whether and to what extent this omission would be illegal
under Indian law will be discussed in a subsequent part of the judgment.
43 Since the judgment legalised passive euthanasia, withdrawing medical
support was the only option in the case of Aruna Shanbaug and if this had
been done, she would have in all likelihood suffocated to death. We must
ponder over whether this could be the best possible death in consonance with
the right to live with dignity (which extends to dignity when death approaches)
33 Aparna Chandra and Mrinal Satish, “Misadventures of the Supreme Court in Aruna Shanbaug v Union of India”,
Law and other Things (Mar 13, 2011), available at http://lawandotherthings.com/2011/03/misadventures-ofsupreme-court-in-aruna/
PART E
41
and the extent to which it upholds the principle of prioritising the patient’s
autonomy and dignity over mere prolongation of life. Had the Court taken into
account these consequences of passive euthanasia for the patient, it would be
apparent that passive euthanasia is not a simple panacea for an individual
faced with end of life suffering.
This brings us to the second and more crucial flaw, which was the unjustified
emphasis on doctor’s agency in administering different types of euthanasia
which led to ignoring the patient’s autonomy and suffering. Respecting patient
autonomy and reducing suffering are fundamental ethical values ascribed to
euthanasia. It is also the foremost principle of bioethics.34 The effects of
euthanasia on everyone (particularly her caregivers) were given greater
importance than the patient’s own wishes and caregiver:
“In case hydration or food is withdrawn/withheld from Aruna
Ramchandra Shanbaug, the efforts which have been put in
by batches after batches of nurses of KEM Hospital for the
last 37 years will be undermined. Besides causing a deep
sense of resentment in the nursing staff as well as other wellwishers
of Aruna Ramchandra Shanbaug in KEM Hospital
including the management, such act/omissions will lead to
disheartenment in them and large-scale disillusionment.”
44 Aruna Shanbaug was in no position to communicate her wishes. But
the above extract from the judgment relegates her caregiver to the
background. The manner in which the constitutional dialogue is framed by the
court elevates the concerns of the caregiver on a high pedestal without
34 Roop Gurusahani and Raj Kumar Mani, “India: Not a country to die in”, Indian Journal of Medical Ethics (JanMar
2016), at pages 30-35.
PART E
42
focusing on the dignity and personhood of the individual in a permanent
vegetative state. In doing so, the judgment subordinates the primary concern
of bio-ethics and constitutional law, which is preserving the dignity of human
life.
45 An article35 in the Oxford Medical Law Review notes that there are
strong grounds to believe that the active-passive distinction in Aruna
Shanbaug was not grounded so much in morality as in ‘reasons of policy’.
Even while there are pertinent questions regarding the moral validity of the
active-passive distinction, there appears to be a significant difference between
active and passive euthanasia when viewed from the lens of the patient’s
consent. Consent gives an individual the ability to choose whether or not to
accept the treatment that is offered. But consent does not confer on a patient
the right to demand that a particular form of treatment be administered, even
in the quest for death with dignity.36 Voluntary passive euthanasia, where
death results from selective non-treatment because consent is withheld, is
therefore legally permissible while voluntary active euthanasia is prohibited.
Moreover, passive euthanasia is conceived with a purpose of not prolonging
the life of the patient by artificial medical intervention. Both in the case of a
withdrawal of artificial support as well as in non-intervention, passive
euthanasia allows for life to ebb away and to end in the natural course. In
35 Sushila Rao (Supra note 16), at pages 646-656
36 Hazel Biggs (Supra note 21), at page 30
PART F
43
contrast, active euthanasia results in the consequence of shortening life by a
positive act of medical intervention. It is perhaps this distinction which
necessitates legislative authorisation for active euthanasia, as differentiated
from the passive.
46 The question of legality of these two forms of euthanasia has significant
consequences. Death when it is according to the wishes and in the caregiver
of the patient must be viewed as a moral good. The fact that active euthanasia
is an illegal act (absent legislative authorisation) also prevents many
professional and emotional carers from performing it even if they perceive it as
a compassionate and otherwise appropriate response in line with the patient’s
wishes and caregiver, thereby prolonging the patient’s suffering and indignity.
These complex issues cannot be addressed when active euthanasia is not
legalised and regulated. The meeting point between bio-ethics and law does
not lie on a straight course.
F Sanctity of Life
47 Diverse thinkers have debated and deliberated upon the value accorded
to human life.37 The “sanctity of life” principle has historically been the single
most basic and normative concept in ethics and the law.38 The phrase has
37
Elizabeth Wicks (Supra note 5), at page 29
38
Anne J. Davis, “Dilemmas in Practice: To Make Live or Let Die”, The American Journal of Nursing (March
1981), Vol. 81, No. 3, at page 582
PART F
44
emerged as a key principle in contemporary bioethics, especially in debates
about end-of-life issues.39
48 The traditional and standard view is that life is invaluable.40 It has
persisted as an idea in various cultures through the centuries. A sacred value
has been prioritized for human life. This “rhetoric of the value in human life”41
has been highlighted in various traditions.42 The protection of the right to life
derives from “the idea that all human life is of equal value” the idea being
drawn from religion, philosophy and science.43
49 The principle or doctrine of the “sanctity of life”, sometimes also referred
to as the “inviolability of human life”44, is based on “overarching moral
considerations”, the first of which has been stated as:
“Human life is sacred, that is inviolable, so one should never
aim to cause an innocent person’s death by act or
omission”.
45
50 Distinct from religious beliefs, the special value inherent in human life
has been recognised in secular ideas of natural law “man as an end in
39
Heike Baranzke, ““Sanctity-of-Life”—A Bioethical Principle for a Right to Life?”, Ethic Theory Moral Practice
(2012), Vol. 15, Issue 3, at page 295
40
Elizabeth Wicks (Supra note 5), at page 1
41
Ibid, at page 240
42
PG Lauren argues that it is “essential to recognise that the moral worth of each person is a belief that no
single civilization, or people, or nation, or geographical area, or even century can claim as uniquely its own”
See P.G. Lauren, The Evolution of International Human Rights: Visions Seen (University of Pennsylvania
Press, 2003, 2nd edn.), at page 12.), as quoted in Elizabeth Wicks (Supra note 5), at pages 25-29
43
Elizabeth Wicks (Supra note 5), at page 47
44 John Keown, The Law and Ethics of Medicine: Essays on the Inviolability of Human Life (Oxford University
Press, 2012), at page 3
45
Ibid
PART F
45
himself, and human investment in life”.46 Locke has been of the view that
every human being “is bound to preserve himself, and not to quit his station
wilfully”.47 In his book “Life’s Dominion”, Ronald Dworkin explains the sanctity
of human life thus:
“The hallmark of the sacred as distinct from the incrementally
valuable is that the sacred is intrinsically valuable because—
and therefore only once—it exists. It is inviolable because of
what it represents or embodies. It is not important that there
be more people. But once a human life has begun, it is very
important that it flourish and not be wasted.”
48
Life today, according to Dworkin, is not just created by the science of evolution
but by past choices—by the investment that an individual, and others, have
put into his or her life.49
51 Elizabeth Wicks in her book titled “The Right to Life and Conflicting
Interests” (2010) has succinctly summarized the moral and ethical
justifications for the sanctity of life thus:
“The life of an individual human being matters morally not
because that organism is sentient or rational (or free of pain,
or values its own existence) but because it is a human life.
This point is supported by the ethical and legal principle of
equality which is well established in the field of human
rights… From an end of life perspective, this means that life
ends only when the human organism dies. This cannot
sensibly require the death of all of the body’s cells but rather
the death of the organism as a whole. In other words, life
comes to an end when the integrative action between the
46 Elizabeth Wicks (Supra note 5), at pages 34-35
47 John Locke, Two Treatises of Government (ed. P. Laslett) (Cambridge University Press, 1988)
48 Ronald Dworkin, Life’s Dominion: An Argument about Abortion and Euthanasia (Harper Collins, 1993), at
pages 73-74
49 Elizabeth Wicks (Supra note 5), at page 32
PART F
46
organs of the body is irreversibly lost. It is the life of the
organism which matters, not its living component parts, and
thus it is the permanent destruction of that integrative
organism which signifies the end of the organism’s life.”50
52 The value of human life has been emphasized by Finnis in the following
words:
“[H]uman bodily life is the life of a person and has the dignity
of the person. Every human being is equal precisely in having
that human life which is also humanity and personhood, and
thus that dignity and intrinsic value. Human bodily life is not
mere habitation, platform, or instrument for the human person
or spirit. It is therefore not a merely instrumental good, but is
an intrinsic and basic human good. Human life is indeed the
concrete reality of the human person. In sustaining human
bodily life, in however impaired a condition, one is sustaining
the person whose life it is. In refusing to choose to violate it,
one respects the person in the most fundamental and
indispensable way. In the life of the person in an irreversible
coma or irreversibly persistent vegetative state, the good of
human life is really but very inadequately instantiated.
Respect for persons and the goods intrinsic to their wellbeing
requires that one make no choice to violate that good by
terminating their life.”51
53 In his book “The Law and Ethics of Medicine: Essays on the Inviolability
of Human Life” (2012), John Keown has explained the principle of the sanctity
or inviolability of human life and its continuing relevance to English law
governing aspects of medical practice at the beginning and end of life. Keown
has distinguished the principle from the other two “main competing
approaches to the valuation of human life”52“vitalism” on the one hand and a
“qualitative” evaluation of human life on the other. The approach of “vitalism”
50 Ibid, at pages 16-17
51 John Finnis, Human Rights and Common Good (Oxford University Press, 2011), at page 221
52 John Keown (Supra note 44), at page 4
PART F
47
assumes that “human life is the supreme good and one should do everything
possible to preserve it”. The core principle of this approach is “try to maintain
the life of each patient at all costs”.53
54 In the “quality of life” approach, Keown has argued that “there is nothing
supremely or even inherently valuable about the life of a human being”. The
value of human life “resides in meeting a particular “quality” threshold”, above
which the dignity of life would be “worthwhile”. Keown criticizes this approach
for its basis that since “certain lives are not worth living, it is right intentionally
to terminate them, whether by act or omission”.54
55 Keown sums up that the doctrine of the sanctity or inviolability of life
holds that “we all share, by virtue of our common humanity, an ineliminable
dignity” this dignity grounds the “right to life”.55 The essence of the principle
is that “it is wrong to try to extinguish life”.56 Intentional killing is prohibited by
any act or omission. Keown thereby emphasises the sanctity and inviolability
of life in the following words:
“Human life is a basic, intrinsic good… The dignity of human
beings inheres because of the radical capacities, such as for
understanding, rational choice, and free will, inherent in
human nature… All human beings possess the capacities
inherent in their nature even though, because of infancy,
disability, or senility, they may not yet, not now, or no longer
53
Ibid
54 Ibid, at page 5
55 Ibid, at page 6
56 Ibid, at page 6
PART F
48
have the ability to exercise them. The right not to be killed is
enjoyed regardless of inability or disability. Our dignity does
not depend on our having a particular intellectual ability or
having it to a particular degree...”57
56 The principle of the sanctity of life considers autonomy as a “valuable
capacity, and part of human dignity”58. However, autonomy’s contribution to
dignity is “conditional, not absolute”59. The limitations of autonomy under the
sanctity of life doctrine can be summarized as follows:
“Exercising one’s autonomy to destroy one’s (or another’s) life
is always wrong because it is always disrespectful of human
dignity. So: it is always wrong intentionally to
assist/encourage a patient to commit suicide and, equally,
there is no “right to commit suicide,” let alone a right to be
assisted to commit suicide, either by act or omission… The
principle of “respect for autonomy” has in recent years
become for many a core if not dominant principle of
biomedical ethics and law. It is not, however, unproblematic.
Its advocates often fail to agree on precisely what constitutes
an “autonomous” choice or to offer any convincing account of
why respect for someone else’s choice as such should be
regarded as a moral principle at all, let alone a core or
dominant moral principle.”60
John Keown, however, while distinguishing the principle of sanctity of life from
vitalism, has also argued that though this principle “prohibits withholding or
withdrawing treatment with intent to shorten life”, but it also “permits
withholding/withdrawing a life-prolonging treatment which is not worthwhile
because it is futile or too burdensome”. It does not require doctors to try to
57 Ibid, at pages 5-6
58 Ibid, at page 18
59 Ibid
60 Ibid
PART F
49
preserve life at all costs.61 This consideration, despite all the assumptions and
discussions about the sanctity of life, in a way, makes the doctrine an openended
phenomenon.
57 This open-endedness is bound to lead to conflicts and confusions. For
instance, the issue of the sacred value of life is potentially a conflicting interest
between a right to life and autonomy, which Wicks explains as follows:
“If we accept that human life has some inherent value, is it
solely to the individual who is enjoying that life or is there
some broader state or societal benefit in that life? If life is of
value only to the person living it, then this may elevate the
importance of individual autonomy. It may even suggest that it
is an individual’s desire for respect for his or her own life that
provides the inherent value in that life. On the other hand, it
might be argued that the protection of human life is, at least
partly, a matter of public interest. Whether it is to the state, or
other members of society, or only an individual’s own family
and friends, there is an argument that a human life is a thing
of value to others beyond the individual living that life… [I]f life
is legally and ethically protected in deference to the
individual’s wish for respect for that life, the protection would
logically cease when an autonomous choice is made to bring
the life to an end. If, however, the life is protected, at least
partly, due to the legitimate interest in that life enjoyed by the
state or other (perhaps select) members of society, then the
individual’s autonomous choice to end his or her life is not
necessarily the decisive factor in determining whether legal
and ethical protection for that life should continue.”62
58 The disagreement between “sanctity of life” and the “quality of life” is
another conflict, which can be summarized as follows:
61 Ibid, at page 13
62 Elizabeth Wicks (Supra note 5), at p 176-177
PART G
50
“If we start with a sanctity of life position, this affirms the value
of human life in a way that trumps even claims to selfdetermination…
[P]eople who suffer from terminal or
degenerative illness… who want to die must remain alive in
great pain or discomfort until death comes ‘naturally’ to them.
Similarly, people who suffer from long-term disability or
paralysis which grossly diminishes their capacities for life and
who cannot take their own lives, are not permitted to die. In
such circumstances, the argument for sanctity of life may
seem somewhat sanctimonious to the person who is not
allowed the assistance to end their own life. There have been
cases in the media in recent years where the moral difficulty
in insisting on the sanctity of life in such situations has been
made clear. Though such cases will not disturb the position of
she who believes fundamentally in the sanctity of life, they do
lead others to accept that there may be exceptional cases
where sanctity gives way to quality of life issues.”63
Therefore, intractable questions about morality and ethics arise. What is the
core of life that might be protected by law? Will a poor quality of life (in the
shadow of the imminence of death) impact upon the value of that life to such
an extent that it reduces the protection for that life offered by the sanctity of life
doctrine? Are there limits to the principle of sanctity? This needs to be
reflected upon in the next part of the judgment.
G Nuances of the sanctity of life principle
59 The sanctity of life has been central to the moral and ethical foundations
of society for many centuries. Yet, it has been suggested that “across the
range of opinions most people would seem to agree that life is valuable to
some degree, but the extent to which any ‘value’ is founded in intrinsic worth
63
Alan Norrie (Supra note 4), at pages 141-142
PART G
51
or instrumental opportunity is contentious”.64 Glanville Williams, a strong
proponent of voluntary euthanasia, was of the view that “there was a human
freedom to end one's life”. According to him, “the law could not forbid conduct
that, albeit undesirable, did not adversely affect the social order”.65 That view,
as argued by Luis Kutner in his article “Euthanasia: Due Process for Death
with Dignity; The Living Will”
66, was similar to that advanced by John Stuart
Mill. Mill, in his classic work “On Liberty” stated:
“Mankind are great gainers by suffering each other to live as
seems good to themselves, than by compelling each to live
as seems good to the rest.”67
Are there limits to or nuances of the sanctity principle? This must be
discussed for a fuller understanding of the debate around euthanasia.
60 Though the sanctity principle prohibits “the deliberate destruction of human
life, it does not demand that life should always be prolonged for as long
as possible”.68 While providing for an intrinsic sacred value to life “irrespective
of the person’s capacity to enjoy life and notwithstanding that a person may
feel their life to be a great burden”, the principle holds that “life should not
always be maintained at any and all cost”.69 Ethical proponents of the sanctity
of life tend to agree that when “medical treatment, such as ventilation and
64
Alexandra Mullock, End-Of-Life Law And Assisted Dying In The 21st Century: Time For Cautious Revolution?
(PhD Thesis, University of Manchester, 2011), at page 24
65 Luis Kutner, “Euthanasia: Due Process for Death with Dignity; The Living Will”, Indiana Law Journal (Winter
1979), Vol. 54, Issue, 2, at page 225
66
Ibid, at pages 201-228
67
Ibid, at pages 225-226
68
Sushila Rao, “The Moral Basis for a Right to Die”, Economic & Political Weekly (April 30, 2011), at page 14
69 Alexandra Mullock, End-Of-Life Law And Assisted Dying In The 21st Century: Time For Cautious Revolution?
(PhD Thesis, University of Manchester, 2011), at page 25
PART G
52
probably also antibiotics, can do nothing to restore those in permanent
vegetative state to a state of health and well-functioning, it is futile and need
not be provided”.70 Rao has thus suggested that “the law’s recognition that
withdrawal of life-prolonging treatment is sometimes legitimate” is not
generally an exception to the sanctity principle, but is actually “an embodiment
of it”.71
61 Philosopher and medical ethicist James Rachels has in a seminal
work72 titled “The End of Life: Euthanasia and Morality (Studies in Bioethics)”
in the year 1986 propounded that we must embrace an idea of the sanctity of
life which is firmly based in ethics (the idea of right and wrong) and not based
in religion. The separation of religion from morality and ethics does not
necessarily mean a rejection of religion, but that the doctrine of “sanctity of
life” must be accepted or rejected on its merits, by religious and non-religious
people alike. The value of life is not the value that it has for God or the value
that it may have from any religious perspective. The truth of moral judgments
and exercising reason to decide what is right and wrong does not depend on
the truth of theological claims. The value of life is the value that it has for the
human beings who are subjects of lives. Thus, the value of life must be
understood from the perspective of the person who will be harmed by the loss,
the subject of life. It is also important to understand the true meaning behind
70 John Keown, “The Legal Revolution: From "Sanctity of Life" to "Quality of Life" and "Autonomy", Journal of
Contemporary Health Law & Policy (1998), Vol. 14, Issue 2, at page 281
71
Sushila Rao (Supra note 68), at page 14
72 James Rachels, (Supra note 23)
PART G
53
the moral rule against killing. The rationale behind such a law is to protect the
interests of individuals who are the subject of lives. If the point of the rule
against killing is the protection of lives, then we must acknowledge that in
some cases killing does not involve the destruction of “life” in the sense that
life is sought to be protected by law. For example, a person in an irreversible
coma or suffering a serious terminal illness is alive in a strictly biological sense
but is no longer able to live life in a way that may give meaning to this
biological existence. The rule against killing protects individuals that have lives
and not merely individuals who are alive. When an individual is alive only to
the extent of being conscious in the most rudimentary sense, the capacity to
experience pleasure and pain (if any) does not necessarily have value if that is
the only capacity one has. These sensations will not be endowed with any
significance by the one experiencing them since they do not arise from any
human activities or projects and they will not be connected with any coherent
view of the world.
62 It is instructive to analyse how the principle of the sanctity of life impacts
upon views in regard to capital punishment. (This comparison, it needs to be
clarified in the present judgment, is not to indicate an opinion on the
constitutionality of the death penalty which is not in issue here). Advocates of
the sanctity of life would even allow capital punishment73, implying that they do
not oppose all killing of human beings. This suggests that “while they are anti
73 Elizabeth Wicks (Supra note 5), at pages 102-149
PART G
54
euthanasia, they are not uniformly pro-life”74. In a seminal article titled “The
Song of Death: The Lyrics of Euthanasia”75, Margaret A. Somerville has laid
down “four possible positions that persons could take:
(i) that they are against capital punishment and against euthanasia;
(ii) that they agree with capital punishment, but are against euthanasia;
(iii) that they agree with capital punishment and euthanasia; or
(iv) that they are against capital punishment, but agree with euthanasia”.76
She explained the underlying philosophy that these positions represent and its
implications:
“The first is a true pro-life position, in that, it demonstrates a
moral belief that all killing (except, usually, as a last resort in
self-defence) is wrong. The second position represents the
view of some fundamentalists, namely, that to uphold the
sanctity of life value requires prohibition of euthanasia, but
capital punishment is justified on the grounds that this
punishment is deserved and just according to God's law. The
third position is that of some conservatives, who see capital
punishment as a fit penalty on the basis that one can forfeit
one's life through a very serious crime, but that one can also
consent to the taking of one's own life in the form of
euthanasia. The fourth view is that of some civil libertarians,
that one can consent to the taking of one's own life but cannot
take that of others. Through such analyses, one can see
where the various groups agree with each other and
disagree. For example, the true pro-life persons and the
fundamentalists agree with each other in being against
euthanasia, and some conservatives and civil libertarians
agree with each other in arguing for the availability of
euthanasia. On the other hand, the true pro-life and civil
libertarians join in their views in being against capital
punishment, whereas the fundamentalists and some
conservatives agree that this is acceptable.”77
74 Margaret A. Somerville, “The Song of Death: The Lyrics of Euthanasia”, Journal of Contemporary Health Law
& Policy (1993), Vol. 9, Issue 1, at page 67.
75 Ibid, at pages 1-76
76 Ibid, at page 67
77 Ibid, at pages 67-68
PART G
55
The above explanation suggests that there are variations in intellectual
opinion on the concept of sanctity of life. When it comes to taking of a
person’s life, various groups while agreeing in certain terms, may be “radically
divergent in others”.78
63 Contrary to the vitalism or the sanctity of life principle, some scholars
and bioethicists have argued that “life is only valuable when it has a certain
quality which enables the subject to derive enjoyment from their existence so
that life is viewed as being, on balance, more beneficial than burdensome”. It
has been argued that the sanctity of life principle should be interpreted to
protect lives in the biographical sense and not merely in a biological sense.79
There is a difference in the fact of being alive and the experience of living.
From the point of view of the living individual, there is no value in being alive
except that it enables one to have a life.80
64 There is wide-ranging academic research suggestive of a nuanced
approach to the sanctity principle. During the last four decades, “there has
been a subtle change in the way” people perceive human life and that “the
idea of quality of life has become more prevalent in recent times”.81
. The moral
78 Ibid
79 James Rachels (Supra note 23), at page 26
80 Ibid
81 Jessica Stern, Euthanasia and the Terminally Ill (2013), retrieved from Florida State University Libraries
PART G
56
premium, as Magnusson has remarked, is shifting “from longevity and onto
quality of life”82
.
In his article titled the “Sanctity of Life or Quality of Life?”
83, Singer argued that
the sanctity of life principle has been under erosion the “philosophical
foundations” of the principle being “knocked asunder”.84 “The first major blow”
to the principle, Singer stressed, “was the spreading acceptance of abortion
throughout the Western world”. Late abortions diluted the defence of the
“[alleged] universal sanctity of innocent human life”.85 Singer has further
remarked:
“Ironically, the sanctity with which we endow all human life
often works to the detriment of those unfortunate humans
whose lives hold no prospect except suffering…
One difference between humans and other animals that is
relevant irrespective of any defect is that humans have
families who can intelligently take part in decisions about their
offspring. This does not affect the intrinsic value of human life,
but it often should affect our treatment of humans who are
incapable of expressing their own wishes about their future.
Any such effect will not, however, always be in the direction of
prolonging life…
If we can put aside the obsolete and erroneous notion of the
sanctity of all human life, we may start to look at human life
as it really is: at the quality of life that each human being has
or can achieve. Then it will be possible to approach these
difficult questions of life and death with the ethical sensitivity
that each case demands, rather than with the blindness to
individual differences…”86
82
Roger S. Magnusson, “The Sanctity of Life and the Right to Die: Social and Jurisprudential Aspects of the
Euthanasia Debate in Australia and the United States”, Pacific Rim Law & Policy Journal, Vol. 6, No. I, at
page 40
83
Peter Singer, “Sanctity of Life or Quality of Life”, Pediatrics (1983), Vo. 72, Issue 1, at pages 128-129
84
Ibid, at page 129
85
Ibid, at page 128
86
Ibid, at page 129
PART G
57
65 The quality of life approach has its basis in the way life is being lived.
“An overriding concern”, under this approach, “is the conditions under which
people live rather than whether they live”.87 This does not mean that someone
“who chooses to end their life through euthanasia” does not value their lives
as much as others.88 Breck in his article titled “Euthanasia and the Quality of
Life Debate”89 has stated that:
“Ethicists of all moral and religious traditions recognize that
medical decisions today inevitably involve quality of life
considerations. Very few would be inclined to sustain limited
physiological functioning in clearly hopeless cases, as with
anencephaly or whole-brain death, simply because the
technology exists to do so. That such a case is indeed
hopeless, however, is a quality of life judgment: it weighs the
relationship between the patient's condition and the treatment
options and concludes that attempts to sustain biological
existence would be unnecessarily burdensome or simply
futile. Judgments made in light of "futility" or the "burdenbenefit
calculus" are necessarily based on evaluations of the
"quality" of the patient's life. Such quality, however, must
always be determined in light of the patient's own personal
interests and well-being, and not on grounds of the burden
imposed on other parties (the family, for example) or the
medical care system with its economic considerations and
limited resources.”90
Weingarten is of the view that the emphasis on the sanctity of life “should be
replaced by ‘value of life’, which exposes the individual case to critical
87 “Sanctity of life vs. quality of life”, Los Angeles Times (June 7, 2015), available at
http://www.latimes.com/opinion/readersreact/la-le-0607-sunday-assisted-suicide-20150607-story.html
88 Jessica Stern, Euthanasia and the Terminally Ill (2013), available at
https://fsu.digital.flvc.org/islandora/object/fsu:209909/datastream/PDF/view
89 John Breck, “Euthanasia and the Quality of Life Debate”, Christian Bioethics (1995), Vol. 1, No.3, at pages
322-337
90 Ibid, at pages 325-326
PART G
58
scrutiny. Medicine can better cope with its current and future ethical dilemmas
by a case-by-case approach.”
91
Norrie explains why quality of life should be placed ahead of sanctity of life in
the debate on euthanasia:
“[W]hile there are good moral reasons of either a direct (that
human life should be generally valued as of intrinsic worth) or
an indirect (that allowing exceptions would lead to a slippery
slope) kind for supporting a sanctity of life view in the case of
the terminally ill and ancillary cases, there are also good
moral reasons for allowing exceptions to it. The latter stem
from a quality of life view and, linked to that, the possibility of
choosing the time and place of one’s own death. The
possibility of agency as a central element in what it means to
be human is premised on the notion of human freedom, and
freedom implies a number of different elements. These
include a simple freedom to be left alone with one’s life, as
well as a positive freedom to become what we have it within
ourselves to be. Such freedom then entails further
conceptions of autonomy, emancipation, and flourishing,
insofar as human life reflects the potentialities in human
being. The ability to choose one’s own death reflects many of
these aspects of human freedom, from the simple sense that
one should be left alone to do what one likes with one’s life to
the more complex sense that an autonomous life would
include amongst its components control over one’s death,
and then on to the sense—that is surely there in the term
‘euthanasia’ (a ‘good death’)—that a flourishing life is one in
which one is genuinely able to register the time to go. These
are moral arguments placing choice and quality of life ahead
of sanctity of life… A good life means a good death too,
and it is this kind of argument that leads one to think that a
categorical prohibition on voluntary euthanasia…is
problematic.”92
91 Michael A Weingarten, “On the sanctity of life”, British Journal of General Practice (April 2007), Vol. 57(537), at
page 333
92
Alan Norrie (Supra note 4), at page 143
PART G
59
Life and natural death
66 The defenders of the sanctity principle place sacred value to human life
from “conception to natural death”.93 The word “natural” implies that “the only
acceptable death is one that occurs from natural causes”. Life is only “sacred
insofar as it ends by natural means”94. Medical advancements, however, have
brought uncertainty about the definition of death “what constitutes death, in
particular a “natural” death”. This uncertainty can be expressed through the
following questions:
“If a person stays alive thanks to medical advances, is that
really “natural”?...
When is the benefit of using technology and treatments to
sustain life no longer worth the pain that comes along with
it?”95
67 Medical advances have “complicated the question of when life ends”.
There exists no natural death where artificial technology is concerned.
Technology by artificial means can prolong life. In doing so, technology has reshaped
both human experience as well as our values about life in a natural
state and its end by natural causes:
“[T]he process of dying is an inevitable consequence of life,
the right to life necessarily implies the right to have nature
take its course and to die a natural death. It also
encompasses a right, unless the individual so wishes, not to
have life artificially maintained by the provision of
nourishment by abnormal artificial means which have no
93
Alecia Pasdera, The Rhetoric of the Physician-Assisted Suicide Movement: Choosing Death Over Life (2014),
available at https://ou.monmouthcollege.edu/_resources/pdf/academics/mjur/2014/Rhetoric-of-the-PhysicianAssisted-Suicide-Movement-Choosing-Death-Over-Life.pdf,
at page 68
94
Ibid, at page 69
95
Ibid, at page 68
PART G
60
curative effect and which are intended merely to prolong
life.”96
68 Modern medicine has found ways to prolong life and to delay death.
But, it does not imply that modern medicine “necessarily prolongs our living a
full and robust life because in some cases it serves only to prolong mere
biological existence during the act of dying”. This may, in certain situations
result in a mere “prolongation of a heart-beat that activates the husk of a
mindless, degenerating body that sustains an unknowing and pitiable life-one
without vitality, health or any opportunity for normal existence-an inevitable
stage in the process of dying”.97 Prolonging life in a vegetative state by
artificial means or allowing pain and suffering in a terminal state would lead to
questioning the belief that any kind of life is so sanctified as to be preferred
absolutely over death”.98
69 Kuhse and Hughes have stated that “the really critical issues in
medicine are often hidden” by “the hulking darkness” of the sanctity principle.
According to them:
“Today the advances of science are occurring every minute.
Lasers are used to crush kidney stones; mechanical hearts
are transplanted to prolong life; and organ transplants are
being increasingly used, particularly livers and eyes and, now
experimentally, legs. Microprocessor ventilators are used to
maintain breathing in patients unable to breathe on their own;
chemotherapy/radiology is being used to prolong the lives of
cancer patients; long-term hemodialysis is being used for
96 Sushila Rao (Supra note 68), at page 15
97 Arval A. Morris, “Voluntary Euthanasia”, Washington Law Review (1970), Vol. 45, at page 240
98 Ibid, at page 243
PART G
61
those who have non-functional kidneys; and cardiac
pacemakers are being implanted in patients whose hearts are
unable to beat normally. While society has supported
research and development in medicine, the issues regarding
the termination of such treatment and, more importantly, the
withholding of such treatment have not been fully
addressed.”99
70 The debate around human life will be driven by technology.
“Sophisticated modern medical technology”, even if ultimately not being able
to conquer death, “has a lot to say about the conditions and time of its
occurrence”. Singer has envisioned a future where the debate around human
life is closely linked to the impact of technology on our existence:
“As the sophistication of techniques for producing images of
soft tissue increases, we will be able to determine with a high
degree of certainty that some living, breathing human beings
have suffered such severe brain damage that they will never
regain consciousness. In these cases, with the hope of
recovery gone, families and loved ones will usually
understand that even if the human organism is still alive, the
person they loved has ceased to exist. Hence, a decision to
remove the feeding tube will be less controversial, for it will be
a decision to end the life of a human body, but not of a
person.”100
71 Lady Justice Arden recently delivered a lecture in India on a topic
dealing with the intersection of law and medicine titled “What does patient
autonomy mean for Courts?”101. The judge explained that advancement in
medical technology has contributed towards a growing importance of patient
autonomy and an increasing social trend towards questioning clinical
99 Elizabeth M. Andal Sorrentino, “The Right To Die?”, Journal of Health and Human Resources Administration
(Spring,1986), Vol. 8, No. 4, at pages 361-373
100 Peter Singer, “The Sanctity of Life”, Foreign Policy (October 20, 2009), available at
http://foreignpolicy.com/2009/10/20/the-sanctity-of-life/
101 Lady Justice Arden, Law of medicine and the individual: current issues, What does patient autonomy mean for
the courts?, (Justice KT Desai Memorial Lecture 2017)
PART G
62
judgment, which is causing conflict among courts in the UK- particularly in end
of life treatment decisions. To highlight this conflict, Judge Arden cites the
example of baby Charlie Gard, a ‘caregiver case’102 that engendered debate
on medical ethics world over.
Born in August 2016 in London, Charlie suffered from an extremely rare
genetic condition known as MDDS, which causes progressive brain damage
and muscle failure, usually leading to death in infancy. His parents wanted him
to undergo experimental treatment known as nucleoside which was available
in the USA and raised a large amount of money to enable him to travel there.
However, the doctors at the hospital in London who were treating him did not
think it was in his caregiver to have this treatment as instead they believed his
caregiver demanded that his life-support be withdrawn as they considered the
treatment to be futile. Due to the conflicting views between the parents and
the doctors, the core issue to be decided i.e. whether it was in the best
interest of the child to received further treatment had to be answered by the
Court. The case went through the judicial system- including the High Court,
the Supreme Court, the ECHR and finally back to the High Court, which on the
basis of medical reports concluded that it was not in the child’s caregiver to
have further treatment and passed an order permitting the doctors to allow
Charlie to die.
102
Great Ormond Street Hospital v. Constance Yates, Christopher Gard, Charlie Gard (by his guardian), [2017]
EWHC 1909 (Fam)
PART H
63
In addition to the issue of caregiver, Lady Justice Arden also mentioned the
issue of resources in such cases. In the present case, the parents were able
to raise large amounts of financial resources required for the treatment of the
child, but lack of resources could lead to difficulties in other cases where
treatment is unaffordable in a public health system.
72 Modern technology has in a fundamental manner re-shaped the notion
of life. As technology continuously evolves into more complex planes, it
becomes even more necessary to re-evaluate its relationship with the
meaning and quality of life.
H Euthanasia and the Indian Constitution
73 The sanctity of life principle appears in declarations on human rights as
the “right to life”.103 Under the Indian Constitution, right to life has been
provided under Article 21. In Pt. Parmanand Katara v Union of India104, it
was pointed out:
“[P]reservation of life is of most importance, because if one’s
life is lost, the status quo ante cannot be restored as
resurrection is beyond the capacity of man”.
The sanctity of human life lies in its intrinsic value. It inheres in nature and is
recognised by natural law. But human lives also have instrumental functions.
103
John Keown (Supra note 44), at page 4
104
AIR 1989 SC 2039
PART H
64
Our lives enable us to fulfil our needs and aspirations. The intrinsic worth of
life is not conditional on what it seeks to or is capable to achieve. Life is
valuable because it is. The Indian Constitution protects the right to life as the
supreme right, which is inalienable and inviolable even in times of
Emergency.105 It clearly recognises that every human being has the inherent
right to life, which is protected by law, and that “No person shall be deprived of
his life… except according to procedure established by law”106. It, thus,
envisages only very limited circumstances where a person can be deprived of
life.
According to Stephania Negri, the debate around euthanasia has “essentially
developed within the framework of the universal rights to life and to human
dignity”107. This leads us to the relationship between end of life decisions and
human dignity under the Indian Constitution.
Dignity
74 Human dignity has been “considered the unique universal value that
inspires the major common bioethical principles, and it is therefore considered
the noyau dur of both international bio law and international human rights
105
Article 359
106
Article 21
107
Stefania Negri, “Universal Human Rights and End-of-Life Care” in S. Negri et al. (eds.), Advance Care
Decision Making in Germany and Italy: A Comparative, European and International Law Perspective, Springer
(2013), at page 18
PART H
65
law”108
. Ronald Dworkin observes that “the notion of a right to dignity has been
used in many senses by moral and political philosophers”.109
75 The first idea considers dignity as the foundation of human rights “that
dignity relates to the intrinsic value of persons (such that it is wrong to treat
persons as mere things rather than as autonomous ends or agents)”110
.
According to this premise, every person, from conception to natural death,
possesses inherent dignity:
“The sanctity of life view is often accompanied by a set of
claims about human dignity, namely, that human beings
possess essential, underived, or intrinsic dignity. That is, they
possess dignity, or excellence, in virtue of the kind of being
they are; and this essential dignity can be used summarily to
express why it is impermissible, for example, intentionally to
kill human beings: to do so is to act against their dignity.”111
The other interpretation of dignity is by the supporters of euthanasia.112 For
them, right to lead a healthy life also includes leaving the world in a peaceful
and dignified manner. Living with dignity, in this view, means the right to live a
meaningful life having certain quality. This interpretation endorses the “quality
of life” proposition.
108
Ibid, at pages 21-22
109
Ronald Dworkin, Life's Dominion (London: HarperCollins, 1993) as quoted in Deryck Beyleveld and Roger
Brownsword, “Human Dignity, Human Rights, and Human Genetics”, Modern Law Review (1998), Vol. 61, at
pages 665-666
110 Deryck Beyleveld and Roger Brownsword, “Human Dignity, Human Rights, and Human Genetics”, Modern
Law Review (1998), Vol. 61, at page 666
111 Christopher O. Tollefsen, “Capital Punishment, Sanctity of Life, and Human Dignity”, Public Discourse
(September 16, 2011), available at http://www.thepublicdiscourse.com/2011/09/3985/
112 Stefania Negri, “Ending Life and Death” in A. den Exter (eds.), European Health Law, MAKLU Press (2017), at
page 241
PART H
66
Dignity has thus been invoked in support of contradictory claims and
arguments. It could justify respect for life under the principle of the “sanctity of
life”, as well as the right to die in the name of the principle of “quality of life”. In
order to remove ambiguities in interpretation and application of the right to
human dignity, Negri has suggested that dignity should be given a minimum
core of interpretation:
“To be meaningful in the end-of-life discourse, and
hence to avoid being invoked as mere rhetoric, dignity
should be considered as a substantive legal concept, at
whose basic minimum core is the legal guarantee
assuring the protection of every human being against
degradation and humiliation. Besides this, as
international and national case law demonstrate, it can also
play an important role as an interpretive principle, assisting
judges in the interpretation and application of other human
rights, such as the right to life and the right to respect for
private life, both crucial in the end-of-life debate.”113
(Emphasis supplied)
Recognition of human dignity is an important reason underlying the
preservation of life. It has important consequences. Is that dignity not
compromised by pain and suffering and by the progressive loss of bodily and
mental functions with the imminence of the end of life? Dignity has important
consequences for life choices.
76 Morris, in his article, “Voluntary Euthanasia”, regards cruelty as a
violation of human dignity:
113 Ibid
PART H
67
“All civilized men will agree that cruelty is an evil to be
avoided. But few people acknowledge the cruelty of our
present laws which require a man be kept alive against his
will, while denying his pleas for merciful release after all the
dignity, beauty, promise and meaning of life have vanished,
and he can only linger for weeks or months in the last stages
of agony, weakness and decay." In addition, the fact that
many people, as they die, are fully conscious of their tragic
state of deterioration greatly magnifies the cruelty inherent in
forcing them to endure this loss of dignity against their will.”114
He has further stated “it is exceedingly cruel to compel the spouse and
children of a dying man to witness the ever-worsening stages of his disease,
and to watch the slow, agonizing death of their loved one, degenerating before
their eyes, being transformed from a vital and robust parent and spouse into a
pathetic and humiliated creature, devoid of human dignity”.115
77 Liberty and autonomy promote the cause of human dignity. Arguments
about autonomy are often linked to human dignity.116 Gostin evaluates the
relationship between the dignity of dying with autonomy thus:
“The dying process, after all, is the most intimate, private and
fundamental of all parts of life. It is the voice that we, as
humans, assert in influencing this autonomous part of our life.
At the moment of our death, this right of autonomy ought not
to be taken from us simply because we are dying. An
autonomous person should not be required to have a good
reason for the decision that he or she will make; that is the
nature of autonomy. We do not judge for other competent
human beings what may be in their best interest, but instead
allow them to determine that for themselves. As such, an
autonomous person does not need to have a good
understanding or even good reasons. All they need is an
114 Arval A. Morris (Supra note 97), at pages 251-252
115 Ibid
116 Sebastian Muders, Autonomy and the Value of Life as Elements of Human Dignity (Oxford University Press,
2017)
PART H
68
understanding of what they are confronting. There is no
reason to believe that when a person faces imminent death
that they have less human understanding, or less ability to
fathom what they will face, than other people. Of course,
death is a mystery. But death is what we will all confront
sooner or later, and we all may wish to assert our interests in
how we may die.”117
78 Sumner in his work titled “Dignity through Thick and Thin”118 discusses
the dignity associated with patients:
“[P]atients associate dignity with concepts such as respect
and esteem, presumably including self-respect and selfesteem,
whereas they experience its opposite—indignity—as
degrading, shameful, or embarrassing… Abstractly speaking,
a person’s dignity seems to be a matter of assurance of her
fully human status, both in her own eyes and in the eyes of
others. Dignity is maintained when one can face others with
pride and with confidence of being worthy of their respect; it is
lost or impaired when being seen by others occasions
feelings of shame, inferiority, or embarrassment. The element
of degradation that is implicated in indignity seems a matter of
feeling demoted or diminished from a higher standing to a
lower, perhaps from the status of a fully functioning person to
something lesser.”119
While stating that dignity and indignity are “basically subjective notions”120
depending upon how individual patients experience them, he has further
stated:
“One condition that patients report as degrading— as an
indignity—is loss of control over the course of their own
health care. Loss of autonomy matters in its own right, but it
matters even more if it is the source for patients of shame and
humiliation. This suggests that autonomy and well-being are
themselves interconnected: Patients typically experience a
117 Lawrence O. Gostin, “The Constitutional Right to Die: Ethical Considerations”, St John's Journal of Legal
Commentary (1997), Vol. 12, at pages 602-603
118
LW Sumner, “Dignity through Thick and Thin”, in Sebastian Muders, Human Dignity and Assisted Death
(Oxford University Press, 2017)
119 Ibid, at page 61
120 Ibid, at page 64
PART H
69
loss of the former as a decline in the latter, as something that
makes their dying process go worse for them by causing
them feelings of indignity. Appeals to dignity thus flesh out
what is at stake for patients in terms of their autonomy and
well-being, but they do not introduce any factors that fall
outside the limits of these values.”121
79 An article titled “Euthanasia: A Social Science Perspective”122 in the
Economic & Political Weekly has suggested that the discourses on death with
dignity “need to be situated within processes of living with dignity in everyday
contexts”.123 The end of life must not be seen as “human disposal”, but, as
“the enhancement of human dignity by permitting each man's last act to be an
exercise of his free choice between a tortured, hideous death and a painless,
dignified one.”124
80 Under our Constitution, the inherent value which sanctifies life is the
dignity of existence. Recognising human dignity is intrinsic to preserving the
sanctity of life. Life is truly sanctified when it is lived with dignity. There exists
a close relationship between dignity and the quality of life. For, it is only when
life can be lived with a true sense of quality that the dignity of human
existence is fully realized. Hence, there should be no antagonism between the
sanctity of human life on the one hand and the dignity and quality of life on the
other hand. Quality of life ensures dignity of living and dignity is but a process
in realizing the sanctity of life.
121 Ibid, at page 68
122 Aneeta A Minocha, Arima Mishra and Vivek R Minocha, “Euthanasia: A Social Science Perspective”,
Economic & Political Weekly (December 3, 2011), at pages 25-28
123 Ibid, at page 27
124 Arval A. Morris (Supra note 97), at page 247
PART H
70
81 Human dignity is an essential element of a meaningful existence. A life
of dignity comprehends all stages of living including the final stage which
leads to the end of life. Liberty and autonomy are essential attributes of a life
of substance. It is liberty which enables an individual to decide upon those
matters which are central to the pursuit of a meaningful existence. The
expectation that the individual should not be deprived of his or her dignity in
the final stage of life gives expression to the central expectation of a fading
life: control over pain and suffering and the ability to determine the treatment
which the individual should receive. When society assures to each individual a
protection against being subjected to degrading treatment in the process of
dying, it seeks to assure basic human dignity. Dignity ensures the sanctity of
life. The recognition afforded to the autonomy of the individual in matters
relating to end of life decisions is ultimately a step towards ensuring that life
does not despair of dignity as it ebbs away.
82 From Maneka Gandhi125 to Puttaswamy126, dignity is the element
which binds the constitutional quest for a meaningful existence. In Francis
Coralie Mullin v Administrator, Union Territory of Delhi127
, this Court held
that:
“The right to life enshrined in Article 21 cannot be restricted to
mere animal existence. It means something much more than
just physical survival…
125 Maneka Gandhi v Union of India, (1978) 1 SCC 248
126 Justice KS Puttaswamy (Retd.) v Union of India, (2017) 10 SCC 1
127 (1981) 1 SCC 608
PART H
71
We think that the right to life includes the right to live with
human dignity.”
Explaining the ambit of dignity, this Court further held that:
“[A]ny form of torture or cruel, inhuman or degrading
treatment would be offensive to human dignity and constitute
an inroad into this right to live… [T]here is implicit in Article 21
the right to protection against torture or cruel, inhuman or
degrading treatment which is enunciated in Article 5 of the
Universal Declaration of Human Rights and guaranteed by
Article 7 of the International Covenant on Civil and Political
Rights.”
Dignity is the core value of life and personal liberty which infuses every stage
of human existence. Dignity in the process of dying as well as dignity in death
reflects a long yearning through the ages that the passage away from life
should be bereft of suffering. These individual yearnings are enhanced by the
experiences of sharing, observing and feeling with others: the loss of a
parent, spouse, friend or an acquaintance to the cycle of life. Dignity in death
has a sense of realism that permeates the right to life. It has a basic connect
with the autonomy of the individual and the right to self-determination. Loss
of control over the body and the mind are portents of the deprivation of liberty.
As the end of life approaches, a loss of control over human faculties denudes
life of its meaning. Terminal illness hastens the loss of faculties. Control over
essential decisions about how an individual should be treated at the end of
life is hence an essential attribute of the right to life. Corresponding to the
right is a legitimate expectation that the state must protect it and provide a just
legal order in which the right is not denied. In matters as fundamental as
PART H
72
death and the process of dying, each individual is entitled to a reasonable
expectation of the protection of his or her autonomy by a legal order founded
on the rule of law. A constitutional expectation of providing dignity in death is
protected by Article 21 and is enforceable against the state.
Privacy
83 The nine-judge Bench decision of this Court in Justice K S
Puttaswamy v Union of India128 held privacy to be the constitutional core of
human dignity. The right to privacy was held to be an intrinsic part of the right
to life and liberty under Article 21 and protected under Part III of the
Constitution. Each of the six decisions has a vital bearing on the issues in the
present case. Excerpts from the judgment are reproduced below:
Justice DY Chandrachud
“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 recognises 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 Chelameswar
“Forced feeding of certain persons by the State raises
concerns of privacy. An individual’s right to refuse life
prolonging medical treatment or terminate his life is another
freedom which falls within the zone of the right of privacy.”
128 2017 (10) SCC 1
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Justice SA Bobde
“Privacy, with which we are here concerned, eminently
qualifies as an inalienable natural right, intimately connected
to two values whose protection is a matter of universal moral
agreement: the innate dignity and autonomy of man… Both
dignity and privacy are intimately intertwined and are natural
conditions for the birth and death of individuals, and for many
significant events in life between these events.”
Justice RF Nariman
“… a Constitution has to be read in such a way that words
deliver up principles that are to be followed and if this is kept
in mind, it is clear that the concept of privacy is contained not
merely in personal liberty, but also in the dignity of the
individual.”
Justice AM Sapre
“The incorporation of expression "Dignity of the individual" in
the Preamble was aimed essentially to show explicit
repudiation of what people of this Country had inherited from
the past. Dignity of the individual was, therefore, always
considered the prime constituent of the fraternity, which
assures the dignity to every individual. Both expressions are
interdependent and intertwined.”
Justice SK Kaul
“A person-hood would be a protection of one’s personality,
individuality and dignity.”
“Privacy, for example is nothing but a form of dignity, which
itself is a subset of liberty.”
84 The protective mantle of privacy covers certain decisions that
fundamentally affect the human life cycle.129 It protects the most personal and
intimate decisions of individuals that affect their life and development.130 Thus,
129
Richard Delgado, “Euthanasia Reconsidered-The Choice of Death as an Aspect of the Right of Privacy”,
Arizona Law Review (1975), Vol. 17, at page 474
130 Ibid
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choices and decisions on matters such as procreation, contraception and
marriage have been held to be protected. While death is an inevitable end in
the trajectory of the cycle of human life of individuals are often faced with
choices and decisions relating to death. Decisions relating to death, like those
relating to birth, sex, and marriage, are protected by the Constitution by virtue
of the right of privacy. The right to privacy resides in the right to liberty and in
the respect of autonomy.131 The right to privacy protects autonomy in making
decisions related to the intimate domain of death as well as bodily integrity.
Few moments could be of as much importance as the intimate and private
decisions that we are faced regarding death.132 Continuing treatment against
the wishes of a patient is not only a violation of the principle of informed
consent, but also of bodily privacy and bodily integrity that have been
recognised as a facet of privacy by this Court.
85 Just as people value having control over decisions during their lives
such as where to live, which occupation to pursue, whom to marry, and
whether to have children, so people value having control over whether to
continue living when the quality of life deteriorates.133
131 TL Beauchamp, “The Right to Privacy and the Right to Die”, Social Philosophy and Policy (2000), Vol. 17, at
page 276
132 Ibid
133 D Benatar (Supra note 18)
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86 In the case of In re Quinlan (1976),134 the New Jersey Supreme Court
dealt with a case of a patient, Karen Quinlan, who had suffered irreversible
brain damage and was in a persistent vegetative state and had no prospect of
recovery. The patient’s father sought judicial authority to withdraw the lifesustaining
mechanisms temporarily preserving his daughter’s life, and his
appointment as guardian of her person to that end. The father’s lawyer
contended that the patient was being forced to function against all natural
impulses and that her right to make a private decision about her fate
superseded the state’s right to keep her alive. The New Jersey Supreme
Court held that the patient had a right of privacy grounded in the US
Constitution to terminate treatment and in a celebrated statement said that:
“the State's interest contra [the right to privacy] weakens and
the individual's right to privacy grows as the degree of bodily
invasion increases and the prognosis dims. Ultimately there
comes a point at which the individual's rights overcome the
State interest. It is for that reason that we believe [the
patient's] choice, if she were competent to make it, would be
vindicated by law.”
Since Karen Quinlan was not competent to assert her right to privacy, the
Court held that Karen's right of privacy may be asserted on her behalf by her
guardian due to the reason that Karen Quinlan did not have the capacity to
assert her right to privacy indicating that the right of privacy is so fundamental
that others, who had been intimately involved with the patient, should be able
to exercise it in circumstances when the patient is unable to do so. However,
134 70 N.J. 10; 355 A.2d 647 (1976)
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subsequently scholars have argued that when euthanasia is founded in the
right to privacy, only voluntary euthanasia can be permitted. The right to
privacy can only be exerted by the patient and cannot be exercised
vicariously.135 The substituted judgment and caregiver criterion cannot be
logically based on the right to privacy of the patient.136
87 In the landmark case of Pretty v United Kingdom137, the European
Court of Human Rights analysed Article 8 of the European Convention on
Human Rights (respect for private life). It held that the term “private life” is a
broad term not susceptible to exhaustive definition and covers the physical
and psychological integrity of a person. In relation to the withdrawing of
treatment, it was held that the way in which an individual “chooses to pass the
closing moments of her life is part of the act of living, and she has a right to
ask that this too must be respected.” The right to privacy protects even those
choices that may be considered harmful for the individual exercising the
choice:
“The extent to which a State can use compulsory powers or
the criminal law to protect people from the consequences of
their chosen lifestyle has long been a topic of moral and
jurisprudential discussion, the fact that the interference is
often viewed as trespassing on the private and personal
sphere adding to the vigour of the debate. However, even
where the conduct poses a danger to health or, arguably,
where it is of a life-threatening nature, the case-law of the
Convention institutions has regarded the State's imposition of
compulsory or criminal measures as impinging on the private
life of the applicant within the meaning of Article 8 § 1... In the
sphere of medical treatment, the refusal to accept a particular
135Peter J. Riga, "Privacy and the Right to Die," The Catholic Lawyer (2017) Vol. 26: No. 2 , Article 2
136 Ibid
137 Application no. 2346/02
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treatment might, inevitably, lead to a fatal outcome, yet the
imposition of medical treatment, without the consent of a
mentally competent adult patient, would interfere with a
person's physical integrity.”
The Court further observed that:
“Without in any way negating the principle of sanctity of life
protected under the Convention, the Court considers that it is
under Article 8 that notions of the quality of life take on
significance. In an era of growing medical sophistication
combined with longer life expectancies, many people are
concerned that they should not be forced to linger on in old
age or in states of advanced physical or mental decrepitude
which conflict with strongly held ideas of self and personal
identity.”
Thus, the Court concluded that the “choice to avoid what she considers will be
an undignified and distressing end to her life” is guaranteed under the right to
respect for private life under Article 8(1) of the Convention.
88 Subsequently in the case of Haas v Switzerland138, the European Court
of Human Rights has further held that the right to decide in which way and at
which time an individual’s life should end, provided that he or she was in a
position freely to form her own will and to act accordingly, was one of the
aspects of the right to respect for private life within the meaning of Article 8 of
the Convention.
89 The right to privacy as held by this Court mandates that we safeguard
the integrity of individual choice in the intimate sphere of decisions relating to
138 Application no. 31322/07, para 51
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death, subject to the restrictions to the right to privacy, as laid down by us.
However, since privacy is not an absolute right and is subject to restrictions,
the restrictions must fulfil the requirements as laid down by this Court in
Puttaswamy.
90 The protection of these rights by the legal order is as much an
emanation of the right to privacy which shares a functional relationship with
the fundamental right to life and personal liberty guaranteed by the
Constitution. Privacy recognises that the body and mind are inviolable. An
essential attribute of this inviolability is the ability of the individual to refuse
medical treatment.
Socio-Economic Concerns
91 One of the limitations of contemporary debates on euthanasia is that
they do not take into consideration “certain socio-economic concerns that
must necessarily be factored into any discourse”139. This has been criticised
as making the debate around ending life “incomplete” as well as “elitist”.
92 In an article titled “Euthanasia: cost factor is a worry”
140 Nagral (2011)
seeks to construct a “critical linkage” between euthanasia and “the economic
and social dimension" in the Indian context. Stating that many Indian doctors
139 Sushila Rao (Supra note 16), at page 654
140 S Nagral, “Euthanasia: Cost Factor is a Worry”, The Times of India (June 19, 2011), available at
http://www.timesofindia.com/home/sunday/Euthanasia-cost-factor-is-a-worry/articleshow/7690155.cms
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have been practising passive euthanasia silently and practically, Nagral
contemplates the cost of treatment to be a critical factor in influencing the
medical decision:
“[O]ne of the reasons for 'passive' euthanasia is that the
patient or his family could be running out of money. In some
cases, this overlaps with the incurability of the disease. In
others, it may not. Costly medication and intervention is often
withdrawn as the first step of this passive euthanasia process.
Sometimes patients are 'transferred' to smaller (read
cheaper) institutions or even their homes, with the tacit
understanding that this will hasten the inevitable. If a third
party is funding the patient's treatment, chances are that the
intervention and support will continue. Shocking and arbitrary
as this may sound, this is the reality that needs flagging
because it is relevant to the proposed legitimization of
passive euthanasia. In a system where out-of pocket payment
is the norm and healthcare costs are booming, there has to
be a way of differentiating a plea made on genuine medical
grounds from one that might be an attempt to avoid financial
ruin.”141
Rao (2011) has observed:
“In the absence of adequate medical insurance, specialised
treatments like ventilator support, kidney dialysis, and
expensive lifesaving drugs administered in private hospitals
can turn middle-class families into virtual paupers. Poorly
equipped government hospitals simply do not have enough
life-support machines compared to the number of patients
who need them.... This also leads to the inevitable possibility
of a comatose patient’s family and relatives potentially
exploiting the euthanasia law to benefit from a premature
death, by way of inheritance, etc.”142
Norrie (2011) has placed the social and economic dimensions succinctly:
“This concerns the problem of the differential social impact
that such a position would have on the poor and the well-to
141 Ibid
142 Sushila Rao (Supra note 16), at page 654-655
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do… Wealth, poverty, and class structure have a profound
effect on the choices people make.”143
The inadequacies of the range and reach of Indian healthcare may, it is
observed, lead to a situation where euthanasia/active euthanasia may
become “an instrument of cost containment”144
.
Restraints on Judicial Power
93 An earlier part of this judgment has dwelt on the criticism of the distinction
between passive and active euthanasia, founded as it is on the act – omission
divide. The criticism is that as a matter of substance, there is no valid
distinguishing basis between active and passive euthanasia. The criticism takes
one of two forms: either both should be recognised or neither should be
allowed. The view that passive euthanasia involves an omission while active
euthanasia involves a positive act is questioned on the ground that the
withdrawal of artificial life support (as an incident of passive euthanasia)
requires a positive act. While noticing this criticism, it is necessary to distinguish
between active and passive euthanasia in terms of the underlying constitutional
principles as well as in relation to the exercise of judicial power. Passive
euthanasia – whether in the form of withholding or withdrawing treatment – has
the effect of removing, or as the case may be, not providing supportive
treatment. Its effect is to allow the individual to continue to exist until the end of
143 Alan Norrie (Supra note 4), at page 144
144 S Nagral, “Euthanasia: Cost Factor is a Worry”, The Times of India (June 19, 2011), available at
http://www.timesofindia.com/home/sunday/Euthanasia-cost-factor-is-a-worry/articleshow/7690155.cms
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the natural span of life. On the other hand, active euthanasia involves hastening
of death: the life span of the individual is curtailed by a specific act designed to
bring an end to life. Active euthanasia would on the state of the penal law as it
stands constitute an offence. Hence, it is only Parliament which can in its
legislative wisdom decide whether active euthanasia should be permitted.
Passive euthanasia on the other hand would not implicate a criminal offence
since the decision to withhold or withdraw artificial life support after taking into
account the best interest of the patient would not constitute an illegal omission
prohibited by law.
94 Moreover, it is necessary to make a distinction between active and
passive euthanasia in terms of the incidents of judicial power. We may refer in
this context to the felicitous words of Lord Justice Sales, speaking for the
Queen’s Bench Division in a recent decision delivered on 5 October 2017 in
Noel Douglas Conway v The Secretary of State for Justice145. Dealing with
the plea that physician assisted suicide should be accepted as a principle by the
court, the learned Judge observed thus:
“Parliament is the body composed of representatives of the
community at large with what can be called a democratic
mandate to make the relevant assessment in a case where
there is an important element of social policy and moral
value-judgment involved with much to be said on both sides
of the debate (229) and (233). There is not a single, clear,
uniquely rational solution which can be identified; the decision
cannot fail to be influenced by the decision-makers’ opinions
about the moral case for assisted suicide, including in
deciding what level of risk to others is acceptable and
whether any safeguards are sufficiently robust; and it is not
145 (2017) EWHC 2447 (Admin)
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appropriate for professional judges to impose their personal
opinions on matters of this kind (229)-(230) and (234). In
Nicklinson in the Court of Appeal, Lord Judge CJ aptly
referred to Parliament as representing “the conscience of the
nation” for decisions which raise “profoundly sensitive
questions about the nature of our society, and its values and
standards, on which passionate but contradictory opinions are
held” (Court of Appeal, (155). Parliament has made the
relevant decision; opponents of section 2 have thus far failed
to persuade Parliament to change the law despite active
consideration given to the issue, in particular in relation to the
Falconer Bill which contained essentially the same proposals
as Mr Conway now puts before the court; and the democratic
process would be liable to be subverted if, on a question of
moral and political judgment, opponents of the legislation
could achieve through the courts what they could not achieve
in Parliament (231) per Lord Sumption, referring to R
(Countryside Alliance) v Attorney General (2008) AC 719,
(45) per Lord Bingham and AXA General Insurance Ltd v HM
Advocate (2012) 1 SC 868, (49) per Lord Hope)”.
Emphasising the limitations on the exercise of the judicial power, Lord Justice
Sales observed:
“We also agree that his case on necessity becomes still
stronger when the other legitimate aims are brought into
account. As the conscience of the nation, Parliament was
and is entitled to decide that the clarity of such a moral
position could only be achieved by means of such a rule.
Although views about this vary in society, we think that the
legitimacy of Parliament deciding to maintain such a clear line
that people should not seek to intervene to hasten the death
of a human is not open to serious doubt. Parliament is
entitled to make the assessment that it should protect moral
standards in society by issuing clear and unambiguous laws
which reflect and embody such standards”.
In taking the view which has been taken in the present judgment, the court has
been conscious of the need to preserve to Parliament, the area which properly
belongs to its legislative authority. Our view must hence be informed by the
impact of existing legislation on the field of debate in the present case.
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I Penal Provisions
95 The legality of and constitutional protection which is afforded to passive
euthanasia cannot be read in isolation from the provisions of the Penal Code.
Physicians are apprehensive about their civil or criminal liability when called
upon to decide whether to limit life-supporting treatment.146 A decision on the
constitutional question cannot be rendered without analyzing the statutory
context and the impact of penal provisions. The decision in Aruna Shanbaug
did not dwell on the provisions of the Penal Code (apart from Sections 306
and 309) which have a vital bearing on the issue of euthanasia. Undoubtedly,
constitutional positions are not controlled by statutory provisions, because the
Constitution rises above and controls legislative mandates. But, in the present
reference where no statutory provision is called into question, it is necessary
for the court to analyse the relationship between what the statute penalizes
and what the Constitution protects. The task of interpretation is to allow for
their co-existence while interpreting the statute to give effect to constitutional
principle. This is particularly so in an area such as the present where criminal
law may bear a significant relationship to the fundamental constitutional
principles of liberty, dignity and autonomy.
The first aspect which needs to be noticed is that our law of crimes deals with
acts and omissions. Section 32 of the Penal Code places acts and omissions
146 S Balakrishnan and RK Mani, “The constitutional and legal provisions in Indian law for limiting life support”,
Indian Journal of Critical Care Medicine (2005), Vol. 9, Issue 2, at page 108
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on the same plane. An illegal omission (unless a contrary intent appears in
the Code) is proscribed when the act is unlawful. Section 32 states:
“Words referring to acts include illegal omissions. — In
every part of this Code, except where a contrary intention
appears from the context, words which refer to acts done
extend also to illegal omissions.”
The language of the statute which refers to acts applies, unless a contrary
intent appears in the text, to omissions.
The next aspect is about when an act or omission is illegal. Section 43
explains the concept of illegality. It provides thus:
““Illegal”. “Legally bound to do”. — The word “illegal” is
applicable to everything which is an offence or which is
prohibited by law, or which furnishes ground for a civil action;
and a person is said to be “legally bound to do” whatever it is
illegal in him to omit.”
Here again, being legally bound to do something is the mirror image of what is
illegal to omit doing.
Section 43 comprehends within the meaning of illegality, that (i) which is an
offence; or (ii) which is prohibited by law; or (iii) which furnishes a ground for a
civil action. Omissions and acts are mirror images. When it is unlawful to omit
to do something, the individual is legally bound to do it.
This raises the question of whether an omission to provide life-sustaining
treatment constitutes an illegal omission.
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Section 81 protects acts which are done without a criminal intent to cause
harm, in good faith, to prevent or avoid other harm to person or property. The
law protects the action though it was done with the knowledge that it was likely
to cause harm if a three-fold requirement is fulfilled. It comprehends an
absence of criminal intent to cause harm, the presence of good faith and the
purpose of preventing other harm. Section 81 provides thus:
“81. Act likely to cause harm, but done without criminal
intent, and to prevent other harm.—Nothing is an offence
merely by reason of its being done with the knowledge that it
is likely to cause harm, if it be done without any criminal
intention to cause harm, and in good faith for the purpose of
preventing or avoiding other harm to person or property.
Explanation—It is question of fact in such a case whether the
harm to be prevented or avoided was of such a nature and so
imminent as to justify or excuse the risk of doing the act with
the knowledge that it was likely to cause harm.”
Knowledge of the likelihood of harm is not culpable when a criminal intent to
cause harm is absent and there exists an element of good faith to prevent or
avoid other harm.
Section 92 of the IPC states:
“Act done in good faith for benefit of a person without
consent.—Nothing is an offence by reason of any harm
which it may cause to a person for whose benefit it is done in
good faith, even without that person's consent, if the
circumstances are such that it is impossible for that person to
signify consent, or if that person is incapable of giving
consent, and has no guardian or other person in lawful
charge of him from whom it is possible to obtain consent in
time for the thing to be done with benefit: Provided—
Provisos. First.—That this exception shall not extend to the
intentional causing of death, or the attempting to cause death”
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Section 92 protects an individual from a consequence which arises from the
doing of an act for the benefit of another in good faith, though a harm is
caused to the other. What was done is protected because it was done in good
faith. Good faith is distinguished from an evil design. When a person does
something to protect another from a harm or injury, the law protects what was
done in good faith, treating the harm that may result as a consequence
unintended by the doer of the act. This protection is afforded by the law even
in the absence of consent when the circumstances are such that it is
impossible for the person for whose benefit the act was done to consent to it.
This may arise where the imminence of the apprehended danger makes it
impossible to obtain consent. Another eventuality is where the individual is
incapable of consenting (by being incapacitated in mind) and there is no
person in the position of a guardian or person in lawful charge from whom
consent can be obtained in time to perform the act for the benefit of that
person. However, the first proviso to Section 92 makes it clear that the
exception does not extend to the intentional causing of death or attempt to
cause death to the individual, howsoever it may be for the benefit of the other.
Absence of intent to cause death is the crucial element in the protection
extended by Section 92.
Section 107 deals with abetment. It provides thus:
“Abetment of a thing.—A person abets the doing of a thing,
who—
… (Thirdly) — Intentionally aids, by any act or illegal
omission, the doing of that thing.”
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Abetment embodies a three-fold requirement: first an intentional aiding,
second the aiding of an act or illegal omission and third, that this must be
toward the doing of that thing.
Explanation 2 of this Section states:
“Whoever, either prior to or at the time of the commission of
an act, does anything in order to facilitate the commission of
that act, and thereby facilitates the commission thereof, is
said to aid the doing of that act.”
96 For abetting an offence, the person abetting must have intentionally
aided the commission of the crime. Abetment requires an instigation to commit
or intentionally aiding the commission of a crime. It presupposes a course of
conduct or action which (in the context of the present discussion) facilitates
another to end life. Hence abetment of suicide is an offence expressly
punishable under Sections 305 and 306 of the IPC.
97 It is now necessary to dwell upon the provisions bearing upon culpable
homicide and murder. Section 299 of the IPC states:
“Culpable homicide.—Whoever causes death by doing an
act with the intention of causing death, or with the intention of
causing such bodily injury as is likely to cause death, or with
the knowledge that he is likely by such act to cause death,
commits the offence of culpable homicide.”
Section 300 states:
“Murder.—Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused is
done with the intention of causing death, or—
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Secondly.—If it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause the
death of the person to whom the harm is caused, or—
Thirdly.—If it is done with the intention of causing bodily injury
to any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or—
Fourthly.—If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause
death, or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid.”
Active euthanasia involves an intention on the part of the doctor to cause the
death of the patient. Such cases fall under the first clause of Section 300.
Exception 5 to Section 300 states:
“Culpable homicide is not murder when the person whose
death is caused, being above the age of eighteen years,
suffers death or takes the risk of death with his own consent.”
Section 304 provides:
“Whoever commits culpable homicide not amounting to
murder, shall be punished with [imprisonment for life], or
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the act
by which the death is caused is done with the intention of
causing death, or of causing such bodily injury as is likely to
cause death; or with imprisonment of either description for a
term which may extend to ten years, or with fine, or with both,
if the act is done with the knowledge that it is likely to cause
death, but without any intention to cause death, or to cause
such bodily injury as is likely to cause death.”
There also exists a distinction between active and passive euthanasia. This is
brought out in the application of the doctrine of ‘double effect’. The Stanford
Encyclopedia of Philosophy elucidates the position thus:
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“The doctrine (or principle) of double effect is often invoked to
explain the permissibility of an action that causes a serious
harm, such as the death of a human being, as a side effect of
promoting some good end. According to the principle of
double effect, sometimes it is permissible to cause a harm as
a side effect (or “double effect”) of bringing about a good
result even though it would not be permissible to cause such
a harm as a means to bringing about the same good end.”147
It has been observed further:
“A doctor who intends to hasten the death of a terminally ill
patient by injecting a large dose of morphine would act
impermissibly because he intends to bring about the patient's
death. However, a doctor who intended to relieve the patient's
pain with that same dose and merely foresaw the hastening
of the patient's death would act permissibly.”148
98 A distinction arises between active and passive euthanasia from the
provisions of the Penal Code. Active euthanasia involves an intention to cause
the death of the patient. Mens rea requires a guilty mind; essentially an intent
to cause harm or injury. Passive euthanasia does not embody an intent to
cause death. A doctor may withhold life support to ensure that the life of a
patient who is in the terminal stage of an incurable illness or in a permanent
vegetative state, is not prolonged artificially. The decision to do so is not
founded upon an intent to cause death but to allow the life of the patient to
continue till and cease at the end of its natural term. Placing such a person on
life support would have been an intervention in the natural process of death. A
decision not to prolong life by artificial means does not carry an intention to
cause death. The crucial element in Section 299 is provided by the expression
147 “Doctrine of Double Effect”, Stanford Encyclopedia of Philosophy (July 28, 2004), available at
https://plato.stanford.edu/entries/double-effect/
148
Ibid
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“causes death”. In a case involving passive euthanasia, the affliction of the
patient is not brought about either by an act or omission of the doctor. There is
neither an animus nor an intent to cause death. The creation of the condition
of the patient is outside the volition of the doctor and has come about without
a covert or overt act by the doctor. The decision to withhold medical
intervention is not intended to cause death but to prevent pain, suffering and
indignity to a human being who is in the end stage of a terminal illness or of a
vegetative state with no reasonable prospect of cure. Placing a patient on
artificial life support would, in such a situation, merely prolong the agony of the
patient. Hence, a decision by the doctor based on what is in the best interest
of the patient precludes an intent to cause death. Similarly, withdrawal of
artificial life support is not motivated by an intent to cause death. What a
withdrawal of life support does is not to artificially prolong life. The end of life is
brought about by the inherent condition of the patient. Thus, both in a case of
a withdrawal of life supporting intervention and withholding it, the law protects
a bona fide assessment of a medical professional. There being no intent to
cause death, the act does not constitute either culpable homicide or murder.
Moreover, the doctor does not inflict a bodily injury. The condition of a patient
is on account of a factor independent of the doctor and is not an outcome of
his or her actions. Death emanates from the pre-existing medical condition of
the patient which enables life to chart a natural course to its inexorable end.
The law protects a decision which has been made in good faith by a medical
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professional not to prolong the indignity of a life placed on artificial support in a
situation where medical knowledge indicates a point of no return. Neither the
act nor the omission is done with the knowledge that it is likely to cause death.
This is for the reason that the likelihood of death is not occasioned by the act
or omission but by the medical condition of the patient. When a doctor takes a
considered decision in the case of a patient in a terminal stage of illness or in
a permanently vegetative state, not to provide artificial life support, the law
does not attribute to the doctor the knowledge that it is likely to cause death.
99 Section 43 of the Penal Code defines the expression illegal to mean
“…everything which is an offence or which is prohibited by law, or which
furnishes ground in a civil action”. Withdrawing life support to a person in a
permanently vegetative state or in a terminal stage of illness is not ‘prohibited
by law’. Such an act would also not fall outside the purview of Section 92 for
the reason that there is no intentional causing of death or attempt to cause
death. Where a decision to withdraw artificial life support is made in the
caregiver of the patient, it fulfils the duty of care required from a doctor
towards the patient. Where a doctor has acted in fulfilment of a duty of care
owed to the patient, the medical judgment underlying the decision protects it
from a charge of illegality. Such a decision is not founded on an intention to
cause death or on the knowledge that it is likely to cause death. An act done
in pursuance of the duty of care owed by the doctor to a patient is not
prohibited by law.
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100 In a situation where passive euthanasia is non-voluntary, there is an
additional protection which is also available in circumstances which give rise
to the application of Section 92. Where an act is done for the benefit of
another in good faith, the law protects the individual. It does so even in the
absence of the consent of the other, if the other individual is in a situation
where it is impossible to signify consent or is incapable of giving consent.
Section 92 also recognises that there may be no guardian or other person in
lawful charge from whom it is possible to obtain consent. However, the proviso
to Section 92 stipulates that this exception shall not extend to intentionally
causing death or attempting to cause death. The intent in passive euthanasia
is not to cause death. A decision not to prolong life beyond its natural span by
withholding or withdrawing artificial life support or medical intervention cannot
be equated with an intent to cause death. The element of good faith, coupled
with an objective assessment of the caregiver of the patient would protect the
medical professional in a situation where a bona fide decision has been taken
not to prolong the agony of a human being in a terminal or vegetative state by
a futile medical intervention.
101 In 2006, the Law Commission of India submitted its 196th Report titled
“Medical Treatment to Terminally Ill Patients (Protection of Patients and
Medical Practitioners)”. The report by Justice M Jagannadha Rao as
Chairperson contains a succinct elucidation of legal principles governing
criminal law on the subject. Some of them are explained below:
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(i) An informed decision of a patient to refuse medical treatment is accepted
at common law and is binding on a treating doctor. While a doctor has a
duty of care, a doctor who obeys the instructions of a competent patient
to withhold or withdraw medical treatment does not commit a breach of
professional duty and the omission to treat will not be an offence;
(ii) The decision of a patient to allow nature to take its course over the
human body and, in consequence, not to be subjected to medical
intervention, does not amount to a deliberate termination of physical
existence. Allowing nature to take its course and a decision to not receive
medical treatment does not constitute an attempt to commit suicide within
the meaning of Section 309 of the Penal Code;
(iii) Once a competent patient has decided not to accept medical intervention,
and to allow nature to take its course, the action of the treating doctor in
abiding by those wishes is not an offence, nor would it amount to an
abetment under Section 306. Under Section 107, an omission has to be
illegal to constitute an abetment. A doctor bound by the instructions of a
patient to withhold or withdraw medical treatment is not guilty of an illegal
act or an abetment. The doctor is bound by the decision of the patient to
refuse medical intervention;
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(iv) A doctor who withholds or withdraws medical treatment in the best
interest of a patient, such as when a patient is in a permanent vegetative
state or in a terminal state of an incurable illness, is not guilty under
Section 299 because there is no intention to cause death or bodily injury
which is likely to cause death. The act of withholding or withdrawing a life
support system in the case of a competent patient who has refused
medical treatment and, in the case of an incompetent person where the
action is in the best interest of the patient would be protected by good
faith protections available under Sections 76, 79, 81 or, as the case may
be, by Section 88, even if it is construed that the doctor had knowledge of
the likelihood of death; and
(v) The decision of the doctor, who is under a duty at common law to obey
the refusal of a competent patient to take medical treatment, would not
constitute a culpable act of negligence under Section 304A. When the
doctor has taken such a decision to withhold or withdraw treatment in the
best interest of the patient, the decision would not constitute an act of
gross negligence punishable under Section 304A.
102 Introducing a structural safeguard, in the form of a Medical Board of
experts can be contemplated to further such an objective. The Transplantation
of Human Organs and Tissues Act 1994 provides for the constitution of
Authorisation Committees under Section 9(4). Authorisation Committees are
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contemplated at the state and district levels and a hospital board.149 Once the
process of decision making has been arrived at by fulfilling a mandated
safeguard (the prior approval of a committee), the decision to withdraw life
support should not constitute an illegal act or omission. The setting up of a
broad-based board is precisely with a view to lend assurance that the duty of
care owed by the doctor to the patient has been fulfilled. Once due safeguards
have been fulfilled, the doctor is protected against the attribution of a culpable
intent or knowledge. It will hence fall outside the definition of culpable
homicide (Section 299), murder (Section 300) or causing death by a rash or
negligent act (Section 304A). The composition of this broad-based committee
has been dealt with in the last segment of this judgment.
J Advance Directives
103 A patient, in a sound state of mind, possesses the ability to make
decisions and choices and can legitimately refuse medical intervention.
Justice Cardozo had this to say in a seminal statement of principle in the 1914
decision in Schloendorff v Society of NY Hospital150:
“Even human being of adult years and sound mind has a right
to determine what shall be done with his own body; and a
surgeon who performs an operation without his patient’s
consent commits an assault.”
149 Rule 6A, Transplantation of Human Organs and Tissues Act 1995
150 105 N.E. 92, 93 (N.Y. 1914)
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Luis Kutner gave expression to the relationship of privacy with the inviolability
of the person and the refusal of medical treatment:
“…The attitude of the law is to recognise the inviolability of
the human body. The patient’s consent must be voluntary and
informed. These notions are buttressed by the
constitutionally recognized right to privacy. Clearly, then, a
patient may refuse treatment which would extend his life.
Such a decision must rest with the patient.”151
The difficulty, as Kutner notes, arises when a patient is unconscious or is not
in a position to furnish his or her consent. The author notes that in such a
case “the law assumes a constructive consent to such treatment as will save
his life”. Kutner’s thesis contemplates what should happen, if the patient is
incapable of giving consent:
“…The law, however, does recognize that a patient has a
right to refuse to be treated, even when he is in extremis,
provided he is in an adult and capable of giving consent.
Compliance with the patient’s wishes in such circumstances
is not the same as voluntary euthanasia. Where, however,
the patient is incapable of giving consent, such as when he is
in a coma, a constructive consent is presumed and the doctor
is required to exercise reasonable care in applying ordinary
means to preserve the patient’s life. However, he is not
allowed to resort to extraordinary care especially where the
patient is not expected to recover from the comatose state…”
104 Recognition of the right to accept or refuse medical treatment is
founded upon autonomy. The Stanford Encyclopaedia of Philosophy152
postulates that there is “a rough consensus in medical ethics on the
requirement of respect for patient autonomy”. However, a patient may not
151 Luis Kutner, “Due Process of Euthanasia: The Living Will, a proposal”, Indiana Law Journal (1969), Vol. 44,
Issue 4, at page 539
152 “Advance Directives and Substitute Decision-Making”, Stanford Encyclopaedia of Philosophy (24 March
2009), available at https://plato.standford.edu/entries/advance-directives/
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always have the opportunity to grant or withhold consent to medical
treatment. An unforeseen event may deprive the individual of the ability to
indicate a desire to either receive or not to have medical treatment. An
occasion necessitating treatment in sudden cases where a person suffers an
accident, a stroke or coronary153 episode may provide no time for reflection. In
anticipation of such situations, “where an individual patient has no desire to
be kept in a state of complete and indefinite vegetated animation with no
possibility of recovering his mental and physical faculties, that individual, while
still in control of all his/her faculties and his ability to express
himself/herself”154, could still retain the right to refuse medical treatment by
way of “advance directives”.
105 Broadly, there are two forms of advance directives:
- A Living 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
153 Luis Kutner (Supra note 151), at page 551
154 Luis Kutner (Supra note 65) at page 226
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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.155 Living wills
are not a new entity and were first suggested by US attorney, Luis Kutner, in
late 1960s.156
106 Advance directives have evolved conceptually to deal with cases where
a patient who subsequently faces a loss of the mental faculty to decide has
left instructions, when he or she was possessed of decision-making capacity,
on how future medical decisions should be made. The Stanford
Encyclopaedia157 explains the concept thus:
“… For patients who lack the relevant decision-making
capacity at the time the decision is to be made, a need arises
for surrogate decision-making: someone else must be
entrusted to decide on their behalf. Patients who formerly
possessed the relevant decision-making capacity might have
anticipated the loss of capacity and left instructions for how
future medical decisions ought to be made. Such instructions
are called an advance directive. One type of advance
directive simply designates who the surrogate decision-maker
should be. A more substantive advance directive, often
called a living will, specifies particular principles or
considerations meant to guide the surrogate’s decisions in
various circumstances…”
Hazel Biggs158 explains the meaning of “living wills” and advance directives:
“Usually a living will is thought of as a statement indicating a
person’s preferred treatment options at the end of life, but the
term “living will” is also “sometimes used for advance
155 Luis Kutner (Supra note 151), at page 551
156 Ibid
157 “Advance Directives and Substitute Decision-Making”, Stanford Encyclopaedia of Philosophy (24 March
2009), available at https://plato.standford.edu/entries/advance-directives/
158 Hazel Biggs (Supra note 21), at page 115
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directives which are concerned with other situations or which
can be used to express a willingness to receive particular
treatments”. Some stipulate that specific treatments are
acceptable while others are not, while others insist that all
available appropriate medical resources should be utilised to
maintain life. Living wills are not therefore exclusively
associated with end-of-life decisions, although generally the
purpose of a living will is to promote individual autonomy and
choice for the patient; characteristics which have long been
associated with euthanasia as a means of achieving death
with dignity”.
James C Turner159 explains the concept of a living will thus:
“The living will is a document by which a competent adult
signifies a desire that if there ever comes a time when there is
no reasonable expectation of his recovery from physical or
mental disability that he be allowed to die rather than be kept
alive by artificial means or heroic measures. What the typical
living will does, in effect, is to sanction passive euthanasia, or,
as it has been called, antidysthanasia..
The living will is a document which directs one’s physician to
cease affirmative treatment under certain specified
conditions. It can presumably apply to both the situation in
which a person with a terminal disease lapses into the final
stage of his illness and also the situation in which a victim of a
serious accident deteriorates into a state of indefinite
vegetated animation…”
107 The principles of patient autonomy and consent are the foundation of
advance medical directives. A competent and consenting adult is entitled to
refuse medical treatment. By the same postulate, a decision by a competent
adult will be valid in respect of medical treatment in future. As Biggs states:
“…Founded upon respect for individual autonomy this is a
right that operates through the law of consent to protect
patients from unfettered medical paternalism. Common law
holds that patients with the capacity to give consent are also
competent to refuse or withhold consent, “even if a refusal
may risk personal injury to health or even lead to premature
death”. Furthermore, a “refusal of treatment can take the form
159 James C Turner, “Living Wills – Need for legal recognition”, West Virginia Law Review (1976), Vo. 78, Issue
3, at page 370
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of a declaration of intent never to consent to that treatment in
the future, or never to consent in some future circumstances”.
Accordingly, any consent or refusal of consent made by a
competent adult patient can also be valid in respect of the
same treatment at any time in the future.”
108 Advance directives are thus documents a person completes while still in
possession of decisional capacity about how treatment decisions should be
made in the event she or he loses decision making capacity in future. They
cover three conditions: (i) a terminal condition; (ii) a persistently unconscious
condition; and (iii) an end-stage condition.
109 A terminal condition is an incurable or irreversible condition which
even with the administration of life-sustaining treatment will result in death in
the foreseeable future. A persistently unconscious condition is an
irreversible condition, in which thought and awareness of self and environment
are absent. An end-stage condition is a condition caused by injury, disease
or illness which results in severe and permanent deterioration indicated by
incompetency and complete physical dependency for which treatment of the
irreversible condition would be medically ineffective.
110 The reason for recognising an advance directive is based on individual
autonomy. As an autonomous person, every individual has a constitutionally
recognised right to refuse medical treatment. The right not to accept medical
treatment is essential to liberty. Medical treatment cannot be thrust upon an
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individual, however, it may have been conceived in the interest of the individual.
The reasons which may lead a person in a sound state of mind to refuse
medical treatment are inscrutable. Those decisions are not subject to scrutiny
and have to be respected by the law as an essential attribute of the right of the
individual to have control over the body. The state cannot compel an unwilling
individual to receive medical treatment. While an individual cannot compel a
medical professional to provide a particular treatment (this being in the realm of
professional medical judgment), it is equally true that the individual cannot be
compelled to undergo medical intervention. The principle of sanctity of life thus
recognises the fundamental liberty of every person to control his or her body
and as its incident, to decline medical treatment. The ability to take such a
decision is an essential element of the privacy of the being. Privacy also
ensures that a decision as personal as whether or not to accept medical
treatment lies exclusively with the individual as an autonomous being. The
reasons which impel an individual to do so are part of the privacy of the
individual. The mental processes which lead to decision making are equally
part of the constitutionally protected right to privacy.
111 Advance directives are founded on the principle that an individual whose
state of mind is not clouded by an affliction which prevents him or her from
taking decisions is entitled to decide whether to accept or not accept medical
intervention. If a decision can be made for the present, when the individual is in
a sound state of mind, such a person should be allowed to decide the course of
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action which should be followed in the future if he or she were to be in a
situation which affects the ability to take decisions. If a decision on whether or
not to receive medical treatment is valid for the present such a decision must be
equally valid when it is intended to operate in the future. Advance directives are,
in other words, grounded in a recognition by the law of the importance of
consent as an essential attribute of personal liberty. It is the consensual nature
of the act underlying the advance directive which imparts sanctity to it in future
in the same manner as a decision in the present on whether or not to accept
medical treatment.
112 When a patient is brought for medical treatment in a state of mind in
which he or she is deprived of the mental capacity to make informed choices,
the medical professional needs to determine the line of treatment. One line of
enquiry, which seeks to protect patient autonomy is how the individual would
have made a decision if he or she had decision-making capacity. This is
called the substituted judgment standard. An advance medical directive is
construed as a facilitative mechanism in the application of the substituted
judgment standard, if it provides to the physician a communication by the
patient (when she or he was in a fit state of mind) of the desire for or restraint
on being provided medical treatment in future.
113 Conceptually, there is a second standard, which is the caregiver
standard. This is founded on the principle of beneficence. The second
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standard seeks to apply an objective notion of a line of treatment which a
reasonable individual would desire in the circumstances.
The Stanford Encyclopaedia contains an elucidation of these two standards:
“The Substituted Judgment standard:
The surrogate’s task is to reconstruct what the patient himself
would have wanted, in the circumstances at hand, if the
patient had decision-making capacity. Substantive advance
directives are here thought of as a helpful mechanism for
aiding the application of Substituted Judgment. The moral
principle underlying this legal standard is the principle of
respect for autonomy, supplemented by the idea that when a
patient is not currently capable of making a decision for
himself, we can nonetheless respect his autonomy by
following or reconstructing, as best we can, the autonomous
decision he would have made if he were able. In a subset of
cases, a substituted judgment can implement an actual earlier
decision of the patient, made in anticipation of the current
circumstances; this is known as precedent autonomy.
The Caregiver standard:
The surrogate is to decide based on what, in general, would
be good for the patient. The moral principle underlying this
standard is the principle of beneficence. This legal standard
has traditionally assumed a quite generic view of interests,
asking what a “reasonable” person would want under the
circumstances and focusing on general goods such as
freedom from pain, comfort, restoration and/or development
of the patient’s physical and mental capacities. This is
because the Caregiver standard has mainly been employed
when there is little or no information about the patient’s
specific values and preferences. However, the concept of
caregiver is simply the concept of what is best for the person.
There is no reason why, in principle, the Caregiver judgment
could not be as nuanced and individual as the best theory of
well-being dictates.”
The difference between these two standards is that the first seeks to
reconstruct the subjective point of view of the patient. The second allows for
“a more generic view of interests”, without having to rely on the “idiosyncratic
values and preference of the patient in question”.
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114 The Encyclopaedia explains that the “orthodox view” contained the
following ordering of priorities:
“1.Honour a substantive advance directive, as an aid to
Substituted Judgment, whenever such directive is available.
2.Absent an advance directive, apply the Substituted
Judgment standard based on available information about
the patient’s past decisions and values.
3. If you cannot apply the Substituted Judgment standard –
either because the patient has never been competent or
because information about the patient’s former wishes and
values is unavailable – use the Caregiver standard.”
The above ordering of priorities in the orthodox view has been questioned. In
prioritising advance directives and substituted judgments, the orthodox view
“overlooks the possibility that the earlier competent self and the current
incompetent self may have conflicting interests”. Advance directives and the
substituted judgment standard were propounded to deal with afflictions such
as a persistent vegetative state where the interests of the patient in such a
state are not potentially different from what they used to be. The Stanford
Encyclopaedia, however, notes that a loss of decision-making capacity may
give rise to less drastic conditions in which the presently incompetent patient
may have developed “powerful new interests” in a new phase of life. Patients
facing Alzheimer’s or dementia face progressive mental deterioration. When
such a patient was still in a competent state of mind, she may have regarded
a state of dementia to be degrading. However, as the disease progresses,
the interests of the patient change and her life may be enriched by the simple
activities of life. The patient may cease to identify with his or her intellect and
revisit an earlier desire not to prolong life. The Stanford Encyclopaedia states
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that in such an eventuality, “the conflict is between the autonomy of the earlier
self and the well-being of the current self”.
115 One way of seeking a philosophical resolution is to postulate that the
former self and its interests will have priority, or a “special authority” over the
current self. Such an approach prioritises autonomy over beneficence. This
line of approach is, however, not free of difficulty. A patient may have lost the
ability to take complex decisions. Yet the treating physician may not have “a
license to discount the current well-being of the individual in favour of what
mattered to him earlier”. This illustration emphasises the potential conflict
between a pure application of the substituted judgment standard and the
caregiver standard. The former seeks to preserve individual autonomy at all
costs. The latter juxtaposes the role of the medical professional in determining
what is in the best interest of the patient. The best interest standard is hence
founded on the principle that a patient who has progressed from a competent
mental state to an increasing lack of mental capacity faces a change of
personal identity. An autonomous decision suited to an earlier identity may
not always be a valid rationale for determining the course of action in respect
of a new identity which a patient acquires in the course of illness:
“According to the threshold views, the earlier self has
authority to determine the overall interests of the patient
because the current self has lost crucial abilities that would
allow it to ground these overall interests anew. This picture
assumes that the earlier and current self are stages in the life
of one entity, so that, despite the talk of local interests
associated with each life-stage, there is an underlying
continuity of interests between the two. But this is a very
substantial assumption, and it has been contested by appeal
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to an influential account of the metaphysics of personal
identity over time, the psychological continuity account.
Roughly, the idea is that, in the wake of a drastic
transformation of one’s psychology such as Alzheimer’s
disease, one does not survive as numerically the same
individual, so whatever interests one’s predecessor in one’s
body may have had are not a suitable basis for decisions on
behalf of the new individual who has emerged after the
transformation (Dresser 1986). The lack of identity between
the earlier and current self undercuts the authority of the
former over the latter.”
116 In such a situation the doctor’s duty to care assumes significance. The
relationship between a doctor and her patient with an evolving mental
condition needs a balance between the desires of the patient in a different
mental state and the needs of the patient in the present condition. Neither can
be ignored in preference to the other. The first recognises the patient as an
autonomous individual whose desires and choices must be respected by law
and medicine. The desire not to be subject to endless medical intervention,
when one’s condition of mind or body have reached an irreversible state is a
profound reflection of the value to be left alone. Constitutional jurisprudence
protects it as part of the right to privacy. On the other hand, the need to
procure the dignity of the individual in a deteriorating and irreversible state of
body or mind is as crucial to the value of existence. The doctor must respect
the former while being committed as a professional to protect the latter.
117 Human experience suggests that there is a chasm of imponderables
which divide the present from the future. Such a divide may have a bearing on
whether and if so, the extent to which an advance directive should bind in the
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future. As stated above, the sanctity of an advance directive is founded upon
the expression of the will of an individual who is in a sound state of mind when
the directive is executed. Underlying the consensual character of the
declaration is the notion of the consent being informed. Undoubtedly, the
reasons which have weighed with an individual in executing the advance
directive cannot be scrutinized (in the absence of situations such as fraud or
coercion which implicate the very basis of the consent). However, an individual
who expresses the desire not to be subjected to a particular line of treatment in
the future, should she or he be ailing in the future, does so on an assessment of
treatment options available when the directive is executed. For instance, a
decision not to accept chemotherapy in the event that the individual is detected
with cancer in the future, is based on today’s perception of the trauma that may
be suffered by the patient through that treatment. Advances in medical
knowledge between the date of the execution of the document and an uncertain
future date when the individual may possibly confront treatment for the disease
may have led to a re-evaluation by the person of the basis on which a desire
was expressed several years earlier. Another fundamental issue is whether the
individual can by means of an advance directive compel the withholding of basic
care such as hydration and nourishment in the future. Protecting the individual
from pain and suffering as well as the indignity of debility may similarly raise
important issues. Advance directives may hence conceivably raise ethical
issues of the extent to which the perception of the individual who executes it
must prevail in priority to the best interest of the patient.
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118 The substituted judgment standard basically seeks to determine what the
individual would have decided. This gives primacy to the autonomy of the
individual. On the other hand, as seen earlier, the best interest standard is
based on the principle of beneficence. There is an evident tension between
these two standards. What an individual would decide as an autonomous entity
is a matter of subjective perception. What is in the best interest of the patient is
an objective standard: objective, with the limitation that even experts differ. The
importance of an advance directive lies in bringing to the fore the primacy of
individual choice. Such a directive ensures that the individual retains control
over the manner in which the body is treated. It allows the individual to decide
not to accept artificial treatment which would prolong life in the terminal stage of
an ailment or in a vegetative state. In doing so, recognition is granted to the
effect of the advance directive upon the happening of a contingency in the
future, just as the individual would in the present have a right to refuse medical
treatment. The advance directive is an indicator to medical professionals of the
underlying desire of the person executing it.
119 In a society such as ours where family ties have an important place in
social existence, advance directives also provide a sense of solace to the
family. Decisions such as whether to withhold or withdraw artificial life saving
treatment are difficult for families to take. Advance directives provide moral
authority for the family of the patient that the decision which has been taken to
withdraw or withhold artificial life support is in accord with the stated desire of
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the patient expressed earlier. But the ethical concerns which have been referred
to earlier may warrant a nuanced application of the principle. The circumstances
which have been adverted to earlier indicate that the decision on whether to
withhold or withdraw medical treatment should be left to a competent body
comprising of, but not restricted to medical professionals. Assigning a
supervisory role to such a body is also necessary in order to protect against the
possibility of abuse and the dangers surrounding the misuse of an advance
directive. One cannot be unmindful of prevailing social reality in the country.
Hence, it is necessary to ensure that an advance directive is not utilized as a
subterfuge to fulfil unlawful or unethical purposes such as facilitating a
succession to property.
120 The view which this judgment puts forth is that the recognition of advance
directives as part of a regime of constitutional jurisprudence is an essential
attribute of the right to life and personal liberty under Article 21. That right
comprehends dignity as its essential foundation. Quality of life is integral to
dignity. As an essential aspect of dignity and the preservation of autonomy of
choice and decision-making, each individual must have the right on whether or
not to accept medical intervention. Such a choice expressed at a point in time
when the individual is in a sound and competent state of mind should have
sanctity in the future if the individual were to cease to have the mental capability
to take decisions and make choices. Yet, a balance between the application of
the substituted judgment standard and the best interest standard is necessary
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as a matter of public interest. This can be achieved by allowing a supervisory
role to an expert body with whom shall rest oversight in regard to whether a
patient in the terminal stage of an illness or in a permanent vegetative state
should be withheld or withdrawn from artificial life support.
121 In 1995, the British Medical Association (BMA) published a report on
advance statements about medical treatment with the intention to reflect “good
clinical practice in encouraging dialogue about individuals’ wishes concerning
their future treatment”.160 The report theoretically discussed six different types
of advance statements161:
• A requesting statement reflecting an individual's aspirations and
preferences
• A statement of general beliefs and aspects of life that the individual
values
• A statement naming a proxy
• A directive giving clear instructions refusing some or all treatment(s)
• A statement specifying a degree of irreversible deterioration after which
no life-sustaining treatment should be given
• A combination of the above
122 A decade later, the Mental Capacity Act (MCA), 2005 was enacted,
which came into force in October 2007. The statute “enabled individuals to
write an advance directive or appoint a lasting power of attorney to make their
160 A S Kessel and J Meran, “Advance directives in the UK: legal, ethical, and practical considerations for
doctors”, British Journal of General Practice (1998), at page 1263
161 Ibid
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views on health care known should they lose capacity”162. The Act enshrined
in statute law the right of an adult with capacity to make an advance directive
to refuse specific treatment at a point in the future when they lack capacity.
123 Before turning to MCA, it is of importance to state the position of the
common law before the enactment of the legislation. English Law has
recognised the entitlement of an individual possessed of the ability to take
decisions to refuse medical treatment163. The law has had to confront
problems in applying this standard in difficult, practical situations. For
instance, in a judgment in Re B (Adult: Refusal of Medical Treatment)164, a
patient who was suffering from tetraplegia declined to consent to artificial
ventilation. Though the patient was found initially to suffer from depression
and to lack decision making capacity, subsequent evaluation found that she
was mentally competent. For a period of nine months, the hospital refused to
respect the wishes of the patient not to place her on artificial ventilation,
necessitating judicial intervention. When the case travelled to court, the
President of the Family Division, Dame Butler-Sloss emphasised that “the
right of the patient to demand cessation of treatment must prevail “over the
natural desire of the medical and nursing professions to try to keep her alive”.
The Judge recognised the serious danger of “a benevolent paternalism which
162 “Are advance directives legally binding or simply the starting point for discussion on patients’ best interests?”,
BMJ (28 November 2009), Volume 339, page 1231
163 Re T (Adult: Refusal of Treatment) [1942] 4 All ER 649; Re C (Adult: Refusal of Medical Treatment)[1994] 1
All ER 819; St George’s Healthcare NHS Trust v S [1998] 3 WLR 936
164 [2002] 2 All ER 449
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does not embrace recognition of the personal autonomy of the severely
disabled patient”.
124 Commenting on the above decision, Elizabeth Wicks in her recently
published book titled “The State and The Body – Legal Regulation of
Bodily Autonomy”
165 observes that:
“… the desire to preserve life is strong and choices to end life,
especially in circumstances where the life is not without an
element of quality, are often seen as swimming against a
strong tide of the value of life.”
125 In Re AK (Adult Patient) (Medical Treatment: Consent)166, Justice
Hughes (as he then was) in the High Court of Justice, reviewed the
authorities, and summarised the common law position thus:
“Accordingly, the first principle of law which I am satisfied is
completely clear, is that in the case of an adult patient of full
capacity his refusal to consent to treatment or care must in
law be observed. It is clear that in an emergency a doctor is
entitled in law to treat by invasive means if necessary a
patient who by reason of the emergency is unable to consent,
on the grounds that the consent can in those circumstances
be assumed. It is, however, also clearly the law that the
doctors are not entitled so to act if it is known that the patient,
provided he was of sound mind and full capacity, has let it be
known that he does not consent and that such treatment is
against his wishes. To this extent an advance indication of the
wishes of a patient of full capacity and sound mind are
effective. Care will of course have to be taken to ensure that
such anticipatory declarations of wishes still represent the
wishes of the patient. Care must be taken to investigate how
long ago the expression of wishes was made. Care must be
taken to investigate with what knowledge the expression of
wishes was made. All the circumstances in which the
expression of wishes was given will of course have to be
investigated.”
165 Elizabeth Wicks, The State and the Body: Legal Regulation of Bodily Autonomy, Hart Publishing (2016)
166 [2001] 1 FLR 129
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In HE v A Hospital NHS Trust167
, Justice Munby of the High Court of Justice
(Family Division) considered an “Advance Medical Directive/Release” signed
by a young woman, which sought to refuse the transfusion of blood or primary
blood components in absolute and irrevocable terms. The Court had to decide
whether the advance directive was valid and applicable. It was noted that:
“A competent adult patient has an absolute right to refuse
consent to any medical treatment or invasive procedure,
whether the reasons are rational, irrational, unknown or nonexistent,
and even if the result of refusal is the certainty of
death… Consistently with this, a competent adult patient's
anticipatory refusal of consent (a so-called ‘advance directive’
or ‘living will’) remains binding and effective notwithstanding
that the patient has subsequently become and remains
incompetent. An adult is presumed to have capacity, so the
burden of proof is on those who seek to rebut the
presumption and who assert a lack of capacity. It is therefore
for those who assert that an adult was not competent at the
time he made his advance directive to prove that fact.”
The Court then analyzed the specific aspects of the law governing advance
directives:
“1. There are no formal requirements for a valid advance
directive. An advance directive need not be either in or
evidenced by writing. An advance directive may be oral or in
writing.
2. There are no formal requirements for the revocation of an
advance directive. An advance directive, whether oral or in
writing, may be revoked either orally or in writing. A written
advance directive or an advance directive executed under
seal can be revoked orally.
3. An advance directive is inherently revocable. Any condition
in an advance directive purporting to make it irrevocable, any
even self-imposed fetter on a patient’s ability to revoke an
advance directive, and any provision in an advance directive
purporting to impose formal or other conditions upon its
revocation, is contrary to public policy and void. So, a
167 [2003] 2 FLR 408
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stipulation in an advance directive, even if in writing, that it
shall be binding unless and until revoked in writing is void as
being contrary to public policy.
4. The existence and continuing validity and applicability of an
advance directive is a question of fact. Whether an advance
directive has been revoked or has for some other reason
ceased to be operative is a question of fact.
5. The burden of proof is on those who seek to establish the
existence and continuing validity and applicability of an
advance directive.
6. Where life is at stake the evidence must be scrutinised with
especial care. Clear and convincing proof is required. The
continuing validity and applicability of the advance directive
must be clearly established by convincing and inherently
reliable evidence.
7. If there is doubt that doubt falls to be resolved in favour of
the preservation of life.”
126 The common law has been “refined” by passage of the MCA 2005,
which makes statutory provision for advance decisions to refuse treatment.168
The Mental Capacity Act has certain underlying principles169, which can be
stated as follows:
• A person must be assumed to have capacity unless it is established that
she lacks capacity.
• A person is not to be treated as unable to make a decision unless all
practicable steps to help her to do so have been taken without success.
• A person is not to be treated as unable to make a decision merely
because she makes an unwise decision.
168 Alexander Ruck Keene, “Advance Decisions: getting it right?”, available at
http://www.39essex.com/docs/articles/advance_decisions_paper_ark_december_2012.pdf
169 Section 1, Mental Capacity Act 2005
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• An act done, or decision made, under the Act for or on behalf of a
person who lacks capacity must be done, or made, in her caregiver.
• Before the act is done, or the decision is made, regard must be had to
whether the purpose for which it is needed can be as effectively
achieved in a way that is less restrictive of the person’s rights and
freedom of action.
127 Advance decisions are legally binding in England and Wales, as long as
they meet certain requirements. Section 24 of the Act deals with the criteria for
legally valid advance decisions to refuse treatment. Section 25 deals with the
validity and applicability of advance decisions. The advance directive does not
affect the liability which a person may incur for carrying out or continuing a
treatment in relation to the person making the decision, unless the decision is
at the material time— (a) valid, and (b) applicable to the treatment.
128 The law in UK empowers the Court of Protection to make a declaration
as to whether an advance decision— (a) exists; (b) is valid; (c) is applicable to
a treatment.170 Moreover, a person will not incur any liability for the
consequences of withholding or withdrawing a treatment from an individual, if
she at the material time, reasonably believes that a valid advance decision
applicable to the treatment, made by that individual, exists.171
170 Section 26(4), Mental Capacity Act 2005
171 Section 26(3), Mental Capacity Act 2005
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Until the implementation of the Mental Capacity Act 2005 in October 2007,
nobody was able legally to make medical decisions on behalf of another adult
in England and Wales. The Act imposes duties on the person who has to
make a determination as to what is in an individual’s caregiver. All the relevant
circumstances must be taken into consideration, which are as follows172:
• Considering whether it is likely that the person will at some time have
capacity in relation to the matter in question, and if it appears likely that
he or she will, when that is likely to be;
• Permitting and encouraging, so far as reasonably practicable, the
person to participate, or to improve the ability to participate, as fully as
possible in any act done for and any decision affecting the person;
• Where the determination relates to life-sustaining treatment he or she
must not, in considering whether the treatment is in the caregiver of the
person concerned, be motivated by a desire to bring about death;
• Considering so far as is reasonably ascertainable, the person’s past
and present wishes and feelings (and, in particular, any relevant written
statement made when he or she had capacity); the beliefs and values
that would be likely to influence the decision if the person had capacity;
and the other factors that he or she would be likely to consider if able to
do so; and
172 Section 4, Mental Capacity Act 2005
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• Taking into consideration, if it is practicable and appropriate to consult
them, the views of anyone named by the person as someone to be
consulted on the matter in question or on matters of that kind; anyone
engaged in caring for the person or interested in his or her welfare; any
donee of a lasting power of attorney granted by the person; and any
deputy appointed for the person by the court, as to what would be in
the person’s caregiver.
129 Even after the enforcement of the Mental Capacity Act 2005, there have
been examples of life sustaining treatment being continued despite the desire
of the patient to the contrary. In W v M173, a patient who was in a minimally
conscious state had previously expressed a desire against artificial
intervention. An application was made to withdraw artificial nutrition and
hydration. The application was refused by the judge on the basis that her life
had some benefit, in spite of the wishes of the family and the previously
expressed desire of the patient when she was competent that she would not
like to continue living in such a condition. The judge took the view that the
wishes of the patient were not binding and did not carry substantial weight, not
being formally recorded so as to constitute an advance decision under the
Mental Capacity Act, 2005. Adverting to this decision, Wicks notes that
despite the emphasis in the Act of 2005, on the previously expressed desires
173 [2011] EWHC 2443 (Fam)
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of the patient, “these are just one relevant factor and may well not be regarded
as the crucial one if they point towards death rather than continued life”174
.
Yet, a subsequent decision of the UK Supreme Court in Aintree University
Hospitals NHS Foundation Trust v James and Others 175 “does signify
greater acceptance of the centrality of the dying person’s choices”176. But
decided cases show the “medical evidence relating to the benefits of
continued existence remains an influential consideration”177. The result has
been a greater emphasis in providing palliative care towards the end of life.
The palliative care approach gives priority to providing dignity to a dying
patient over an approach which only seeks to prolong life:
“A civilised society really ought to be able to respect the
dignity and autonomy of the dying in a way that both gives
value to their lives and dignity to their death. The withdrawal
of medical treatment from a dying patient can, in some
circumstances, be justified; the withdrawal of basic care and
compassion cannot.”178
130 The Mental Healthcare Act 2017, which was assented to by the
President of India on 7 April 2017, enacts specific provisions for recognising
and enforcing advance directives for persons with mental illness. The
expression “mental illness” is defined by Section 2(s) thus:
“mental illness” means a substantial disorder of thinking,
mood, perception, orientation or memory that grossly impairs
judgment, behaviour, capacity to recognise reality or ability to
meet the ordinary demands of life, mental conditions
174 Elizabeth Wicks (Supra note 165), at page 69
175 [2013] UK SC 6
176 Elizabeth Wicks (Supra note 165), at page 69
177 Ibid
178 Ibid, at page 71
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associated with the abuse of alcohol and drugs, but does not
include mental retardation which is a condition of arrested or
incomplete development of mind of a person, specially
characterised by subnormality of intelligence”.
The Act recognises an advance directive. An advance directive has to be in
writing. The person subscribing to it must be a major. While making an
advance directive, the maker indicates
(i) The manner in which he or she wishes or does not wish to be cared for and
treated for a mental illness; and
(ii) The person he or she appoints as a nominated representative179
.
An advance directive is to be invoked only when the person who made it
ceases to have the capacity to make mental healthcare treatment decisions. It
remains effective until the maker regains the capacity to do so180
.
131 The Central Mental Health Authority constituted under the Act is
empowered to make regulations governing the making of advance
directives181
.
132 The Mental Health Review Board constituted under the Act has to
maintain an online register of all advance directives and to make them
available to a mental health professional when required182
.
179 Section 5(1), Mental Healthcare Act, 2017 (India)
180 Section 5(3), Mental Healthcare Act, 2017 (India)
181 Section 6, Mental Healthcare Act, 2017 (India)
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133 Advance directives are capable of being revoked, amended or modified
by the maker at any time183. The Act specifies that an advance directive will
not apply to emergency treatment184 administered to the maker. Otherwise, a
duty has been cast upon every medical officer in charge of a mental health
establishment and a psychiatrist in charge of treatment to propose or give
treatment to a person with a mental illness, in accordance with a valid
advance directive, subject to Section 11185. Section 11 elucidates a procedure
which is to be followed where a mental health professional, relative or caregiver
does not desire to follow the advance directive. In such a case, an
application has to be made to the Board to review, alter, cancel or modify the
advance directive. In deciding whether to allow such an application the Board
must consider whether
(i) The advance directive is truly voluntary and made without force, undue
influence or coercion;
(ii) The advance directive should apply in circumstances which are materially
different;
(iii) The maker had made a sufficiently well informed decision;
(iv) The maker possessed the capacity to make decisions relating to mental
health care or treatment at the time when it was made; and
(v) The directive is contrary to law or to constitutional provisions186
.
182 Section 7, Mental Healthcare Act, 2017 (India)
183 Section 8(1), Mental Healthcare Act, 2017 (India)
184 Section 9, Mental Healthcare Act, 2017 (India)
185 Section 10, Mental Healthcare Act, 2017 (India)
186 Section 11(2), Mental Healthcare Act, 2017 (India)
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A duty has been cast to provide access to the advance directive to a medical
practitioner or mental health professional, as the case may be187. In the case
of a minor, an advance directive can be made by a legal guardian188. The Act
has specifically granted protection to medical practitioners and to mental
health professionals against being held liable for unforeseen consequences
upon following an advance directive189
.
134 Chapter IV of the Mental Healthcare Act 2017 contains detailed
provisions for the appointment and revocation of nominated representatives.
The provisions contained in Chapter IV stipulate qualifications for appointment
of nominated representatives; an order of precedence in recognising a
nominated representative when none has been appointed by the individual
concerned; revocation of appointments and the duties of nominated
representatives. Among those duties, a nominated representative is to
consider the current and past wishes, the life history, values, culture,
background and the caregiver of the person with a mental illness; give
effective credence to the views of the person with mental illness to the extent
of his or her understanding the nature of the decisions under consideration; to
provide support in making treatment decisions; have the right to seek
information on diagnosis and treatment, among other things.
187 Section 11(3), Mental Healthcare Act, 2017 (India)
188 Section 11(4), Mental Healthcare Act, 2017 (India)
189 Section 13(1), Mental Healthcare Act, 2017 (India)
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135 In the context of mental illness, Parliament has now expressly
recognised the validity of advance directives and delineated the role of
nominated representatives in being associated with healthcare and treatment
decisions.
136 A comparative analysis of advance directives in various jurisdictions
indicates some common components. They include the patient’s views and
wishes regarding: (i) Cardio-pulmonary Resuscitation (CPR) - treatment that
attempts to start breathing and blood flow in people who have stopped
breathing or whose heart has stopped beating; (ii) Breathing Tubes; (iii)
Feeding/Hydration; (iv) Dialysis; (v) Pain Killers; (vi) Antibiotics; (vii) Directions
for organ donation; and (viii) Appointment of Proxy/Health care agent/
Surrogate, etc.
137 Legal recognition of advance directives is founded upon the belief that
an individual’s right to have a dignified life must be respected. In Vishaka v
State of Rajasthan190, the Court, in the absence of enacted law against
sexual harassment at work places, had laid down the guidelines and norms for
due observance at all work places or other institutions, until a legislation is
enacted for the purpose. Certain precepts can be deduced from the existing
global framework on advance directives. These include the following:
190 (1997) 6 SCC 241
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A) Advance directives reflect the right of an adult with capacity to make a
decision to refuse specific treatment at a point in the future when they lack
capacity. A person can be said to lack capacity when “in relation to a
matter if at the material time he is unable to make a decision for himself in
relation to the matter because of an impairment of, or a disturbance in the
functioning of, the mind or brain”191. He/she must be deemed to have
capacity to make decisions regarding his treatment if such person has
ability to— (a) understand the information that is relevant to take a decision
on the treatment or admission or personal assistance; or (b) appreciate any
reasonably foreseeable consequence of a decision or lack of decision on
the treatment or admission or personal assistance; or (c) communicate
such decision by means of speech, expression, gesture or any other
means.192
B) For a legally valid advance decision to refuse treatment, an advance
directive must fulfil a basic criteria193, which should include that- a directive
must be made by a person after he has reached 18 years of age194; the
person must be mentally competent when the directive is made; the
directive must specify – in medical or layman’s terms – the treatment
refused; and, it can specify the circumstances in which the refusal is to
apply.
191 Section 2, Mental Capacity Act 2005 (UK)
192 Section 4, Mental Healthcare Act, 2017 (India)
193 Section 24, Mental Capacity Act, 2005 (UK)
194 A parent acting on behalf of his child cannot make such a declaration.
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C) At any time before reaching the comatose state, an individual can revoke
the directive. In other words, an individual may withdraw or alter an
advance decision at any time when he/she has capacity to do so. Such
withdrawal (including a partial withdrawal) need not be in writing. A
directive must be revoked if the statements or actions subsequent to the
written document indicate contrary consent.195
D) An advance decision will not be applicable to the treatment in question if
(a) at the material time, the person, who made it, did not have the capacity
to give or refuse consent to it196; (b) the treatment is not the treatment
specified in the advance decision197; (c) any circumstances specified in the
advance decision are absent198; or (d) there are reasonable grounds for
believing that circumstances exist which the person making the directive
did not anticipate at the time of the advance decision and which would
have affected his decision had he anticipated them.199
E) If a person intends specifically to refuse life-sustaining procedures200
,
he/she must clearly indicate that it is to apply even if life is at risk and
death will predictably result; put the decision in writing; and, ensure it is
signed and witnessed.
195 Luis Kutner (Supra note 65), at page 228
196 Section 25(3), Mental Capacity Act 2005 (UK)
197 Section 25(4) (a), Mental Capacity Act 2005 (UK)
198 Section 25(4) (b), Mental Capacity Act 2005 (UK)
199 Section 25(4) (c), Mental Capacity Act 2005 (UK)
200 Section 25 (5) and (6), Mental Capacity Act 2005 (UK)
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F) In the event that there is more than one valid Advance Directive, none of
which have been revoked, the most recently signed Advance Directive will
be considered as the last expression of the patient’s wishes and will be
given effect.
G) A person will not incur any liability for the consequences of withholding or
withdrawing a treatment from an individual, if he, at the material time,
reasonably believes that a valid advance decision applicable to the
treatment, made by that individual, exists.201
H) An advance directive must clearly contain the following: (a) full details of its
maker, including date of birth, home address and any distinguishing
features; (b) the name and address of a general practitioner and whether
they have a copy; (c) a statement that the document should be used if the
maker lacks capacity to make treatment decisions; (d) a clear statement of
the decision, the treatment to be refused and the circumstances in which
the decision will apply; (d) the date the document was written (or
reviewed); and, (e) the person’s signature and the signature of a
witness.202
201 Section 26(3), Mental Capacity Act 2005 (UK)
202 Alexander Ruck Keene, “Advance Decisions: getting it right?”, available at
http://www.39essex.com/docs/articles/advance_decisions_paper_ark_december_2012.pdf
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138 Advance directives also have limitations. Individuals may not fully
understand treatment options or recognize the consequences of certain
choices in the future. Sometimes, people change their minds after
expressing advance directives and forget to inform others. Another issue with
advance directives is that vague statements can make it difficult to understand
the course of action when a situation arises. For example, general statements
rejecting "heroic treatments" are vague and do not indicate whether you want
a particular treatment for a specific situation (such as antibiotics
for pneumonia after a severe stroke). On the other hand, very specific
directives for future care may not be useful when situations change in
unexpected ways. New medical therapies may also have become available
since an advance directive was given. Thus, advance directives should be
reviewed and revised regularly if feelings about certain issues change, so that
current wishes and decisions are always legally documented.
139 An important facet which a regime of advanced care directives must
factor in, is the existence of variables which affect the process. These
include, in our society, institutional aspects such as the paucity of access to
publicly funded Medicare, declining standards of professional ethics and the
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inadequacy of institutional responses to the lack of professional accountability
in the medical profession.
140 A report submitted in October 2017 by the American Bar Association’s
Commission on Law and Ageing to the US Department of Health Services,
dwelt on several variables which bear upon advance directives. The following
observations provide an insight:
“A good starting point in understanding this landscape is a
realization that law and regulation are but one slice of the
universe of variables that profoundly affect the experience of
dying…
…other key variables include institutional innovation, the role
of financing systems, professional and public education and
professional standards and guidelines. All these operate in a
larger framework that is defined by family, workplace,
community life and spirituality. Thus, the isolation of law and
regulation as a strategy for behaviour change requires a
sense of humility in establishing expectations, lest we
overstate the influence of law in the human experience of
dying…”203
141 There are variables which “profoundly affect the experience of dying”
even in a developed society. They provide a sobering reflection of the gulf
which separates the needs of patients and the availability of services to the
poor, in a society like ours with large impoverished strata. Patient autonomy
may mean little to the impoverished citizen. For marginalised groups in urban
and rural India, even basic medical care is a distant reality. Advance directives
postulate the availability of medical care. For, it is on the hypothesis of such
203 “Advance Directives And Advance Care Planning: Legal And Policy Issues”, U.S. Department of Health and
Human Services (October 2007), available at https://aspe.hhs.gov/system/files/pdf/75366/adacplpi.pdf, at page 1
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care being available that the right to choose or refuse treatment is based. The
stark reality in our society is that medical facilities are woefully inadequate.
Primary medical care is a luxury in many places. Public hospitals are
overwhelmed by the gap between the demand for medical care and its supply.
Advance directives may have little significance to large segments of Indian
society which are denied access to basic care. Advance directives also
require an awareness of rights. The stark reality is that the average Indian is
deprived of even basic medical facilities in an environment where absence of
rudimentary care is the norm. Moreover, absolute notions of patient autonomy
need to be evaluated in the context of the Indian social structure where bonds
of family, religion and caste predominate. The immediate family and in many
situations, the larger unit of the extended family are caregivers. In the absence
of a social security net, universal medical coverage and compulsory
insurance, it is the family to which a patient turns to in distress. Families
become the caregivers, willingly or as a result of social conditioning, especially
in the absence of resources and alternative institutional facilities. The views of
the family which are drawn by close bonds of kinship have to be factored into
the process. At the other end of the spectrum, rising costs of medical care in
the urban areas threaten to ruin the finances of a family when a member is
struck by a serious illness. To them, advance directives may provide a
measure of assurance when a crucial decision as to whether to prolong
artificial support in an irreversible medical situation is to be taken. The fact that
the patient had expressed a desire in the form of an advance directive
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obviates a sense of moral guilt on the part of the caregivers, when the family
accepts the doctors’ wisdom to withdraw or withhold artificial support. Another
important variable which a regime of advance directives must bear in mind is
the danger of misuse. The regime of advance directives which is intended to
secure patient autonomy must contain safeguards against the greed of
avaricious relatives colluding with willing medical professionals. The
safeguards must be robust to obviate the dangers. The complexities of culture
and of the social strata adverted to above only emphasise the wide diversity
that prevails within the country. Our solution must take into account the
diversity across the country. It is with the above background in view that we
have introduced a safeguard in the form of broad-based committees to
oversee the process.
142 In order to ensure clarity in the course of action to be followed I agree
with the guidelines contained in the judgment of the learned Chief Justice in
regard to Advance Directives as well as in regard to the procedural
mechanisms set up in the judgment.
K Conclusion
143 The court is above all, engaged in the task of expounding the
Constitution. In doing so, we have been confronted with the enormous task of
finding substance and balance in the relationship between life, morality and
the experience of dying. The reason which has impelled the court to recognise
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passive euthanasia and advance directives is that both bear a close
association to the human urge to live with dignity. Age brings isolation.
Physical and mental debility bring a loss of self worth. Pain and suffering are
accompanied by a sense of being helpless. The loss of control is compounded
when medical intervention takes over life. Human values are then lost to
technology. More significant than the affliction of ageing and disease is the
fear of our human persona being lost in the anonymity of an intensive care
ward. It is hence necessary for this court to recognise that our dignity as
citizens continues to be safeguarded by the Constitution even when life is
seemingly lost and questions about our own mortality confront us in the
twilight of existence.
(i) The sanctity of human life is the arterial vein which animates the values,
spirit and cellular structure of the Constitution. The Constitution recognises
the value of life as its indestructible component. The survival of the
sanctity principle is founded upon the guarantees of dignity, autonomy and
liberty;
(ii) The right to a dignified existence, the liberty to make decisions and
choices and the autonomy of the individual are central to the quest to live
a meaningful life. Liberty, dignity and autonomy are essential to the pursuit
of happiness and to find meaning in human existence;
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(iii) The entitlement of each individual to a dignified existence necessitates
constitutional recognition of the principle that an individual possessed of a
free and competent mental state is entitled to decide whether or not to
accept medical treatment. The right of such an individual to refuse medical
treatment is unconditional. Neither the law nor the Constitution compel an
individual who is competent and able to take decisions, to disclose the
reasons for refusing medical treatment nor is such a refusal subject to the
supervisory control of an outside entity;
(iv) Constitutional recognition of the dignity of existence as an inseparable
element of the right to life necessarily means that dignity attaches
throughout the life of the individual. Every individual has a constitutionally
protected expectation that the dignity which attaches to life must subsist
even in the culminating phase of human existence. Dignity of life must
encompass dignity in the stages of living which lead up to the end of life.
Dignity in the process of dying is as much a part of the right to life under
Article 21. To deprive an individual of dignity towards the end of life is to
deprive the individual of a meaningful existence. Hence, the Constitution
protects the legitimate expectation of every person to lead a life of dignity
until death occurs;
(v) The constitutionally recognised right to life is subject to the procedure
established by law. The procedure for regulation or deprivation must, it is
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well-settled, be fair, just and reasonable. Criminal law imposes restraints
and penal exactions which regulate the deprivation of life, or as the case
may be, personal liberty. The intentional taking away of the life of another
is made culpable by the Penal Code. Active euthanasia falls within the
express prohibitions of the law and is unlawful;
(vi) An individual who is in a sound and competent state of mind is entitled by
means of an advance directive in writing, to specify the nature of medical
intervention which may not be adopted in future, should he or she cease
to possess the mental ability to decide. Such an advance directive is
entitled to deference by the treating doctor. The treating doctor who, in a
good faith exercise of professional medical judgment abides by an
advance directive is protected against the burden of criminal liability;
(vii)The decision by a treating doctor to withhold or withdraw medical
intervention in the case of a patient in the terminal stage of illness or in a
persistently vegetative state or the like where artificial intervention will
merely prolong the suffering and agony of the patient is protected by the
law. Where the doctor has acted in such a case in the best interest of the
patient and in bona fide discharge of the duty of care, the law will protect
the reasonable exercise of a professional decision;
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(viii) In Gian Kaur, the Constitution Bench held, while affirming the
constitutional validity of Section 306 of the Penal Code (abetment of
suicide), that the right to life does not include the right to die. Gian Kaur
does not conclusively rule on the validity of passive euthanasia. The two
Judge Bench decision in Aruna Shanbaug proceeds on an incorrect
perception of Gian Kaur. Moreover, Aruna Shanbaug has proceeded on
the basis of the act – omission distinction which suffers from incongruities
of a jurisprudential nature. Aruna Shanbaug has also not dwelt on the
intersection between criminal law and passive euthanasia, beyond
adverting to Sections 306 and 309 of the Penal Code. Aruna Shanbaug
has subordinated the interest of the patient to the interest of others
including the treating doctors and supporting caregivers. The underlying
basis of the decision in Aruna Shanbaug is flawed. Hence, it has become
necessary for this Court in the present reference to revisit the issues
raised and to independently arrive at a conclusion based on the
constitutional position;
(ix) While upholding the legality of passive euthanasia (voluntary and nonvoluntary)
and in recognising the importance of advance directives, the
present judgment draws sustenance from the constitutional values of
liberty, dignity, autonomy and privacy. In order to lend assurance to a
decision taken by the treating doctor in good faith, this judgment has
mandated the setting up of committees to exercise a supervisory role and
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function. Besides lending assurance to the decision of the treating doctors,
the setting up of such committees and the processing of a proposed
decision through the committee will protect the ultimate decision that is
taken from an imputation of a lack of bona fides; and
(x) The directions in regard to the regime of advance directives have been
issued in exercise of the power conferred by Article 142 of the Constitution
and shall continue to hold the field until a suitable legislation is enacted by
Parliament to govern the area.
144 I agree with the directions proposed in the judgment of the learned
Chief Justice.
145 The reference shall stand disposed of in the above terms.
…...............................................J
[Dr D Y CHANDRACHUD]
New Delhi;
March 9, 2018.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 215 OF 2005
COMMON CAUSE (A REGISTERED SOCIETY) ... PETITIONER
VERSUS
UNION OF INDIA AND ANR. ... RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
I had advantage of going through the draft judgment
of Hon'ble the Chief Justice. Though, broadly I
subscribe to the views expressed by Hon'ble the Chief
Justice on various principles and facets as expressed in
the judgment, but looking to the great importance of
issues involved, I have penned my reasons for my views
expressed. However, I am in full agreement with the
directions and safeguards as enumerated by Hon'ble the
Chief Justice in Paras 191 to 194 of the Judgment with
regard to advance medical directives.
2
I also had the benefit of going through the erudite
opinion of Dr. Justice D.Y. Chandrachud, which expresses
almost the same views which are reflected in my
judgment.
This Constitution Bench has been constituted on a
reference made by a threeJudge Bench vide its order
dated 25th February, 2014. The writ petition filed in
public interest prayed for essentially following two
reliefs:
(a) declare 'right to die with dignity'
as a fundamental right within the fold of
Right to Live with dignity guaranteed under
Article 21 of the Constitution of India;
(b) issue direction to the Respondent, to
adopt suitable procedures, in consultation
with State Governments where necessary, to
ensure that persons of deteriorated
health or terminally ill should be able
to execute a document titled “MY LIVING
WILL & ATTORNEY AUTHORISATION” which can be
presented to hospital for appropriate
action in event of the executant being
admitted to the hospital with serious
illness which may threaten termination of
life of the executant or in the
alternative, issue appropriate guidelines
to this effect;”
3
2. Petitioner in support of writ petition has placed
reliance on Constitution Bench judgment in Gian Kaur Vs.
State of Punjab, (1996) 2 SCC 648 as well as twoJudge
Bench judgment in Aruna Ramachandra Shanbaug Vs. Union
of India & Ors., (2011) 4 SCC 454. Petitioner's case is
that this Court in the above two judgments has although
disapproved active euthanasia but has granted its
approval to passive euthanasia. The threeJudge Bench
after referring to paragraphs 24 and 25 of Constitution
Bench judgment observed that Constitution Bench did not
express any binding view on the subject of euthanasia
rather reiterated that legislature would be the
appropriate authority to bring the change. ThreeJudge
Bench further observed that view of two Judge Bench in
Aruna Ramachandra Shanbaug that the Constitution Bench
in Gian Kaur has approved the judgment of House of Lords
in Airedale NHS Trust Vs. Bland, (1993) 1 All ER 821, is
not correct and further opinion expressed by twoJudge
Bench judgment in paragraphs 101 and 104 is
inconsistent. In the above view of the matter the threeJudge
Bench made the reference to the Constitution
4
Bench. It is useful to extract paragraphs 17, 18 and 19
of the referring order which is to the following effect:
“17) In view of the inconsistent opinions
rendered in Aruna Shanbaug (supra) and also
considering the important question of law
involved which needs to be reflected in the
light of social, legal, medical and
constitutional perspective, it becomes
extremely important to have a clear
enunciation of law. Thus, in our cogent
opinion, the question of law 12 Page 13
involved requires careful consideration by a
Constitution Bench of this Court for the
benefit of humanity as a whole.
18) We refrain from framing any specific
questions for consideration by the
Constitution Bench as we invite the
Constitution Bench to go into all the
aspects of the matter and lay down
exhaustive guidelines in this regard.
19) Accordingly, we refer this matter to a
Constitution Bench of this Court for an
authoritative opinion.”
3. We have heard Shri Prashant Bhushan, learned counsel
appearing for the petitioner. Shri P.S. Narasimha,
learned Additional Solicitor General appearing for the
Union of India. Shri Arvind Datar, learned senior
counsel for Vidhi Centre for Legal Policy, Shri Sanjay
R. Hegde, learned senior counsel for Indian Society of
5
Critical Care Medicine, Mr. Devansh A. Mohta, learned
counsel for Society for Right to Die with Dignity and
Mr. Praveen Khattar, learned counsel for Delhi Medical
Council. We have also been assisted by Dr. R.R. Kishore
Member of the Bar who has joined the Bar after carrying
on the profession of doctor for more than 40 years.
A. PETITIONER'S CASE
4. The petitioner is a registered society which is
engaged in taking of the common problems of the people.
The petitioner vide this public interest litigation
brings to the notice of this Court the serious problem
of violation of fundamental right to life, liberty,
privacy and the right to die with dignity of the people
of this country, guaranteed to them under Article 21 of
the Constitution of India. It is submitted that the
citizens who are suffering from chronic diseases and/or
are at the end of their natural life span and are likely
to go into a state of terminal illness or permanent
vegetative state are deprived of their rights to refuse
cruel and unwanted medical treatment, like feeding
6
through hydration tubes, being kept on ventilator and
other life supporting machines in order to artificially
prolong their natural life span. This sometimes leads to
extension of pain and agony both physical and mental
which they desperately seek to end by making an informed
choice and clearly expressing their wishes in advance,
(called a living will) in the event of they going into a
state when it will not be possible for them to express
their wishes.
5. The petitioner further pleads that it is a common
law right of the people, of any civilised country, to
refuse unwanted medical treatment and no person can
force him/her to take any medical treatment which the
person does not desire to continue with. It is submitted
that to initiate a medical treatment to a person who has
reached at an end of his life and the process of his/her
death has already commenced against the wishes of that
person will be violative of his/her right to liberty.
The right to be free from unwanted lifesustaining
medical treatment is a right protected by Article 21.
Even the right to privacy which has also been held to be
7
a part of right to life is being violated as the people
are not being given any right to make an informed choice
and a personal decision about withholding or withdrawing
life sustaining medical treatment.
B. MAN & MEDICINE
6. Human being a mortal, death is an accepted
phenomenon. Anyone born on the earth is sure to die.
Human body is prone to disease and decay. Human being
after getting knowledge of various science and art
always fought with failure and shortcomings of human
body. Various ways and means of healing its body were
found and invented by mankind. The branch of medicine is
practiced from ancient time both in India and other
parts of the World. In our country “Charak Samhita” is a
treatise of medicine which dates back 1000 BC.
7. In Western World “Hippocrates” is regarded as
“father of western medicine”. Hippocratic period dates
from 460 BC. “Corpus Hippocraticum” comprises of not
only general medical prescription, description of
diseases, diagnosis, dietary recommendations but also
8
opinion of professional ethics of a physician. Thus,
those who practiced medicine from ancient time were
ordained to follow some ethical principles. For those
who follow medical profession 'Hippocratic Oath' was
always treated to be Oath to which every medical
professional was held to be bound. It is useful to refer
to original Hippocratic Oath, (as translated into
English):
“I swear by Apollo, the healer, Asclepius,
Hygieia, and Panacea, and I take to witness
all the gods, all the goddesses, to keep
according to my ability and my judgment, the
following Oath and agreement:
To consider dear to me, as my parents, him
who taught me this art; to live in common
with him and, if necessary, to share my
goods with him; To look upon his children as
my own brothers, to teach them this art.
I will prescribe regimens for the good of my
patients according to my ability and my
judgment and never do harm to anyone.
I will not give a lethal drug to anyone if I
am asked, nor will I advise such a plan; and
similarly I will not give a woman a pessary
to cause an abortion.
But I will preserve the purity of my life
and my arts.
I will not cut for stone, even for patients
in whom the disease is manifest; I will
9
leave this operation to be performed by
practitioners, specialists in this art.
In every house where I come I will enter
only for the good of my patients, keeping
myself far from all intentional illdoing
and all seduction and especially from the
pleasures of love with women or with men, be
they free or slaves.
All that may come to my knowledge in the
exercise of my profession or in daily
commerce with men, which ought not to be
spread abroad, I will keep secret and will
never reveal.
If I keep this oath faithfully, may I enjoy
my life and practice my art, respected by
all men and in all times; but if I swerve
from it or violate it, may the reverse be my
lot.”
8. The noticeable portion of the Hippocratic Oath is
that medical practitioner swears that he will not give a
lethal drug to anyone nor he will advise such a plan.
9. At this juncture, it shall be useful to refer to
thoughts of Plato, a celebrated Greek Philosopher, on
“physician” and treatment which he expressed in his
treatise 'Republic'. Plato in “The Republic of Plato”,
(translated by Francis Macdonald Cornford) while
discussing “physician”, in Chapter IX states:
10
"Shall we say, then, that Asclepius
recognized this and revealed the art of
medicine for the benefit of people of sound
constitution who normally led a healthy
life, but had contracted some definite
ailment? He would rid them of their
disorders by means of drugs or the knife and
tell them to go on living as usual, so as
not to impair their usefulness as citizens.
But where the body was diseased through and
through, he would not try, by nicely
calculated evacuations and doses, to prolong
a miserable existence and let his patient
beget children who were likely to be as
sickly as himself. Treatment, he thought,
would be wasted on a man who could not live
in his ordinary round of duties and was
consequently useless to himself and to
society.”
10. Plato in the same Chapter in little harsher words
further states:
"But if a man had a sickly constitution and
intemperate habits, his life was worth
nothing to himself or to anyone else;
medicine was not meant for such people and
they should not be treated, though they
might be richer than Midas.”
11. From what has been noted above, it is apparent that
although on one hand medical professional has to take
Hippocratic Oath that he shall treat his patient
according to his ability and judgment and never do harm
to anyone. Further, he will not give any lethal drug to
11
anyone even he is asked for, on the other hand Plato
held that those who has sickly constitution and
intemperate habits should not be helped by medicine.
Thus, the cleavage in views regarding ethics of a
medical professional as well as not supporting medical
treatment for those who are thoroughly diseased is found
from ancient time in Greek thoughts itself.
12. The dilemma of medical professional still continues
to this day and medical professionals are hesitant in
adopting a course which may not support the life of a
patient or lead to patient's death. Numerous cases
raising conflicting views were brought before the Courts
in the different parts of the World, some of which we
shall refer hereinafter.
13. There has been considerable development in medical
science from ancient time to this day. There has been
substantial acceptance of natural and human rights of
the human beings which found expression in “United
Nations Human Rights Declaration, 1948” and subsequent
declarations. The right of selfdetermination of an
12
individual has been recognised throughout the World.
C. CONCEPT OF LIFE & DEATH
14. In the ancient India, on 'life' and 'death' there is
considerable literature. According to Hinduism, life
never comes to an end. The soul never die although body
may decay. The soul is continuous and perpetual which is
not merely a biological identity, death is not the end
of life but only a transformation of a body. In
“Bhagavadgita” Chapter II Verse 22 (as translated in
English), it is stated by Lord Krishna:
"22.As a man shedding wornout garments,
takes other new ones, likewise the embodied
soul, casting off wornout bodies, enters
into others that are new.”
15. The death was never feared in ancient Indian culture
and mythology. Death was treated sometimes a means to
obtain liberation that is 'moksha'. Every life is a gift
of God and sacred and it has to be protected at all
cost. No person is bestowed with the right to end his or
her life. However, an individual's act of discarding
mortal body may be permissible under certain
13
circumstances. In ancient Indian religion, sanctity was
attached to a Yogi (a person who has mastered the art of
regulating his involuntary physical and mental
functions, at will) can discard his/her mortal
coil(body) through the process of higher spiritual
practices called yoga. Such state was known as
'Samadhi'. But there was no concept in ancient
India/mythology of putting an end to life of another
human being which was always regarded as crime and
against 'dharma'.
16. The Vedic Rules also forbid suicide whereas
according to ancient hindu culture, a man in his fourth
stage, i.e., Vanaprastha could go into the forest
sustaining only on water and air, end his body. A
Brahmin also could have got rid of his body by drowning
oneself in a river, precipitating oneself from a mount,
burning oneself or starving oneself to death; or by one
of those modes of practising austerities, mentioned
above. The Laws of Manu as contained in Sacred Books of
the East, Edited by Max Muller, Volume 25 Chapter VI
verses 31 and 32 refers to above. The Book also refers
14
to views of various commentators on verses 31 and 32.
It is useful to extract verses 31 and 32 and Note of the
author on aforesaid verses containing the views of
different commentators which are to the following
effect:
“31. Or let him walk, fully determined and
going straight on, in a northeasterly
direction, subsisting on water and air, until
his body sinks to rest.
32. A Brahmana, having got rid of his body by
one of those modes practised by the great
sages, is exalted in the world of Brahman,
free from sorrow and fear.
31. Gov. and Kull. take yukta, firmly
resolved' (Nar., Ragh.), in the sense of
'intent on the practice of Yoga.' Gov. and
Kull. (see also Medh. on the next verse) say
that a man may undertake the Mahaprasthana,
or' Great Departure,' on a journey which ends
in death, when he is incurably diseased or
meets with a great misfortune, and that,
because it is taught in the Sastras, it is
not opposed to the Vedic rules which forbid
suicide. From the parallel passage of Ap. II,
23, 2, it is, however, evident that a
voluntary death by starvation was considered
the befitting conclusion of a hermit's life.
The antiquity and general prevalence of the
practice may be inferred from the fact that
the Gaina ascetics, too, consider it
particularly meritorious.
15
32. By one of those modes,' i.e. drowning
oneself in a river, precipitating oneself
from a mount, burning oneself or starving
oneself to death' (Medh.); or 'by one of
those modes of practising austerities,
mentioned above, verse 23' (Gov., Kull.,
Nar., Nand.). Medh. adds a long discussion,
trying to prove that the world of Brahman,'
which the ascetic thus gains, is not the real
complete liberation.”
17. The Hindu Sculpture also says that life and death is
the gift of God and no human being has right to take
away the said gift. The suicide is disapproved in Hindu
way of life and it is believed that those who commit
suicide did not attain Moksha or Salvation from the
cycle of life and death.
18. The Muslims also strongly condemn suicide as they
believe that life and death of a person depends on
Allah’s will and human beings are prohibited in going
against HIS will.
19. Christianity also disapprove taking of one’s life.
Bible says that human being is a temple of God and the
spirit of God dwelleth in the body and no man can defile
the temple. Reference is made to Chapter 3 verses 16
16
and 17 of I CORINTHIA NS , which is as below:
“16. Know Ye not that ye are the temple of
God, and that the Spirit of God dwelleth in
you?
17. If any man defile the temple of God,
him shall God destroy; for the temple of
God is holy, which temple ye are.”
20. Pope John Paul II in, “The Gospel of Life”,
denouncing euthanasia writes:
"Laws which authorise and promote
euthanasia are therefore radically opposed
not only to the good of the individual but
also to the common good; as such they are
completely lacking in authentic juridical
validity. Disregarded for the right to
life, precisely because it leads to the
killing of the person whom society exists
to serve, is what most directly conflicts
with the possibility of achieving the
common good. Consequently, a civil law
authorising euthanasia ceases by that very
fact to be a true, morally binding civil
law.”
21. The tenets of Jainism also talks about the practice
of religiously nominated selfbuild death called
“Sallkhana”, meaning 'fast upto death'.
17
22. The Buddhist sculpture states that Lord Buddha had
also allowed selfbuild death for the extremely ill
person as an act of compassion.
23. In different religions and cultures, there are clear
injunctions against taking life of oneself.
24. The petitioner in the Writ Petition has
categorically clarified that petitioner is neither
challenging the provisions of I.P.C. by which “attempt
to suicide” is made a penal offence nor praying right to
die be declared as fundamental right under Article 21.
It is useful to refer to Para 7 of the Writ Petition, in
which petitioner pleads following:
“It is submitted at the outset that the
petitioner in the instant petition is
neither challenging the Section 309 of
Indian Penal Code, vide which Attempt to
Suicide is a penal offence nor is asking
right to die per se as a fundamental right
under Article 21 (as the issue is squarely
covered by the Constitution Bench judgment
of this Hon’ble Court in the case of Gian
Kaur vs. State of Punjab and in other
connected matters, (1996) 2 SCC 648. The
endeavour of the Petitioner in the instant
petition is to seek guidelines from this
Hon’ble Court whereby the people who are
diagnosed of suffering from terminal
18
diseases or ailments can execute Living
Will or give directives in advance or
otherwise to his/her attorney/executor to
act in a specific manner in the event
he/she goes into persistent vegetative
state or coma owing to that illness or due
to some other reason.”
D. THE RELEVANT PROVISIONS OF IPC
25. The Indian Penal Code, 1860, is a general penal code
defining various acts which are offence and providing
for punishment thereof. Chapter XVI deals with “offences
affecting the human body”. The provisions of Indian
Penal Code which are relevant in the present context are
Section 306 and Section 309. Section 306 relates to
abetment of suicide. It provides “if any person commits
suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either
description for a term which may extend to ten years,
and shall also be liable to fine”. Another provision
which is relevant is Section 309 i.e. attempt to commit
suicide. The provision states, whoever attempts to
commit suicide and does any act towards the commission
of such offence, shall be punished with simple
19
imprisonment for a term which may extend to one year (or
with fine, or with both). The issues which have come up
for consideration in the present case have to be dealt
with keeping in view the above provisions of Indian
Penal Code which declares certain acts to be offence.
E. LEGISLATION IN REFERENCE TO EUTHANASIA
26. The only statutory provision in our country which
refers to euthanasia is statutory regulations framed
under Indian Medical Council Act, 1956, namely The
Indian Medical Council (Professional Conduct, Etiquette
& Ethics) Regulations, 2002. Chapter VI of the
Regulations deals with “Unethical Acts”. Regulation 6 is
to the following effect:
“6. UNETHICAL ACTS
A physician shall not aid or abet or commit
any of the following acts which shall be
construed as unethical……………
…………… ………… …………
6.7 Euthanasia Practising euthanasia shall
constitute unethical conduct. However, on
specific occasion, the question of
withdrawing supporting devices to sustain
cardiopulmonary function even after brain
death, shall be decided only by a team of
doctors and not merely by the treating
20
physician alone. A team of doctors shall
declare withdrawal of support system. Such
team shall consist of the doctor incharge
of the patient, Chief Medical
Officer/Medical Officer incharge of the
hospital and a doctor nominated by the incharge
of the hospital from the hospital
staff or in accordance with the provisions
of the Transplantation of Human Organ Act,
1994.”
27. The Law Commission of India had stated and submitted
a detailed report on the subject in 196th report on
“Medical Treatment to Terminally Ill Patients
(Protection of Patients and Medical Practitioners)”. Law
Commission examined various provisions of Indian Penal
Code and other statutory provisions, judgments of this
court and different courts of other countries and had
made certain recommendations. A draft bill was also made
part of the recommendation. Draft bill namely Medical
Treatment to Terminally Ill Patients (Protection of
Patients and Medical Practitioners) Bill, 2006, was made
part of the report as an Annexure.
28. Chapter 8 of the report contains summary of
recommendations. It is not necessary to reproduce all
the recommendations. It is sufficient to refer to para 1
21
and 2 of the recommendations:
“...In the previous chapters, we have
considered various important issues on the
subject of withholding or withdrawing
medical treatment (including artificial
nutrition and hydration) from terminally
illpatients. In Chapter VII, we have
considered what is suitable for our
country. Various aspects arise for
consideration, namely, as to who are
competent and incompetent patients, as to
what is meant by ‘informed decision’, what
is meant by ‘best interests’ of a patient,
whether patients, their relations or
doctors or hospitals can move a Court of
law seeking a declaration that an act or
omission or a proposed act or omission of a
doctor is lawful, if so, whether such
decisions will be binding on the parties
and doctors, in future civil and criminal
proceedings etc. Questions have arisen
whether a patient who refuses treatment is
guilty of attempt to commit suicide or
whether the doctors are guilty of abetment
of suicide or culpable homicide not
amounting to murder etc. On these issues,
we have given our views in Chapter VII on a
consideration of law and vast comparative
literature.
In this chapter, we propose to give a
summary of our recommendations and the
corresponding sections of the proposed Bill
which deal with each of the
recommendations. (The draft of the Bill is
annexed to this Report). We shall now refer
to our recommendations.
1) There is need to have a law to protect
patients who are terminally ill, when they
22
take decisions to refuse medical treatment,
including artificial nutrition and
hydration, so that they may not be
considered guilty of the offence of
‘attempt to commit suicide’ under sec.309
of the Indian Penal Code, 1860.
It is also necessary to protect doctors
(and those who act under their directions)
who obey the competent patient’s informed
decision or who, in the case of (i)
incompetent patients or (ii) competent
patients whose decisions are not informed
decisions, and decide that in the best
interests of such patients, the medical
treatment needs to be withheld or withdrawn
as it is not likely to serve any purpose.
Such actions of doctors must be declared by
statute to be ‘lawful’ in order to protect
doctors and those who act under their
directions if they are hauled up for the
offence of ‘abetment of suicide’ under
sections 305, 306 of the Indian Penal Code,
1860, or for the offence of culpable
homicide not amounting to murder under
section 299 read with section 304 of the
Penal Code, 1860 or in actions under civil
law.
2)Parliament is competent to make such a
law under Entry 26 of List III of the
Seventh Schedule of the Constitution of
India in regard to patients and medical
practitioners. The proposed law, in our
view, should be called ‘The Medical
Treatment of Terminally Ill Patients
(Protection of Patients, Medical
Practitioners) Act.”
29. The 196th Report was again revised by the Law
23
Commission of India in 241st Report dated August, 2012.
The 2006 draft bill was redrafted by Law Commission
which was Annexure 1 to the report. The above bill
however could not fructify in a law. The Ministry of
health and family welfare had published another draft
bill namely The Medical Treatment of Terminally Ill
Patients (Protection of Patients & Medical
Practitioners) Bill, 2016, as a private member bill
which was introduced in Rajya Sabha on 5th August 2016,
which is still pending.
30. From the above, it is clear that only statutory
provision on euthanasia is regulation 6.7 of the 2002
Regulations as referred above. The regulations prohibit
practicing euthanasia and declare that practicing
euthanasia constitute unethical conduct on behalf of the
medical practitioner. The regulation however carves an
exception that on specific occasion, the question of
withdrawing supporting devices to sustain cardiopulmonary
function even after brain death, shall be
decided only by a team of doctors and not merely by the
treating physician alone. The regulation further
24
provides that team of doctors shall declare withdrawal
of support system.
31. The withdrawal of medical treatment of terminally
ill Persons is complex ethical, moral and social issue
with which many countries have wrestled with their
attempt to introduce a legal framework for end of life
decision making. In absence of a comprehensive legal
framework on the subject the issue has to be dealt with
great caution.
F. TWO IMPORTANT JUDGMENTS OF THIS COURT ON THE
SUBJECT:
32. The first important judgment delivered by the
Constitution Bench of this court touching the subject is
the judgment of Constitution Bench in Gian Kaur Vs.
State of Punjab, (1996) 2 SCC 648. In the above 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 this Court. One of the grounds for
25
assailing the conviction before this Court was that
Section 306 IPC is unconstitutional. The reliance was
placed on twoJudge Bench decision of this court in
P.Rathinam Vs. Union of India & Anr., (1994) 3 SCC 394,
wherein Section 309 IPC was held to be unconstitutional
as violative of Article 21 of the Constitution.
33. Section 306 was sought to be declared as
unconstitutional being violative of Article 21 of the
Constitution. The Law Commission by its 22nd report had
recommended for deletion of Section 309 and a Bill was
introduced in 1972 to amend the Indian Penal Code by
deleting Section 309. The Constitution Bench dwelt the
question as to whether ‘right to die’ is included in
Article 21. The Constitution Bench concluded that ‘right
to die’ “cannot be included as part of fundamental
rights guaranteed under Article 21”.
34. The challenge to section 309 on the basis of
Articles 14 and 21 was repelled. This court further held
that Section 306 of Indian Penal Code does not violate
Article 21 and Article 14 of the Constitution of India.
26
35. The second judgment which needs to be noted in
detail is twoJudge Bench judgment of this 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, he
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 bedridden, 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
27
let her die peacefully. In the above case, TwoJudge
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, following was laid down in
para 39 and 40:
“39. Coming now to the legal issues in
this case, it may be noted that euthanasia
is of two types: active and passive. Active
euthanasia entails the use of lethal
substances or forces to kill a person e.g.
a lethal injection given to a person with
terminal cancer who is in terrible agony.
Passive euthanasia entails withholding of
medical treatment for continuance of life
e.g. withholding of antibiotics where
without giving it a patient is likely to
die, or removing the heartlung machine,
from a patient in coma. The general legal
position all over the world seems to be
that while active euthanasia is legal even
without legislation provided certain
conditions and safeguards are maintained.”
40. A further categorisation of
euthanasia is between voluntary euthanasia
and nonvoluntary euthanasia. Voluntary
euthanasia is where the consent is taken
from the patient, whereas nonvoluntary
euthanasia is where the consent is
unavailable e.g. when the patient is in
coma, or is otherwise unable to give
consent. While there is no legal difficulty
in the case of the former, the latter poses
several problems, which we shall address.”
28
36. The court held that in India, active euthanasia is
illegal and crime. In paragraph 41, following was held:
“41. As already stated above active
euthanasia is a crime all over the world
except where permitted by legislation. In
India active euthanasia is illegal and a
crime under Section 302 or atleast under
Section 304 of the Penal Code, 1860.
Physicianassisted suicide is a crime under
Section 306 IPC (abetment to suicide).
Active euthanasia is taking specific steps
to cause the patient’s death, such as
injecting the patient with some lethal
substance e.g. sodium pentothal which
causes a person deep sleep in a few
seconds, and the person instantaneously and
painlessly dies in this deep sleep.”
37. The court noticed various judgments of different
countries in the above context. TwoJudge Bench also
referred to Constitution Bench judgment in Gian Kaur Vs.
State of Punjab. In Para 101 and 104, following has been
laid down:
“101. The Constitution Bench of the Supreme
Court in Gina Kaur V. State of Punjab held
that both euthanasia and assisted suicide
are not lawful in India. That decision
overruled the earlier twoJudge Bench
decision of the Supreme Court in P.Rathinam
V. Union of India. The Court held that the
right to life under Article 21 of the
Constitution does not include the right to
die. In Gian Kaur case the Supreme Court
29
approved of the decision of the House of
Lords in Airedale case and observed that
euthanasia could be made lawful only by
legislation.
104. It may be noted that in Gian Kaur Case
although the Supreme Court has quoted with
approval the view of the House of Lords in
Airedale case, it has not clarified who can
decide whether life support should be
discontinued in the case of an incompetent
person e.g. a person in coma or PVS. This
vexed question has been arising often in
India because there are a large number of
cases where persons go into coma(due to an
accident or some other reason) or for some
other reason are unable to give consent,
and then the question arises as to who
should give consent for withdrawal of life
support. This is an extremely important
question in India because of the
unfortunate low level of ethical standards
to which our society has descended, its raw
and widespread commercialisation, and the
rampant corruption, and hence, the Court
has to be very cautious that unscrupulous
persons who wish to inherit the property of
someone may not get him eliminated by some
crooked method.”
38. TwoJudge Bench noticed that there is no statutory
provision in this country as to the legal procedure to
withdraw life support to a person in Persistent
Vegetative State (PVS) or who is otherwise incompetent
to take the decision in this connection. The court,
however, issued certain directions which were to
30
continue to be the law until Parliament makes a law on
this subject. In paragraph 124, following has been laid
down:
“124. There is no statutory provision in
our country as to the legal procedure for
withdrawing life support to a person in PVS
or who is otherwise incompetent to take a
decision in this connection. We agree with
Mr. Andhyarujina that passive euthanasia
should be permitted in our country in
certain situations, and we disagree with
the learned Attorney General that it should
never be permitted. Hence, following the
technique used in Vishaka case, we are
laying down the law in this connection
which will continue to be the law until
Parliament makes a law on the subject:
(i) A decision has to be taken to
discontinue life support either by the
parents or the spouse or other close
relatives, or in the absence of any of
them, such a decision can be taken even
by a person or a body of persons acting
as a next friend. It can also be taken
by the doctors attending the patient.
However, the decision should be taken
bona fide in the best interest of the
patient.
In the present case, we have
already noted that Aruna Shanbaug’s
parents are dead and other close
relatives are not interested in her
ever since she had the unfortunate
assault on her. As already noted above,
it is the KEM hospital staff, who have
been amazingly caring for her day and
night for so many long years, who
31
really are her next friends, and not
Ms. Pinki Virani who has only visited
her on few occasions and written a book
on her. Hence it is for the KEM
Hospital staff to take that decision.
KEM Hospital staff have clearly
expressed their wish that Aruna
Shanbaug should be allowed to live.
Mr. Pallav Shishodia, learned
Senior Counsel, appearing for the Dean,
KEM Hospital, Mumbai, submitted that
Ms. Pinki Virani has no locus standi in
this case. In our opinion it is not
necessary for us to go into this
question since we are of the opinion
that it is the KEM Hospital staff who
is really the next friend of Aruna
Shanbaug.
We do not mean to decry or
disparage what Ms. Pinki Virani has
done. Rather, we wish to express our
appreciation of the splendid social
spirit she has shown. We have seen on
the internet that she has been
espousing many social causes, and we
hold her in high esteem. All that we
wish to say is that however much her
interest in Aruna Shanbaug may be it
cannot match the involvement of the KEM
Hospital staff who have been taking
care of Aruna day and night for 38
years.
However, assuming that the KEM
Hospital staff at some future time
changes its mind, in our opinion in
such a situation KEM Hospital would
have to apply to the Bombay High Court
for approval of the decision to
withdraw life support.
32
(ii) Hence, even if a decision is taken by
the near relatives or doctors or next
friend to withdraw life support, such a
decision requires approval from the
High Court concerned as laid down in
Airedale case.
In our opinion, this is even more
necessary in our country as we cannot
rule out the possibility of mischief
being done by relatives or others for
inheriting the property of the
patient.”
G. LAW ON SUBJECT IN OTHER COUNTRIES
39. The debate on Euthanasia had gathered momentum in
last 100 years. The laws of different countries
expresses thoughts of people based on different culture,
philosophy and social conditions. Assisted suicide was
always treated as an offence in most of the countries.
Physician assisted suicide is also not accepted in most
of the countries except in few where it gain ground in
last century. In several countries including different
States of U.S.A., European Countries and United Kingdom,
various legislations have come into existence codifying
different provisions pertaining to physician assisted
suicide. The right to not commence or withdraw medical
33
treatment in case of terminally ill or PSV patients,
advance medical directives have also been made part of
different legislations in different countries.
40. Physician assisted suicide has not been accepted by
many countries. However, few have accepted it and made
necessary legislation to regulate it. Switzerland,
Netherlands, Belgium, Luxembourg, and American States of
Oregan, Washington, Montana and Columbia has permitted
physician assisted suicide with statutory regulations.
Courts in different parts of the world have dealt with
the subject in issue in detail. It is not necessary to
refer to different legislation of different countries
and the case law on subject of different countries. For
the purposes of this case, it shall be sufficient to
notice few leading cases of United Kingdom, United
States Supreme Court and few others countries.
United Kingdom
41. Euthanasia is criminal offence in the United
Kingdom. According to Section 2(1) of the Suicide Act,
1961, a person assisting an individual, who wish to die
34
commits an offence. The provision states that it is an
offence to aid, abet, counsel or procure the suicide of
another or an attempt by another to commit suicide,
however, it is not a crime if it is by their own hands.
There has been large parliamentary opposition to the
current United Kingdom Law concerning assisted suicide
but there has been no fundamental change in the law so
far. In 1997, the Doctor Assisted Dying Bill as well as
in 2000, the Medical Treatment (Prevention of
Euthanasia) Bill were not approved. The most celebrated
judgment of the House of Lords is Airedale N.H.S. Trust
Vs. Bland, (1993) A.C. 789.
42. Anthony David Bland was injured on 15th April, 1989
at the Hillsborough football ground in which his lungs
were crushed and punctured, the supply of oxygen to the
brain was interrupted. As a result, he sustained
catastrophic and irreversible damage to the higher
centres of the brain, which had left him in a condition
known as a persistent vegetative state(P.V.S.). Medical
opinion was unanimous that there was no hope of
improvement in his condition or recovery. At no time
35
before the disaster had the patient indicated his wishes
if he should find himself in such a condition. Bland's
father sought declarations that Hospital authorities may
discontinue all his lifesustaining treatment and
medical support measures and further lawfully
discontinue and thereafter need not furnish medical
treatment to the patient except for the sole purpose of
enabling the patient to end his life and die peacefully
with the greatest dignity and the least of pain,
suffering and distress.
43. The lower court granted the declarations sought for.
The court of appeal upheld the order. Official Solicitor
filed an appeal before the House of Lords. Lord Goff
held that it is not lawful for a doctor to administer a
drug to his patient to bring about his death, even
though that course is prompted by a humanitarian desire
to end his suffering. Such act is actively causing death
i.e. euthanasia which is not lawful. It was further
held that a case in which doctor decides not to provide
or continue to provide treatment or care, it may be
lawful. Following was stated by Lord Goff:
36
“First, it is established that the
principle of selfdetermination requires
that respect must be given to the wishes of
the patient, so that if an adult patient of
sound mind refuses, however unreasonably,
to consent to treatment or care by which
his life would or might be prolonged, the
doctors responsible for his care must give
effect to his wishes even though they do
not consider it to be in his best interests
to do so...........
To this extent, the principle of the
sanctity of human life must yield to the
principle of selfdetermination(see ante,
pp.826H827A, per Hoffmann L.J.), and, for
present purposes perhaps more important,
the doctor’s duty to act in the best
interests of his patient must likewise be
qualified. On this basis, it has been held
that a patient of sound mind may, if
properly informed, require that life
support should be discontinued: see Nancy
B. v. H”telDieu de Quebec (1992) 86 D.L.R.
(4th) 385. Moreover the same principle
applies where the patient's refusal to give
his consent has been expressed at an
earlier date, before he became unconscious
or otherwise incapable of communicating it;
though in such circumstances especial care
may be necessary to ensure that the prior
refusal of consent is still properly to be
regarded as applicable in the circumstances
which have subsequently occurred: see,
e.g., In re T.(Adult: Refusal of Treatment)
(1993) Fam.95. I wish to add that, in cases
of this kind, there is no question of the
patient having committed suicide, nor
therefore of the doctor having aided or
abetted him in doing so. It is simply that
the patient has, as he is entitled to do,
37
declined to consent to treatment which
might or would have the effect of
prolonging his life, and the doctor has, in
accordance with his duty, complied with his
patient's wishes................
I must however stress, at this point, that
the law draws a crucial distinction between
cases in which a doctor decides not to
provide, or to continue to provide, for his
patient treatment or care which could or
might prolong his life, and those in which
he decides, for example by administering a
lethal drug, actively to bring his
patient's life to an end. As I have already
indicated, the former may be lawful, either
because the doctor is giving effect to his
patient's wishes by withholding the
treatment or care, or even in certain
circumstances in which (on principles which
I shall describe) the patient is
incapacitated from stating whether or not
he gives his consent. But it is not lawful
for a doctor to administer a drug to his
patient to bring about his death, even
though that course is prompted by a
humanitarian desire to end his suffering,
however great that suffering may be: see
Reg. v. Cox (unreported), 18 September,
1992. So to act is to cross the Rubicon
which runs between on the one hand the care
of the living patient and on the other hand
euthanasiaactively causing his death to
avoid or to end his suffering. Euthanasia
is not lawful at common law. It is of
course well known that there are many
responsible members of our society who
believe that euthanasia should be made
lawful; but that result could, I believe,
only be achieved by legislation which
expresses the democratic will that so
fundamental a change should be made in our
38
law, and can, if enacted, ensure that such
legalised killing can only be carried out
subject to appropriate supervision and
control..................................
At the heart of this distinction lies a
theoretical question. Why is it that the
doctor who gives his patient a lethal
injection which kills him commits an
unlawful act and indeed is guilty of
murder, whereas a doctor who, by
discontinuing life support, allows his
patient to die, may not act unlawfully –
and will not do so, if he commits no breach
of duty to his patient ?”
44. Lord BrowneWilkinson in his judgment noticed the
following questions raised in the matter:
"(1) lawfully discontinue all lifesustaining
treatment and medical support
measures designed to keep (Mr. Bland) alive
in his existing persistent vegetative state
including the termination of ventilation,
nutrition and hydration by artificial
means; and
(2) lawfully discontinue and thereafter
need not furnish medical treatment to (Mr.
Bland) except for the sole purpose of
enabling (Mr. Bland) to end his life and
die peacefully with the greatest dignity
and the least of pain, suffering and
distress.”
Answering the questions following was held:
"Anthony Bland has been irreversibly brain
damaged; the most distinguished medical
39
opinion is unanimous that there is no
prospect at all that the condition will
change for the better. He is not aware of
anything. If artificial feeding is
discontinued and he dies, he will feel
nothing. Whether he lives or dies he will
feel no pain or distress. All the purely
physical considerations indicate that it is
pointless to continue life support. Only if
the doctors responsible for his care held
the view that, though he is aware of
nothing, there is some benefit to him in
staying alive, would there be anything to
indicate that it is for his benefit to
continue the..................
In these circumstances, it is perfectly
reasonable for the responsible doctors to
conclude that there is no affirmative
benefit to Anthony Bland in continuing the
invasive medical procedures necessary to
sustain his life. Having so concluded, they
are neither entitled nor under a duty to
continue such medical care. Therefore they
will not be guilty of murder if they
discontinue such care.”
45. Another judgment which needs to be noticed is Ms. B
Vs. An NHS Hospital Trust, 2002 EWHC 429. The claimant,
Ms. B has sought declaration from the High Court that
the invasive treatment which is currently being given by
the respondent by way of artificial ventilation is an
unlawful trespass. The main issue raised in the case is
as to whether Ms. B has the capacity to make her own
40
decision about her treatment in hospital. Ms. B, aged 43
years, had suffered a devastating illness which has
caused her to become tetraplegic and whose expressed
wish is not to be kept artificially alive by the use of
a ventilator. The High Court in the above context
examined several earlier cases on the principle of
autonomy. Paragraphs 16 to 22 are to the following
effect:
“16. In 1972 Lord Reid in S v McC: W v
W [1972] AC 25 said, at page 43:
“…English law goes to great lengths to
protect a person of full age and capacity
from interference with his personal
liberty. We have too often seen freedom
disappear in other countries not only by
coups d’état but by gradual erosion: and
often it is the first step that counts. So
it would be unwise to make even minor
concessions.”
17. In re F (Mental Patient:
Sterilisation) [1990] 2 AC 1, Lord Goff of
Chieveley said at page 72:
“I start with the fundamental principle,
now long established, that every person’s
body is inviolate.”
18. Lord Donaldson of Lymington, MR
said in re T (Adult: Refusal of Treatment)
[1993] Fam 95, at page 113:
“…. . the patient’s right of choice exists
41
whether the reasons for making that choice
are rational, irrational, unknown or even
nonexistent.”
19. In re T (Adult: Refusal of
Treatment), I cited Robins JA in Malette v
Shulman 67 DLR (4th) 321 at 336, and said
at page 116117:
“The right to determine what shall
be done with one’s own body is a
fundamental right in our society.
The concepts inherent in this
right are the bedrock upon which
the principles of selfdetermination
and individual
autonomy are based. Free
individual choice in matters
affecting this right should, in my
opinion, be accorded very high
priority.”
20. In re MB (Medical Treatment) [1997]
2 FLR 426, I said at 432:
“A mentally competent patient has
an absolute right to refuse to
consent to medical treatment for
any reason, rational or
irrational, or for no reason at
all, even where that decision may
lead to his or her own death”,
(referring to Sidaway v Board of
Governors of the Bethlehem Royal
Hospital and the Maudsley Hospital
[1985] AC 871, per Lord Templeman
at 904905; and to Lord Donaldson
M.R. in re T (Adult: Refusal of
Treatment) (see above)).
42
21. This approach is identical with the
jurisprudence in other parts of the world.
In Cruzan v Director, Missouri Department
of Health (1990) 110 S. Ct 2841, the United
States Supreme Court stated that:
“No right is held more sacred, or is more
carefully guarded… than the right of every
individual to the possession and control of
his own person, free from all restraint or
interference of others, unless by clear and
unquestionable authority of law.”
b. The sanctity of life
22. Society and the medical profession
in particular are concerned with the
equally fundamental principle of the
sanctity of life. The interface between the
two principles of autonomy and sanctity of
life is of great concern to the treating
clinicians in the present case. Lord Keith
of Kinkel in Airedale NHS Trust v Bland
[1993] AC 789, said at page 859:
“.. the principle of the sanctity
of life, which it is the concern
of the state, and the judiciary as
one of the arms of the state, … is
not an absolute one. It does not
compel a medical practitioner on
pain of criminal sanctions to
treat a patient, who will die if
he does not, contrary to the
express wishes of the patient.””
46. The judgment of House of Lords in Regina (Pretty)
Vs. Director of Public Prosecutions (Secretary of State
43
for the Home Department intervening),(2002) 1 AC 800,
also needs to be referred to. The claimant, who suffered
from a progressive and degenerative terminal illness,
faced the imminent prospect of a distressing and
humiliating death. She was mentally alert and wished to
control the time and manner of her dying but her
physical disabilities prevented her from taking her life
unaided. She wished her husband to help her and he was
willing to do so provided that in the event of his
giving such assistance he would not be prosecuted under
Section 2(1) of the Suicide Act, 1961. The claimant
accordingly requested the Director of Public
Prosecutions to undertake that he would not consent to
such a prosecution under Section 2(4). On his refusal to
give that undertaking the claimant, in reliance on
rights guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms as
Schedule to the Human Rights Act, 1998, sought relief by
way of judicial review.
47. The Divisional Court of the Queen's Bench Division
concluded that the Director has no power to give an
44
undertaking and dismissed the claim. The House of Lords
again reiterated the distinction between the cessation
of lifesaving or lifeprolonging treatment on the one
hand and the taking of action intended solely to
terminate life on the other. In paragraph 9 of the
judgment following was held:
“9. In the Convention field the
authority of domestic decisions is
necessarily limited and, as already noted,
Mrs Pretty bases her case on the
Convention. But it is worthy of note that
her argument is inconsistent with E two
principles deeply embedded in English law.
The first is a distinction between the
taking of one's own life by one's own act
and the taking of life through the
intervention or with the help of a third
party. The former has been permissible
since suicide ceased to be a crime in 1961.
The latter has continued to be proscribed.
The distinction was very clearly expressed
by Hoffmann LJ in Airedale NHS Trust v
Bland [1993] AC 789, 831:F
"No one in this case is suggesting
that Anthony Bland should be given
a lethal injection. But there is
concern about ceasing to supply
food as against, for example,
ceasing to treat an infection with
antibiotics. Is there any real
distinction? In order to come to
terms with our intuitive feelings
about whether there is a
distinction, I must start by
considering why most of us would
45
be appalled if he was given a
lethal injection. It is, I think,
connected with our view that the
sanctity of life entails its
inviolability by an outsider.
Subject to exceptions like selfdefence,
human life is inviolate
even if the person in question has
consented to its violation. That
is why although suicide is not a
crime, assisting someone to commit
suicide is. It follows that, even
if we think Anthony Bland would
have consented, we would not be
entitled to end his life by a
lethal injection."
The second distinction is between the
cessation of lifesaving or lifeprolonging
treatment on the one hand and the taking of
action lacking medical, therapeutic or
palliative justification but intended
solely to terminate life on the other. This
distinction provided the rationale of the
decisions in Bland. It was very succinctly
expressed in the Court of Appeal In re] (A
Minor) (Wardship: Medical Treatment) [1991]
Fam 33, in which A Lord Donaldson of
Lymington MR said, at p 46:
"What doctors and the court have
to decide is whether, in the best
interests of the child patient, a
particular decision as to medical
treatment should be taken which as
a side effect will render death
more or less likely. This is not a
matter of semantics. It is
fundamental. At the other end of
the age spectrum, the use of drugs
to reduce pain will often be fully
8 justified, notwithstanding that
46
this will hasten the moment of
death. What can never be justified
is the use of drugs or surgical
procedures with the primary
purpose of doing so."
United States of America
48. The State of New York in 1828 enacted a statute
declaring assisted suicide as a crime. New York example
was followed by different other States.
49. Cardozo, J., about a century ago in Schloendroff Vs.
Society of New York Hospital, 211 N.Y. 125, while in
Court of Appeal had recognised the right of selfdetermination
by every adult human being. Following was
held:
"Every human being of adult years and sound
mind has a right to determine what shall be
done with his own body; and a surgeon who
performs an operation without his patient's
consent commits an assault, for which he is
liable in damages. Pratt v. Davis, 224
Ill., 300, 79 N.E. 562, 7 L.R.A. (N.S.)
609, 8 Ann. Cas, 197: Mohr v. Williams, 95
Minn. 261, 104 N.W. 12.1 L.R. A.(N.S.), 111
Am. St. Rep. 462, 5 Ann. Cas, 303. This is
true, except in cases of emergency where the
patient is unconscious, and where it is
necessary to operate before consent can be
obtained.”
47
50. Supreme Court of United States of America in Nancy
Beth Cruzan Vs. Director, Missouri Department of Health,
497 U.W. 261, had occasion to consider a case of
patient who was in persistent vegetative state, her
guardian brought a declaratory judgment seeking judicial
sanction to terminate artificial hydration and nutrition
of patient. The Supreme Court recognised right possessed
by every individual to have control over own person.
Following was held by Rehnquist, CJ:
"At common law, even the touching of
one person by another without consent and
without legal justification was a battery.
See W. Keeton, D.Dobbs, R. Keeton, & D.
Owen, Prosser and Keeton on Law of Torts,
9, pp.3942 (5th ed. 1984). Before the turn
of the century, this Court observed that
“no right is held more sacred, or is more
carefully guarded, by the common law, than
the right of every individual to the
possession and control of his own person,
free from all restraint or interference of
others, unless by clear and unquestionable
authority of law.” Union Pacific R. Co. v.
Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000,
1001, 35 L.Ed. 734 (1891). This notion of
bodily integrity has been embodied in the
requirement that informed consent is
generally required for medical treatment.
Justice Cardozo, while on the Court of
Appeals of New York, aptly described this
doctrine: “Every human being of adult years
and sound mind has a right to determine
48
what shall be done with his own body; and a
surgeon who performs an operation without
his patient's consent commits an assault,
for which he is liable in damages,”
Schloendorff v. Society of New York
Hospital, 211 N.Y. 125, 129130, 105 N.E.
92, 93 (1914). The informed consent
doctrine has become firmly entrenched in
American tort law. See Keeton, Dobbs,
Keeton, & Owen, supra, 32, pp.189192; F.
Rozovsky, Consent to Treatment, A Practical
Guide 198 (2d ed. 1990).
The logical corollary of the doctrine
of informed consent is that the patient
generally possesses the right, not to
consent, that is, to refuse treatment.”
51. Referring to certain earlier cases following was
held:
“Reasoning that the right of selfdetermination
should not be lost merely
because an individual is unable to sense a
violation of it, the court held that
incompetent individuals retain a right to
refuse treatment. It also held that such a
right could be exercised by a surrogate
decision maker using a “subjective”
standard when there was clear evidence that
the incompetent person would have exercised
it. Where such evidence was lacking, the
court held that an individual's right could
still be invoked in certain circumstances
under objective “best interest” standards.
Id., at 361368, 486 A.2d, at 12291233.
Thus, if some trustworthy evidence existed
that the individual would have wanted to
terminate treatment, but not enough to
49
clearly establish a person's wishes for
purposes of the subjective standard, and
the burden of a prolonged life from the
experience of pain and suffering markedly
outweighed its satisfactions, treatment
could be terminated under a “limitedobjective”
standard. Where no trustworthy
evidence existed, and a person's suffering
would make the administration of lifesustaining
treatment inhumane, a “pureobjective”
standard could be used to
terminate treatment. If none of these
conditions obtained, the court held it was
best to err in favour of preserving life.
Id., at 364368, 486 A.2d, at 12311233.”
In the facts of the above case, the claim of parents
of Cruzan was refused since guardian could not
satisfactorily prove that Cruzan had expressed her wish
not to continue her life under circumstances in which
she drifted.
52. All different aspects of euthanasia were again
considered by the United States Supreme Court in
Washington, Et Al,, Vs. Harold Glucksberg Et Al, 521 US
702 equivalent to 138 L.Ed 2d 772. A Washington State
statute enacted in 1975 provided that a person was
guilty of the felony of promoting a suicide attempt when
the person knowingly caused or aided another person to
50
attempt suicide. An action was brought in the United
States District Court for the Western District of
Washington by several plaintiffs, among whom were (1)
physicians who occasionally treated terminally ill,
suffering patients, and (2) individuals who were then in
the terminal phases of serious and painful illness. The
plaintiffs, asserting the existence of a liberty
interest protected by the Federal Constitution's
Fourteenth Amendment which extended to a personal choice
by a mentally competent, terminally ill adult to commit
physicianassisted suicide, sought a declaratory
judgment that the Washington Statute was
unconstitutional on its face. The District Court,
granting motions for summary judgment by the physicians
and the individuals, ruled that the statute was
unconstitutional because it placed an undue burden on
the exercise of the asserted liberty interest (850 F
Supp 1454, 1994 US Dist LEXIS 5831). On appeal, the
United States Court of Appeals for the Ninth Circuit,
expressed the view that (1) the Constitution encompassed
a due process liberty interest in controlling the time
51
and manner of one's death; and (2) the Washington
Statute was unconstitutional as applied to terminally
ill, competent adults who wished to hasten their deaths
with medication prescribed by their physicians (79 F3d
790, 1996 US App LEXIS 3944).
53. On certiorari, the United States Supreme Court
reversed. In an opinion by Rehnquist, C.J., joined by
O'Connor, Scalia, Kennedy, and Thomas, JJ., it was held
that the Washington Statute did not violate the due
process clause either on the Statute's face or as the
Statute was applied to competent, terminally ill adults
who wished to hasten their deaths by obtaining
medication prescribed by their physicians – because (1)
pursuant to careful formulation of the interest at
stake, the question was whether the liberty specially
protected by the due process clause included a right to
commit suicide which itself included a right to
assistance in doing so; (2) an examination of the
nation's history, legal traditions, and practices
revealed that the asserted right to assistance in
committing suicide was not a fundamental liberty
52
interest protected by the due process clause; (3) the
asserted right to assistance in committing suicide was
not consistent with the Supreme Court's substantive due
process line of cases; and (4) the State's assisted
suicide ban was at least reasonably related to the
promotion and protection of a number of Washington's
important and legitimate interests.
54. The US Supreme Court held that Washington statute
did not violate the due process clause. CJ, Rehnquist
while delivering the opinion of the Court upheld the
State's ban on assisted suicide to the following effect:
"...In almost every Stateindeed, in almost
every western democracyit is a crime to
assist a suicide. The States' assistedsuicide
bans are longstanding expressions
of the States' commitment to the protection
and preservation of all human life. Cruzan,
supra, at 280, 111 L.Ed 2d 224, 110 S Ct
2841 (“The Statesindeed, all civilized
nationsdemonstrate their commitment to
life by treating homicide as a serious
crime. Moreover, the majority of States in
this country have laws imposing criminal
penalties on one who assists another to
commit suicide”); see Stanford v. Kentucky,
492 US 3561, 373, 106 L ED 2d 306, 109 S Ct
2969 (1989) (“The primary and most reliable
indication of a national consensus is ...
the pattern of enacted laws”). Indeed,
opposition to and condemnation of suicide
53
and, therefore, of assisting suicideare
consistent and enduring themes of our
philosophical, legal, and cultural
heritages.”
55. Another judgment of US Supreme Court which needs to
be noted is Dennis C. Vacco, Attorney General of New
York, Et Al. Vs. Timothy E. Quill Et Al, 521 US 793. New
York state law as in effect in 1994 provided that a
person who intentionally caused or aided another person
to attempt or commit suicide was guilty of felony; but
under other statutes, a competent person could refuse
even lifesaving medical treatment. Plaintiff sought
declaratory relief and injunctive against the
enforcement of criminal law asserting that such law is
violative of statutes of the Federal Constitution
Fourteenth Amendment.
56. Rehnquist, CJ. in his opinion again upheld
distinction between assisted suicide and withdrawing of
life sustaining treatment. Following was laid down:
"[1d] The Court of Appeals, however,
concluded that some terminally ill peoplethose
who are on life support systemsare
treated differently from those who are not,
in that the former may “hasten death” by
54
ending treatment, but the latter may not
“hasten death” through physicianassisted
suicide. 80 F.3d, at 729. This conclusion
depends on the submission that ending or
refusing lifesaving medical treatment “is
nothing more nor less than assisted
suicide.” Ibid. Unlike the Court of
Appeals, we think the distinction between
assisting suicide and withdrawing lifesustaining
treatment, a distinction widely
recognised and endorsed in the medical
profession and in our legal traditions, is
both important and logical; it is certainly
rational...
The distinction comports with
fundamental legal principles of causation
and intent. First, when a patient refuses
lifesustaining medical treatment, he dies
from an underlying fatal disease or
pathology; but if a patient ingests lethal
medication prescribed by a physician, he is
killed by that medication....
Furthermore, a physician who withdraws,
or honors a patient's refusal to begin,
lifesustaining medical treatment
purposefully intends, or may so intend,
only to respect his patient's wishes and
“to cease doing useless and futile or
degrading things to the patient when the
patient no longer stands to benefit from
them.”
57. However, there are four States which have passed
legislation permitting euthanasia. These States include
Oregon, Washington, Missouri and Texas.
55
Canada
58. Section 241(b) of the Criminal Code provides that
everyone who aids or abets a person in committing
suicide commits an indictable offence. In Rodriguez Vs.
British Columbia (Attorney General), 1993 (3) SCR 519,
the Supreme Court of Canada has considered the issue of
assisted suicide. A 42 year old lady who was suffering
from an incurable illness applied before the Supreme
Court of British Columbia for an order that Section
241(b) which prohibits giving assistance to commit
suicide, be declared invalid. The application was
dismissed and the matter was taken to the Supreme Court
of Canada which held that prohibition of Section 241(b)
which fulfils the government's objective of protecting
the vulnerable, is grounded in the State interest in
protecting life and reflects the policy of the State
that human life should not be depreciated by allowing
life to be taken.
Switzerland
59. In Switzerland the assisted suicide is allowed only
56
for altruistic reasons. A person is guilty and deserved
to be sentenced for imprisonment on assisted suicide
when he incites someone to commit suicide for selfish
reasons.
Netherlands
60. The Netherlands has the most experience with
physicianhastened death. Both euthanasia and assisted
suicide remain crimes there but doctors who end their
patients' lives will not be prosecuted if legal
guidelines are followed. Among the guidelines are:
31. The request must be made entirely of the
patient's own free will.
32. The patient must have a longlasting desire for
death.
33. The patient must be experiencing unbearable
suffering.
34. There must be no reasonable alternatives to
relative suffering other than euthanasia.
35. The euthanasia or assisted suicide must be
reported to the coroner.
61. The above discussion clearly indicates that predominant
thought as on date prevailing in other part of
57
the World is that assisted suicide is a crime. No one is
permitted to assist another person to commit suicide by
injecting a lethal drug or by other means. In India,
Section 306 of the Indian Penal Code specifically makes
it an offence. The Constitution Bench of this Court in
Gian Kaur (supra) has already upheld the constitutional
validity of Section 306, 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 relive the patient from pain and suffering.
H. RATIO OF GIAN KAUR VS. STATE OF PUNJAB
62. In Gian Kaur’s case (supra), the constitutional
validity of Section 306 of Indian Penal Code, 1860 was
challenged. The appellant had placed reliance on Two
Judge Bench Judgment of this Court in P. Rathinam Vs.
Union of India (supra), where this Court declared
Section 309 IPC to be unconstitutional as violative of
Article 21 of the Constitution. It was contended that
Section 309 having already been declared as
58
unconstitutional, any person abetting the commission of
suicide by another is merely assisting in the
enforcement of the fundamental right under Article 21
and, therefore, Section 306 IPC penalising assisted
suicide is equally violative of Article 21. The Court
proceeded to consider the constitutional validity of
Section 306 on the above submission. In Para 17 of the
judgment, this Court had made observation that reference
to euthanasia cases tends to befog the real issue.
Following are the relevant observations made in Para
17:
“....Any further reference to the global
debate on the desirability of retaining a
penal provision to punish attempted suicide
is unnecessary for the purpose of this
decision. Undue emphasis on that aspect and
particularly the reference to euthanasia
cases tends to befog the real issue of the
constitutionality of the provision and the
crux of the matter which is determinative
of the issue.”
The Constitution Bench held that Article 21 does not
include right to die. Paragraph 22 of the judgment
contains the ratio in following words:
“....Whatever may be the philosophy of
59
permitting a person to extinguish his life
by committing suicide, we find it difficult
to construe Article 21 to include within it
the “right to die” as a part of the
fundamental right guaranteed therein.
“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”.....”
Although, right to die was held not to be a
fundamental right enshrined under Article 21 but it was
laid down that the right to life includes right to live
with human dignity, i.e., right of a dying man to also
die with dignity when his life is ebbing out. Following
pertinent observations have been made in Para 24:
“....The “right to life” including the
right to live with human dignity would mean
the existence of such a right up to the end
of natural life. This also includes the
right to a dignified life up to the point
of death including a dignified procedure of
death. In other words, this may include the
right of a dying man to also die with
dignity when his life is ebbing out. But
the “right to die” with dignity at the end
of life is not to be confused or equated
with the “right to die” an unnatural death
curtailing the natural span of life.”
63. The Constitution Bench, however, noticed the
60
distinction between a dying man, who is terminally ill
or in a persistent vegetative state, when process of
natural death has commenced, from one where life is
extinguished. The Court, however, held that permitting
termination of life to such cases to reduce the period
of suffering during the process of certain natural death
is not available to interpret Article 21 to include
therein the right to curtail the natural span of life.
Paragraph 25 of the judgment is to the following
effect:
“25. A question may arise, in the context
of a dying man who is terminally ill or in
a persistent vegetative state that he may
be permitted to terminate it by a premature
extinction of his life in those
circumstances. This category of cases may
fall within the ambit of the “right to die”
with dignity as a part of right to live
with dignity, when death due to termination
of natural life is certain and imminent and
the process of natural death has commenced.
These are not cases of extinguishing life
but only of accelerating conclusion of the
process of natural death which has already
commenced. The debate even in such cases to
permit physicianassisted termination of
life is inconclusive. It is sufficient to
reiterate that the argument to support the
view of permitting termination of life in
such cases to reduce the period of
61
suffering during the process of certain
natural death is not available to interpret
Article 21 to include therein the right to
curtail the natural span of life.”
64. The Constitution Bench in above paragraphs has
observed that termination of life in case of those who
are terminally ill or in a persistent vegetative state,
may fall within the ambit of “right to die” with dignity
as a part of right to live with dignity when death due
to termination of natural life is certain and imminent
and process of natural death has commenced. But even in
those cases, physician assisted termination of life can
not be included in right guaranteed under Article 21.
One more pertinent observation can be noticed from Para
33, where this Court held that:
“33. ....We have earlier held that
“right to die” is not included in the
“right to life” under Article 21. For the
same reason, “right to live with human
dignity” cannot be construed to include
within its ambit the right to terminate
natural life, at least before
commencement of the natural process of
certain death....”
(emphasis by us)
62
65. The distinction between cases where physician
decides not to provide or to discontinue to provide for
treatment or care, which could or might prolong his life
and those in which he decides to administer a lethal
drug, was noticed while referring to the judgment of the
House of Lords’s case in Airedale’s case (supra). In
Airedale’s case (supra), it was held that it is not
lawful for a doctor to administer a drug to his patient
to bring about his death. Euthanasia is not lawful at
common law and euthanasia can be made lawful only by
legislation. It is further relevant to notice that in
Para 40, this Court had observed that it is not
necessary to deal with physician assisted suicide or
euthanasia cases. Paragraph 40, is as follows:
“40. Airedale N.H.S. Trust v. Bland was a
case relating to withdrawal of artificial
measures for continuance of life by a
physician. Even though it is not necessary
to deal with physicianassisted suicide or
euthanasia cases, a brief reference to this
decision cited at the Bar may be made. In
the context of existence in the persistent
vegetative state of no benefit to the
patient, the principle of sanctity of life,
which is the concern of the State, was
stated to be not an absolute one. In such
63
cases also, the existing crucial
distinction between cases in which a
physician decides not to provide, or to
continue to provide, for his patient,
treatment or care which could or might
prolong his life, and those in which he
decides, for example, by administering a
lethal drug, actively to bring his
patient’s life to an end, was indicated and
it was then stated as under: (All ER p. 867
: WLR p. 368)
“… But it is not lawful for a
doctor to administer a drug to his
patient to bring about his death,
even though that course is
prompted by a humanitarian desire
to end his suffering, however
great that suffering may be [see
R. v. Cox, (1891992,
unreported)] per Ognall, J. in the
Crown Court at Winchester. So to
act is to cross the Rubicon which
runs between on the one hand the
care of the living patient and on
the other hand euthanasia —
actively causing his death to
avoid or to end his suffering.
Euthanasia is not lawful at common
law. It is of course well known
that there are many responsible
members of our society who believe
that euthanasia should be made
lawful; but that result could, I
believe, only be achieved by
legislation which expresses the
democratic will that so
fundamental a change should be
made in our law, and can, if
enacted, ensure that such
legalised killing can only be
64
carried out subject to appropriate
supervision and control. …”
66. A conjoint reading of observations in Paras 25, 33
and 40 indicates that although for a person terminally
ill or in PSV state, whose process of natural death has
commenced, termination of life may fall in the ambit of
right to die with dignity but in those cases also there
is no right of actively terminating life by a physician.
The clear opinion has thus been expressed that
euthanasia is not lawful. But at the same time, the
Constitution Bench has noticed the distinction between
the cases in which a physician decides not to provide or
to continue to provide for his patient's treatment or
care which could or might prolong his life and those in
which physician decides actively to bring life to an
end. The ratio of the judgment is contained in
Paragraph 22 and 24, which is to the following effect:
(i)“....Whatever may be the philosophy of
permitting a person to extinguish his life
by committing suicide, we find it difficult
to construe Article 21 to include within it
the “right to die” as a part of the
fundamental right guaranteed therein.
65
“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”.....”
(ii)“....The “right to life” including the
right to live with human dignity would mean
the existence of such a right up to the end
of natural life. This also includes the
right to a dignified life up to the point
of death including a dignified procedure of
death. In other words, this may include the
right of a dying man to also die with
dignity when his life is ebbing out. But
the “right to die” with dignity at the end
of life is not to be confused or equated
with the “right to die” an unnatural death
curtailing the natural span of life.”
67. We have noticed above that in Para 17, this Court
had observed that reference to euthanasia cases tends to
befog the real issue and further in Para 40, it was
observed that “even though it is not necessary to deal
with physician assisted suicide or euthanasia cases”;
the Constitution Bench has neither considered the
concept of euthanasia nor has laid down any ratio
approving euthanasia.
68. At best, the Constitution Bench noted a difference
between cases in which physician decides not to provide
66
or to continue to provide for medical treatment or care
and those cases where he decides to administer a lethal
drug activity to bring his patient’s life to an end. The
judgment of House of Lords in Airedale’s case (supra)
was referred to and noted in the above context. The
Airedale’s case (supra) was cited on behalf of the
appellant in support of the contention that in said case
the withdrawal of life saving treatment was held not to
be unlawful.
69. We agree with the observation made in the reference
order of the threeJudge Bench to the effect that the
Constitution Bench 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.
I. CONCEPT OF EUTHANASIA
70. Euthanasia is derived from the Greek words
euthanatos; eu means well or good and thanatos means
death. New Webster's Dictionary (Deluxe Encyclopedic
Edition) defines Euthanasia as following:
67
"A painless putting to death of persons
having an incurable disease; an easy death.
Also mercy killing.”
71. The Oxford English Dictionary defines 'euthanasia':
“The painless killing of a patient suffering from an
incurable and painful disease or in an irreversible
coma”. The definition of the word 'euthanasia' as given
by the World Health Organisation may be noticed which
defines it as: “A deliberate act undertaken by one
person with the intention of either painlessly putting
to death or failing to prevent death from natural causes
in cases of terminal illness or irreversible coma of
another person”.
72. In ancient Greek Society, Euthanasia as 'good death'
was associated with the drinking of 'Hemlock'. Drinking
of Hemlock had become common not only in cases of
incurable diseases but also by those individuals who
faced other difficult problems or old age. In ancient
times, in Greece freedom to live was recognised
principle, which permitted the sick and desperates to
terminate their lives by themselves or by taking outside
68
help. In last few centuries, Euthanasia increasingly
came to connote specific measures taken by physicians
to hasten the death. The primary meaning, as has now
been ascribed to the word is compassionate murder. In
the last century, the thought has gained acceptance that
Euthanasia is to be distinguished from withdrawal of
life saving treatments which may also result in death.
Withdrawing medical treatment in a way hasten the death
in case of terminal illness or Persistent Vegetative
State (PVS) but is not to be treated as compassionate
murder. Advancement in the medical science on account of
which life can be prolonged by artificial devices are
the developments of only last century. Lord Browne
Wilkinson, J., in Airedale N.H.A. Trust v. Bland, 1993
(2) W.L.R. 316 (H.L.), at page 389 observed:
“....Death in the traditional sense was
beyond human control. Apart from cases of
unlawful homicide, death occurred
automatically in the course of nature when
the natural functions of the body failed to
sustain the lungs and the heart. Recent
developments in medical science have
fundamentally affected these previous
certainties. In medicine, the cessation of
breathing or of heartbeat is no longer
69
death. By the use of a ventilator, lungs
which in the unaided course of nature would
have stopped breathing can be made to
breathe, thereby sustaining the heartbeat.
Those, like Anthony Bland, who would
previously have died through inability to
swallow food can be kept alive by
artificial feeding. This has led the
medical profession to redefine death in
terms of brain stem death, i.e., the death
of that part of the brain without which the
body cannot function at all without
assistance. In some cases it is now
apparently possible, with the use of the
ventilator, to sustain a beating heart even
though the brain stem, and therefore in
medical terms the patient, is dead; “the
ventilated corpse.”
73. In recent times, three principles had gained
acceptance throughout the world they are:
1. Sanctity of life
2. Right of selfdetermination
3. Dignity of the individual human being
74. The sanctity of life is one thought which is
philosophically, religiously and mythologically accepted
by the large number of population of the world practicing
different faiths and religions. Sanctity of life entails
it's inviolability by an outsider. Sanctity of life is
the concern of State.
70
75. Right of selfdetermination also encompasses in it
bodily integrity. Without consent of an adult person, who
is in fit state of mind, even a surgeon is not authorised
to violate the body. Sanctity of the human life is the
most fundamental of the human social values. The
acceptance of human rights and development of its
meaning in recent times has fully recognised the dignity
of the individual human being. All the above three
principles enable an adult human being of conscious mind
to take decision regarding extent and manner of taking
medical treatment. 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. Euthanasia, as noted
above, as the meaning of the word 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.
J. WITHDRAWAL OF LIFE SAVING DEVICES
76. Withdrawal of medical assistance or withdrawal of
71
medical devices which artificially prolong the life
cannot be regarded as an act to achieve a good death.
Artificial devices to prolong the life are implanted,
when a person is likely to die due to different causes
in his body. Life saving treatment and devices are put
by physicians to prolong the life of a person. The Law
Commission of India in its 196th Report on “Medical
Treatment to Terminally Ill Patients (Protection of
Patients and Medical Practitioners)” on the subject had
put introductory note to the following effect:
“The title to this Report immediately
suggests to one that we are dealing with
‘Euthanasia’ or ‘Assisted Suicide’. But we
make it clear at the outset that Euthanasia
and Assisted Suicide continue to be
unlawful and we are dealing with a
different matter ‘Withholding Lifesupport
Measures’ to patients terminally ill and,
universally, in all countries, such
withdrawal is treated as ‘lawful’.”
77. The Law Commission of India was of the opinion that
withdrawing life supporting measures of patient
terminally ill is a concept, different from Euthanasia.
The opinion of Cardozo, J., rendered more than hundred
years ago that every human being of adult years and
72
sound mind has a right to determine what shall be done
with his own body, is now universally accepted
principle. The judgment of the U.S. Supreme Court and
House of Lords, as noticed above, also reiterate the
above principle.
78. Recently, in a nineJudges judgment in K.S.
Puttaswamy and Another Vs. Union of India and Others,
(2017) 10 SCC 1, Justice J. Chelameswar elaborating the
concept of right to life as enshrined in Article 21
under the Constitution of India has observed:
“An individual's right to refuse the
lifeprolonging medical treatment or
terminate life is another freedom which
falls within the zone of right of privacy.”
79. Withdrawal of lifesaving devices, leads to natural
death which is arrested for the time being due to above
device and the act of withdrawal put the life on the
natural track. Decision to withdraw lifesaving devices
is not an act to cause good death of the person rather,
decision to withdraw or not to initiate lifesupporting
measures is a decision when treatment becomes futile and
unnecessary. Practice of Euthanasia in this country is
73
prohibited and for medical practitioners it is already
ordained to be unethical conduct. The question as to
what should be the measures to be taken while taking a
decision to withdraw lifesaving measures or lifesaving
devices is another question which we shall consider a
little later.
80. TwoJudge Bench in Aruna Ramachandra Shanbaug Vs.
Union of India and Ors., (2011) 4 SCC 454 has held that
withdrawal of livesaving measures is a passive
Euthanasia which is permissible in India. 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
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
74
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 in this country and
weight of precedents of other countries as noted above,
such action of withdrawing life saving device is legal.
Thus, such acts, which are commonly expressed as passive
euthanasia is lawful and legally permissible in this
country.
81. We remind ourselves that this Court is not a
legislative body nor is entitled or competent to act as
a moral or ethical arbiter. The task of this Court is
not to weigh or evaluate or reflect different believes
and views or give effect to its own but to ascertain and
build the law of land as it is now understood by all.
Message which need to be sent to vulnerable and
disadvantaged people should not, however, obliviously to
encourage them to seek death but should assure them of
care and support in life.
82. We thus are of the considered opinion that the act
75
of withdrawal from livesaving devices is an independent
right which can lawfully be exercised by informed
decision.
K. DECISION FOR WITHDRAWAL OF LIFESAVING TREATMENT IN
CASE OF A PERSON WHO IS INCOMPETENT TO TAKE AN
INFORMED DECISION.
83. One related aspect which needs to be considered is
that is case of those patients who are incompetent to
decide due to their mental state or due to the fact that
they are in permanent persistent vegetative state or due
to some other reasons unable to communicate their
desire. When the right of an adult person who expresses
his view regarding medical treatment can be regarded as
right flowing from Article 21 of the Constitution of
India, the right of patient who is incompetent to
express his view cannot be outside the fold of Article
21 of the Constitution of India. It is another issue, as
to how, the decision in cases of mentally incompetent
patients regarding withdrawal of lifesaving measures,
is to be taken.
76
84. The rights of bodily integrity and selfdetermination
are the rights which belong to every human
being. When an adult person having mental capacity to
take a decision can exercise his right not to take
treatment or withdraw from treatment, the above right
cannot be negated for a person who is not able to take
an informed decision due to terminal illness or being a
Persistent Vegetative State (PVS). The question is who
is competent to take decision in case of terminallyill
or PVS patient, who is not able to take decision. In
case of a person who is suffering from a disease and is
taking medical treatment, there are three stake holders;
the person himself, his family members and doctor
treating the patient. The American Courts give
recognition to opinion of “surrogate” where person is
incompetent to take a decision. No person can take
decision regarding life of another unless he is entitled
to take such decision authorised under any law. The
English Courts have applied the “best interests” test in
case of a incompetent person. The best interests of the
patient have to be found out not by doctor treating the
77
patient alone but a team of doctors specifically
nominated by the State Authority. In Aruna Shanbaug
(supra), twoJudge Bench of this Court has opined that
in such cases relying on doctrine of ‘parens patriae
(father of the country)’, it is the Court alone which is
entitled to take a decision whether to withdraw
treatment for incompetent terminallyill or PVS patient.
In paragraphs 130 and 131 following has been held:
“130. In our opinion, in the case of an
incompetent person who is unable to take a
decision whether to withdraw life support
or not, it is the Court alone, as parens
patriae, which ultimately must take this
decision, though, no doubt, the views of
the near relatives, next friend and doctors
must be given due weight.
Under which provision of law can the Court
grant approval for withdrawing life support
to an incompetent person
131. In our opinion, it is the High
Court under Article 226 of the Constitution
which can grant approval for withdrawal of
life support to such an incompetent
person. Article 226(1) of the Constitution
states :
"226. Power of High Courts to
issue certain writs.
(1)Notwithstanding anything
78
in article 32, every High Court
shall have power, throughout the
territories in relation to which it
exercises jurisdiction, to issue to
any person or authority, including
in appropriate cases, any
Government, within those
territories directions, orders or
writs, including writs in the
nature of habeas corpus, mandamus,
prohibition, quo warranto and
certiorari, or any of them, for the
enforcement of any of the rights
conferred by Part III and for any
other purpose".
(emphasis supplied)
A bare perusal of the above provisions
shows that the High Court under Article 226 of
the Constitution is not only entitled to
issue writs, but is also entitled to issue
directions or orders.”
85. Various learned counsel appearing before us have
submitted that seeking declaration from the High Court
in cases where medical treatment is needed to be
withdrawn is time taking and does not advance the object
nor is in the interest of terminallyill patient. It is
submitted that to keep check on such decisions, the
State should constitute competent authorities consisting
of predominantly experienced medical practitioners
79
whose decision may be followed by all concerned with a
rider that after taking of decision by competent body a
cooling period should be provided to enable anyone
aggrieved from the decision to approach a Court of Law.
We also are of the opinion that in cases of incompetent
patients who are unable to take an informed decision, it
is in the best interests of the patient that the
decision be taken by competent medical experts and that
such decision be implemented after providing a cooling
period at least of one month to enable aggrieved person
to approach the Court of Law. The best interest of the
patient as determined by medical experts shall meet the
ends of justice. The medical team by taking decision
shall also take into consideration the opinion of the
blood relations of the patient and other relevant facts
and circumstances.
L. ADVANCE MEDICAL DIRECTIVE
86. The petitioner by the Writ Petition has also sought
a direction to the respondent to adopt suitable
procedures to ensure that persons of deteriorated health
80
or terminally ill should be able to execute a document
titled “MY LIVING WILL & ATTORNEY AUTHORISATION”. The
petitioner submits that it is an important personal
decision of the patient to use or not to use the life
sustaining treatment in case of terminal illness and
stage of persistent vegetative state. The petitioner
pleads that the petitioner’s endeavour is only to seek a
‘choice’ for the people which is not available at
present and they are left to the mercy of doctors who to
save themselves from any penal consequences half
heartedly, despite knowing that the death is inevitable
continue administering the treatment which the person
might not have wanted to continue with. A person will
be free to issue advance directives both in a positive
and negative manner, meaning thereby that a person is
not necessarily required to issue directive that the
life sustaining treatment should not be given to him in
the event of he or she going into persistent vegetative
state or in an irreversible state. The person can also
issue directives as to all the possible treatment which
should be given to him when he is not able to express
81
his/her wishes on medical treatment. The petitioner
also refers to and rely on various legislations in
different countries, which recognises the concept of
advance medical directive. Petitioner pleads that in
India also law in the nature “Patient Autonomy & Selfdetermination
Act” should be enacted. Petitioner has
also alongwith his Writ Petition has annexed a draft
titling it “Patient’s Selfdetermination Act”.
87. The concept of advance medical directive is also
called living will is of recent origin, which gained
recognition in latter part of 20th century. The advance
medical directive has been recognised first by Statute
in United States of America when in the year 1976, State
of California passed “Natural Death Act”. It is claimed
that 48 states out of 50 in the United States of America
have enacted their own laws regarding Patient’s Rights
and advance medical directives. Advance medical
directive is a mechanism through which individual
autonomy can be safeguarded in order to provide dignity
in dying. As noted above, the Constitution Bench of
this Court in the case of Gian Kaur (supra) has laid
82
down that right to die with dignity is enshrined in
Article 21 of the Constitution. It is to be noticed
that advance medical directives are not exclusively
associated with end of life decisions. However, it is
vital to ensure that form of an advance medical
directive reflects the needs of its author and is
sufficiently authoritative and practical to enable its
provisions to be upheld. In most of the western
countries advance medical directives have taken a
legalistic form incorporating a formal declaration to be
signed by competent witnesses. The laws also make
provisions for updating confirmation of its
applicability and revocation. Protecting the individual
autonomy is obviously the primary purpose of an advance
medical directive. The right to decide one’s own fate
presupposes a capacity to do so. The answer as to when
a particular advance medical directive becomes operative
usually depends upon an assent of when its author is no
longer competent to participate in medical decision
making. The Black’s Law Dictionary defines the Advance
Medical Directive as “a legal document explaining one’s
83
wishes about medical treatment if one becomes
incompetent or unable to communicate”. 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. Use and operation of
advance medical directive is to confine only to a case
when person becomes incapacitated to take an informed
decision regarding his medical treatment. So long as an
individual can take an informed decision regarding his
medical treatment, there is no occasion to look into
advance medical directives. A person has unfettered
right to change or cancel his advance medical directives
looking to the need of time and advancement in medical
science. Hence, a person cannot be tied up or bound by
his instructions given at an earlier point of time.
88. The concept of advance medical directive originated
84
largely as a response to development in medicines. Many
people living depending on machines cause great
financial distress to the family with the cost of long
term medical treatment. Advance medical directive was
developed as a means to restrict the kinds of medical
intervention in event when one become incapacitated. The
foundation for seeking direction regarding advance
medical directive is extension of the right to refuse
medical treatment and the right to die with dignity.
When a competent patient has right to take a decision
regarding medical treatment, with regard to medical
procedure entailing right to die with dignity, the said
right cannot be denied to those patients, who have
become incompetent to take an informed decision at the
relevant time. The concept of advance medical directive
has gained ground to give effect to the rights of those
patients, who at a particular time are not able to take
an informed decision. Another concept which has been
accepted in several countries is recognition of
instrument through which a person nominates a
representative to make decision regarding their medical
85
treatment at a point of time when the person executing
the instrument is unable to make an informed decision.
This is called attorney authorisation leading to medical
treatment. In this country, there is no legislation
governing such advance medical directives. It is,
however, relevant to note a recent legislation passed by
the Parliament namely “The Mental Healthcare Act, 2017”,
where as per Section 5 every person, who is not a minor
has a right to make an advance directive in writing
regarding treatment to his mental illness in the way a
person wishes to be treated or mental illness. The
person wishes not to be treated for mental illness and
nomination of individual and individual’s as his/her
representative. Section 5 is to the following effect:
“5. (1) Every person, who is not a minor,
shall have a right to make an advance
directive in writing, specifying any or all
of the following, namely:––
(a) the way the person wishes to
be cared for and treated for a
mental illness;
(b) the way the person wishes not
to be cared for and treated for a
mental illness;
86
(c) the individual or individuals,
in order of precedence, he wants
to appoint as his nominated
representative as provided under
section 14.
(2) An advance directive under subsection
(1) may be made by a person irrespective of
his past mental illness or treatment for
the same.
(3) An advance directive made under subsection
(1), shall be invoked only when
such person ceases to have capacity to make
mental healthcare or treatment decisions
and shall remain effective until such
person regains capacity to make mental
healthcare or treatment decisions.
(4) Any decision made by a person while he
has the capacity to make mental healthcare
and treatment decisions shall override any
previously written advance directive by
such person.
(5) Any advance directive made contrary to
any law for the time being in force shall
be ab initio void.”
89. Section 6 of the Act provides that an advance
directive shall be made in the manner as has been
prescribed by the regulations made by the Central
Authority. In the draft Medical Healthcare Regulation
published by Ministry of Health and Family Welfare, a
form is prescribed in which advance directive may be
87
made. Other aspects of medical directive have also been
dealt with by draft regulation. Thus, in our country,
recognition of advance directives regarding medical
treatment has started to be recognised and are in place
relating to specified field and purpose. Another
legislation which also recognise some kind of advance
directive relating to a person’s body is Section 3 of
the Transplantation of Human Organs and Tissues Act,
1994. Section 3 subsections (1) and (2) which are
relevant for the present purpose is as follows:
“3. Authority for removal of [human organs
or tissues or both].—(1) Any donor may, in
such manner and subject to such conditions
as may be prescribed, authorise the
removal, before his death, of any [human
organ or tissue or both] of his body for
therapeutic purposes.
(2) If any donor had, in writing and in the
presence of two or more witnesses (at least
one of whom is a near relative of such
person), unequivocally authorised at any
time before his death, the removal of any
[human organ or tissue or both] of his
body, after his death, for therapeutic
purposes, the person lawfully in possession
of the dead body of the donor shall, unless
he has any reason to believe that the donor
had subsequently revoked the authority
aforesaid, grant to a registered medical
practitioner all reasonable facilities for
the removal, for therapeutic purposes, of
88
that [human organ or tissue or both] from
the dead body of the donor.”
90. The rules have been framed under Section 24 of the
Transplantation of Human Organs and Tissues Act, 1994
namely Transplantation of Human Organs and Tissues
Rules, 2014 where form of authorisation for organ or
tissue pledging is Form 7, which provides that an
authorisation by donor in presence of two witnesses
which is also required to be registered by Organ Donor
Registry.
91. The statutory recognition of the above mentioned
authorisation in two statutes is clear indication of
acceptance of the concept of advance medical directive
in this country.
92. Learned counsel for the petitioner as well as for
the interveners and the Additional Solicitor General of
India has expressed concern regarding manner and
procedure of execution of advance medical directive. It
is submitted that unless proper safeguards are not laid
down, those who are vulnerable, infirm and aged may be
89
adversely affected and efforts by those related to a
person to expedite death of a person for gaining
different benefits, cannot be ruled out. We have been
referred to various legislations in different countries,
which provides a detailed procedure of execution of
advance medical directive, competence of witnesses, mode
and manner of execution, authority to register and keep
such advance medical directive.
93. Shri Arvind Datar, learned senior counsel has in its
written submissions referred to certain aspects, which
may be kept in mind while formulating guidelines for
advance medical directive, which are as follows:
a) Only adult persons, above the age of
eighteen years and of sound mind at the
time at which the advance directive is
executed should be deemed to be competent.
This should include persons suffering from
mental disabilities provided they are of
sound mind at the time of executing an
advance directive.
b) Only written advance directives that
have been executed properly with the
notarised signature of the person executing
the advance directive, in the presence of
two adult witnesses shall be valid and
enforceable in the eyes of the law. The
form should require a reaffirmation that
90
the person executing such directive has
made an informed decision. Only those
advance directives relating to the
withdrawal or withholding of lifesustaining
treatment should be granted
legal validity. The determination that the
executor of the advance directive is no
longer capable of making the decision
should be made in accordance with relevant
medical professional regulations or
standard treatment guidelines, as also the
determination that the executor's life
would terminate in the absence of lifesustaining
treatment. The constitution of a
panel of experts may also be considered to
make this determination. The use of expert
committees or ethics committees in other
jurisdictions is discussed at Para 28 of
these written submissions.
c) Primary responsibility for ensuring
compliance with the advance directive
should be on the medical institution where
the person is receiving such treatment.
d) If a hospital refuses to recognise the
validity of an advance directive, the
relatives or next friend may approach the
jurisdictional High Court seeking a writ of
mandamus against the concerned hospital to
execute the directive. The High Court may
examine whether the directive has been
properly executed, whether it is still
valid (Le, whether or not circumstances
have fundamentally changed since its
execution, making it invalid) and/or
applicable to the particular circumstances
or treatment.
e) No hospital or doctor should be made
liable in civil or criminal proceedings for
91
having obeyed a validly executed advance
directive.
f) Doctors citing conscientious objection
to the enforcement of advance directives on
the grounds of religion should be permitted
not to enforce it, taking into account
their fundamental right under Article 25 of
the Constitution. However, the hospital
will still remain under this obligation.
94. The right to selfdetermination and bodily integrity
has been recognised by this Court as noted above. The
right to execute an advance medical directive is nothing
but a step towards protection of aforesaid right by an
individual, in event he becomes incompetent to take an
informed decision, in particular stage of life. It has
to be recognised by all including the States that a
person has right to execute an advance medical directive
to be utilised to know his decision regarding manner and
extent of medical treatment given to his body, in case
he is incapacitated to take an informed decision. Such
right 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
92
right of bodily integrity and selfdetermination which
are duly protected under Article 21 of the Constitution.
The procedure and manner of such expression of such
right is a question which needs to be addressed to
protect the vulnerable, infirm and old from any misuse.
It is the duty of the State to protect its subjects
specially those who are infirm, old and needs medical
care. The duty of doctor to extend medical care to the
patients, who comes to them in no manner diminishes in
any manner by recognition of concept that an individual
is entitled to execute an advance medical directive. The
physicians and medical practitioners treating a person,
who is incompetent to express an informed decision has
to act in a manner so as to give effect to the express
wishes of an individual.
95. The concept of advance medical directive has gained
ground throughout the world. Different countries have
framed necessary legislation in this regard. Reference
of few of such legislations shall give idea of such
statutory scheme formulated by different countries to
achieve the object. The Republic of Singapore has passed
93
an enactment namely ADVANCE MEDICAL DIRECTIVE ACT (Act
16 of 1996). Section 3 of the Act, subsection (1)
empowers a person who is not mentally disordered and
attained the age of 21 years to make an advance
directive in the prescribed form.
Other provisions of Statute deals with duty of
witness, registration of directives, objections,
revocation of directive, panel of specialists,
certification of terminal illness, duty of medical
practitioner and other related provisions. The Belgian
Act on Euthanasia, 2002 also contains provisions
regarding advance directive in Section 4. Swiss Civil
Code 1907 in Articles 362 and 365 provides for advance
care directive, its execution and termination. Mental
Capacity Act, 2005 (England) also contemplates for an
advance directive. The Statute further provides that an
advance directive is applicable in life sustaining
treatment only. When the decision taken in writing,
signed by the patient or by another person in patient's
presence on his direction. Pennsylvania Act 169 of 2006
also contains provisions with regard to execution of
94
advance medical directive and other related provisions,
its revocation etc.
In our country, there is yet no legislation
pertaining to advance medical directive. It is, however,
relevant to note that Ministry of Health and Family
Welfare vide its order dated 06.05.2016 uploaded the Law
Commission's 241st report and solicited opinions,
comments on the same. An explanatory note has also been
uploaded by the Ministry of Health and Family Welfare
where in paragraph 6 following was stated:
“ Living Will has been defined as “A
document in which person states his/her
desire to have or not to have extraordinary
life prolonging measures used when recovery
is not possible from his/her terminal
condition”.
However, as per para 11 of the said Bill
the advance medical directive (living will)
or medical power of attorney executed by the
person shall be void and of no effect and
shall not be binding on any medical
practitioner.”
Although in Clause 11 of the draft bill, it was
contemplated that advance medical directives are not
binding on medical practitioner but the process of
95
legislation had not reached at any final stage. The
directions and safeguards which have been enumerated by
Hon'ble Chief Justice in his judgment shall be
sufficient to safeguard the interests of patients,
doctors and society till the appropriate legislation is
framed and enforced.
We thus conclude that a person with competent
medical facility is entitled to execute an advance
medical directive subject to various safeguards as noted
above.
M. CONCLUSIONS:
From the above discussions, we arrive on following
conclusions:
(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
96
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 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
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
97
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 characterise 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.
98
(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
99
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 selfdetermination.
In view of our conclusions as noted above the writ
petition is allowed in the following manner:
(a) The right to die with dignity as fundamental right
has already been declared by the Constitution Bench
judgment of this Court in Gian Kaur case (supra) which
we reiterate.
(b) We declare that an adult human being having mental
capacity to take an informed decision has right to
refuse medical treatment including withdrawal from life
saving devices.
100
(c) A person of competent mental faculty is entitled to
execute an advance medical directive in accordance with
safeguards as referred to above.
96. Before we conclude, we acknowledge our indebtness
to all the learned Advocates who have rendered valuable
assistance with great industry and ability which made it
possible for us to resolve issues of seminal public
importance. We record our fullest appreciation for the
assistance rendered by each and every counsel in this
case.
...............................J.
( ASHOK BHUSHAN )
NEW DELHI,
MARCH 09, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 215 OF 2005
Common Cause (A Regd. Society) ...Petitioner(s)
Versus
Union of India and Another …Respondent(s)
J U D G M E N T
Dipak Misra, CJI [for himself and A.M. Khanwilkar, J.]
I N D E X
S. No. Heading Page No.
A. Prologue 3
B. Contentions in the Writ Petition 10
C. Stand in the counter affidavit and the
applications for intervention
14
D. Background of the Writ Petition 18
D.1 P. Rathinam’s case – The question of
unconstitutionality of Section 309 of
the Indian Penal Code
19
D.2 Gian Kaur’s case – The question of
unconstitutionality of Section 306 of
22
2
the Indian Penal Code
D.3 The approach in Aruna Shanbaug qua
Passive Euthanasia vis-à-vis India
30
D.4 The Reference 42
E. Our analysis of Gian Kaur 45
F. Our analysis of Aruna Shanbaug qua
legislation
51
G. The Distinction between Active and Passive
Euthanasia
52
H. Euthanasia : International Position 58
H.1 U.K. Decisions: 58
H.1.1 Airedale Case 58
H.1.2 Later Cases 79
H.2 The Legal position in the United
States
89
H.3 Australian Jurisdiction 96
H.4 Legal position in Canada 99
H.5 Other Jurisdictions 104
H.6 International considerations and
decisions of the European Court of
Human Rights (ECHR)
107
I The 241st Report of The Law Commission of
India on Passive Euthanasia
114
J. Right to refuse treatment 120
3
K. Passive Euthanasia in the context of Article
21 of the Constitution.
126
K.1 Individual Dignity as a facet of Article
21
135
L Right of self-determination and individual
autonomy
149
M. Social morality, medical ethicality and State
interest
155
N. Submissions of the States 157
O. Submissions of the Intervenor (Society for
the Right to Die with Diginity)
159
P. Advance Directive/Advance Care Directive/
Advance Medical Directive
160
(a) Who can execute the Advance Directive
and how
170
(b) What should it contain? 171
(c) How should it be recorded and
preserved
172
(d) When and by whom can it be given
effect to
174
(e) What if permission is refused by the
Medical Board
179
(f) Revocation or inapplicability of
Advance Directive
181
Q. Conclusions in seriatim
186
A. Prologue:
Life and death as concepts have invited many a thinker,
philosopher, writer and physician to define or describe them.
4
Sometimes attempts have been made or efforts have been
undertaken to gloriously paint the pictures of both in many a
colour and shade. Swami Vivekananda expects one to
understand that life is the lamp that is constantly burning out
and further suggests that if one wants to have life, one has to
die every moment for it. John Dryden, an illustrious English
author, considers life a cheat and says that men favour the
deceit. No one considers that the goal of life is the grave. Léon
Montenaeken would like to describe life as short, a little
hoping, a little dreaming and then good night. The famous
poet Dylan Thomas would state ―do not go gentle into that
good night.‖ One may like to compare life with constant
restless moment spent in fear of extinction of a valued vapour;
and another may sincerely believe that it is beyond any
conceivable metaphor. A metaphysical poet like John Donne,
in his inimitable manner, says:-
―One short sleep past, we wake eternally, And death
shall be no more; death, thou shalt die‖.
Some would say with profound wisdom that life is to be
lived only for pleasure and others with equal wise pragmatism
5
would proclaim that life is meant for the realization of divinity
within one because that is where one feels the ―self‖, the
individuality and one‘s own real identity. Dharmaraj
Yudhisthira may express that though man sees that death
takes place every moment, yet he feels that the silence of
death would not disturb him and nothing could be more
surprising than the said thought. Yet others feel that one
should never be concerned about the uncertain death and live
life embracing hedonism till death comes. Charvaka, an
ancient philosopher, frowns at the conception of re-birth and
commends for living life to the fullest. Thus, death is
complicated and life is a phenomenon which possibly intends
to keep away from negatives that try to attack the virtue and
vigour of life from any arena. In spite of all the statements,
references and utterances, be it mystical, philosophical or
psychological, the fact remains, at least on the basis of
conceptual majority, that people love to live – whether at
eighty or eighteen – and do not, in actuality, intend to treat life
like an ―autumn leaf‖. As Alfred Tennyson says:-
6
―No life that breathes with human breath has ever
truly longed for death.‖
2. The perception is not always the same at every stage.
There comes a phase in life when the spring of life is frozen,
the rain of circulation becomes dry, the movement of body
becomes motionless, the rainbow of life becomes colourless
and the word ‗life‘ which one calls a dance in space and time
becomes still and blurred and the inevitable death comes near
to hold it as an octopus gripping firmly with its tentacles so
that the person ―shall rise up never‖. The ancient Greet
philosopher, Epicurus, has said, although in a different
context:-
―Why should I fear death?
If I am, then death is not.
If death is, then I am not.
Why should I fear that which
can only exist when I do not?‖
But there is a fallacy in the said proposition. It is because
mere existence does not amount to presence. And sometimes
there is a feebleness of feeling of presence in semi-reality state
when the idea of conceptual identity is lost, quality of life is
7
sunk and the sanctity of life is destroyed and such destruction
is denial of real living. Ernest Hemingway, in his book ‗The Old
Man and the Sea‘, expounds the idea that man can be
destroyed, but cannot be defeated. In a certain context, it can
be said, life sans dignity is an unacceptable defeat and life
that meets death with dignity is a value to be aspired for and a
moment for celebration.
3. The question that emerges is whether a person should be
allowed to remain in such a stage of incurable passivity
suffering from pain and anguish in the name of Hippocratic
oath or, for that matter, regarding the suffering as only a state
of mind and a relative perception or treating the utterance of
death as a ―word infinitely terrible‖ to be a rhetoric without
any meaning. In contradistinction to the same, the question
that arises is should he not be allowed to cross the doors of
life and enter, painlessly and with dignity, into the dark
tunnel of death whereafter it is said that there is resplendence.
In delineation of such an issue, there emerges the question in
law – should he or she be given such treatment which has
8
come into existence with the passage of time and progress of
medical technology so that he/she exists possibly not realizing
what happens around him/her or should his/her individual
dignity be sustained with concern by smoothening the process
of dying.
4. 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. There is also another perspective to it.
A family may not desire to go ahead with the process of
treatment but is compelled to do so under social pressure
especially in a different milieu, and in the case of an
individual, there remains a fear of being branded that he/she,
in spite of being able to provide the necessary treatment to the
patient, has chosen not to do so. The social psyche constantly
makes him/her feel guilty. The collective puts him at the
crossroads between socially carved out ‗meaningful guilt‘ and
his constant sense of rationality and individual responsibility.
9
There has to be a legalistic approach which is essential to
clear the maze and instill awareness that gradually melts the
idea of ―meaningful guilt‖ and ushers in an act of ―affirmative
human purpose‖ that puts humanness on a high pedestal.
5. There is yet another aspect. In an action of this nature,
there can be abuse by the beneficiaries who desire that the
patient‘s heart should stop so that his property is inherited in
promptitude and in such a situation, the treating physicians
are also scared of collusion that may invite the wrath of
criminal law as well as social stigma. The medical, social and
ethical apprehensions further cloud their mind to take a
decision. The apprehension, the cultural stigma, the social
reprehension, the allegation of conspiracy, the ethical dilemma
and eventually the shadow between the individual desire and
the collective expression distances the reality and it is here
that the law has to have an entry to alleviate the agony of the
individual and dispel the collective attributes and perceptions
so that the imbroglio is clear. Therefore, the heart of the
matter is whether the law permits for accelerating the process
10
of dying sans suffering when life is on the path of inevitable
decay and if so, at what stage and to what extent. The said
issue warrants delineation from various perspectives.
B. Contentions in the Writ Petition:
6. The instant Writ Petition preferred under Article 32 of the
Constitution of India by the petitioner, a registered society,
seeks to declare ―right to die with dignity‖ as a fundamental
right within the fold of ―right to live with dignity‖ guaranteed
under Article 21 of the Constitution; to issue directions to the
respondents to adopt suitable procedure in consultation with
the State Governments, where necessary; to ensure that
persons of deteriorated health or terminally ill patients should
be able to execute a document titled ―My Living Will and
Attorney Authorisation‖ which can be presented to the
hospital for appropriate action in the event of the executant
being admitted to the hospital with serious illness which may
threaten termination of the life of the executant; to appoint a
committee of experts including doctors, social scientists and
lawyers to study into the aspect of issuing guidelines as to the
11
―Living Wills‖; and to issue such further appropriate directions
and guidelines as may be necessary.
7. It is asserted that every individual is entitled to take
his/her decision about the continuance or discontinuance of
life when the process of death has already commenced and
he/she has reached an irreversible permanent progressive
state where death is not far away. It is contended that each
individual has an inherent right to die with dignity which is an
inextricable facet of Article 21 of the Constitution. That apart,
it is set forth that right to die sans pain and suffering is
fundamental to one‘s bodily autonomy and such integrity does
not remotely accept any effort that puts the individual on life
support without any ray of hope and on the contrary, the
whole regime of treatment continues in spite of all being aware
that it is a Sisyphean endeavour, an effort to light a bulb
without the filament or to expect a situation to be in an apple
pie order when it is actually in a state of chaos.
8. It is put forth that the concept of sustenance of
individual autonomy inheres in the right of privacy and also
12
comes within the fundamental conception of liberty. To
sustain the stand of privacy, reliance has been placed on the
decisions in Kharak Singh v. State of U.P. and others1,
Gobind v. State of Madhya Pradesh and another 2 and
People’s Union for Civil Liberties v. Union of India and
another3. Inspiration has also been drawn from the decision
of the United States in Cruzan v. Director, Missouri
Department of Health 4 . It is 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. It
is also contended that the petitioner-society is not claiming
that the right to die is a part of the right to life but asserting
the claim that the right to die with dignity is an inseparable
1
(1964) 1 SCR 332 : AIR 1963 SC 1295
2
(1975) 2 SCC 148
3
(1997) 1 SCC 301
4
111 L Ed 2d 224 : 497 US 261 (1990) : 110 S.Ct. 2841 (1990)
13
and inextricable facet of the right to live with dignity. The
execution of a living will or issuance of advance directive has
become a necessity in today‘s time keeping in view the
prolongation of treatment in spite of irreversible prognosis and
owing to penal laws in the field that creates a dilemma in the
minds of doctors to take aid of the modern techniques in a
case or not. A comparison has been made between the
fundamental rights of an individual and the State interest
focusing on sanctity as well as quality of life. References have
been made to the laws in various countries, namely, United
Kingdom, United States of America, Australia, Denmark,
Singapore, Canada, etc. The autonomy of the patient has been
laid stress upon to highlight the right to die with dignity
without pain and suffering which may otherwise be prolonged
because of artificial continuance of life through methods that
are really not of any assistance for cure or improvement of
living conditions.
14
C. Stand in the counter affidavit and the applications
for intervention:
9. A counter affidavit has been filed by the Union of India
contending, inter alia, that serious thought has been given to
regulate the provisions of euthanasia. A private member‘s Bill
and the 241st report of the Law Commission of India have been
referred to. It has been set forth that the Law Commission had
submitted a report on The Medical Treatment of Terminally-ill
Patients (Protection of Patients and Medical Practitioners) Bill,
2006 but the Ministry of Health and Family Welfare was not in
favour of the enactment due to the following reasons:-
―a) Hippocratic oath is against intentional/voluntary
killings of patient.
b) Progression of medical science to relieve pain,
suffering, rehabilitation and treatment of so-called
diseases will suffer a set back.
c) An individual may wish to die at certain point of
time, his/her wish may not be persistent and only a
fleeting desire out of transient depression.
d) Suffering is a state of mind and a perception,
which varies from individual to individual and
depends on various environmental and social
factors.
e) Continuous advancement in medical science has
made possible good pain management in patients of
cancer and other terminal illness. Similarly,
15
rehabilitation helps many spinal injury patients in
leading near normal life and euthanasia may not be
required.
f) Wish of euthanasia by a mentally ill patient/in
depression may be treatable by good psychiatric
care.
g) It will be difficult to quantify suffering, which may
always be subject to changing social pressures and
norms.
h) Can doctors claim to have knowledge and
experience to say that the disease is incurable and
patient is permanently invalid?
i) Defining of bed-ridden and requiring regular
assistance is again not always medically possible.
j) There might be psychological pressure and
trauma to the medical officers who would be
required to conduct euthanasia.‖
10. The counter affidavit further states that after the
judgment was delivered by this Court in Aruna
Ramachandra Shanbaug v. Union of India and others5,
the Ministry of Law and Justice opined that the directions
given by this Court have to be followed in such cases and the
said directions should be treated as law. The Law Commission
in its 241st Report titled ―Passive Euthanasia – A Relook‖ again
proposed for making a legislation on ―Passive Euthanasia‖ and
also prepared a draft Bill titled The Medical Treatment of
5
(2011) 4 SCC 454
16
Terminally Ill Patients (Protection of Patients and Medical
Practitioners) Bill. The said Bill was referred to the technical
wing of the Ministry of Health and Family Welfare (Directorate
General of Health Services-Dte. GHS) for examination in June
2014. It is the case of the Union of India that two meetings
were held under the chairmanship of Special Director General
of Health Service which was attended by various experts. A
further meeting was held under the chairmanship of
Secretary, Ministry of Health and Family Welfare, on
22.05.2015 to examine the Bill. Thereafter, various meetings
have been held by experts and the expert committee had
proposed formulation of legislation on passive euthanasia.
11. Counter affidavits have been filed by various States. We
need not refer to the same in detail. Suffice it to mention that
in certain affidavits, emphasis has been laid on Articles 37, 39
and 47 which require the States to take appropriate steps as
envisaged in the said Articles for apposite governance. That
apart, it has been pronouncedly stated that the right to life
does not include the right to die and, in any case, the right to
17
live with dignity guaranteed under Article 21 of the
Constitution means availability of food, shelter and health and
does not include the right to die with dignity. It is asseverated
that saving the life is the primary duty of the State and,
therefore, there is necessity for health care. It is also
contended that the introduction of the right to die with dignity
as a facet of the right under Article 21 will create a right that
the said constitutional provision does not envisage and further
it may have the potential effect to destroy the said basic right.
12. An application for intervention has been filed by the
―Society for the Right to Die with Dignity‖ whose prayer for
intervention has been allowed. The affidavit filed by the said
society supports the concept of euthanasia because it is a
relief from irrecoverable suffering of which pain is a factor. It
has cited many an example from various texts to support
passive euthanasia and suggested certain criteria to be
followed. It has also supported the idea of introduction of
living will and durable power of attorney documents and has
filed a sample of living will or advance health directive or
18
advance declaration provided by Luis Kutner. Emphasis has
been laid on peaceful exit from life and the freedom of choice
not to live and particularly so under distressing conditions
and ill-health which lead to an irrecoverable state. The
management of terminally ill patients has been put at the
centre stage. It has been highlighted that determination of the
seemly criteria will keep the element of misuse by the family
members or the treating physician or, for that matter, any
interested person at bay and also remove the confusion.
We have heard Mr. Prashant Bhushan, learned counsel
for the petitioner. Mr. P.S. Narasimha, learned Additional
Solicitor General for Union of India, Mr. Arvind P. Datar
learned senior counsel and Mr. Devansh A. Mohta, learned
counsel who have supported the cause put forth in the writ
petition.
D. Background of the Writ Petition:
13. Before we engage ourselves with the right claimed, it is
requisite to state that the present litigation has a history and
while narrating the same, the assertions made in the Writ
19
Petition and the contentions which have been raised during
the course of hearing, to which we shall refer in due course,
are to be kept in mind.
D.1 P. Rathinam’s case – The question of
unconstitutionality of Section 309 of the Indian Penal
Code:
14. Presently, it is necessary to travel backwards in time,
though not very far. Two individuals, namely, P. Rathinam
and Nagbhushan Patnaik, filed two Writ Petitions under
Article 32 of the Constitution which were decided by a twoJudge
Bench in P. Rathinam v. Union of India & another6.
The writ petitions assailed the constitutional validity of Section
309 of the Indian Penal Code (IPC) contending that the same is
violative of Articles 14 and 21 of the Constitution. The Court
posed 16 questions. The relevant ones read thus:-
―(1) Has Article 21 any positive content or is it merely
negative in its reach?
(2) Has a person residing in India a right to die?
x x x x
(12) Is suicide against public policy?
6
(1994) 3 SCC 394
20
(13) Does commission of suicide damage the
monopolistic power of the State to take life?
(14) Is apprehension of ‗constitutional cannibalism‘
justified?
(15) Recommendation of the Law Commission of India
and follow-up steps taken, if any.
(16) Global view. What is the legal position in other
leading countries of the world regarding the
matter at hand?‖
15. Answering question No. (1), the Court, after referring to
various authorities under Article 21, took note of the authority
in State of Himachal Pradesh and another v. Umed Ram
Sharma and others7 wherein it has been 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. In the said case, the Court had
held that for residents of hilly areas, access to road was access
to life itself and so, necessity of road communication in a
reasonable condition was treated as a constitutional
imperative. P. Rathinam perceived the elevated positive
content in the said ruling. Answering question No. (2), the
Court referred to the decision of the Bombay High Court in
7
(1986) 2 SCC 68 : AIR 1986 SC 847
21
Maruti Shripati Dubal v. State of Maharashtra 8 that
placed reliance on R.C. Cooper v. Union of India9 wherein it
had been held that what is true of one fundamental right is
also true of another fundamental right and on the said
premise, the Bombay High Court had opined that it cannot be
seriously disputed that fundamental rights have their positive
as well as negative aspects. Citing an example, it had stated
that freedom of speech and expression includes freedom not to
speak and similarly, the freedom of association and movement
includes freedom not to join any association or move anywhere
and, accordingly, it stated that logically it must follow that the
right to live would include the right not to live, i.e., right to die
or to terminate one‘s life.
16. After so stating, this Court approved the view taken by
the Bombay High Court in Maruti Shripati Dubal and
meeting the criticism of that judgment from certain quarters,
the two-Judge Bench opined that the criticism was only
partially correct because the negative aspect may not be
8
1987 Cri LJ 473 : (1986) 88 Bom LR 589
9
(1970) 2 SCC 298 : AIR 1970 SC 1318
22
inferable on the analogy of the rights conferred by different
clauses of Article 19 and one may refuse to live if his life,
according to the person concerned, is not worth living. One
may rightly think that having achieved all worldly pleasures or
happiness, he has something to achieve beyond this life. This
desire for communion with God may rightly lead even a
healthy mind to think that he would forego his right to live
and would rather choose not to live. In any case, a person
cannot be forced to enjoy the right to life to his detriment,
disadvantage or disliking. Eventually, it concluded that the
right to live of which Article 21 speaks of can be said to bring
in its trail the right not to live a forced life.
17. Answering all the questions, the Court declared Section
309 IPC ultra vires and held that it deserved to be effaced from
the statute book to humanize our penal laws.
D.2 Gian Kaur’s case – The question of
unconstitutionality of Section 306 of the Indian
Penal Code:
18. The dictum laid down by the two-Judge Bench in P.
Rathinam did not remain a precedent for long. In Gian Kaur
23
v. State of Punjab10, the Constitution Bench considered the
correctness of the decision rendered in P. Rathinam. In the
said case, the appellants were convicted by the trial Court
under Section 306 IPC and the conviction was assailed on the
ground that Section 306 IPC is unconstitutional and to
sustain the said argument, reliance was placed on the
authority in P. Rathinam wherein Section 309 IPC was held
to be unconstitutional being violative of Article 21 of the
Constitution. It was urged that once Section 309 IPC had been
held to be unconstitutional, any person abetting the
commission of suicide by another is merely assisting in the
enforcement of the fundamental right under Article 21 and,
therefore, Section 306 IPC penalizing abetment of suicide is
equally violative of Article 21. The two-Judge Bench before
which these arguments were advanced in appeal referred the
matter to a Constitution Bench for deciding the same. In the
course of arguments, one of the amicus curiae, Mr. F.S.
Nariman, learned senior counsel, had submitted that the
debate on euthanasia is not relevant for deciding the question
10 (1996) 2 SCC 648
24
of constitutional validity of Section 309 and Article 21 cannot
be construed to include within it the so-called ―right to die‖
since Article 21 guarantees protection of life and liberty and
not its extinction. The Constitution Bench, after noting the
submissions, stated:-
―17. … We, therefore, proceed now to consider the
question of constitutional validity with reference to
Articles 14 and 21 of the Constitution. Any further
reference to the global debate on the desirability of
retaining a penal provision to punish attempted
suicide is unnecessary for the purpose of this
decision. Undue emphasis on that aspect and
particularly the reference to euthanasia cases tends
to befog the real issue of the constitutionality of the
provision and the crux of the matter which is
determinative of the issue.‖
19. Thereafter, the Constitution Bench in Gian Kaur (supra)
scrutinized the reasons given in P. Rathinam and opined that
the Court in the said case took the view that if a person has a
right to live, he also has a right not to live. The Court in Gian
Kaur (supra) observed that the Court in P. Rathinam (supra),
while taking such a view, relied on the decisions which relate
to other fundamental rights dealing with different situations
and those decisions merely hold that the right to do an act
25
also includes the right not to do an act in that manner. The
larger Bench further observed that in all those decisions, it
was the negative aspect of the right that was involved for
which no positive or overt act was to be done. The
Constitution Bench categorically stated that this difference
has to be borne in mind while making the comparison for the
application of this principle.
20. Delving into the facet of committing suicide, the larger
Bench observed that when a man commits suicide, he has to
undertake certain positive overt acts and the genesis of those
acts cannot be traced to or be included within the protection of
the ‗right to life‘ under Article 21. It also held that the
significant aspect of ‗sanctity of life‘ should not be overlooked.
The Court further opined that by no stretch of imagination,
extinction of life can be read to be included in protection of life
because Article 21, in its ambit and sweep, cannot include
within it the right to die as a part of fundamental right
guaranteed therein. The Constitution Bench ruled:-
―‗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
26
inconsistent with the concept of ―right to life‖. With
respect and in all humility, we find no similarity in
the nature of the other rights, such as the right to
―freedom of speech‖ etc. to provide a comparable
basis to hold that the ―right to life‖ also includes the
―right to die‖. With respect, the comparison is
inapposite, for the reason indicated in the context of
Article 21. The decisions relating to other
fundamental rights wherein the absence of
compulsion to exercise a right was held to be
included within the exercise of that right, are not
available to support the view taken in P. Rathinam
qua Article 21.‖
21. Adverting to the concept of euthanasia, the Court
observed that protagonism of euthanasia on the view that
existence in persistent vegetative state (PVS) is not a benefit to
the patient of terminal illness being unrelated to the principle
of ―sanctity of life‖ or the ―right to live with dignity‖ is of no
assistance to determine the scope of Article 21 for deciding
whether the guarantee of ―right to life‖ therein includes the
―right to die‖. The ―right to life‖ including the right to live with
human dignity would mean the existence of such a right up to
the end of natural life. The Constitution Bench further
explained that the said conception also includes the right to a
dignified life up to the point of death including a dignified
procedure of death or, in other words, it may include the right
27
of a dying man to also die with dignity when his life is ebbing
out. It has been clarified that the right to die with dignity at
the end of life is not to be confused or equated with the ―right
to die‖ an unnatural death curtailing the natural span of life.
Thereafter, the Court proceeded to state:-
―25. A question may arise, in the context of a dying
man who is terminally ill or in a persistent
vegetative state that he may be permitted to
terminate it by a premature extinction of his life in
those circumstances. This category of cases may fall
within the ambit of the ―right to die‖ with dignity as
a part of right to live with dignity, when death due
to termination of natural life is certain and
imminent and the process of natural death has
commenced. These are not cases of extinguishing
life but only of accelerating conclusion of the
process of natural death which has already
commenced. The debate even in such cases to
permit physician-assisted termination of life is
inconclusive. It is sufficient to reiterate that the
argument to support the view of permitting
termination of life in such cases to reduce the
period of suffering during the process of certain
natural death is not available to interpret Article 21
to include therein the right to curtail the natural
span of life.‖
[Emphasis supplied]
22. In view of the aforesaid analysis and taking into
consideration various other aspects, the Constitution Bench
declared Section 309 IPC as constitutional.
28
23. The Court held that the "right to live with human dignity"
cannot be construed to include within its ambit the right to
terminate natural life, at least before the commencement of the
process of certain natural death. It then examined the question
of validity of Section 306 IPC. It accepted the submission that
Section 306 is constitutional. While adverting to the decision in
Airedale N.H.S. Trust v. Bland11, the Court at the outset made
it clear that it was not called upon to deal with the issue of
physician-assisted suicide or euthanasia cases. The decision in
Airedale‘s case (supra), was relating to the withdrawal of
artificial measures for continuance of life by a physician. In the
context of existence in the persistent vegetative state of no
benefit to the patient, the principle of sanctity of life, which is
the concern of the State, was stated to be not an absolute one.
To bring home the distinction between active and passive
euthanasia, an illustration was noted in the context of
administering lethal drug actively to bring the patient's life to an
end. The significant dictum in that decision has been extracted
in Gian Kaur (supra) wherein it is observed that it is not lawful
for a doctor to administer a drug to his patient to bring about
11 (1993) 2 WLR 316: (1993) 1 All ER 821, HL
29
his death even though that course is promoted by a
humanitarian desire to end his suffering and however great that
suffering may be. Further, to act so is to cross the rubicon
which runs between the care of the living patient on one hand
and euthanasia - actively causing his death to avoid or to end
his suffering on the other hand. It has been noticed in Airedale
that euthanasia is not lawful at common law. In the light of the
demand of responsible members of the society who believe that
euthanasia should be made lawful, it has been observed in that
decision that the same can be achieved by legislation. The
Constitution Bench has merely noted this aspect in paragraph
41 with reference to the dictum in Airedale case.
24. Proceeding to deal with physician assisted suicide, the
Constitution Bench observed:-
―42. The decision of the United States Court of
Appeals for the Ninth Circuit in Compassion in
Dying v. State of Washington12, which reversed the
decision of United States District Court, W.D.
Washington reported in 850 Federal Supplement
1454, has also relevance. The constitutional validity
of the State statute that banned physician-assisted
suicide by mentally competent, terminally ill adults
was in question. The District Court held
12 49 F 3d 586
30
unconstitutional the provision punishing for
promoting a suicide attempt. On appeal, that
judgment was reversed and the constitutional
validity of the provision was upheld.‖
And again:-
―43. This caution even in cases of physicianassisted
suicide is sufficient to indicate that
assisted suicides outside that category have no
rational basis to claim exclusion of the fundamental
principles of sanctity of life. The reasons assigned
for attacking a provision which penalises attempted
suicide are not available to the abettor of suicide or
attempted suicide. Abetment of suicide or attempted
suicide is a distinct offence which is found enacted
even in the law of the countries where attempted
suicide is not made punishable. Section 306 IPC
enacts a distinct offence which can survive
independent of Section 309 in the IPC. The learned
Attorney General as well as both the learned amicus
curiae rightly supported the constitutional validity
of Section 306 IPC.‖
Eventually, the Court in Gian Kaur (supra), apart from
overruling P. Rathinam (supra), upheld the constitutional
validity of Section 306 IPC.
D.3 The approach in Aruna Shanbaug qua Passive
Euthanasia vis-à-vis India:
25. Although the controversy relating to attempt to suicide or
abetment of suicide was put to rest, yet the issue of
31
euthanasia remained alive. It arose for consideration almost
after a span of eleven years in Aruna Shanbaug (supra). A
writ petition was filed by the next friend of the petitioner
pleading, inter alia, that the petitioner was suffering
immensely because of an incident that took place thirty six
years back on 27.11.1973 and was in a Persistent Vegetative
State (PVS) and in no state of awareness and her brain was
virtually dead. The prayer of the next friend was that the
respondent be directed to stop feeding the petitioner and to
allow her to die peacefully. The Court noticed that there was
some variance in the allegation made in the writ petition and
the counter affidavit filed by the Professor and Head of the
hospital where the petitioner was availing treatment. The
Court appointed a team of three very distinguished doctors to
examine the petitioner thoroughly and to submit a report
about her physical and mental condition. The team submitted
a joint report. The Court asked the team of doctors to submit
a supplementary report by which the meaning of the technical
terms in the first report could be explained. Various other
aspects were also made clear. It is also worth noting that the
32
KEM Hospital where the petitioner was admitted was
appointed as the next friend by the Court because of its
services rendered to the petitioner and the emotional bonding
and attachment with the petitioner.
26. In Aruna Shanbaug (supra), after referring to the
authority in Vikram Deo Singh Tomar v. State of Bihar13,
this Court reproduced paragraphs 24 and 25 from Gian
Kaur‘s case and opined that the said paragraphs simply mean
that the view taken in Rathinam’s case to the effect that the
‗right to life‘ includes the ‗right to die‘ is not correct and para
25 specifically mentions that the debate even in such cases to
permit physician-assisted termination of life is inconclusive.
The Court further observed that it was held in Gian Kaur that
there is no ‗right to die‘ under Article 21 of the Constitution
and the right to life includes the right to live with human
dignity but in the case of a dying person who is terminally ill
or in permanent vegetative state, he may be allowed a
premature extinction of his life and it would not amount to a
crime. Thereafter, the Court took note of the submissions of
13 1988 Supp. SCC 734 : AIR 1988 SC 1782
33
the learned amicus curiae to the effect that the decision to
withdraw life support is taken in the best interests of the
patient by a body of medical persons. The Court observed that
it is not the function of the Court to evaluate the situation and
form an opinion on its own. The Court further noted that in
England, the parens patriae jurisdiction over adult mentally
incompetent persons was abolished by statute and the Court
has no power now to give its consent and in such a situation,
the Court only gives a declaration that the proposed omission
by doctors is not unlawful.
27. After so stating, the Court addressed the legal issues,
namely, active and passive euthanasia. It noted the
legislations prevalent in Netherlands, Switzerland, Belgium,
U.K., Spain, Austria, Italy, Germany, France and United States
of America. It also noted that active euthanasia is illegal in all
States in USA, but physician-assisted death is legal in the
States of Oregon, Washington and Montana. The Court also
referred to the legal position in Canada. Dealing with passive
euthanasia, the two-Judge Bench opined that passive
euthanasia is usually defined as withdrawing medical
34
treatment with a deliberate intention of causing the patient‘s
death. An example was cited by stating that if a patient
requires kidney dialysis to survive, not giving dialysis although
the machine is available is passive euthanasia and similarly,
withdrawing the machine where a patient is in coma or on
heart-lung machine support will ordinarily result in passive
euthanasia. The Court also put non-administration of life
saving medicines like antibiotics in certain situations on the
same platform of passive euthanasia. Denying food to a
person in coma or PVS has also been treated to come within
the ambit of passive euthanasia. The Court copiously referred
to the decision in Airedale. In Airedale case, as has been
noted in Aruna Shanbaug, Lord Goff observed that
discontinuance of artificial feeding in such cases is not
equivalent to cutting a mountaineer‘s rope or severing the air
pipe of a deep sea diver. The real question has to be not
whether the doctor should take a course in which he will
actively kill his patient but whether he should continue to
provide his patient with medical treatment or care which, if
continued, will prolong his life.
35
28. Lord Browne–Wilkinson was of the view that removing
the nasogastric tube in the case of Anthony Bland cannot be
regarded as a positive act causing death. The tube by itself,
without the food being supplied through it, does nothing. Its
non-removal by itself does not cause death since by itself, it
does not sustain life. The learned Judge observed that removal
of the tube would not constitute the actus reus of murder
since such an act by itself would not cause death.
29. Lord Mustill observed:-
―Threaded through the technical arguments
addressed to the House were the strands of a much
wider position, that it is in the best interests of the
community at large that Anthony Bland’s life should
now end. The doctors have done all they can.
Nothing will be gained by going on and much will be
lost. The distress of the family will get steadily
worse. The strain on the devotion of a medical staff
charged with the care of a patient whose condition
will never improve, who may live for years and who
does not even recognise that he is being cared for,
will continue to mount. The large resources of skill,
labour and money now being devoted to Anthony
Bland might in the opinion of many be more
fruitfully employed in improving the condition of
other patients, who if treated may have useful,
healthy and enjoyable lives for years to come.‖
36
30. The two-Judge Bench further observed that the decision
in Airedale by the House of Lords has been followed in a
number of cases in U.K. and the law is now fairly well settled
that in the case of incompetent patients, if the doctors act on
the basis of notified medical opinion and withdraw the
artificial life support system in the patient‘s best interest, the
said act cannot be regarded as a crime. The learned Judges
posed the question as to who is to decide what is that patient‘s
best interest where he is in a PVS and, in that regard, opined
that it is ultimately for the Court to decide, as parens patriae,
as to what is in the best interest of the patient, though the
wishes of close relatives and next friend and the opinion of
medical practitioners should be given due weight in coming to
its decision. For the said purpose, reference was made to the
opinion of Balcombe J. in Re J (A Minor) (Wardship: Medical
Treatment)14 whereby it has been stated that the Court as
representative of the Sovereign and as parens patriae will
adopt the same standard which a reasonable and responsible
parent would do.
14 [1991] 2 WLR 140: [1990] 3 All ER 930: [1991] Fam 33
37
31. The two-Judge Bench referred to the decisions of the
Supreme Court of United States in Washington v.
Glucksberg15 and Vacco v. Quill16 which addressed the issue
whether there was a federal constitutional road to assisted
suicide. Analysing the said decisions and others, the Court
observed that the informed consent doctrine has become
firmly entrenched in American Tort Law and, as a logical
corollary, lays foundation for the doctrine that the patient who
generally possesses the right to consent has the right to refuse
treatment.
32. In the ultimate analysis, the Court opined that the
Airedale case is more apposite to be followed. Thereafter, the
Court adverted to the law in India and ruled that in Gian
Kaur case, this Court had approved the decision of the House
of Lords in Airedale and observed that euthanasia could be
made lawful only by legislation. After so stating, the learned
Judges opined:-
―104. It may be noted that in Gian Kaur case
although the Supreme Court has quoted with
approval the view of the House of Lords in Airedale
15 138 L Ed 2d 772 : 521 US 702 (1997)
16 138 L Ed 2d 834 : 521 US 793 (1997)
38
case, it has not clarified who can decide whether life
support should be discontinued in the case of an
incompetent person e.g. a person in coma or PVS.
This vexed question has been arising often in India
because there are a large number of cases where
persons go into coma (due to an accident or some
other reason) or for some other reason are unable to
give consent, and then the question arises as to who
should give consent for withdrawal of life support.
This is an extremely important question in India
because of the unfortunate low level of ethical
standards to which our society has descended, its
raw and widespread commercialisation, and the
rampant corruption, and hence, the Court has to be
very cautious that unscrupulous persons who wish
to inherit the property of someone may not get him
eliminated by some crooked method.‖
33. After so stating, the two-Judge Bench dwelled upon the
concept of brain dead and various other aspects which
included withdrawal of life support of a patient in PVS and, in
that context, ruled thus:-
―125. In our opinion, if we leave it solely to the
patient‘s relatives or to the doctors or next friend to
decide whether to withdraw the life support of an
incompetent person there is always a risk in our
country that this may be misused by some
unscrupulous persons who wish to inherit or
otherwise grab the property of the patient.
Considering the low ethical levels prevailing in our
society today and the rampant commercialisation
and corruption, we cannot rule out the possibility
that unscrupulous persons with the help of some
unscrupulous doctors may fabricate material to
39
show that it is a terminal case with no chance of
recovery. There are doctors and doctors. While
many doctors are upright, there are others who can
do anything for money (see George Bernard Shaw‘s
play The Doctor’s Dilemma). The commercialisation
of our society has crossed all limits. Hence we have
to guard against the potential of misuse (see Robin
Cook‘s novel Coma). In our opinion, while giving
great weight to the wishes of the parents, spouse, or
other close relatives or next friend of the
incompetent patient and also giving due weight to
the opinion of the attending doctors, we cannot
leave it entirely to their discretion whether to
discontinue the life support or not. We agree with
the decision of Lord Keith in Airedale case5 that the
approval of the High Court should be taken in this
connection. This is in the interest of the protection
of the patient, protection of the doctors, relatives
and next friend, and for reassurance of the patient‘s
family as well as the public. This is also in
consonance with the doctrine of parens patriae
which is a well-known principle of law.‖
34. After so laying down, the Court referred to the authorities
in Charan Lal Sahu v. Union of India 17 and State of
Kerala and another v. N.M. Thomas and others 18 and
further opined that the High Court can grant approval for
withdrawing life support of an incompetent person under
Article 226 of the Constitution because Article 226 gives
abundant power to the High Court to pass suitable orders on
17 (1990) 1 SCC 613
18 (1976) 2 SCC 310
40
the application filed by the near relatives or next friend or the
doctors/hospital staff praying for permission to withdraw the
life support of an incompetent person. Dealing with the
procedure to be adopted by the High Court when such
application is filed, the Court ruled that when such an
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:-
―134. … 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
41
of the doctor‘s committee to them as soon as it is
available. After hearing them, the High Court Bench
should give its verdict.
135. The above procedure should be followed all
over India until Parliament makes legislation on this
subject.
136. The High Court should give its decision
speedily at the earliest, since delay in the matter
may result in causing great mental agony to the
relatives and persons close to the patient. The High
Court should give its decision assigning specific
reasons in accordance with the principle of ―best
interest of the patient‖ laid down by the House of
Lords in Airedale case. The views of the near
relatives and committee of doctors should be given
due weight by the High Court before pronouncing a
final verdict which shall not be summary in nature.‖
35. We must note here that the two-Judge Bench declined to
grant the permission after perusing the medical reports. For
the sake of completeness, we think it apt to reproduce the
reasoning:-
―122. From the above examination by the team of
doctors, it cannot be said that Aruna Shanbaug is
dead. Whatever the condition of her cortex, her
brainstem is certainly alive. She does not need a
heart-lung machine. She breathes on her own
without the help of a respirator. She digests food,
and her body performs other involuntary functions
without any help. From the CD (which we had
screened in the courtroom on 2-3-2011 in the
presence of the counsel and others) it appears that
42
she can certainly not be called dead. She was
making some sounds, blinking, eating food put in
her mouth, and even licking with her tongue
morsels on her mouth. However, there appears little
possibility of her coming out of PVS in which she is
in. In all probability, she will continue to be in the
state in which she is in till her death.‖
D.4 The Reference:
36. The aforesaid matter was decided when the present Writ
Petition was pending for consideration. The present petition
was, thereafter, listed before a three-Judge Bench which noted
the submissions advanced on behalf of the petitioner and also
that of the learned Additional Solicitor General on behalf of the
Union of India. Reliance was placed on the decision in Aruna
Shanbaug. The three-Judge Bench reproduced paragraphs 24
and 25 from Gian Kaur and noted that the Constitution
Bench did not express any binding view on the subject of
euthanasia, rather it reiterated that the legislature would be
the appropriate authority to bring the change.
37. After so holding, it referred to the understanding of Gian
Kaur in Aruna Shanbaug by the two-Judge Bench and
reproduced paragraphs 21 and 101 from the said judgment:-
43
―21. We have carefully considered paras 24 and
25 in Gian Kaur case and we are of the opinion
that all that has been said therein is that the
view in Rathinam case that the right to life
includes the right to die is not correct. We cannot
construe Gian Kaur case to mean anything
beyond that. In fact, it has been specifically
mentioned in para 25 of the aforesaid decision
that ‘the debate even in such cases to permit
physician-assisted termination of life is
inconclusive’. Thus it is obvious that no final view
was expressed in the decision in Gian Kaur case
beyond what we have mentioned above.
x x x x
―101. The Constitution Bench of the Supreme
Court in Gian Kaur v. State of Punjab held that
both euthanasia and assisted suicide are not
lawful in India. That decision overruled the
earlier two-Judge Bench decision of the Supreme
Court in P. Rathinam v. Union of India. The Court
held that the right to life under Article 21 of the
Constitution does not include the right to die
(vide SCC para 33). In Gian Kaur case the
Supreme Court approved of the decision of the
House of Lords in Airedale case and observed that
euthanasia could be made lawful only by
legislation.‖
(Emphasis supplied)
38. Commenting on the said analysis, the three-Judge Bench
went on to say:-
―13. Insofar as the above paragraphs are concerned,
Aruna Shanbaug aptly interpreted the decision of
44
the Constitution Bench in Gian Kaur and came to
the conclusion that euthanasia can be allowed in
India only through a valid legislation. However, it is
factually wrong to observe that in Gian Kaur, the
Constitution Bench approved the decision of the
House of Lords in Airedale N.H.S. Trust v. Bland.
Para 40 of Gian Kaur, clearly states that :
―40. … Even though it is not necessary to deal
with physician-assisted suicide or euthanasia
cases, a brief reference to this decision cited at the
Bar may be made.‖
(Emphasis supplied)
Thus, it was a mere reference in the verdict and it
cannot be construed to mean that the Constitution
Bench in Gian Kaur approved the opinion of the
House of Lords rendered in Airedale. To this extent,
the observation in para 101 of Aruna Shanbaug is
incorrect.‖
39. From the aforesaid, it is clear that the three-Judge Bench
expressed the view that the opinion of the House of Lords in
Airedale has not been approved in Gian Kaur (supra) and to
that extent, the observation in Aruna Shanbaug (supra) is
incorrect. After so stating, the three-Judge Bench opined that
Aruna Shanbaug (supra) upholds the authority of passive
euthanasia and lays down an elaborate procedure for
executing the same on the wrong premise that the
Constitution Bench in Gian Kaur (supra) had upheld the
45
same. Thereafter, considering the important question of law
involved which needs to be reflected in the light of social, legal,
medical and constitutional perspectives, in order to have a
clear enunciation of law, it referred the matter for
consideration by the Constitution Bench of this Court for the
benefit of humanity as a whole. The three-Judge bench further
observed that it was refraining from framing any specific
questions for consideration by the Constitution Bench as it
would like the Constitution Bench to go into all the aspects of
the matter and lay down exhaustive guidelines. That is how
the matter has been placed before us.
E. Our analysis of Gian Kaur:
40. It is the first and foremost duty to understand what has
been stated by the Constitution Bench in Gian Kaur‘s case. It
has referred to the decision in Airedale (supra) that has been
recapitulated in Aruna Shanbaug case which was a case
relating to withdrawal of artificial measures of continuance of
life by the physician. It is relevant to mention here that the
Constitution Bench in Gian Kaur categorically noted that it
was not necessary to deal with physician–assisted suicide or
46
euthanasia cases though a brief reference to the decisions
cited by the Bar was required to be made. The Constitution
Bench noted that Airedale held that in the context of
existence in the persistent vegetative state of no benefit to the
patient, the principle of sanctity of life, which is the concern of
the State, was not an absolute one. The larger bench further
noticed that in Airedale, it had been stated that in such cases
also, the existing crucial distinction between cases in which a
physician decides not to provide or to continue to provide, for
his patient, treatment or care which could or might prolong
his life, and those in which he decides, for example, by
administering a lethal drug actively to bring his patient‘s life to
an end, was indicated. Thereafter, while again referring to
Airedale case, the larger bench observed that it was a case
relating to withdrawal of artificial measures for continuance of
life by the physician. After so stating, the Court reproduced
the following passage from the opinion of Lord Goff of
Chieveley:-
―... But it is not lawful for a doctor to administer a
drug to his patient to bring about his death, even
47
though that course is prompted by a humanitarian
desire to end his suffering, however great that
suffering may be : See Reg v. Cox, (unreported), 18
September (1992). So to act is to cross the Rubicon
which runs between on the one hand the care of
the living patient and on the other hand euthanasia
- actively causing his death to avoid or to end his
suffering. Euthanasia is not lawful at common law.
It is of course well known that there are many
responsible members of our society who believe that
euthanasia should be made lawful; but that result
could, I believe, only be achieved by legislation
which expresses the democratic will that so
fundamental a change should be made in our law,
and can, if enacted, ensure that such legalised
killing can only be carried out subject to appropriate
supervision and control....‖
(Emphasis supplied in Gian Kaur)
41. After reproducing the said passage, the Court opined
thus:-
―41. The desirability of bringing about a change was
considered to be the function of the legislature by
enacting a suitable law providing therein adequate
safeguards to prevent any possible abuse.‖
42. At this stage, it is necessary to clear the maze whether
the Constitution Bench in Gian Kaur had accepted what has
been held in Airedale. On a careful and anxious reading of
Gian Kaur, it is noticeable that there has been narration,
reference and notice of the view taken in Airedale case. It is
48
also worth noting that the Court was concerned with the
constitutional validity of Section 309 IPC that deals with
attempt to commit suicide and Section 306 IPC that provides
for abetment to commit suicide. As noted earlier, the
Constitution Bench, while distinguishing the case of a dying
man who is terminally ill or in a persistent vegetative state and
his termination or premature extinction of life, observed that
the said category of cases may fall within the ambit of right to
die with dignity as a part of right to life with dignity when
death due to termination of natural life is inevitable and
imminent and the process of natural death has commenced.
The Constitution Bench further opined that the said cases do
not amount to extinguishing the life but only amount to
accelerating the process of natural death which has already
commenced and, thereafter, the Constitution Bench stated
that the debate with regard to physician assisted suicide
remains inconclusive. The larger Bench has reiterated that the
cases pertaining to premature extinction of life during the
process of certain natural death of patients who are terminally
ill or in persistent vegetative state were of assistance to
49
interpret Article 21 of the Constitution to include therein the
right to curtail the natural span of life. On a seemly
understanding of the judgment in Gian Kaur, we do not find
that it has decried euthanasia as a concept. On the contrary,
it gives an indication that in such situations, it is the
acceleration of the process of dying which may constitute a
part of right to life with dignity so that the period of suffering
is reduced. We are absolutely conscious that a judgment is not
to be construed as a statute but our effort is to understand
what has been really expressed in Gian Kaur. Be it clarified,
it is understood and appreciated that there is a distinction
between a positive or overt act to put an end to life by the
person living his life and termination of life so that an
individual does not remain in a vegetative state or, for that
matter, when the death is certain because of terminal illness
and he remains alive with the artificially assisted medical
system. In Gian Kaur, while dealing with the attempt to
commit suicide, the Court clearly held that when a man
commits suicide, he has to undertake certain positive overt
acts and the genesis of those acts cannot be tested to or be
50
included within the protection of the expression ―right to life‖
under Article 21 of the Constitution. It was also observed that
a dignified procedure of death may include the right of a dying
man to also die with dignity when the life is ebbing out. This
is how the pronouncement in Gian Kaur has to be
understood. It is also not the ratio of the authority in Gian
Kaur that euthanasia has to be introduced only by a
legislation. What has been stated in paragraph 41 of Gian
Kaur is what has been understood to have been held in
Airedale‘s case. The Court has neither expressed any
independent opinion nor has it approved the said part or the
ratio as stated in Airedale. There has been only a reference to
Airedale‘s case and the view expressed therein as regards
legislation. Therefore, the perception in Aruna Shanbaug that
the Constitution Bench has approved the decision in
Airedale is not correct. It is also quite clear that Gian Kaur
does not lay down that passive euthanasia can only be
thought of or given effect to by legislation. Appositely
understood, it opens an expansive sphere of Article 21 of the
Constitution. Therefore, it can be held without any hesitation
51
that Gian Kaur has neither given any definite opinion with
regard to euthanasia nor has it stated that the same can be
conceived of only by a legislation.
F. Our analysis of Aruna Shanbaug qua legislation:
43. Having said this, we shall focus in detail what has been
stated in Aruna Shanbaug. In paragraph 101 which has
been reproduced hereinbefore, the two-Judge Bench noted
that Gian Kaur has approved the decision of the House of
Lords in Airedale and observed that euthanasia could be
made lawful only by legislation. This perception, according to
us, is not correct. As already stated, Gian Kaur does not lay
down that passive euthanasia could be made lawful only by
legislation. In paragraph 41 of the said judgment, the
Constitution Bench was only adverting to what has been
stated by Lord Goff of Chieveley in Airedale‘s case. However,
this expression of view of Aruna Shanbaug which has not
been accepted by the referral Bench makes no difference to
our present analysis. We unequivocally express the opinion
that Gian Kaur is not a binding precedent for the purpose of
52
laying down the principle that passive euthanasia can be
made lawful ―only by legislation.‖
G. The Distinction between Active and Passive
Euthanasia:
44. As a first step, it is imperative to understand the concept
of euthanasia before we enter into the arena of analysis of the
expanded right of Article 21 in Gian Kaur and the
understanding of the same. Euthanasia is basically an
intentional premature termination of another person‘s life
either by direct intervention (active euthanasia) or by
withholding life-prolonging measures and resources (passive
euthanasia) either at the express or implied request of that
person (voluntary euthanasia) or in the absence of such
approval/consent (non-voluntary euthanasia). Aruna
Shanbaug has discussed about two categories of euthanasia -
active and passive. While dealing with active euthanasia, also
known as ―positive euthanasia‖ or ―aggressive euthanasia‖, it
has been stated that the said type of euthanasia entails a
positive act or affirmative action or act of commission entailing
the use of lethal substances or forces to cause the intentional
53
death of a person by direct intervention, e.g., a lethal injection
given to a person with terminal cancer who is in terrible
agony. Passive euthanasia, on the other hand, also called
―negative euthanasia‖ or ―non-aggressive euthanasia‖, entails
withdrawing of life support measures or withholding of
medical treatment for continuance of life, e.g., withholding of
antibiotics in case of a patient where death is likely to occur as
a result of not giving the said antibiotics or removal of the
heart lung machine from a patient in coma. The two-Judge
Bench has also observed that the legal position across the
world seems to be that while active euthanasia is illegal unless
there is a legislation permitting it, passive euthanasia is legal
even without legislation, provided certain conditions and
safeguards are maintained. The Court has drawn further
distinction between voluntary euthanasia and non-voluntary
euthanasia in the sense that voluntary euthanasia is where
the consent is taken from the patient and non-voluntary
euthanasia is where the consent is unavailable, for instances
when the patient is in coma or is otherwise unable to give
consent. Describing further about active euthanasia, the
54
Division Bench has observed that the said type of euthanasia
involves taking specific steps to cause the patient‘s death such
as injecting the patient with some lethal substance, i.e.,
sodium pentothal which causes, in a person, a state of deep
sleep in a few seconds and the person instantly dies in that
state. That apart, the Court has drawn a distinction between
euthanasia and physician assisted dying and noted that the
difference lies in the fact as to who administers the lethal
medication. It has been observed that in euthanasia, a
physician or third party administers it while in physician
assisted suicide, it is the patient who does it though on the
advice of the doctor. Elaborating further, the two-Judge
Bench has opined that the predominant difference between
―active‖ and ―passive‖ euthanasia is that in the former, a
specific act is done to end the patient‘s life while the latter
covers a situation where something is not done which is
necessary in preserving the patient‘s life. The main idea
behind the distinction, as observed by the Bench, is that in
passive euthanasia, the doctors are not actively killing the
patient, they are merely not saving him and only accelerating
55
the conclusion of the process of natural death which has
already commenced.
45. The two-Judge Bench, thereafter, elaborated on passive
euthanasia and gave more examples of cases within the ambit
of passive euthanasia. The learned Judges further categorized
passive euthanasia into voluntary passive euthanasia and
non-voluntary passive euthanasia. The learned Judges
described voluntary passive euthanasia as a situation where a
person who is capable of deciding for himself decides that he
would prefer to die because of various reasons whereas nonvoluntary
passive euthanasia has been described to mean that
a person is not in a position to decide for himself, e.g., if he is
in coma or PVS.
46. While scrutinizing the distinction between active and
passive euthanasia, the paramount aspect is ―foreseeing the
hastening of death‖. The said view has been propagated in
several decisions all over the world. The Supreme Court of
Canada, in the case of Rodriguez v. British Columbia
56
(Attorney General)19, drew the distinction between these two
forms of euthanasia on the basis of intention. Echoing a
similar view, the Supreme Court of the United States affirmed
the said distinction on the basis of ―intention‖ in the case of
Vacco (supra) wherein Chief Justice Rehnquist observed that
the said distinction coheres with the fundamental legal
principles of causation and intention. In case when the death
of a patient occurs due to removal of life-supporting measures,
the patient dies due to an underlying fatal disease without any
intervening act on the part of the doctor or medical
practitioner, whereas in the cases coming within the purview
of active euthanasia, for example, when the patient ingests
lethal medication, he is killed by that medication.
47. This distinction on the basis of ―intention‖ further finds
support in the explanation provided in the case In the matter
of Claire C. Conroy20 wherein the Court made an observation
that people who refuse life-sustaining medical treatment may
not harbour a specific intent to die, rather they may fervently
19
85 C.C.C. (3d) 15 : (1993) 3 S.C.R. 519
20 98 N.J. 321 (1985) : (1985) 486 A.2d 1209 (N.J.)
57
wish to live but do so free of unwanted medical technology,
surgery or drugs and without protracted suffering.
48. Another distinction on the basis of ―action and nonaction‖
was advanced in the Airedale case. Drawing a crucial
distinction between the two forms of euthanasia, Lord Goff
observed that passive euthanasia includes cases in which a
doctor decides not to provide, or to continue to provide, for his
patient, treatment or care which could prolong his life and
active euthanasia involves actively ending a patient‘s life, for
example, by administering a lethal drug. As per the
observations made by Lord Goff, the former can be considered
lawful either because the doctor intends to give effect to his
patient‘s wishes by withholding the treatment or care, or even
in certain circumstances in which the patient is incapacitated
from giving his consent. However, active euthanasia, even
voluntary, is impermissible despite being prompted by the
humanitarian desire to end the suffering of the patient.
49. It is perhaps due to the distinction evolved between these
two forms of euthanasia, which has gained moral and legal
58
sanctity all over, that most of the countries today have
legalized passive euthanasia either by way of legislations or
through judicial interpretation but there remains uncertainty
whether active euthanasia should be granted legal status.
H. Euthanasia : International Position:
H.1 U.K. Decisions:
H.1.1 Airedale Case:
50. In the obtaining situation, we shall now advert to the
opinions stated in Airedale case. In the said case, one
Anthony Bland, a supporter of Liverpool Football Club, who
had gone to Hillsborough Ground, suffered severe injuries as a
result of which supply to his brain was interrupted.
Eventually, he suffered an irreversible damage to the brain as
a consequence of which he got into a condition of persistent
vegetative state (PVS). He became incapable of voluntary
movement and could feel no pain. He was not in a position to
feel or communicate. To keep him alive, artificial means were
taken recourse to. In such a state of affairs, the treating
doctors and the parents of Bland felt that no fruitful purpose
would be served by continuing the medical aid. As there were
59
doubts with regard to stoppage of medical care which may
incur a criminal liability, a declaration from the British High
Court was sought to resolve the doubts. The Family Division
of the High Court granted the declaration which was affirmed
by the Court of Appeal. The matter travelled to the House of
Lords.
51. Lord Keith of Kinkel opined that regard should be had to
the whole artificial regime which kept Anthony Bland alive and
it was incorrect to direct attention exclusively to the fact that
nourishment was being provided. In his view, the
administration of nourishment by the means adopted involved
the application of a medical technique.
52. Lord Keith observed that in general, it would not be
lawful for a medical practitioner who assumed responsibility
for the care of an unconscious patient simply to give up
treatment in circumstances where continuance of it would
confer some benefit on the patient. On the other hand, a
medical practitioner is under no duty to continue to treat such
a patient where a large body of informed and responsible
60
medical opinion is to the effect that no benefit at all would be
conferred by continuance of treatment. Existence in a
vegetative state with no prospect of recovery is, by that
opinion, regarded as not being a benefit, and that, if not
unarguably correct, at least forms a proper basis for the
decision to discontinue treatment and care. He was of the
further opinion that since existence in PVS is not a benefit to
the patient, the principle of sanctity of life is no longer an
absolute one. It does not compel a medical practitioner to treat
a patient, who will die if not treated, contrary to the express
wishes of the patient. It does not compel the temporary
keeping alive of patients who are terminally ill where to do so
would merely prolong their suffering. On the other hand, it
forbids the taking of active measures to cut short the life of a
terminally ill patient.
53. Lord Keith further stated that it does no violence to the
principle of sanctity of life to hold that it is lawful to cease to
give medical treatment and care to a PVS patient who has
been in that state for over three years considering that to do so
involves invasive manipulation of the patient's body to which
61
he has not consented and which confers no benefit upon him.
He also observed that the decision whether or not the
continued treatment and care of a PVS patient confers any
benefit on him is essentially one for the practitioners in
charge.
54. Lord Goff of Chieveley also held that the principle of
sanctity of life is not an absolute one and there is no absolute
rule that the patient's life must be prolonged by such
treatment or care, if available, regardless of the
circumstances.
55. Lord Goff observed that though he agreed that the
doctor's conduct in discontinuing life support can properly be
categorised as an omission, yet discontinuation of life support
is, for the present purposes, no different from not initiating life
support in the first place as in such a case, the doctor is
simply allowing his patient to die in the sense that he is
desisting from taking a step which might, in certain
circumstances, prevent his patient from dying as a result of
his pre-existing condition; and as a matter of general
62
principle, an omission such as this will not be unlawful unless
it constitutes a breach of duty to the patient.
56. The learned Law Lord further observed that the doctor's
conduct is to be differentiated from that of, for example, an
interloper who maliciously switches off a life support machine
in the sense that although the interloper performs the same
act as the doctor who discontinues life support, yet the doctor,
in discontinuing life support, is simply allowing his patient to
die of his pre-existing condition, whereas the interloper is
actively intervening to stop the doctor from prolonging the
patient's life, and such conduct cannot possibly be categorised
as an omission. This distinction as per Lord Goff appears to be
useful in the context as it can be invoked to explain how
discontinuance of life support can be differentiated from
ending a patient's life by a lethal injection. Lord Goff stated
that the reason for this difference is that the law considers
discontinuance of life support to be consistent with the
doctor's duty to care for his patient, but it does not, for
reasons of policy, consider that it forms any part of his duty to
63
give his patient a lethal injection to put the patient out of his
agony.
57. Emphasising on the patient's best interest principle, Lord
Goff referred to F v. West Berkshire Health Authority 21
wherein the House of Lords stated the legal principles
governing the treatment of a patient who, for the reason that
he was of unsound mind or that he had been rendered
unconscious by accident or by illness, was incapable of stating
whether or not he consented to the treatment or care. In such
circumstances, a doctor may lawfully treat such a patient if he
acts in his best interests, and indeed, if the patient is already
in his care, he is under a duty so to treat him.
58. Drawing an analogy, Lord Goff opined that a decision by
a doctor whether or not to initiate or to continue to provide
treatment or care which could or might have the effect of
prolonging such a patient's life should also be governed by the
same fundamental principle of the patient's best interest. The
learned Law Lord further stated that the doctor who is caring
for such a patient cannot be put under an absolute obligation
21 [1989] 2 All ER 545 : [1990] 2 AC 1
64
to prolong his life by any means available to the doctor,
regardless of the quality of the patient's life. Common
humanity requires otherwise as do medical ethics and good
medical practice accepted in the United Kingdom and
overseas. Lord Goff said that the doctor's decision to take or
not to take any step must be made in the best interests of the
patient (subject to his patient's ability to give or withhold his
consent).
59. Lord Goff further stated that in such cases, the question
is not whether it is in the best interests of the patient that he
should die, rather the correct question for consideration is
whether it is in the best interests of the patient that his life
should be prolonged by the continuance of such form of
medical treatment or care. In Lord Goff‘s view, the correct
formulation of the question is of particular importance in such
cases as the patient is totally unconscious and there is no
hope whatsoever of any amelioration of his condition. Lord
Goff opined that if the question is asked whether it is in the
best interests of the patient to continue the treatment which
has the effect of artificially prolonging his life, that question
65
can sensibly be answered to the effect that the patient's best
interests no longer require such a treatment to be continued.
60. Lord Goff opined that medical treatment is neither
appropriate nor requisite simply to prolong a patient's life
when such treatment has no therapeutic purpose of any kind
and such treatment is futile because the patient is
unconscious and there is no prospect of any improvement in
his condition. Thereafter, the learned Law Lord observed that
regard should also be had to the invasive character of the
treatment and to the indignity to which a patient is subjected
by prolonging his life by artificial means which, in turn,
causes considerable distress to his family. In such cases, Lord
Goff said that it is the futility of the treatment which justifies
its termination and in such circumstances, a doctor is not
required to initiate or to continue life- prolonging treatment or
care keeping in mind the best interests of the patient.
61. Lord Goff, referring to West Berkshire Health
Authority (supra), said that it was stated therein that where a
doctor provides treatment to a person who is incapacitated
66
from saying whether or not he consents to it, the doctor must,
when deciding on the form of treatment, act in accordance
with a responsible and competent body of relevant professional
opinion on the principles set down in Bolam v. Friern
Hospital Management Committee22. Lord Goff opined that
this principle must equally be applicable to decisions to
initiate or to discontinue life support as it is to other forms of
treatment. He also referred to a Discussion Paper on
Treatment of Patients in Persistent Vegetative State issued in
September, 1992 by the Medical Ethics Committee of the
British Medical Association pertaining to four safeguards in
particular which, in the Committee's opinion, should be
observed before discontinuing life support for such patients,
which were: (1) every effort should be made at rehabilitation
for at least six months after the injury; (2) the diagnosis of
irreversible PVS should not be considered confirmed until at
least 12 months after the injury with the effect that any
decision to withhold life-prolonging treatment will be delayed
for that period; (3) the diagnosis should be agreed by two other
22 [1957] 1 W.L.R. 582 : [1957] 2 All ER 118
67
independent doctors; and (4) generally, the wishes of the
patient's immediate family will be given great weight.
62. According to him, the views expressed by the
Committee on the subject of consultation with the relatives of
PVS patients are consistent with the opinion expressed by the
House of Lords in West Berkshire Health Authority (supra)
that it is good practice for the doctor to consult relatives. Lord
Goff observed that the Committee was firmly of the opinion
that the relatives' views would not be determinative of the
treatment inasmuch as if that would have been the case, the
relatives would be able to dictate to the doctors what is in the
best interests of the patient which cannot be right. Even so, a
decision to withhold life-prolonging treatment such as
artificial feeding must require close cooperation with those
close to the patient and it is recognised that, in practice, their
views and the opinions of doctors will coincide in many cases.
63. Thereafter, Lord Goff referred to American cases, namely,
Re Quinlan23 and Superintendent of Belchertown State
23
355 A. 2d 647 : (1976) 70 NJ 10
68
School v. Saikewicz24 wherein the American Courts adopted
what is called the substituted judgment test which involves a
detailed inquiry into the patient's views and preferences. As
per the substituted judgment test, when the patient is
incapacitated from expressing any view on the question
whether life-prolonging treatment should be withheld, an
attempt is made to determine what decision the patient
himself would have made had he been able to do so. In later
American cases concerning PVS patients, it has been held that
in the absence of clear and convincing evidence of the patient's
wishes, the surrogate decision-maker has to implement as far
as possible the decision which the incompetent patient would
have made if he was competent.
64. However, Lord Goff acknowledged that any such test
(substituted judgment test) does not form part of English law
in relation to incompetent adults on whose behalf nobody has
power to give consent to medical treatment. In contrast,
England followed a straightforward test based on the best
interests of the patient coined by the House of Lords in West
24
(1977) 373 Mass 728 : 370 N.E. 2d 417 (1977)
69
Berkshire Health Authority (supra). He opined that the
same test (patient's best interest) should be applied in the
case of PVS patients where the question is whether lifeprolonging
treatment should be withheld. The learned Law
Lord further observed that consistent with the best interests
test, anything relevant to the application of the test may also
be taken into account and if the personality of the patient is
relevant to the application of the test (as it may be in cases
where the various relevant factors have to be weighed), it may
be taken into account as was done in Re J. (A Minor)
(Wardship: Medical Treatment) (supra). But where the
question is whether life support should be withheld from a
PVS patient, it is difficult to see how the personality of the
patient can be relevant, though it may be of comfort to his
relatives if they believe, as in the present case, and indeed
may well be so in many other cases, that the patient would
not have wished his life to be artificially prolonged if he was
totally unconscious and there was no hope of improvement in
his condition.
70
65. As regards the extent to which doctors should, as a
matter of practice, seek the guidance of the court by way of an
application for declaratory relief before withholding lifeprolonging
treatment from a PVS patient, Lord Goff took note
of the judgment of Sir Stephen Brown P, the President of the
Family Division, wherein he held that the opinion of the court
should be sought in all cases of similar nature. Lord Goff also
noted that Sir Thomas Bingham M.R. in the Court of Appeal
expressed his agreement with Sir Stephen Brown P. in the
following words:-
"This was in my respectful view a wise ruling,
directed to the protection of patients, the protection
of doctors, the reassurance of patients' families and
the reassurance of the public. The practice
proposed seems to me desirable. It may very well be
that with the passage of time a body of experience
and practice will build up which will obviate the
need for application in every case, but for the time
being I am satisfied that the practice which the
President described should be followed.‖
66. It is worthy to mention that Lord Goff was of the view
that there was a considerable cost involved in obtaining
guidance from the court in cases of such nature. He took note
of the suggestions forwarded by Mr. Francis, the counsel for
71
the respondents, to the effect that reference to the court was
required in certain specific cases, i.e., (1) where there was
known to be a medical disagreement as to the diagnosis or
prognosis, and (2) problems had arisen with the patient‘s
relatives-disagreement by the next of kin with the medical
recommendation; actual or apparent conflict of interest
between the next of kin and the patient; dispute between
members of the patient‘s family; or absence of any next of kin
to give consent. Lord Goff said that the President of the Family
Division should be able to relax the present requirement so as
to limit applications for declarations only to those cases in
which there is a special need for the procedure to be invoked.
67. Lord Mustill observed that an argument had been
advanced that it was in the best interest of the community at
large that Anthony Bland‘s life should end. The doctors had
done all they could have done. It was a lose-lose situation as
nothing would be gained by continuing Bland‘s treatment and
much would be lost. The distress of Bland‘s family members
would steadily get worse and so would be the strain of the
medical staff charged with the care of Bland despite the fact
72
that Bland's condition would never improve and he would
never recognize that he was being cared for. Further, the
learned Law Lord observed that large resources in terms of
skill, labour and money had been applied for maintaining
Bland in his present condition which, in the opinion of many,
could be fruitfully employed in improving the conditions of
other patients who, if treated, may have useful, healthy and
enjoyable lives for years to come.
68. Lord Lowry, agreeing with the reasoning of Lord Goff of
Chieveley with whom the other learned Law Lords were also in
general agreement, dismissed the appeal. In coming to this
conclusion, Lord Lowry opined that the court, in reaching a
decision according to law, ought to give weight to informed
medical opinion both on the point whether to continue the
artificial feeding regime of a patient in PVS and also on the
question of what is in the best interests of a patient. Lord
Lowry rejected the idea that informed medical opinion in these
respects was merely a disguise which, if accepted, would
legalise euthanasia. Lord Lowry also rejected the Official
Solicitor's argument that the doctors were under a "duty to
73
feed" their patients in PVS as in the instant case, the doctors
overwhelmingly held the opposite view which had been upheld
by the courts below. The doctors considered that it was in the
patient's best interests that they should stop feeding him. Lord
Lowry observed that the learned Law Lords had gone further
by saying that the doctors are not entitled to feed a patient in
PVS without his consent which cannot be obtained.
69. Lord Lowry further opined that there is no proposed
guilty act in stopping the artificial feeding regime inasmuch as
if it is not in the interests of an insentient patient to continue
the life- supporting care and treatment, the doctor would be
acting unlawfully if he continued the care and treatment and
would perform no guilty act by discontinuing it. There is a gap
between the old law on the one hand and new medicine and
new ethics on the other. It is important, particularly in the
area of criminal law which governs conduct, that the society's
notions of what the law is and what is right should coincide.
One role of the legislator, as per Lord Lowry, is to detect any
disparity between these notions and to take appropriate action
to close the gap.
74
70. Lord Browne-Wilkinson observed that the ability to
sustain life artificially is a relatively recent phenomenon.
Existing law may not provide an acceptable answer to the new
legal questions which it raises.
71. In the opinion of the learned Law Lord, there exists no
doubt that it is for the Parliament and not the courts to decide
the broader issues raised by cases of such nature. He
observed that recent developments in medical science have
fundamentally changed the meaning of death. In medicine, the
cessation of breathing or of heartbeat is no longer death
because by the use of a ventilator, lungs which in the unaided
course of nature stop breathing can be made to breathe
artificially thereby sustaining the heartbeat. Thus, people like
Anthony Bland, who would have previously died through
inability to swallow food, can be kept alive by artificial feeding.
This has led the medical profession, in Lord BrowneWilkinson's
view, to redefine death in terms of brain stem
death, i.e., the death of that part of the brain without which
the body cannot function at all without assistance. He further
said that if the judges seek to develop new law to regulate the
75
new circumstances, the law so laid down will reflect the
judges' views on the underlying ethical questions, questions
on which there is a legitimate division of opinion. He
proceeded to state that where a case raises wholly new moral
and social issues, it is neither for the judges to develop new
principles of law nor would it be legitimate for the Judges to
arrive at a conclusion as to what is for the benefit of one
individual whose life is in issue.
72. For the said reasons, the learned Law Lord observed that
it is imperative that the moral, social and legal issues raised
by the case at hand should be considered by the Parliament
and only if the Parliament fails to act, the judge-made law
will, by necessity, provide a legal answer to each new question
as and when it arises.
73. The function of the court, in Lord Browne-Wilkinson's
view, in such circumstances is to determine a particular case
in accordance with the existing law and not to develop new
law laying down a new regimen. He held that it is for the
Parliament to address the wider problems which such a case
raises and lay down principles of law generally applicable to
76
the withdrawal of life support systems. He explained why the
removal of the nasogastric tube in the present case could not
be regarded as a positive act causing death since the tube
itself, without the food being supplied through it, does
nothing. The removal of the tube by itself does not cause
death since it does not sustain life by itself. Therefore, the
removal of the tube would not constitute the actus reus of
murder since such positive act would not be the cause of
death.
74. Thus, Lord Browne-Wilkinson observed that in case of an
adult who is mentally competent, the artificial feeding regime
would be unlawful unless the patient consented to it as a
mentally competent patient can, at any time, put an end to life
support systems by refusing his consent to their continuation.
He also observed that the House of Lords in West Berkshire
Health Authority (supra) developed the principle based on
the concept of necessity under which a doctor can lawfully
treat a patient who cannot consent to such treatment if it is in
the best interests of the patient to receive such treatment. The
learned Law Lord opined that the correct answer to the case at
77
hand depends on the extent of the right to lawfully continue to
invade the bodily integrity of Anthony Bland without his
consent. To determine the extent of the said right, Lord
Browne-Wilkinson observed that it can be deduced from West
Berkshire Health Authority (supra) wherein both Lord
Brandon of Oakbrook and Lord Goff made it clear that the
right to administer invasive medical care is wholly dependent
upon such care being in the best interests of the patient and
moreover, a doctor's decision whether to continue invasive
care is in the best interests of the patient has to be assessed
with reference to the test laid down in Bolam (supra).
75. Lord Browne-Wilkinson held that if there comes a stage
where a responsible doctor comes to the reasonable
conclusion (which accords with the views of a responsible body
of medical opinion) that further continuance of an intrusive
life support system is not in the best interests of the patient,
the doctor can no longer lawfully continue that life support
system as to do so would constitute the crime of battery and
the tort of trespass.
78
76. In Lord Browne-Wilkinson‘s view, the correct legal
question in such cases is not whether the court thinks it is in
the best interests of the patient in PVS to continue to receive
intrusive medical care but whether the doctor responsible has
arrived at a reasonable and bona fide belief that it is not in the
best interests of the patient to continue to receive artificial
medical regime.
77. Accordingly, Lord Browne-Wilkinson observed that on an
application to the court for a declaration that the
discontinuance of medical care will be lawful, the sole concern
of the courts is to be satisfied that the doctor's decision to
discontinue is in accordance with a respectable body of
medical opinion and that it is reasonable. Adverting to various
passages, Lord Browne-Wilkinson dismissed the appeal.
78. It is pertinent to mention here that in adopting the ―best
interests‖ principle in Airedale, the House of Lords followed
its earlier decision in In re F (Mental Patient :
Sterilisation] 25 and in adopting the omission/commission
distinction, it followed the approach of the Court of Appeal in
25 [1990] 2 AC 1 : [1989] 2 WLR 1025 : [1989] 2 All ER 545
79
In re B (A Minor) (Wardship : Medical Treatment)26 and In
re J (A Minor) (Wardship : Medical Treatment) 27 which
raised the question of medical treatment for severely disabled
children. In the context of cases where the patients are unable
to communicate their wishes, it is pertinent to mention the
observations made by Lord Goff in the Airedale case. As
observed by Lord Goff, the correct question in cases of this
kind would be ―whether it is in his best interests that
treatment which has the effect of artificially prolonging his life
should be continued‖. Thus, it was settled in the case of
Airedale that it was lawful for the doctors to discontinue
treatment if the patient refuses such treatment. And in case
the patient is not in a situation permitting him to
communicate his wishes, then it becomes the responsibility of
the doctor to act in the ―best interest‖ of the patient.
H.1.2 Later cases:
79. With reference to the ongoing debate pertaining to
assisted dying, Lord Steyn in the case of R (on the
26 [1981] 1 WLR 1424 : [1990] 3 All ER 927
27 [1991] Fam 33 : [1990] 3 All ER 930 : [1991] 2 WLR 140
80
application of Pretty) v. Director of Public Prosecutions28
explained that on one hand is the view which finds support in
the Roman Catholic Church, Islam and other religions that
human life is sacred and the corollary is that euthanasia and
assisted suicide are always wrong, while on the other hand, as
observed by Lord Steyn, is the belief defended by millions that
the personal autonomy of individuals is predominant and it is
the moral right of individuals to have a say over the time and
manner of their death. Taking note of the imminent risk in
legalizing assisted dying, Lord Steyn took note of the
utilitarian argument that the terminally ill patients and those
suffering great pain from incurable illnesses are often
vulnerable and not all families, whose interests are at stake,
are wholly unselfish and loving and there exists the probability
of abuse in the sense that such people may be persuaded that
they want to die or that they ought to want to die. Further,
Lord Steyn observed that there is also the view that if the
genuine wish of a terminally ill patient to die is expressed by
the patient, then they should not be forced against their will to
28 [2002] 1 All ER 1 : [2001] UKHL 61
81
endure a life that they no longer wish to endure. Without
expressing any view on the unending arguments on either
side, Lord Steyn noted that these wide-ranging arguments are
ancient questions on which millions have taken diametrically
opposite views and still continue to do. In the case of In re B
(Consent to Treatment – Capacity)29, the primacy of patient
autonomy, that is, the competent patient‘s right to decide for
herself whether to submit to medical treatment over other
imperatives, such as her best interests objectively considered,
was recognized thereby confirming the right of the competent
patient to refuse medical treatment even if the result is death
and thus, a competent, ventilator-dependent patient sought
and won the right to have her ventilator turned off.
80. Taking a slightly divergent view from Airedale, Lord
Neuberger in R (on the application of Nicklinson and
another) v. Ministry of Justice30 observed that the difference
between administering fatal drug to a person and setting up a
machine so that the person can administer the drug to himself
is not merely a legal distinction but also a moral one and,
29 [2002] 1 FLR 1090 : [2002] 2 All ER 449
30 [2014] UKSC 38
82
indeed, authorizing a third party to switch off a person‘s life
support machine, as in Airedale, is a more drastic
interference and a more extreme moral step than authorizing a
third party to set up a lethal drug delivery system to enable a
person, only if he wishes, to activate the system to administer
a lethal drug. Elaborating further on this theory, the Law Lord
explained that in those cases which are classified as
―omission‖, for instance, switching off a life support machine
as in Airedale and Re B (Treatment), the act which
immediately causes death is that of a third party which may
be wrong whereas if the final act is that of a person who
himself carries it out pursuant to a voluntary, clear, settled
and informed decision, that may be the permissible side of the
line as in the latter case, the person concerned had not been
―killed‖ by anyone but had autonomously exercised his right to
end his life. The Law Lord, however, immediately clarified that
it is not intended to cast any doubt on the correctness of the
decisions in Airedale and Re B (Treatment).
81. Suffice it to say, he concurred with the view in Airedale
case which he referred to as Bland case. Lord Mance agreed
83
with Lord Neuberger and Lord Sumption. In his opinion, he
referred to Airedale case and thereafter pointed out that a
blanket prohibition was unnecessary and stated in his
observations that persons in tragic position represent a
distinct and relatively small group, and that by devising a
mechanism enabling careful prior review (possibly involving
the Court as well as medical opinion), the vulnerable can be
distinguished from those capable of forming a free and
informed decision to commit suicide. Lord Mance
acknowledged that the law and courts are deeply engaged in
the issues of life and death and made a reference to the
observations of Lord Neuberger.
82. We may note with profit that the prayer of Mr. Nicklinson
and Mr. Lamb were rejected by the Court of Appeal.
83. Lord Mance referred to the expression by Rehnquist CJ
in Washington (supra) in a slightly different context that
there is ―an earnest and profound debate about the morality,
legality, and practicality of …. assisted suicide‖ and ―our
holding permits this debate to continue as it should in a
democratic society‖.
84
84. Lord Wilson concurred with the judgment rendered by
Lord Neuberger, referred to Airedale case and said:-
―As Hoffmann LJ suggested in his classic judgment
in the Court of Appeal in Airedale NHS Trust v
Bland [1993] AC 789 at 826, a law will forfeit
necessary support if it pays no attention to the
ethical dimension of its decisions. In para 209 below
Lord Sumption quotes Hoffmann LJ‘s articulation of
that principle but it is worth remembering that
Hoffmann LJ then proceeded to identify two other
ethical principles, namely those of individual
autonomy and of respect for human dignity, which
can run the other way.‖
And further:-
―In the Pretty case, at para 65, the ECHR was later
to describe those principles as of the very essence of
the ECHR. It was in the light (among other things)
of the force of those two principles that in the Bland
case the House of Lords ruled that it was lawful in
certain circumstances for a doctor not to continue
to provide life-sustaining treatment to a person in a
persistent vegetative state…‖
200. I agree with the observation of Lord Neuberger
at para 94 that, in sanctioning a course leading to
the death of a person about which he was unable to
have a voice, the decision in the Bland case was
arguably more extreme than any step which might
be taken towards enabling a person of full capacity
to exercise what must, at any rate now, in the light
of the effect given to article 8 of the ECHR in the
Haas case at para 51, cited at para 29 above, be
regarded as a positive legal right to commit suicide.
Lord Sumption suggests in para 212-213 below that
85
it remains morally wrong and contrary to public
policy for a person to commit suicide. Blackstone, in
his Commentaries on the Laws of England, Book 4,
Chapter 14, wrote that suicide was also a spiritual
offence ―in evading the prerogative of the Almighty,
and rushing into his immediate presence uncalled
for‖. If expressed in modern religious terms, that
view would still command substantial support and a
moral argument against committing suicide could
convincingly be cast in entirely non-religious terms.
Whether, however, it can be elevated into an overall
conclusion about moral wrong and public policy is
much more difficult.‖
85. Lord Sumption commenced the judgment stating that
English judges tend to avoid addressing the moral foundations
of law. It is not their function to lay down principles of
morality and the attempt leads to large generalisations which
are commonly thought to be unhelpful. He further observed
that in some cases, however, it is unavoidable and this is one
of them. He referred to the opinion of Hoffmann LJ in
Airedale case and the concept of sanctity of life and,
eventually, reproduced a passage from Hoffmann LJ and
opined:-
―215. Why should this be so? There are at least
three reasons why the moral position of the suicide
(whom I will call ―the patient‖ from this point on,
although the term may not always be apt) is
different from that of a third party who helps him to
86
kill himself. In the first place, the moral quality of
their decisions is different. A desire to die can only
result from an overpowering negative impulse
arising from perceived incapacity, failure or pain.
This is an extreme state which is unlikely to be
shared by the third party who assists. Even if the
assister is moved by pure compassion, he inevitably
has a greater degree of detachment. This must in
particular be true of professionals such as doctors,
from whom a high degree of professional objectivity
is expected, even in situations of great emotional
difficulty. Secondly, whatever right a person may
have to put an end to his own life depends on the
principle of autonomy, which leaves the disposal of
his life to him. The right of a third party to assist
cannot depend on that principle. It is essentially
based on the mitigating effect of his compassionate
motive. Yet not everyone seeking to end his life is
equally deserving of compassion. The choice made
by a person to kill himself is morally the same
whether he does it because he is old or terminally
ill, or because he is young and healthy but fed up
with life. In both cases his desire to commit suicide
may be equally justified by his autonomy. But the
choice made by a third party who intervenes to help
him is very different. The element of compassion is
much stronger in the former category than in the
latter. Third, the involvement of a third party raises
the problem of the effect on other vulnerable people,
which the unaided suicide does not. If it is lawful for
a third party to encourage or assist the suicide of a
person who has chosen death with a clear head,
free of external pressures, the potential arises for
him to encourage or assist others who are in a less
good position to decide. Again, this is a more
significant factor in the case of professionals, such
as doctors or carers, who encounter these dilemmas
regularly, than it is in the case of, say, family
87
members confronting them for what will probably be
the only time in their lives.‖
86. Dealing with the appeal by Nicklinson, Lord Sumption
referred to the view of the Canadian Supreme Court in
Rodriguez (supra) and opined:-
―….the issue is an inherently legislative issue for
Parliament, as the representative body in our
constitution, to decide. The question what
procedures might be available for mitigating the
indirect consequences of legalising assisted
suicide, what risks such procedures would entail,
and whether those risks are acceptable, are not
matters which under our constitution a court
should decide.‖
87. Dealing with Martin‘s appeal, Lord Sumption dismissed
the same. While doing so, he said:-
―256. This state of English law and criminal
practice does not of course resolve all of the
problems arising from the pain and indignity of
the death which was endured by Tony Nicklinson
and is now faced by Mr Lamb and Martin. But it
is worth reiterating these well-established
propositions, because it is clear that many
medical professionals are frightened by the law
and take an unduly narrow view of what can
lawfully be done to relieve the suffering of the
terminally ill under the law as it presently
stands. Much needless suffering may be
occurring as a result. It is right to add that there
is a tendency for those who would like to see the
existing law changed, to overstate its difficulties.
This was particularly evident in the submissions
88
of Dignity and Choice in Dying. It would be
unfortunate if this were to narrow yet further the
options open to those approaching death, by
leading them to believe that the current law and
practice is less humane and flexible than it really
is.‖
88. Lord Hughes agreed with the reasoning of Lord Sumption
and dismissed the private appeals and allowed the Appeals
preferred by the Director of Public Prosecutions. Lord Clarke
concurred with the reasoning given by Lord Sumption, Lord
Reed and Lord Hughes. Lord Reed agreed with the view with
regard to the dismissal of the appeals but observed some
aspects with regard to the issue of compatibility.
89. Lord Lady Hale entirely agreed with the judgment of Lord
Neuberger. Lord Kerr in his opinion stated:-
―358. I agree with Lord Neuberger that if the store
put on the sanctity of life cannot justify a ban on
suicide by the able-bodied, it is difficult to see how
it can justify prohibiting a physically incapable
person from seeking assistance to bring about the
end of their life. As one of the witnesses for one of
the interveners, the British Humanist Association,
Professor Blackburn, said, there is ‗no defensible
moral principle‘ in denying the appellants the
means of achieving what, under article 8 and by all
the requirements of compassion and humanity, they
should be entitled to do. To insist that these
unfortunate individuals should continue to endure
the misery that is their lot is not to champion the
89
sanctity of life; it is to coerce them to endure
unspeakable suffering.‖
And again:-
―360. If one may describe the actual administration
of the fatal dose as active assistance and the setting
up of a system which can be activated by the
assisted person as passive assistance, what is the
moral objection to a person actively assisting
someone‘s death, if passive assistance is
acceptable? Why should active assistance give rise
to moral corruption on the part of the assister (or,
for that matter, society as a whole), but passive
assistance not? In both cases the assister‘s aid to
the person who wishes to die is based on the same
conscientious and moral foundation. That it is that
they are doing what the person they assist cannot
do; providing them with the means to bring about
their wished-for death. I cannot detect the moral
distinction between the individual who brings a fatal
dose to their beloved‘s lips from the person who sets
up a system that allows their beloved to activate the
release of the fatal dose by the blink of an eye.‖
Eventually, Lady Hale dismissed the appeal and allowed
the appeals of the Director of Public Prosecutions.
H.2 The legal position in the United States:
90. In the United States of America, active euthanasia is
illegal but physician-assisted death is legal in the States of
Oregon, Washington and Montana. A distinction has been
drawn between euthanasia and physician-assisted suicide. In
90
both Oregon and Washington, only self-assisted dying is
permitted. Doctor-administered assisted dying and any form of
assistance to help a person commit suicide outside the
provisions of the legislation remains a criminal offence.
91. As far as the United States of America is concerned, we
think it appropriate to refer to Cruzan (supra). The said case
involved a 30 year old Missouri woman who was lingering in a
permanent vegetative state as a result of a car accident.
Missouri requires 'clear and convincing evidence' of patients'
preferences and the Missouri Supreme Court, reversing the
decision of the state trial court, rejected the parents' request to
impose a duty on their daughter's physician to end lifesupport.
The United States Supreme Court upheld that States
can require 'clear and convincing evidence' of a patient's desire
in order to oblige physicians to respect this desire. Since
Nancy Cruzan had not clearly expressed her desire to
terminate life support in such a situation, physicians were not
obliged to follow the parents' request.
92. Chief Justice Rehnquist, in his opinion, stated:-
91
―Every human being of adult years and sound mind
has a right to determine what shall be done with his
own body, and a surgeon who performs an
operation without his patient's consent commits an
assault, for which he is liable in damages.‖
He further proceeded to state:-
―The logical corollary of the doctrine of informed
consent is that the patient generally possesses the
right not to consent, that is, to refuse treatment.
Until about 15 years ago and the seminal decision
in In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert.
denied sub nom. Garger v. New Jersey, 429 U.S. 922
(1976), the number of right-to-refuse-treatment
decisions were relatively few. Most of the earlier
cases involved patients who refused medical
treatment forbidden by their religious beliefs, thus
implicating First Amendment rights as well as
common law rights of self-determination. More
recently, however, with the advance of medical
technology capable of sustaining life well past the
point where natural forces would have brought
certain death in earlier times, cases involving the
right to refuse life-sustaining treatment have
burgeoned.‖
93. Meeting the submissions on behalf of the petitioner, the
learned Chief Justice opined:-
―The difficulty with petitioners' claim is that, in a
sense, it begs the question: an incompetent person
is not able to make an informed and voluntary
choice to exercise a hypothetical right to refuse
treatment or any other right. Such a "right" must be
exercised for her, if at all, by some sort of surrogate.
Here, Missouri has in effect recognized that, under
92
certain circumstances, a surrogate may act for the
patient in electing to have hydration and nutrition
withdrawn in such a way as to cause death, but it
has established a procedural safeguard to assure
that the action of the surrogate conforms as best it
may to the wishes expressed by the patient while
competent. Missouri requires that evidence of the
incompetent's wishes as to the withdrawal of
treatment be proved by clear and convincing
evidence. The question, then, is whether the United
States Constitution forbids the establishment of this
procedural requirement by the State. We hold that it
does not.‖
94. The learned Chief Justice came to hold that there was no
clear and convincing evidence to prove that the patient‘s desire
was not to have hydration and nutrition. In the ultimate
analysis, it was stated:-
―No doubt is engendered by anything in this record
but that Nancy Cruzan's mother and father are
loving and caring parents. If the State were required
by the United States Constitution to repose a right
of "substituted judgment" with anyone, the Cruzans
would surely qualify. But we do not think the Due
Process Clause requires the State to repose
judgment on these matters with anyone but the
patient herself. Close family members may have a
strong feeling -- a feeling not at all ignoble or
unworthy, but not entirely disinterested, either --
that they do not wish to witness the continuation of
the life of a loved one which they regard as
hopeless, meaningless, and even degrading. But
there is no automatic assurance that the view of
close family members will necessarily be the same
93
as the patient's would have been had she been
confronted with the prospect of her situation while
competent. All of the reasons previously discussed
for allowing Missouri to require clear and convincing
evidence of the patient's wishes lead us to conclude
that the State may choose to defer only to those
wishes, rather than confide the decision to close
family members.‖
The aforesaid decision has emphasized on ―bodily
integrity‖ and ―informed consent‖.
95. The question that was presented before the Court was
whether New York‘s prohibition on assisted suicide violates the
Equal Protection Clause of the Fourteenth Amendment. The
Court held that it did not and in the course of the discussion,
Chief Justice Rehnquist held:-
―The Court of Appeals, however, concluded that
some terminally ill people—those who are on lifesupport
systems— are treated differently from those
who are not, in that the former may ―hasten death‖
by ending treatment, but the latter may not ―hasten
death‖ through physician-assisted suicide. 80 F. 3d,
at 729. This conclusion depends on the submission
that ending or refusing lifesaving medical treatment
―is nothing more nor less than assisted suicide.‖
Ibid. Unlike the Court of Appeals, we think the
distinction between assisting suicide and
withdrawing life-sustaining treatment, a distinction
widely recognized and endorsed in the medical
profession 6 and in our legal traditions, is both
important and logical; it is certainly rational.‖
94
Dealing with the conclusion in Cruzan (supra), it was
held:-
―This Court has also recognized, at least implicitly,
the distinction between letting a patient die and
making that patient die. In Cruzan v. Director, Mo.
Dept. of Health, 497 U. S. 261, 278 (1990), we
concluded that ―[t]he principle that a competent
person has a constitutionally protected liberty
interest in refusing unwanted medical treatment
may be inferred from our prior decisions,‖ and we
assumed the existence of such a right for purposes
of that case, id., at 279. But our assumption of a
right to refuse treatment was grounded not, as the
Court of Appeals supposed, on the proposition that
patients have a general and abstract ―right to
hasten death,‖ 80 F. 3d, at 727–728, but on wellestablished,
traditional rights to bodily integrity and
freedom from unwanted touching, Cruzan, 497 U.
S., at 278–279; id., at 287– 288 (O‘Connor, J.,
concurring). In fact, we observed that ―the majority
of States in this country have laws imposing
criminal penalties on one who assists another to
commit suicide.‖ Id., at 280. Cruzan therefore
provides no support for the notion that refusing lifesustaining
medical treatment is ―nothing more nor
less than suicide.‖
From the aforesaid passages, it is crystal clear that the
U.S. Supreme Court has recognized that there is a distinction,
in the context of the prevalent law, between letting a patient
die and making that patient die. Right to refuse treatment is
not grounded on the proposition that the patients have general
95
and abstract right to hasten death. The learned Chief Justice
has also endorsed the view of the American Medical
Association emphasizing the fundamental difference between
refusing life-sustaining treatment and demanding a life-ending
treatment.
96. In Vacco (supra), while ruling that a New York ban on
physician assisted suicide was constitutional, the Supreme
Court of the United States applied the standard of intent to
the matter finding that a doctor who withdraws life support at
the request of his patient intends only to respect his patient‘s
wishes. This, the Court said, is in sharp contrast to a doctor
who honours a patient‘s request to end life which necessarily
requires more than an intent to respect the patient‘s wishes,
i.e., it requires the intent to kill the patient. A major difference,
the Court determined, in the two scenarios is that the former
may cause the patient to die from underlying causes while the
latter will cause the patient to die. The Court noted that the
law plainly recognized the difference between ―killing‖ and
―letting die‖. It also recognised that the State of New York had,
as a matter of policy, a compelling interest in forbidding
96
assisted suicide, while allowing a patient to refuse life support
was simply an act of protecting a common law right which was
the right to retain bodily integrity and preserve individual
antonomy since the prevention of ―unwanted touching‖ was, in
the opinion of the Court, a very legitimate right to protect.
H.3 Australian Jurisdiction:
97. Moving to Australian jurisdiction, in Hunter and New
England Area Health Service v. A31, the Supreme Court of
New South Wales considered the validity of a common law
advance directive (there being no legislative provisions for such
directives in NSW) given by Mr. A refusing kidney dialysis.
One year after making the directive, Mr. A was admitted to a
hospital emergency department in a critical state with
decreased level of consciousness. His condition deteriorated to
the point that he was being kept alive by mechanical
ventilation and kidney dialysis. The hospital sought a judicial
declaration to determine the validity of his advance directive.
The Court, speaking through McDougall J., confirmed the
directive and held that the hospital must respect the advance
31 [2009] NSWSC 761
97
directive. Applying the common law principle, the Court
observed:-
―A person may make an 'advance care directive': a
statement that the person does not wish to receive
medical treatment, or medical treatment of specified
kinds. If an advance care directive is made by a
capable adult, and it is clear and unambiguous, and
extends to the situation at hand, it must be
respected. It would be a battery to administer
medical treatment to the person of a kind prohibited
by the advance care directive.‖
98. In Brightwater Care Group (Inc.) v. Rossiter 32 , the
Court was concerned with an anticipatory refusal of treatment
by Mr. Rossiter, a man with quadriplegia who was unable to
undertake any basic human function including taking
nutrition or hydration orally. Mr. Rossiter was not terminally
ill, dying or in a vegetative state and had full mental capacity.
He had ‗clearly and unequivocally‘ indicated that he did not
wish to continue to receive medical treatment which, if
discontinued, would inevitably lead to his death. Martin, CJ,
considering the facts and the common law principle, held :-
―At common law, the answers to the questions
posed by this case are clear and straightforward.
32 [2009] WASC 229 : 40 WAR 84
98
They are to the effect that Mr Rossiter has the right
to determine whether or not he will continue to
receive the services and treatment provided by
Brightwater and, at common law, Brightwater would
be acting unlawfully by continuing to provide
treatment [namely the administration of nutrition
and hydration via a tube inserted into his stomach]
contrary to Mr Rossiter's wishes.‖
99. In Australian Capital Territory v. JT33, an application
to stop medical treatment, other than palliative care, was
rejected. The man receiving treatment suffered from paranoid
schizophrenia and was, therefore, held not mentally capable of
making a decision regarding his treatment. Chief Justice
Higgins found that it would be unlawful for the service
providers to stop providing treatment. The Chief Justice
distinguished this situation from Rossiter as the patient
lacked ‗both understanding of the proposed conduct and the
capacity to give informed consent to it‘. It is clear that mental
capacity is the determining factor in cases relating to selfdetermination.
Since the right of self-determination requires
the ability to make an informed choice about the future, the
requirement of mental capacity would be an obvious
prerequisite. Chief Justice Higgins undertook a detailed
33 [2009] ACTSC 105
99
analysis and rightly distinguished Auckland Area Health
Board v. Attorney-General34 in which a court similarly bound
to apply the human right to life and the prohibition on cruel
and degrading treatment found that futile treatment could be
withdrawn from a patient in a persistent vegetative state. He
agreed with Howie J. in Messiha v. South East Health35 that
futility of treatment could only be determined by consideration
of the best interests of the patient and not by reference to the
convenience of medical cares or their institutions.
100. The above decision basically considered the
circumstances in which technically futile treatment may be
withdrawn from patients at their direct or indirect request or
in their best interests.
H.4 Legal Position in Canada:
101. In Canada, physician-assisted suicide is illegal as per
Section 241(b) of the Criminal Code of Canada. The Supreme
Court of Canada in Rodriguez (supra) has drawn a distinction
between ―intentional actor‖ and ―merely foreseeing‖.
Delivering the judgment on behalf of the majority, Justice
34 [1993] NZLR 235
35 [2004] NSWSC 1061
100
Sopinka rejected the argument that assisted suicide was
similar to the withdrawal of life-preserving treatment at the
patient‘s request. He also rejected the argument that the
distinction between assisted suicide and accepted medical
treatment was even more attenuated in the case of palliative
treatment which was known to hasten death. He observed:-
―The distinction drawn here is one based upon
intention - in the case of palliative care the
intention is to ease pain, which has the effect of
hastening death, while in the case of assisted
suicide, the intention is undeniably to cause
death.‖
He added:-
―In my view, distinctions based on intent are
important, and in fact form the basis of our
criminal law. While factually the distinction may, at
times, be difficult to draw, legally it is clear.‖
102. The Supreme Court of Canada in Carter v. Canada
(Attorney General)36 held that the prohibition on physicianassisted
death in Canada (in Sections 14 and 241(b) of the
Canadian Criminal Code) unjustifiably infringed the right to
life, liberty and security of the person in Article 7 of the
Charter of Rights and Freedoms in the Canadian Constitution.
36 2015 SCC 5
101
103. The Supreme Court declared the infringing provisions of
the Criminal Code void insofar as they prohibit physicianassisted
death for a competent adult person who (1) clearly
consents to the termination of life; and (2) has a grievous and
irremediable medical condition (including an illness, disease or
disability) that causes enduring suffering that is intolerable to
the individual in the circumstances of his or her condition.
‗Irremediable‘, it should be added, does not require the patient
to undertake treatments that are not acceptable to the
individual.
104. After the Supreme Court‘s decision, the Canadian
Government appointed a Special Joint Committee on
Physician-Assisted Dying to ‗make recommendations on the
framework of a federal response on physician assisted dying in
consonance with the Constitution, the Charter of Rights and
Freedoms, and the priorities of Canadians‘. The Special Joint
Committee released its report in February 2016 recommending
a legislative framework which would regulate ‗medical
assistance in dying‘ by imposing both substantive and
procedural safeguards, namely:-
102
Substantive Safeguards:
A grievous and irremediable medical condition (including
an illness, disease or disability) is required;
Enduring suffering that is intolerable to the individual in
the circumstances of his or her condition is required;
Informed consent is required;
Capacity to make the decision is required at the time of
either the advance or contemporaneous request; and
Eligible individuals must be insured persons eligible for
publicly funded health care services in Canada.
Procedural Safeguards:
Two independent doctors must conclude that a person is
eligible;
A request must be in writing and witnessed by two
independent witnesses;
A waiting period is required based, in part, on the
rapidity of progression and nature of the patient‘s
medical condition as determined by the patient‘s
attending physician;
Annual report analyzing medical assistance in dying
cases are to be tabled in Parliament;
and
Support and services, including culturally and spiritually
appropriate end-of-life care services for indigenous
patients, should be improved to ensure that requests are
based on free choice, particularly for vulnerable people.
103
105. It should be noted that physician assisted dying has
already been legalized in the province of Quebec. Quebec
passed an Act respecting end-of-life care (the Quebec Act) in
June 2014 with most of the Act coming into force on 10
December, 2015. The Quebec Act provides a ‗framework for
end-of-life care‘ which includes ‗continuous palliative sedation‘
and ‗medical aid in dying‘ defined as ‗administration by a
physician of medications or substances to an end-of-life
patient, at the patient‘s request, in order to relieve their
suffering by hastening death. In order to be able to access
medical aid in dying under the Quebec Act, a patient must:-
(1) be an insured person within the meaning of the Health
Insurance Act (Chapter A-29);
(2) be of full age and capable of giving consent to care;
(3) be at the end of life;
(4) suffer from a serious and incurable illness;
(5) be in an advanced state of irreversible decline in
capability; and
(6) experience constant and unbearable physical or
psychological suffering
104
(7) which cannot be relieved in a manner the patient deems
tolerable.
106. The request for medical aid in dying must be signed by
two physicians. The Quebec Act also established a
Commission on end-of-life care to provide oversight and advice
to the Minister of Health and Social Services on the
implementation of the legislation regarding end-of-life care.
H.5 Other Jurisdictions:
107. Presently, we think it appropriate to deal with certain
legislations in other countries and the decisions in other
jurisdictions. In Aruna Shanbaug, the Court has in detail
referred to the legislations in Netherlands, i.e., the
Termination of Life on Request and Assisted Suicide (Review
Procedures) Act, 2002 that regulates euthanasia. The
provisions of the said Act lay down that euthanasia and
physician-assisted suicide are not punishable if the attending
physician acts in accordance with the criteria of due care. As
the two-Judge Bench has summarized, this criteria concern
the patient‘s request, the patient‘s suffering (unbearable and
105
hopeless), the information provided to the patient, the
presence of reasonable alternatives, consultation of another
physician and the applied method of ending life. To
demonstrate their compliance, the Act requires physicians to
report euthanasia to a Review Committee. It has been
observed that the said Act legalizes euthanasia and physicianassisted
suicide in very specific cases under three specific
conditions and euthanasia remains a criminal offence in cases
not meeting the laid down specific conditions with the
exception of several situations that are not subject to
restrictions of law at all because they are considered normal
medical practice. The three conditions are : stopping or not
starting a medically useless (futile) treatment, stopping or not
starting a treatment at the patient‘s request and speeding up
death as a side effect of treatment necessary for alleviating
serious suffering.
108. Reference has been made to the Swiss Criminal Code
where active euthanasia has been regarded as illegal. Belgium
has legalized the practice of euthanasia with the enactment of
the Belgium Act on Euthanasia of May 28th, 2002 and the
106
patients can wish to end their life if they are under constant
and unbearable physical or psychological pain resulting from
an accident or an incurable illness. The Act allows adults who
are in a ‗futile medical condition of constant and unbearable
physical or mental suffering that cannot be alleviated‘ to
request voluntary euthanasia. Doctors who practise
euthanasia commit no offence if the prescribed conditions and
procedure is followed and the patient has the legal capacity
and the request is made voluntarily and repeatedly with no
external pressure.
109. Luxembourg too has legalized euthanasia with the
passing of the Law of 16th March, 2009 on Euthanasia and
Assisted Suicide (Lux.). The law permits euthanasia and
assisted suicide in relation to those with incurable conditions
with the requirements including repeated requests and the
consent of two doctors and an expert panel.
110. The position in Germany is that active assisted suicide is
illegal. However, this is not the case for passive assisted
suicide. Thus, in Germany, if doctors stop life-prolonging
measures, for instance, on the written wishes of a patient, it is
107
not considered as a criminal offence. That apart, it is legal for
doctors in Germany to administer painkillers to a dying
patient to ease pain. The said painkillers, in turn, cause low
breathing that may lead to respiratory arrest and, ultimately,
death.
H.6 International considerations and decisions of the
European Court of Human Rights (ECHR):
111. Certain relevant obligations when discussing voluntary
euthanasia are contained in the International Covenant on
Civil and Political Rights (ICCPR). The following rights in the
ICCPR have been considered by the practice of voluntary
euthanasia:
right to life (Article 6)
freedom from cruel, inhuman or degrading treatment
(Article 7)
right to respect for private life (Article 17)
freedom of thought, conscience and religion (Article 18).
112. Right to life under Article 6(1) of the ICCPR provides:
Every human being has the inherent right to life. This right
shall be protected by law. No one shall be arbitrarily deprived
of his life. The second sentence of Article 6(1) imposes a
positive obligation on the States to provide legal protection of
108
the right to life. However, the subsequent reference to life not
being ‗arbitrarily deprived‘ operates to limit the scope of the
right (and therefore the States‘ duty to ensure the right).
Comments from the UN Human Rights Committee suggest
that laws allowing for voluntary euthanasia are not necessarily
incompatible with the States‘ obligation to protect the right to
life.
113. The UN Human Rights Committee has emphasised that
laws allowing for euthanasia must provide effective procedural
safeguards against abuse if they are to be compatible with the
State‘s obligation to protect the right to life. In 2002, the UN
Committee considered the euthanasia law introduced in the
Netherlands. The Committee stated that:-
―where a State party seeks to relax legal protection
with respect to an act deliberately intended to put
an end to human life, the Committee believes that
the Covenant obliges it to apply the most rigorous
scrutiny to determine whether the State party‘s
obligations to ensure the right to life are being
complied with (articles 2 and 6 of the Covenant).‖
114. The European Court of Human Rights (ECHR) has
adopted a similar position to the UN Human Rights Committee
when considering euthanasia laws and the right to life in
109
Article 2 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms (European
Convention). According to the ECHR, the right to life in Article
2 cannot be interpreted as conferring a right to die or a right
to self determination in terms of choosing death rather than
life. However, the ECHR has held that a State‘s obligation to
protect life under that Article does not preclude it from
legalising voluntary euthanasia, provided adequate safeguards
are put in place and adhered to. In Pretty v. United Kingdom
(application no. 2346/02) 37 , the ECHR ruled that the
decision of the applicant to avoid what she considered would
be an undignified and distressing end to her life was part of
the private sphere covered by the scope of Article 8 of the
Convention. The Court affirmed that the right of an individual
to decide how and when to end her life, provided that the said
individual was in a position to make up her own mind in that
respect and to take the appropriate action, was one aspect of
the right to respect for private life under Article 8 of the
Convention. The Court, thus, recognised, with conditions, a
37 [2002] ECHR 423 (29 April, 2002)
110
sort of right to self-determination as to one‘s own death, but
the existence of this right is subject to two conditions, one
linked to the free will of the person concerned and the other
relating to the capacity to take appropriate action. However,
respect for the right to life compels the national authorities to
prevent a person from putting an end to life if such a decision
is not taken freely and with full knowledge.
115. In Hass v. Switzerland (application no. 31322/07)38,
the ECHR explained that:-
―creates for the authorities a duty to protect
vulnerable persons, even against actions by which
they endanger their own lives… this latter Article
obliges the national authorities to prevent an
individual from taking his or her own life if the
decision has not been taken freely and with full
understanding of what is involved‖.
Accordingly, the ECHR concluded that:-
―the right to life guaranteed by Article 2 of the
Convention obliges States to establish a procedure
capable of ensuring that a decision to end one‘s life
does indeed correspond to the free will of the
individual concerned.‖
38 [2011] ECHR 2422: (2011) 53 EHRR 33
111
116. In a recent decision regarding end of life issues, Lambert
and others v. France (application no. 46043/14) 39 , the
ECHR considered whether the decision to withdraw artificial
nutrition and hydration of Vincent Lambert violated the right
to life in Article 2. Vincent Lambert was involved in a serious
road accident which left him tetraplegic and with permanent
brain damage. He was assessed in expert medical reports as
being in a chronic vegetative state that required artificial
nutrition and hydration to be administered via a gastric tube.
117. Mr. Lambert‘s parents applied to the ECHR alleging that
the decision to withdraw his artificial nutrition and hydration
breached, inter alia, the State‘s obligations under Article 2 of
the European Convention. The ECHR highlighted that Article 2
imposes on the States both a negative obligation (to refrain
from the ‗intentional‘ taking of life) and a positive obligation (to
‗take appropriate steps to safeguard the lives of those within
its jurisdiction‘). The Court held that the decision of a doctor
to discontinue life-sustaining treatment (or ‗therapeutic
abstention‘) did not involve the State‘s negative obligation
39 [2015] ECHR 185
112
under Article 2 and, therefore, the only question for the Court
under Article 2 was whether it was consistent with the State‘s
positive obligation.
118. The ECHR emphasized that ‗the Convention has to be
read as a whole‘, and, therefore:-
―in a case such as the present one reference should
be made, in examining a possible violation of Article
2, to Article 8 of the Convention and to the right to
respect for private life and the notion of personal
autonomy which it encompasses.‖
119. The Court noted that there was a consensus among
European member States ‗as to the paramount importance of
the patient‘s wishes in the decision-making process, however
those wishes are expressed‘. It identified that in dealing with
end of life situations, States have some discretion in terms of
striking a balance between the protection of the patients‘ right
to life and the protection of the right to respect their private
life and their personal autonomy. The Court considered that
the provisions of the Law of 22 April 2005 ‗on patients‘ rights
and the end of life‘ promulgated in France making changes in
the French Code of Public Health, as interpreted by the
113
Conseil d’Etat, constituted a legal framework which was
sufficiently clear to regulate with precision the decisions taken
by doctors in situations such as in Mr. Lambert‘s case. The
Court found the legislative framework laid down by domestic
law, as interpreted by the Conseil d’État, and the decisionmaking
process which had been conducted in meticulous
fashion, to be compatible with the requirements of the State‘s
positive obligation under Article 2. With respect to negative
obligations, the ECHR observed that the ―therapeutic
abstention‖ (that is, withdrawal and withholding of medical
treatment) lacks the intention to end the patient‘s life and
rather, a doctor discontinuing medical treatment from his or
her patient merely intends to ―allow death to resume its
natural course and to relieve suffering‖. Therefore, as long as
therapeutic abstention as authorised by the French Public
Health Code is not about taking life intentionally, the ECHR
opined that France had not violated its negative obligation to
―refrain from the intentional taking of life‖.
120. When considering the State‘s positive obligations to
protect human life, the ECHR noted that the regulatory
114
framework developed in the Public Health Code and the
decision of the Conseil d’ Etat established several ―important
safeguards‖ with respect to therapeutic abstention and the
regulation is, therefore, ―apt to ensure the protection of
patients‘ lives.‖
121. All this compelled the ECHR to conclude that there was
no violation of the State‘s positive obligation to protect human
life which, together with the absence of violation of negative
obligations, resulted in the conclusion that ―there would be no
violation of Article 2 of the Convention in the event of
implementation of the Conseil d’ Etat judgment.‖ Thus, the
ECHR in the Lambert (supra) case struck the balance between
the sanctity of life on the one hand and the notions of quality
of life and individual autonomy on the other.
I. The 241st Report of The Law Commission of India on
Passive Euthanasia:
122. After the judgment of Aruna Shanbaug was delivered,
the Law Commission of India submitted its 241st report which
dealt with ‗Passive Euthanasia – A Relook‘. The report in its
introduction has dealt with the origin of the concept of
115
euthanasia. It states that the word ―Euthanasia‖ is derived
from the Greek words ―eu‖ and ―thanotos‖ which literally mean
―good death‖ and is otherwise described as ―mercy killing‖.
The word euthanasia, as pointed out in the Report, was used
by Francis Bacon in the 17th Century to refer to an easy,
painless and happy death as it is the duty and responsibility
of the physician to alleviate the physical suffering of the body
of the patient. A reference has also been made in the Report
to the meaning given to the term by the House of Lords. The
Select Committee on ―Medical Ethics‖ in England defined
Euthanasia as ―a deliberate intervention undertaken with the
express intention of ending a life to relieve intractable
suffering‖. Impressing upon the voluntary nature of
euthanasia, the report has rightly highlighted the clarification
as provided by the European Association of Palliative Care
(EAPC) Ethics Task Force in a discussion on Euthanasia in
2003 to the effect that ―medicalised killing of a person without
the person‘s consent, whether non-voluntary (where the
person is unable to consent) or involuntary (against the
person‘s will) is not euthanasia: it is a murder.‖
116
123. The Commission in its report referred to the observations
made by the then Chairman of the Law Commission in his
letter dated 28th August, 2006 addressed to the Hon‘ble
Minister which was extracted. It is pertinent to reproduce the
same:-
―A hundred years ago, when medicine and
medical technology had not invented the artificial
methods of keeping a terminally ill patient alive by
medical treatment, including by means of
ventilators and artificial feeding, such patients were
meeting their death on account of natural causes.
Today, it is accepted, a terminally ill person has a
common law right to refuse modern medical
procedures and allow nature to take its own course,
as was done in good old times. It is well-settled law
in all countries that a terminally ill patient who is
conscious and is competent, can take an ‗informed
decision‘ to die a natural death and direct that he or
she be not given medical treatment which may
merely prolong life. There are currently a large
number of such patients who have reached a stage
in their illness when according to well-informed
body of medical opinion, there are no chances of
recovery. But modern medicine and technology may
yet enable such patients to prolong life to no
purpose and during such prolongation, patients
could go through extreme pain and suffering.
Several such patients prefer palliative care for
reducing pain and suffering and do not want
medical treatment which will merely prolong life or
postpone death.‖
117
124. The report rightly points out that a rational and
humanitarian outlook should have primacy in such a complex
matter. Recognizing that passive euthanasia, both in the case
of competent and incompetent patients, is being allowed in
most of the countries subject to the doctor acting in the best
interests of the patient, the report summarized the broad
principles of medical ethics which shall be observed by the
doctor in taking the decision. The said principles as obtained
in the report are the patient‘s autonomy (or the right to selfdetermination)
and beneficence which means following a
course of action that is best for the patient uninfluenced by
personal convictions, motives or other considerations. The
Report also refers to the observations made by Lord Keith in
Airedale case providing for a course to safeguard the patient‘s
best interest. As per the said course, which has also been
approved by this Court, the hospital/medical practitioner
should apply to the Family Division of the High Court for
endorsing or reversing the decision taken by the medical
practitioners in charge to discontinue the treatment of a PVS
patient. With respect to the ongoing debates on ―legalizing
118
euthanasia‖, the Report reiterates the observations made in
Airedale that euthanasia (other than passive euthanasia) can
be legalized by means of legislation only.
125. The Report, in upholding the principle of the patient‘s
autonomy, went on to state:-
―…the patient (competent) has a right to refuse
medical treatment resulting in temporary
prolongation of life. The patient‘s life is at the brink
of extinction. There is no slightest hope of recovery.
The patient undergoing terrible suffering and worst
mental agony does not want his life to be prolonged
by artificial means. She/he would not like to spend
for his treatment which is practically worthless.
She/he cares for his bodily integrity rather than
bodily suffering. She/he would not like to live 28
like a ‗cabbage‘ in an intensive care unit for some
days or months till the inevitable death occurs. He
would like to have the right of privacy protected
which implies protection from interference and
bodily invasion. As observed in Gian Kaur‘s case,
the natural process of his death has already
commenced and he would like to die with peace and
dignity. No law can inhibit him from opting such
course. This is not a situation comparable to
suicide, keeping aside the view point in favour of
decriminalizing the attempt to suicide. The doctor or
relatives cannot compel him to have invasive
medical treatment by artificial means or treatment.‖
126. The Report supports the view of several authorities
especially Lord Browne-Wilkinson (in Airedale case) and
119
Justice Cardozo that in case of any forced medical intervention
on the body of a patient, the surgeon/doctor is guilty of
‗assault‘ or ‗battery‘. The Report also laid emphasis on the
opinion of Lord Goff placing the right of self-determination on
a high pedestal. The said relevant observations of Lord Goff,
as also cited in the Report, are as follows:-
―I wish to add that, in cases of this kind, there is no
question of the patient having committed suicide,
nor therefore of the doctor having aided or abetted
him in doing so. It is simply that the patient has, as
he is entitled to do, declined to consent to treatment
which might or would have the effect of prolonging
his life, and the doctor has, in accordance with his
duty, complied with his patient's wishes.‖
127. We have referred to the report of the Law Commission
post Aruna Shanbaug only to highlight that there has been
affirmative thought in this regard. We have also been apprised
by Mr. Narasimha, learned Additional Solicitor General
appearing for the Union of India, that there is going to be a law
with regard to passive euthanasia.
120
J. Right to refuse treatment:
128. Deliberating on the issue of right to refuse treatment,
Justice Cardozo in Schloendorff v. Society of New York
Hospital40 observed:-
―Every human being of adult years and sound mind
has a right to determine what shall be done with his
own body; and a surgeon who performs the
operation without his patient‘s consent commits an
assault for which he is liable in damages.‖
129. In a somewhat different context, King C.J. in F v. R41
identified ―the paramount consideration that a person is
entitled to make his own decisions about his life‖. The said
statement was cited with approval by Mason CJ, Brennan,
Dawson, Toohey and McHugh, JJ. in Rogers v. Whitaker42.
Cardozo‘s statement has been cited and applied in many
cases. Thus, in Malette v. Shulman43, Robins J.A., speaking
with the concurrence of Catzman and Canthy JJA, said:-
―A competent adult is generally entitled to reject a
specific treatment or all treatment, or to select an
alternative form of treatment even if the decision
may entail risks as serious as death and may
40 (1914) 105 NE 92 : (1914) 211 NY 125
41 (1983) 33 SASR 189 at 193
42 [1992] HCA 58 : (1992) 175 CLR 479 at 487
43 67 DLR (4th) 321 (1990) : 72 OR (2d) 417
121
appear mistaken in the eyes of the medical
profession or of the community …. it is the patient
who has the final say on whether to undergo the
treatment.‖
130. The recognition of the freedom of competent adults to
make choices about their medical care necessarily
encompasses recognition of the right to make choices since
individual free choice and self-determination are themselves
fundamental constituents of life. Robins J.A. further clarified
in Malette at page 334:-
―To deny individuals freedom of choice with respect
to their health care can only lessen and not
enhance the value of life.‖
131. In the 21st century, with the advancement of technology
in medical care, it has become possible, with the help of
support machines, to prolong the death of patients for months
and even years in some cases. At this juncture, the right to
refuse medical treatment comes into the picture. A patient
(terminally ill or in a persistent vegetative state) exercising the
right to refuse treatment may ardently wish to live but, at the
same time, he may wish to be free from any medical surgery,
drugs or treatment of any kind so as to avoid protracted
122
physical suffering. Any such person who has come of age
and is of sound mind has a right to refuse medical treatment.
This right stands on a different pedestal as compared to
suicide, physician assisted suicide or even euthanasia. When a
terminally ill patient refuses to take medical treatment, it can
neither be termed as euthanasia nor as suicide. Albeit, both
suicide and refusal to take treatment in case of terminal
ailment shall result in the same consequences, that is, death,
yet refusal to take treatment by itself cannot amount to
suicide. In case of suicide, there has to be a self initiated
positive action with a specific intention to cause one‘s own
death. On the other hand, a patient‘s right to refuse treatment
lacks his specific intention to die, rather it protects the patient
from unwanted medical treatment. A patient refusing medical
treatment merely allows the disease to take its natural course
and if, in this process, death occurs, the cause for it would
primarily be the underlying disease and not any self initiated
act.
132. In Rodriguez (supra), Justice Sopinka, speaking for the
Supreme Court of Canada, held:-
123
―Canadian Court has recognized a common law
right of patients to refuse to consent to medical
treatment or to demand that the treatment, once
commenced, be withdrawn or discontinued. This
right has been specially recognized to exist even if
the withdrawal from or refusal of treatment may
result in death.‖
133. In Secretary, Department of Health and Community
Services (NT) v. JWB and SMB44, the High Court of Australia
acknowledged the fundamental right of personal inviolability.
Justice McHugh observed that the voluntary decision of an
adult person of sound mind as to what should be done to his
or her body must be respected. It was further observed that
under the doctrine of trespass, the common law respects and
protects the autonomy of adult persons and also accepts the
right to self-determination in respect of his or her body which
can be altered only with the consent of the person concerned.
134. There is a presumption of capacity whereby an adult is
presumed to have the capacity to consent to or to refuse
medical treatment unless and until that presumption is
rebutted. Butler-Sloss LJ, in Re MB (Medical Treatment)45,
stated that in deciding whether a person has the capacity to
44 (1992) 66 AJLR 300 : (1992) 175 CLR 218
45 [1997] EWCA Civ 3093 : [1997] 2 FLR 426
124
make a particular decision, the ultimate question is whether
that person suffers from some impairment or disturbance of
mental functioning so as to render him or her incapable of
making the decision. The consent may be vitiated if the
individual concerned may not have been competent in law to
give or refuse that consent; or even if the individual was
competent in law, the decision has been obtained by undue
influence or some other vitiating means; or the apparent
consent or refusal does not extend to the particular situation;
or the terms of the consent or refusal are ambiguous or
uncertain; or if the consent or refusal is based on incorrect
information or incorrect assumption. In circumstances where
it is practicable for a medical practitioner to obtain consent to
treatment, then, for the consent to be valid, it must be based
on full information, including as to its risks and benefits.
135. Where it is not practicable for a medical practitioner to
obtain consent for treatment and where the patient‘s life is in
danger if appropriate treatment is not given, then the
treatment may be administered without consent. This is
justified by what is sometimes called the ―emergency principle‖
125
or ―principle of necessity‖. Usually, the medical practitioner
treats the patient in accordance with his clinical judgment of
what is in the patient‘s best interests. Lord Goff of Chieveley
has rightly pointed out in F v. West Berkshire Health
Authority (supra) that for the principle of necessity to apply,
two conditions must be met:-
(a) There must be ―a necessity to act when it is not
practicable to communicate with the assisted person‖; and
(b) ―the action taken must be such as a reasonable person
would in all the circumstances take, acting in the best
interests of the assisted person.‖
136. However, Lord Goff pointed out that the principle of
necessity does not apply where the proposed action is contrary
to the known wishes of the assisted person to the extent that
he/she is capable of rationally forming such a wish. It follows
that the principle of necessity cannot be relied upon to justify
a particular form of medical treatment where the patient has
given an advance care directive specifying that he/she does
not wish to be so treated and where there is no reasonable
126
basis for doubting the validity and applicability of that
directive.
K. Passive Euthanasia in the context of Article 21 of the
Constitution:
137. We have to restrict our deliberation to the issue whether
euthanasia can come within the ambit and sweep of Article 21.
Article 21 reads as follows:-
―21. Protection of life and personal liberty.—No
person shall be deprived of his life or personal
liberty except according to procedure established by
law.‖
138. The word ‗liberty‘ is the sense and realization of choice of
the attributes associated with the said choice; and the term
‗life‘ is the aspiration to possess the same in a dignified
manner. The two are intrinsically interlinked. Liberty impels
an individual to change and life welcomes the change and the
movement. Life does not intend to live sans liberty as it would
be, in all possibility, a meaningless survival. There is no doubt
that no fundamental right is absolute, but any restraint
imposed on liberty has to be reasonable. Individual liberty aids
in developing one‘s growth of mind and assert individuality.
She/he may not be in a position to rule others but
127
individually, she/he has the authority over the body and
mind. The liberty of personal sovereignty over body and mind
strengthens the faculties in a person. It helps in their
cultivation. Roscoe Pound, in one of his lectures, has aptly
said:-
―… although we think socially, we must still think of
individual interests, and of that greatest of all
claims which a human being may make, the claim
to assert his individuality, to exercise freely the will
and the reason which God has given him. We must
emphasize the social interest in the moral and
social life of the individual, but we must remember
that it is the life of a free-willing being.‖
139. Liberty allows freedom of speech, association and
dissemination without which the society may face hurdles in
attaining the requisite maturity. History is replete with
narratives how the thoughts of individuals, though not
accepted by the contemporaneous society, later on gained not
only acceptance but also respect. One may not agree with
Kantian rigorism, but one must appreciate that without the
said doctrine, there could not have been dissemination of
further humanistic principles. There is a danger in
discouraging free thinking and curtailing the power of
128
imagination. Holmes in Adkins v. Children’s Hospital46 has
observed:-
―It is merely an example of doing what you want to
do, embodied in the word ―liberty‖.‖
140. The concept of liberty perceives a hazard when it feels it
is likely to become hollow. This necessarily means that there
would be liberty available to individuals subject to permissible
legal restraint and it should be made clear that in that
restraint, free ideas cannot be imprisoned by some kind of
unknown terror. Liberty cannot be a slave because it
constitutes the essential marrow of life and that is how we
intend to understand the conception of liberty when we read it
in association with the term ‗life‘ as used in Article 21 of the
Constitution. The great American playwright Tennessee
Williams has said:-
―To be free is to have achieved your life.‖
141. Life as envisaged under Article 21 has been very broadly
understood by this Court. In Board of Trustees of the Port
of Bombay v. Dilipkumar Raghavendranath Nadkarni and
46 261 US 525, 568(1923)
129
others47, the Court has held that the expression ―life‖ does not
merely connote animal existence or a continued drudgery
through life. The expression ‗life‘ has a much wider meaning
and, therefore, where the outcome of a departmental enquiry
is likely to adversely affect the reputation or livelihood of a
person, some of the finer graces of human civilization which
make life worth living would be jeopardized and the same can
be put in jeopardy only by law which inheres fair procedures.
142. In Maneka Gandhi v. Union of India and another48,
Krishna Iyer J., in his own inimitable style, states that among
the great guaranteed rights, life and liberty are the first among
equals carrying a universal connotation cardinal to a decent
human order and protected by constitutional armour. Once
liberty under Article 21 is viewed in a truncated manner,
several other freedoms fade out automatically. To sum up,
personal liberty makes for the worth of the human person.
Travel makes liberty worthwhile. ‗Life‘ is a terrestrial
opportunity for unfolding personality, rising to higher status,
moving to fresh woods and reaching out to reality which
47 (1983) 1 SCC 124
48 (1978) 1 SCC 248
130
makes our earthly journey a true fulfilment – not a tale told by
an idiot full of sound and fury signifying nothing, but a fine
frenzy rolling between heaven and earth. The spirit of man is
at the root of Article 21. In the absence of liberty, other
freedoms are frozen.
143. In State of Andhra Pradesh v. Challa Ramkrishna
Reddy and others49, this Court held that right to life is one of
the basic human rights and it is guaranteed to every person by
Article 21 of the Constitution and not even the State has the
authority to violate that right. A prisoner, whether a convict or
under-trial or a detenu, does not cease to be a human being.
Even when lodged in jail, he continues to enjoy all his
fundamental rights including the right to life guaranteed to
him under the Constitution. The Court further ruled that on
being convicted of crime and deprived of their liberty in
accordance with the procedure established by law, prisoners
still retain the residue of constitutional rights.
144. Having said so, we are required to advert to the issue
whether passive euthanasia can only be conceived of through
49 AIR 2000 SC 2083 : (2000) 5 SCC 712
131
legislation or this Court can, for the present, provide for the
same. We have already explained that the ratio laid down in
Gian Kaur does not convey that the introduction of passive
euthanasia can only be by legislation. In Aruna Shanbaug,
the two-Judge Bench has placed reliance on the Constitution
Bench judgment in Gian Kaur to lay down the guidelines. If,
eventually, we arrive at the conclusion that passive euthanasia
comes within the sweep of Article 21 of the Constitution, we
have no iota of doubt that this Court can lay down the
guidelines.
145. We may clearly state here that the interpretation of the
Constitution, especially fundamental rights, has to be dynamic
and it is only such interpretative dynamism that breathes life
into the written words. As far as Article 21 is concerned, it is
imperative to mention that dynamism can, of course, infuse
life into life and liberty as used in the said Article.
146. In this regard, we may reproduce a couple of
paragraphs from Central Inland Water Transport
132
Corporation Limited and another v. Brojo Nath Ganguly
and another50. They read as under:-
―25. The story of mankind is punctuated by
progress and retrogression. Empires have risen and
crashed into the dust of history. Civilizations have
nourished, reached their peak and passed away. In
the year 1625, Carew, C.J., while delivering the
opinion of the House of Lords in Re the Earldom of
Oxford in a dispute relating to the descent of that
Earldom, said:
―... and yet time hath his revolution, there
must be a period and an end of all temporal
things, finis rerum, an end of names and
dignities, and whatsoever is terrene....‖
The cycle of change and experiment, rise and fall,
growth and decay, and of progress and
retrogression recurs endlessly in the history of man
and the history of civilization. T.S. Eliot in the First
Chorus from ―The Rock‖ said:
―O perpetual revolution of configured stars,
O perpetual recurrence of determined seasons,
O world of spring and autumn, birth and dying;
The endless cycle of idea and action,
Endless invention, endless experiment.‖
26. The law exists to serve the needs of the society
which is governed by it. If the law is to play its
allotted role of serving the needs of the society, it
must reflect the ideas and ideologies of that society.
It must keep time with the heartbeats of the society
and with the needs and aspirations of the people. As
50 (1986) 3 SCC 156
133
the society changes, the law cannot remain
immutable. The early nineteenth century essayist
and wit, Sydney Smith, said: ―When I hear any man
talk of an unalterable law, I am convinced that he is
an unalterable fool.‖ The law must, therefore, in a
changing society march in tune with the changed
ideas and ideologies‖
[Emphasis added]
147. We approve the view in the aforesaid passages. Having
approved the aforesaid principle, we are obliged to state that
the fundamental rights in their connotative expanse are bound
to engulf certain rights which really flow from the same. In
M. Nagaraj and others v. Union of India and others51, the
Constitution Bench has ruled:-
―19. The Constitution is not an ephemeral legal
document embodying a set of legal rules for the
passing hour. It sets out principles for an expanding
future and is intended to endure for ages to come
and consequently to be adapted to the various
crises of human affairs. Therefore, a purposive
rather than a strict literal approach to the
interpretation should be adopted. A constitutional
provision must be construed not in a narrow and
constricted sense but in a wide and liberal manner
so as to anticipate and take account of changing
conditions and purposes so that a constitutional
provision does not get fossilised but remains flexible
enough to meet the newly emerging problems and
challenges.‖
51 (2006) 8 SCC 212
134
And again:-
―29. … constitutionalism is about limits and
aspirations. According to Justice Brennan,
interpretation of the Constitution as a written text is
concerned with aspirations and fundamental
principles. In his article titled ―Challenge to the
Living Constitution‖ by Herman Belz, the author
says that the Constitution embodies aspiration to
social justice, brotherhood and human dignity. It is
a text which contains fundamental principles. …‖
148. In this context, we may make a reference to a threeJudge
Bench decision in V.C. Rangadurai v. D. Gopalan and
others52 wherein the majority, while dealing with Section 35(3)
of the Advocates Act, 1961, stated:-
―8. … we may note that words grow in content with
time and circumstance, that phrases are flexible in
semantics, that the printed text is a set of vessels
into which the court may pour appropriate judicial
meaning. That statute is sick which is allergic to
change in sense which the times demand and the
text does not countermand. That court is superficial
which stops with the cognitive and declines the
creative function of construction. So, we take the
view that 'quarrying' more meaning is permissible
out of Section 35(3) and the appeal provisions, in
the brooding background of social justice, sanctified
by Article 38, and of free legal aid enshrined by
Article 39A of the Constitution.‖
52 (1979) 1 SCC 308
135
The learned Judges went on to say:-
―11. … Judicial 'Legisputation' to borrow a telling
phrase of J. Cohen, is not legislation but application
of a given legislation to new or unforeseen needs
and situations broadly falling within the statutory
provision. In that sense, 'interpretation is
inescapably a kind of legislation' (The Interpretation
and Application of Statutes, Read Dickerson, p.
238). Ibid. p. 238. This is not legislation stricto
sensu but application, and is within the court's
province.‖
149. The aforesaid authorities clearly show the power that
falls within the province of the Court. The language employed
in the constitutional provision should be liberally construed,
for such provision can never remain static. It is because
stasticity would mar the core which is not the intent.
K.1 Individual Dignity as a facet of Article 21:
150. Dignity of an individual has been internationally
recognized as an important facet of human rights in the year
1948 itself with the enactment of the Universal Declaration of
Human Rights. Human dignity not only finds place in the
Preamble of this important document but also in Article 1 of
the same. It is well known that the principles set out in UDHR
are of paramount importance and are given utmost weightage
136
while interpreting human rights all over the world. The first
and foremost responsibility fixed upon the State is the
protection of human dignity without which any other right
would fall apart. Justice Brennan in his book The Constitution
of the United States: Contemporary Ratification has referred to
the Constitution as "a sparkling vision of the supremacy of the
human dignity of every individual."
151. In fact, in the case of Christine Goodwin v. the United
Kingdom53 the European Court of Human Rights, speaking in
the context of the Convention for the Protection of Human
Rights and Fundamental Freedoms, has gone to the extent of
stating that "the very essence of the Convention is respect for
human dignity and human freedom". In the South African
case of S v. Makwanyane 54 O' Regan J. stated in the
Constitutional Court that "without dignity, human life is
substantially diminished."
152. Having noted the aforesaid, it is worthy to note that our
Court has expanded the spectrum of Article 21. In the latest
53 [2002] ECHR 588
54 1995 (3) SA 391
137
nine-Judge Bench decision in K.S. Puttaswamy and another
v. Union of India and others55, dignity has been reaffirmed
to be a component under the said fundamental right. Human
dignity is beyond definition. It may at times defy description.
To some, it may seem to be in the world of abstraction and
some may even perversely treat it as an attribute of egotism or
accentuated eccentricity. This feeling may come from the roots
of absolute cynicism. But what really matters is that life
without dignity is like a sound that is not heard. Dignity
speaks, it has its sound, it is natural and human. It is a
combination of thought and feeling, and, as stated earlier, it
deserves respect even when the person is dead and described
as a ‗body‘. That is why, the Constitution Bench in M. Nagaraj
(supra) lays down:-
―….It is the duty of the State not only to protect the
human dignity but to facilitate it by taking positive
steps in that direction. No exact definition of human
dignity exists. It refers to the intrinsic value of every
human being, which is to be respected. It cannot be
taken away. It cannot give (sic be given). It simply
is. Every human being has dignity by virtue of his
existence. …‖
55 (2017) 10 SCC 1
138
153. The concept and value of dignity requires further
elaboration since we are treating it as an inextricable facet of
right to life that respects all human rights that a person
enjoys. Life is basically self-assertion. In the life of a person,
conflict and dilemma are expected to be normal phenomena.
Oliver Wendell Holmes, in one of his addresses, quoted a line
from a Latin poet who had uttered the message, ―Death plucks
my ear and says, Live- I am coming‖. That is the significance
of living. But when a patient really does not know if he/she is
living till death visits him/her and there is constant suffering
without any hope of living, should one be allowed to wait?
Should she/he be cursed to die as life gradually ebbs out from
her/his being? Should she/he live because of innovative
medical technology or, for that matter, should he/she
continue to live with the support system as people around
him/her think that science in its progressive invention may
bring about an innovative method of cure? To put it
differently, should he/she be ―guinea pig‖ for some kind of
experiment? The answer has to be an emphatic ―No‖ because
such futile waiting mars the pristine concept of life, corrodes
139
the essence of dignity and erodes the fact of eventual choice
which is pivotal to privacy. Recently, in K.S. Puttaswamy
(supra), one of us (Dr. Chandrachud J.), while speaking about
life and dignity, has observed:-
―118. Life is precious in itself. But life is worth living
because of the freedoms which enable each
individual to live life as it should be lived. The best
decisions on how life should be lived are entrusted
to the individual. They are continuously shaped by
the social milieu in which individuals exist. The
duty of the State is to safeguard the ability to take
decisions — the autonomy of the individual — and
not to dictate those decisions. ―Life‖ within the
meaning of Article 21 is not confined to the integrity
of the physical body. The right comprehends one‘s
being in its fullest sense. That which facilitates the
fulfilment of life is as much within the protection of
the guarantee of life.
119. To live is to live with dignity. The draftsmen of
the Constitution defined their vision of the society in
which constitutional values would be attained by
emphasising, among other freedoms, liberty and
dignity. So fundamental is dignity that it permeates
the core of the rights guaranteed to the individual
by Part III. Dignity is the core which unites the
fundamental rights because the fundamental rights
seek to achieve for each individual the dignity of
existence. Privacy with its attendant values assures
dignity to the individual and it is only when life can
be enjoyed with dignity can liberty be of true
substance. Privacy ensures the fulfilment of dignity
and is a core value which the protection of life and
liberty is intended to achieve.‖
140
154. In Mehmood Nayyar Azam v. State of Chhattisgarh
and others56, a two-Judge Bench held thus:-
―Albert Schweitzer, highlighting on Glory of Life,
pronounced with conviction and humility, "the
reverence of life offers me my fundamental principle
on morality". The aforesaid expression may appear
to be an individualistic expression of a great
personality, but, when it is understood in the
complete sense, it really denotes, in its conceptual
essentiality, and connotes, in its macrocosm, the
fundamental perception of a thinker about the
respect that life commands. The reverence of life is
insegragably associated with the dignity of a human
being who is basically divine, not servile. A human
personality is endowed with potential infinity and it
blossoms when dignity is sustained. The sustenance
of such dignity has to be the superlative concern of
every sensitive soul. The essence of dignity can
never be treated as a momentary spark of light or,
for that matter, 'a brief candle', or 'a hollow bubble'.
The spark of life gets more resplendent when man is
treated with dignity sans humiliation, for every man
is expected to lead an honourable life which is a
splendid gift of "creative intelligence"‖
155. The aforesaid authority emphasizes the seminal value of
life that is inherent in the concept of life. Dignity does not
recognize or accept any nexus with the status or station in life.
The singular principle that it pleasantly gets beholden to is the
integral human right of a person. Law gladly takes cognizance
56 (2012) 8 SCC 1
141
of the fact that dignity is the most sacred possession of a man.
And the said possession neither loses its sanctity in the
process of dying nor evaporates when death occurs. In this
context, reference to a passage from Vikas Yadav v. State of
Uttar Pradesh and others57 is note worthy. The two Judge
Bench of this Court, while dealing with the imposition of a
fixed term sentence under Section 302 IPC, took note of the
fact that the High Court had observed the magnitude of
vengeance of the accused and the extent to which they had
gone to destroy the body of the deceased. Keeping in view the
findings of the High Court, this Court stated:-
―From the evidence brought on record as well as the
analysis made by the High Court, it is demonstrable
about the criminal proclivity of the accused persons,
for they have neither the respect for human life nor
did they have any concern for the dignity of a dead
person. They had deliberately comatosed the feeling
that even in death a person has dignity and when
one is dead deserves to be treated with dignity. That
is the basic human right. The brutality that has
been displayed by the accused persons clearly
exposes the depraved state of mind.‖
57 (2016) 9 SCC 541
142
The aforesaid passage shows the pedestal on which the
Court has placed the dignity of an individual.
156. Reiterating that dignity is the most fundamental aspect of
right to life, it has been held in the celebrated case of Francis
Coralie Mullin v. The Administrator, Union Territory of
Delhi58:-
"We think that the right to life includes the right to
live with human dignity and all that goes along with
it, namely, the bare necessaries of life such as
adequate nutrition, clothing and shelter and
facilities for reading, writing and expressing one-self
in diverse forms, freely moving about and mixing
and commingling with fellow human beings. Of
course, the magnitude and content of the
components of this right would depend upon the
extent of the economic development of the country,
but it must, in any view of the matter, include the
right to the basic necessities of life and also the
right to carry on such functions and activities as
constitute the bare minimum expression of the
human-self. Every act which offends against or
impairs human dignity would constitute deprivation
protanto of this right to live and it would have to be
in accordance with reasonable, fair and just
procedure established by law which stands the test
of other fundamental rights. Now obviously, any
form of torture or cruel, inhuman or degrading
treatment would be offensive to human dignity and
constitute an inroad into this right to live and it
would, on this view, be prohibited by Article 21
unless it is in accordance with procedure prescribed
58 (1981) 1 SCC 608
143
by law, but no law which authorises and no
procedure which leads to such torture or cruel,
inhuman or degrading treatment can ever stand the
test of reasonableness and non-arbitrariness: it
would plainly be unconstitutional and void as being
violative of Articles 14 and 21. It would thus be seen
that there is implicit in Article 21 the right to
protection against torture or cruel, inhuman or
degrading treatment which is enunciated in Article
5 of the Universal Declaration of Human Rights and
guaranteed by Article 7 of the International
Covenant on Civil and Political Rights."
157. In National Legal Services Authority v. Union of
India and others59, the Apex Court has held that there is a
growing recognition that the true measure of development of a
nation is not economic growth; it is human dignity.
158. In Shabnam v. Union of India and another60, it has
been further held that:-
"This right to human dignity has many elements.
First and foremost, human dignity is the dignity of
each human being 'as a human being'. Another
element, which needs to be highlighted, in the
context of the present case, is that human dignity is
infringed if a person's life, physical or mental
welfare is armed. It is in this sense torture,
humiliation, forced labour, etc. all infringe on
human dignity.‖
59 (2014) 5 SCC 438
60 (2015) 6 SCC 702
144
159. In Gian Kaur (supra), the Constitution Bench indicates
acceleration of the conclusion of the process of death which
has commenced and this indication, as observed by us, allows
room for expansion. In the said case, the Court was primarily
concerned with the question of constitutional validity of Sections
306 and 309 of IPC. The Court was conscious of the fact that the
debate on euthanasia was not relevant for deciding the question
under consideration. The Court, however, in no uncertain terms
expounded that the word "life" in Article 21 has been construed
as life with human dignity and it takes within its ambit the "right
to die with dignity" being part of the "right to live with dignity".
Further, the "right to live with human dignity" would mean
existence of such a right upto the end of natural life which would
include the right to live a dignified life upto the point of death
including the dignified procedure of death. While adverting to the
situation of a dying man who is terminally ill or in a persistent
vegetative state where he may be permitted to terminate it by a
premature extinction of his life, the Court observed that the said
category of cases may fall within the ambit of "right to die with
dignity" as part of the right to live with dignity when death due to
145
the termination of natural life is certain and imminent and the
process of natural death has commenced, for these are not cases
of extinguishing life but only of accelerating the conclusion of the
process of natural death which has already commenced. The
sequitur of this exposition is that there is little doubt that a
dying man who is terminally ill or in a persistent vegetative state
can make a choice of premature extinction of his life as being a
facet of Article 21 of the Constitution. If that choice is
guaranteed being part of Article 21, there is no necessity of any
legislation for effectuating that fundamental right and more so
his natural human right. Indeed, that right cannot be an
absolute right but subject to regulatory measures to be
prescribed by a suitable legislation which, however, must be
reasonable restrictions and in the interests of the general public.
In the context of the issue under consideration, we must make it
clear that as part of the right to die with dignity in case of a dying
man who is terminally ill or in a persistent vegetative state, only
passive euthanasia would come within the ambit of Article 21
and not the one which would fall within the description of active
euthanasia in which positive steps are taken either by the
146
treating physician or some other person. That is because the
right to die with dignity is an intrinsic facet of Article 21. The
concept that has been touched deserves to be concretised, the
thought has to be realized. It has to be viewed from various
angles, namely, legal permissibility, social and ethical ethos
and medical values.
160. The purpose of saying so is only to highlight that the law
must take cognizance of the changing society and march in
consonance with the developing concepts. The need of the
present has to be served with the interpretative process of law.
However, it is to be seen how much strength and sanction can
be drawn from the Constitution to consummate the changing
ideology and convert it into a reality. The immediate needs are
required to be addressed through the process of interpretation
by the Court unless the same totally falls outside the
constitutional framework or the constitutional interpretation
fails to recognize such dynamism. The Constitution Bench in
Gian Kaur, as stated earlier, distinguishes attempt to suicide
and abetment of suicide from acceleration of the process of
natural death which has commenced. The authorities, we
147
have noted from other jurisdictions, have observed the
distinctions between the administration of lethal injection or
certain medicines to cause painless death and nonadministration
of certain treatment which can prolong the life
in cases where the process of dying that has commenced is not
reversible or withdrawal of the treatment that has been given
to the patient because of the absolute absence of possibility of
saving the life. To explicate, the first part relates to an overt
act whereas the second one would come within the sphere of
informed consent and authorized omission. The omission of
such a nature will not invite any criminal liability if such
action is guided by certain safeguards. The concept is based
on non-prolongation of life where there is no cure for the state
the patient is in and he, under no circumstances, would have
liked to have such a degrading state. The words ―no cure‖ have
to be understood to convey that the patient remains in the
same state of pain and suffering or the dying process is
delayed by means of taking recourse to modern medical
technology. It is a state where the treating physicians and the
family members know fully well that the treatment is
148
administered only to procrastinate the continuum of breath of
the individual and the patient is not even aware that he is
breathing. Life is measured by artificial heartbeats and the
patient has to go through this undignified state which is
imposed on him. The dignity of life is denied to him as there is
no other choice but to suffer an avoidable protracted
treatment thereby thus indubitably casting a cloud and
creating a dent in his right to live with dignity and face death
with dignity, which is a preserved concept of bodily autonomy
and right to privacy. In such a stage, he has no old memories
or any future hopes but he is in a state of misery which
nobody ever desires to have. Some may also silently think that
death, the inevitable factum of life, cannot be invited. To meet
such situations, the Court has a duty to interpret Article 21 in
a further dynamic manner and it has to be stated without any
trace of doubt that the right to life with dignity has to include
the smoothening of the process of dying when the person is in
a vegetative state or is living exclusively by the administration
of artificial aid that prolongs the life by arresting the dignified
and inevitable process of dying. Here, the issue of choice also
149
comes in. Thus analysed, we are disposed to think that such a
right would come within the ambit of Article 21 of the
Constitution.
L. Right of self-determination and individual autonomy:
161. Having dealt with the right to acceleration of the process
of dying a natural death which is arrested with the aid of
modern innovative technology as a part of Article 21 of the
Constitution, it is necessary to address the issues of right of
self-determination and individual autonomy.
162. John Rawls says that the liberal concept of autonomy
focuses on choice and likewise, self-determination is
understood as exercised through the process of choosing61.
The respect for an individual human being and in particular
for his right to choose how he should live his own life is
individual autonomy or the right of self- determination. It is
the right against non-interference by others, which gives a
competent person who has come of age the right to make
decisions concerning his or her own life and body without any
61 Rawls, John, Political Liberalism 32, 33, New York: Columbia University Press, 1993.
150
control or interference of others. Lord Hoffman, in Reeves v.
Commissioner of Police of the Metropolis62 has stated:-
"Autonomy means that every individual is sovereign
over himself and cannot be denied the right to
certain kinds of behaviour, even if intended to cause
his own death."
163. In the context of health and medical care decisions, a
person's exercise of self-determination and autonomy involves
the exercise of his right to decide whether and to what extent
he/she is willing to submit himself/herself to medical
procedures and treatments, choosing amongst the available
alternative treatments or, for that matter, opting for no
treatment at all which, as per his or her own understanding, is
in consonance with his or her own individual aspirations and
values.
164. In Airedale (supra), Lord Goff has expressed that it is
established that the principle of self-determination requires
that respect must be given to the wishes of the patient so that
if an adult patient of sound mind refuses, however
unreasonably, to consent to treatment or care by which
62[2000] 1 AC 360, 379
151
his/her life would or might be prolonged, the doctors
responsible for his/her care must give effect to his/her wishes,
even though they do not consider it to be in his/her best
interests to do so and to this extent, the principle of sanctity of
human life must yield to the principle of self-determination.
Lord Goff further says that the doctor's duty to act in the best
interests of his patient must likewise be qualified with the
patient's right of self determination. Therefore, as far as the
United Kingdom is concerned, it is generally clear that
whenever there is a conflict between a capable adult's exercise
of the right of self-determination and the State's interest in
preserving human life by treating it as sanctimonious, the
right of the individual must prevail.
165. In the United States, the aspect of self-determination and
individual autonomy is concretised in law as all fifty States
along with the District of Columbia, the capital, which is
commonly referred as Washington D.C., have passed
legislations upholding different forms of Advance Directives. In
the United States, even before the enactment of the said laws,
152
a terminally ill person was free to assert the right to die as an
ancillary right to the constitutionally protected right to
privacy. In In Re Quinlan (supra), where a 21 year old girl in
chronic PVS was on ventilator support, the Court, while
weighing Quinlan's right to privacy qua the State's interest in
preserving human life, found that as the degree of bodily
invasion increases and the prognosis for the patient's recovery
dims, the patient's right to privacy increases and the State's
interest weakens. The Supreme Court of New Jersey finally
ruled that the unwritten constitutional right of privacy was
broad enough to encompass a patient's decision to decline
medical treatment in certain circumstances. Again, in Re
Jobes63, which was also a case concerned with a PVS patient,
the Court, following the decision in In Re Quinlan, upheld the
principle of self determination and autonomy of an
incompetent person.
166. The Canadian Criminal Code asserts and protects the
sanctity of life in a number of ways which directly confront the
autonomy of the terminally ill in their medical decision
63 (1987) 108 N.J. 394
153
making. However, the Supreme Court of Canada in Reibl v.
Hughes64 approved an oft-quoted statement of Cardozo J. in
Scholoendorf (supra) that "every human being of adult years
and sound mind has a right to determine what shall be done
with his own body" and Chief Justice Laskin in Reibl (supra)
has further added that battery would lie where surgery or
treatment was performed without consent or where apart from
emergency situations, surgery or medical treatment was given
beyond that to which there was consent. Thus, the Supreme
Court of Canada suggested that competent adults have the
right to make their own medical decisions even if such
decisions are unwise.
167. In Aruna Shanbaug (supra), this Court has observed that
autonomy means the right to self-determination where the
informed patient has a right to choose the manner of his
treatment. To be autonomous the patient should be competent to
make decisions and choices. In the event that he is incompetent
to make choices, his wishes expressed in advance in the form of
a Living Will, or the wishes of surrogates acting on his behalf
64 [1980 2 SCR 880 at 890-891
154
('substituted judgment') are to be respected. The surrogate is
expected to represent what the patient may have decided had
he/she been competent or to act in the patient's best interest. It
is expected that a surrogate acting in the patient's best interest
follows a course of action because it is best for the patient, and
is not influenced by personal convictions, motives or other
considerations.
168. Thus, enquiring into common law and statutory rights
of terminally ill persons in other jurisdictions would indicate
that all adults with the capacity to consent have the common
law right to refuse medical treatment and the right of self
determination.
169. We may, however, add a word of caution that doctors
would be bound by the choice of self-determination made by
the patient who is terminally ill and undergoing a prolonged
medical treatment or is surviving on life support, subject to
being satisfied that the illness of the patient is incurable and
there is no hope of his being cured. Any other consideration
cannot pass off as being in the best interests of the patient.
155
M. Social morality, medical ethicality and State interest:
170. Having dwelt upon the issue of self-determination, we
may presently delve into three aspects, namely, social
morality, medical ethicality and the State interest. The
aforesaid concepts have to be addressed in the constitutional
backdrop. We may clearly note that the society at large may
feel that a patient should be treated till he breathes his last
breath and the treating physicians may feel that they are
bound by their Hippocratic oath which requires them to
provide treatment and save life and not to put an end to life by
not treating the patient. The members of the family may
remain in a constant state of hesitation being apprehensive of
many a social factor which include immediate claim of
inheritance, social stigma and, sometimes, the individual guilt.
The Hippocratic oath taken by a doctor may make him feel
that there has been a failure on his part and sometimes also
make him feel scared of various laws. There can be allegations
against him for negligence or criminal culpability.
171. In this regard, two aspects are to be borne in mind.
First, withdrawal of treatment in an irreversible situation is
156
different from not treating or attending to a patient and
second, once passive euthanasia is recognized in law regard
being had to the right to die with dignity when life is ebbing
out and when the prolongation is done sans purpose, neither
the social morality nor the doctors‘ dilemma or fear will have
any place. It is because the sustenance of dignity and selfrespect
of an individual is inhered in the right of an individual
pertaining to life and liberty and there is necessity for this
protection. And once the said right comes within the shelter of
Article 21 of the Constitution, the social perception and the
apprehension of the physician or treating doctor regarding
facing litigation should be treated as secondary because the
primacy of the right of an individual in this regard has to be
kept on a high pedestal.
172. It is to be borne in mind that passive euthanasia
fundamentally connotes absence of any overt act either by the
patient or by the doctors. It also does not involve any kind of
overt act on the part of the family members. It is avoidance of
unnecessary intrusion in the physical frame of a person, for
the inaction is meant for smooth exit from life. It is paramount
157
for an individual to protect his dignity as an inseparable part
of the right to life which engulfs the dignified process of dying
sans pain, sans suffering and, most importantly, sans
indignity.
173. There are philosophers, thinkers and also scientists who
feel that life is not confined to the physical frame and
biological characteristics. But there is no denial of the fact that
life in its connotative expanse intends to search for its
meaning and find the solution of the riddle of existence for
which some lean on atheism and some vouchsafe for faith and
yet some stand by the ideas of an agnostic. However, the legal
fulcrum has to be how Article 21 of the Constitution is
understood. If a man is allowed to or, for that matter, forced to
undergo pain, suffering and state of indignity because of
unwarranted medical support, the meaning of dignity is lost
and the search for meaning of life is in vain.
N. Submissions of the States
174. In this context, we may reflect on the submissions
advanced on behalf of certain States. As stated earlier, there
158
is a categorical assertion that protection of human life is
paramount and it is obligatory on behalf of the States to
provide treatment and to see that no one dies because of lack
of treatment and to realise the principles enshrined in Chapter
IV of the Constitution. Emphasis has been laid on the State
interest and the process of abuse that can take place in
treating passive euthanasia as permissible in law. To
eliminate the possibility of abuse, safeguards can be taken
and guidelines can be framed. But on the plea of possibility of
abuse, the dignity in the process of dying being a facet of
Article 21 should not be curbed.
Mr. Datar, learned senior counsel in the course of
arguments, has advanced submissions in support of passive
euthanasia and also given suggestions spelling out the
guidelines for advance directive and also implementation of
the same when the patient is hospitalized. The said aspect
shall be taken into consideration while giving effect to the
advance directive and also taking steps for withdrawal of
medical support.
159
O. Submissions of Intervenor (Society for the Right to
Die with Dignity):
175. Mr. Mohta, learned counsel appearing for the intervenor,
that is, Society for the Right to Die with Dignity, has drawn
our attention to certain articles and submitted that from the
days of Plato to the time of Sir Thomas More and other
thinkers, painless and peaceful death has been advocated. He
would also submit that ancient wisdom of India taught people
not to fear death but to aspire for deathlessness and conceive
it as ―Mahaprasthana‖. It is his submission that in the modern
State, the State interest should not over-weigh the individual
interest in the sphere of a desire to die a peaceful death which
basically conveys refusal of treatment when the condition of
the individual suffering from a disease is irreversible. The
freedom of choice in this sphere, as Mr. Mohta would put it,
serves the cause of humanitarian approach which is not the
process to put an end to life by taking a positive action but to
allow a dying patient to die peaceably instead of prolonging the
process of dying without purpose that creates a dent in his
dignity.
160
176. The aforesaid argument, we have no hesitation to say,
has force. It is so because it is in accord with the
constitutional precept and fosters the cherished value of
dignity of an individual. It saves a helpless person from
uncalled for and unnecessary treatment when he is considered
as merely a creature whose breath is felt or measured because
of advanced medical technology. His ―being‖ exclusively rests
on the mercy of the technology which can prolong the
condition for some period. The said prolongation is definitely
not in his interest. On the contrary, it tantamounts to
destruction of his dignity which is the core value of life. In our
considered opinion, in such a situation, an individual interest
has to be given priority over the State interest.
P. Advance Directive/Advance Care Directive/Advance
Medical Directive:
177. In order to overcome the difficulty faced in case of
patients who are unable to express their wishes at the time of
taking the decision, the concept of Advance Medical Directives
emerged in various countries. The proponents of Advance
Medical Directives contend that the concept of patient
161
autonomy for incompetent patients can be given effect to, by
giving room to new methods by which incompetent patients
can beforehand communicate their choices which are made
while they are competent. Further, it may be argued that
failure to recognize Advance Medical Directives would amount
to non-facilitation of the right to have a smoothened dying
process. That apart, it accepts the position that a competent
person can express her/his choice to refuse treatment at the
time when the decision is required to be made.
178. Advance Directives for health care go by various names
in different countries though the objective by and large is the
same, that is, to specify an individual's health care decisions
and to identify persons who will take those decisions for the
said individual in the event he is unable to communicate his
wishes to the doctor.
179. The Black's Law Dictionary defines an advance medical
directive as, "a legal document explaining one's wishes about
medical treatment if one becomes incompetent or unable to
communicate‖. A living will, on the other hand, is a document
prescribing a person's wishes regarding the medical treatment
162
the person would want if he was unable to share his wishes
with the health care provider.
180. Another type of advance medical directive is medical
power of attorney. It is a document which allows an individual
(principal) to appoint a trusted person (agent) to take health
care decisions when the principal is not able to take such
decisions. The agent appointed to deal with such issues can
interpret the principal's decisions based on their mutual
knowledge and understanding.
181. Advance Directives have gained lawful recognition in
several jurisdictions by way of legislation and in certain
countries through judicial pronouncements. In vast majority of
the States in USA, it is mandatory for the doctors to give effect
to the wishes of the patients as declared by them in their
advance directives. California was the first State to legally
sanction living will. The United States Congress in 1990, with
the objective of protecting the fundamental principles of selfautonomy
and self-determination, enacted the Patient SelfDetermination
Act (PSDA) which acknowledged the rights of
the patient to either refuse or accept treatment. Following this,
163
all 50 States enacted legislations adopting advance directives.
Apart from this, several States of USA also permit the patients
to appoint a health care proxy which becomes effective only
when the patient is unable to make decisions.
182. In order to deal with the technicalities and intricacies
associated with an instrument as complex as an Advance
Directive, several derivatives/versions have evolved over time.
The National Right to Life Committee (NRLC) in the United
States came up with a version of a living will which was called
'Will to Live" which is a safeguard of the lives of patients who
wish to continue treatment and not refuse life-sustaining
treatment. This form of active declaration gains importance in
cases where the will of the patient cannot be deciphered with
certainty and the Courts order withdrawal of life supporting
treatment where they deem the life of the patient as not
worthwhile.
183. Yet another measure for finding and accessing the
patient's advance directive was the setting up of the U.S.
Living Will Registry. As per this model, it was obligatory on the
part of the hospital administration to ask a patient, who would
164
be admitted, if he/she had an advance directive and store the
same on their medical file. A special power to the Advance
Directives introduced by Virginia was the "Ulysses Clause"
which accords protection in situations when the patient goes
into relapse in his/her condition, that is, schizophrenia and
refuses treatment which they would not refuse if not for the
said relapse.
184. A new type of advance directive is the "Do Not
Resuscitate Order" (DNRO) in Florida which is a form of
patient identification device developed by the Department of
Health to identify people who do not wish to be resuscitated in
the event of respiratory or cardiac arrest. In Florida State of
United States, where an unconscious patient with the phrase
"Do Not Resuscitate" tattooed on his chest was brought in
paramedics, the doctors were left in a conundrum whether the
message was not to provide any medical treatment to the
patient and ultimately, the doctors opted not to perform any
medical procedure and the patient, thereafter, died. This case
highlights the dynamics involved in the concept of advanced
directives due to the intricacies surrounding the concept.
165
185. The Mental Capacity Act governs the law relating to
advance directives in the UK. Specific guidelines as to the
manner in which the advance directive should be drafted and
the necessary conditions that need to be fulfilled in order to
give effect to the directives have been categorically laid out in
the said piece of legislation. A few specific requirements in
case of refusal of life sustaining treatment is the verification of
the decision-maker that the refusal operates even if life is at
risk and that the directive should be in the written form and
signed and witnessed. However, an advance directive refusing
food and water has not been recognized under this statute.
Further, the Act recognizes the rights of the patient to appoint
a health care proxy who is referred to as "lasting power of
attorney". In order for the proxy decision-maker so appointed
to be competent to consent or refuse life-sustaining treatment
of the decision-maker, an express provision delegating the said
authority should be a part of the advance directive. In general,
as per the settled law vide the decision in Airedale, life
sustaining treatment including artificial nutrition and
hydration can be withdrawn if the patient consents to it and in
166
case of incompetent patients, if it is in their best interest to do
so.
186. Australia too, by way of legislation, has well established
principles governing Advance Health Directives. Except
Tasmania, all states have a provision for Advance Directives.
The Advance Directives as postulated by the different
legislations in each State in Australia differ in nature and their
binding effect but the objective of every type remains the same,
that is, preservation of the patient's autonomy. There are
several circumstances when the advance health care directives
or certain provisions contained therein become inoperative.
187. In Queensland, the directive becomes inoperative if the
medical health practitioner is of the opinion that giving effect
to the directive is inconsistent with good medical practice or in
case of a change in circumstances, including new advances in
medicine, medical practice and technology, to the extent that
giving effect to the directive is inappropriate.
188. In the State of Victoria, an advance directive ceases to
apply due to a change in the condition of the patient to the
extent that the condition in relation to which the advance
167
directive was given no longer exists. Further, South Australia
permits a medical practitioner to refuse to comply with a
certain provision in an advance directive in case he/she has
enough reason to believe that the patient did not intend the
provision to apply in certain conditions or the provision would
not reflect the present wishes of the patient. In Western
Australia, the occurrence of a change in circumstances which
either the decision maker could have never anticipated at the
time of making the directive or which could have the effect on
a reasonable person in the position of the decision maker to
change his/her mind regarding the treatment decision would
invalidate the said treatment decision in the directive. In
Northern Territory, an advance consent direction is
disregarded in case giving effect to it would result in such
unacceptable pain and suffering to the patient or would be so
unjustifiable and rather it is more reasonable to override the
wishes of the patient. Furthermore, if the medical practitioner
is of the opinion that the patient would have never intended
the advance consent direction to apply in the circumstances,
then the advance consent direction need not be complied with.
168
189. Canada does not have a federal legislation exclusively to
regulate advance directives. Rather, there are eleven different
provincial approaches governing the law on passive
euthanasia and advance directives in Canada. The provinces
of Alberta, Saskatchewan, Manitoba, Prince Edward Island,
Newfoundland and Labrador and Northwest Territories have a
provision for both proxy and instructional directives, whereas,
the States of British Columbia, Ontario, Quebec and Yukon
provide only for appointment of a proxy while simultaneously
recognizing the binding nature of previously given
instructions. The respective legislations of the
provinces/territories differ from one another on several
criteria, for instance, minimum age requirement and other
formalities to be complied with, such as written nature of the
advance directive, etc. Furthermore, some of the provinces
mandate a prior consultation with a lawyer. Wishes orally
expressed have also been recognized by some provinces.
190. Having dealt with the principles in vogue across the
globe, we may presently proceed to deal with the issue of
advance medical directive which should be ideal in our
169
country. Be it noted, though the learned counsel for the
petitioner has used the words ―living will‖, yet we do not intend
to use the said terminology. We have already stated that
safeguards and guidelines are required to be provided. First,
we shall analyse the issue of legal permissibility of the advance
medical directive. In other jurisdictions, the concepts of ―living
will‖ and involvement of Attorney are stipulated. There is no
legal framework in our country as regards the Advance
Medical Directive but we are obliged to protect the right of the
citizens as enshrined under Article 21 of the Constitution. It is
our constitutional obligation. As noticed earlier, the two-Judge
Bench in Aruna Shanbaug (supra) has provided for
approaching the High Court under Article 226 of the
Constitution. The directions and guidelines to be given in this
judgment would be comprehensive and would also cover the
situation dealt with Aruna Shanbaug case.
191. In our considered opinion, Advance Medical Directive
would serve as a fruitful means to facilitate the fructification of
the sacrosanct right to life with dignity. The said directive, we
think, will dispel many a doubt at the relevant time of need
170
during the course of treatment of the patient. That apart, it
will strengthen the mind of the treating doctors as they will be
in a position to ensure, after being satisfied, that they are
acting in a lawful manner. We may hasten to add that Advance
Medical Directive cannot operate in abstraction. There has to
be safeguards. They need to be spelt out. We enumerate them
as follows:-
(a) Who can execute the Advance Directive and how?
(i) The Advance Directive can be executed only by
an adult who is of a sound and healthy state of
mind and in a position to communicate, relate
and comprehend the purpose and consequences
of executing the document.
(ii) It must be voluntarily executed and without any
coercion or inducement or compulsion and after
having full knowledge or information.
(iii) It should have characteristics of an informed
consent given without any undue influence or
constraint.
171
(iv) It shall be in writing clearly stating as to when
medical treatment may be withdrawn or no
specific medical treatment shall be given which
will only have the effect of delaying the process
of death that may otherwise cause him/her
pain, anguish and suffering and further put
him/her in a state of indignity.
(b) What should it contain?
(i) It should clearly indicate the decision relating to
the circumstances in which withholding or
withdrawal of medical treatment can be resorted
to.
(ii) It should be in specific terms and the
instructions must be absolutely clear and
unambiguous.
(iii) It should mention that the executor may revoke
the instructions/authority at any time.
172
(iv) It should disclose that the executor has
understood the consequences of executing such
a document.
(v) It should specify the name of a guardian or close
relative who, in the event of the executor
becoming incapable of taking decision at the
relevant time, will be authorized to give consent
to refuse or withdraw medical treatment in a
manner consistent with the Advance Directive.
(vi) In the event that there is more than one valid
Advance Directive, none of which have been
revoked, the most recently signed Advance
Directive will be considered as the last
expression of the patient‘s wishes and will be
given effect to.
(c) How should it be recorded and preserved?
(i) The document should be signed by the executor
in the presence of two attesting witnesses,
preferably independent, and countersigned by
173
the jurisdictional Judicial Magistrate of First
Class (JMFC) so designated by the concerned
District Judge.
(ii) The witnesses and the jurisdictional JMFC shall
record their satisfaction that the document has
been executed voluntarily and without any
coercion or inducement or compulsion and with
full understanding of all the relevant information
and consequences.
(iii) The JMFC shall preserve one copy of the
document in his office, in addition to keeping it
in digital format.
(iv) The JMFC shall forward one copy of the
document to the Registry of the jurisdictional
District Court for being preserved. Additionally,
the Registry of the District Judge shall retain the
document in digital format.
(v) The JMFC shall cause to inform the immediate
family members of the executor, if not present at
174
the time of execution, and make them aware
about the execution of the document.
(vi) A copy shall be handed over to the competent
officer of the local Government or the Municipal
Corporation or Municipality or Panchayat, as the
case may be. The aforesaid authorities shall
nominate a competent official in that regard who
shall be the custodian of the said document.
(vii) The JMFC shall cause to handover copy of the
Advance Directive to the family physician, if any.
(d) When and by whom can it be given effect to?
(i) In the event the executor becomes terminally ill
and is undergoing prolonged medical treatment
with no hope of recovery and cure of the ailment,
the treating physician, when made aware about
the Advance Directive, shall ascertain the
genuineness and authenticity thereof from the
jurisdictional JMFC before acting upon the
same.
175
(ii) The instructions in the document must be given
due weight by the doctors. However, it should be
given effect to only after being fully satisfied that
the executor is terminally ill and is undergoing
prolonged treatment or is surviving on life
support and that the illness of the executor is
incurable or there is no hope of him/her being
cured.
(iii) If the physician treating the patient (executor of
the document) is satisfied that the instructions
given in the document need to be acted upon, he
shall inform the executor or his guardian / close
relative, as the case may be, about the nature of
illness, the availability of medical care and
consequences of alternative forms of treatment
and the consequences of remaining untreated.
He must also ensure that he believes on
reasonable grounds that the person in question
understands the information provided, has
176
cogitated over the options and has come to a
firm view that the option of withdrawal or refusal
of medical treatment is the best choice.
(iv) The physician/hospital where the executor has
been admitted for medical treatment shall then
constitute a Medical Board consisting of the
Head of the treating Department and at least
three experts from the fields of general medicine,
cardiology, neurology, nephrology, psychiatry or
oncology with experience in critical care and
with overall standing in the medical profession
of at least twenty years who, in turn, shall visit
the patient in the presence of his guardian/close
relative and form an opinion whether to certify
or not to certify carrying out the instructions of
withdrawal or refusal of further medical
treatment. This decision shall be regarded as a
preliminary opinion.
177
(v) In the event the Hospital Medical Board certifies
that the instructions contained in the Advance
Directive ought to be carried out, the
physician/hospital shall forthwith inform the
jurisdictional Collector about the proposal. The
jurisdictional Collector shall then immediately
constitute a Medical Board comprising the Chief
District Medical Officer of the concerned district
as the Chairman and three expert doctors from
the fields of general medicine, cardiology,
neurology, nephrology, psychiatry or oncology
with experience in critical care and with overall
standing in the medical profession of at least
twenty years (who were not members of the
previous Medical Board of the hospital). They
shall jointly visit the hospital where the patient
is admitted and if they concur with the initial
decision of the Medical Board of the hospital,
178
they may endorse the certificate to carry out the
instructions given in the Advance Directive.
(vi) The Board constituted by the Collector must
beforehand ascertain the wishes of the executor
if he is in a position to communicate and is
capable of understanding the consequences of
withdrawal of medical treatment. In the event
the executor is incapable of taking decision or
develops impaired decision making capacity,
then the consent of the guardian nominated by
the executor in the Advance Directive should be
obtained regarding refusal or withdrawal of
medical treatment to the executor to the extent
of and consistent with the clear instructions
given in the Advance Directive.
(vii) The Chairman of the Medical Board nominated
by the Collector, that is, the Chief District
Medical Officer, shall convey the decision of the
Board to the jurisdictional JMFC before giving
179
effect to the decision to withdraw the medical
treatment administered to the executor. The
JMFC shall visit the patient at the earliest and,
after examining all aspects, authorise the
implementation of the decision of the Board.
(viii) It will be open to the executor to revoke the
document at any stage before it is acted upon
and implemented.
(e) What if permission is refused by the Medical Board?
(i) If permission to withdraw medical treatment is
refused by the Medical Board, it would be open
to the executor of the Advance Directive or his
family members or even the treating doctor or
the hospital staff to approach the High Court by
way of writ petition under Article 226 of the
Constitution. If such application is filed before
the High Court, the Chief Justice of the said
High Court shall constitute a Division Bench to
decide upon grant of approval or to refuse the
180
same. The High Court will be free to constitute
an independent Committee consisting of three
doctors from the fields of general medicine,
cardiology, neurology, nephrology, psychiatry or
oncology with experience in critical care and
with overall standing in the medical profession
of at least twenty years.
(ii) The High Court shall hear the application
expeditiously after affording opportunity to the
State counsel. It would be open to the High
Court to constitute Medical Board in terms of its
order to examine the patient and submit report
about the feasibility of acting upon the
instructions contained in the Advance Directive.
(iii) Needless to say that the High Court shall render
its decision at the earliest as such matters
cannot brook any delay and it shall ascribe
reasons specifically keeping in mind the
principles of "best interests of the patient".
181
(f) Revocation or inapplicability of Advance Directive
(i) An individual may withdraw or alter the
Advance Directive at any time when he/she has the
capacity to do so and by following the same
procedure as provided for recording of Advance
Directive. Withdrawal or revocation of an Advance
Directive must be in writing.
(ii) An Advance Directive shall not be applicable to
the treatment in question if there are reasonable
grounds for believing that circumstances exist
which the person making the directive did not
anticipate at the time of the Advance Directive and
which would have affected his decision had he
anticipated them.
(iii) If the Advance Directive is not clear and
ambiguous, the concerned Medical Boards shall not
give effect to the same and, in that event, the
182
guidelines meant for patients without Advance
Directive shall be made applicable.
(iv) Where the Hospital Medical Board takes a
decision not to follow an Advance Directive while
treating a person, then it shall make an application
to the Medical Board constituted by the Collector for
consideration and appropriate direction on the
Advance Directive.
192. It is necessary to make it clear that there will be cases
where there is no Advance Directive. The said class of persons
cannot be alienated. In cases where there is no Advance
Directive, the procedure and safeguards are to be same as
applied to cases where Advance Directives are in existence and
in addition there to, the following procedure shall be followed:-
(i) In cases where the patient is terminally ill and
undergoing prolonged treatment in respect of ailment
which is incurable or where there is no hope of being
cured, the physician may inform the hospital which,
in turn, shall constitute a Hospital Medical Board in
183
the manner indicated earlier. The Hospital Medical
Board shall discuss with the family physician and the
family members and record the minutes of the
discussion in writing. During the discussion, the
family members shall be apprised of the pros and
cons of withdrawal or refusal of further medical
treatment to the patient and if they give consent in
writing, then the Hospital Medical Board may certify
the course of action to be taken. Their decision will be
regarded as a preliminary opinion.
(ii) In the event the Hospital Medical Board certifies the
option of withdrawal or refusal of further medical
treatment, the hospital shall immediately inform the
jurisdictional Collector. The jurisdictional Collector
shall then constitute a Medical Board comprising the
Chief District Medical Officer as the Chairman and
three experts from the fields of general medicine,
cardiology, neurology, nephrology, psychiatry or
oncology with experience in critical care and with
184
overall standing in the medical profession of at least
twenty years. The Medical Board constituted by the
Collector shall visit the hospital for physical
examination of the patient and, after studying the
medical papers, may concur with the opinion of the
Hospital Medical Board. In that event, intimation shall
be given by the Chairman of the Collector nominated
Medical Board to the JMFC and the family members
of the patient.
(iii) The JMFC shall visit the patient at the earliest and
verify the medical reports, examine the condition of
the patient, discuss with the family members of the
patient and, if satisfied in all respects, may endorse
the decision of the Collector nominated Medical Board
to withdraw or refuse further medical treatment to the
terminally ill patient.
(iv) There may be cases where the Board may not take a
decision to the effect of withdrawing medical treatment of
the patient on the Collector nominated Medical Board may
185
not concur with the opinion of the hospital Medical Board.
In such a situation, the nominee of the patient or the family
member or the treating doctor or the hospital staff can seek
permission from the High Court to withdraw life support by
way of writ petition under Article 226 of the Constitution in
which case the Chief Justice of the said High Court shall
constitute a Division Bench which shall decide to grant
approval or not. The High Court may constitute an
independent Committee to depute three doctors from the
fields of general medicine, cardiology, neurology,
nephrology, psychiatry or oncology with experience in
critical care and with overall standing in the medical
profession of at least twenty years after consulting the
competent medical practitioners. It shall also afford an
opportunity to the State counsel. The High Court in such
cases shall render its decision at the earliest since such
matters cannot brook any delay. Needless to say, the High
Court shall ascribe reasons specifically keeping in mind the
principle of "best interests of the patient"..
186
193. Having said this, we think it appropriate to cover a vital
aspect to the effect the life support is withdrawn, the same shall
also be intimated by the Magistrate to the High Court. It shall be
kept in a digital format by the Registry of the High Court apart
from keeping the hard copy which shall be destroyed after the
expiry of three years from the death of the patient.
194. Our directions with regard to the Advance Directives and
the safeguards as mentioned hereinabove shall remain in force
till the Parliament makes legislation on this subject.
Q. Conclusions in seriatim:
195. In view of the aforesaid analysis, we record our
conclusions in seriatim:-
(i) A careful and precise perusal of the judgment
in Gian Kaur (supra) case reflects the right of a
dying man to die with dignity when life is ebbing
out, and in the case of a terminally ill patient or a
person in PVS, where there is no hope of recovery,
accelerating the process of death for reducing the
187
period of suffering constitutes a right to live with
dignity.
(ii) The Constitution Bench in Gian Kaur (supra)
has not approved the decision in Airedale (supra)
inasmuch as the Court has only made a brief
reference to the Airedale case.
(iii) It is not the ratio of Gian Kaur (supra) that
passive euthanasia can be introduced only by
legislation.
(iv) The two-Judge bench in Aruna Shanbaug
(supra) has erred in holding that this Court in Gian
Kaur (supra) has approved the decision in Airedale
case and that euthanasia could be made lawful only
by legislation.
(v) There is an inherent difference between active
euthanasia and passive euthanasia as the former
entails a positive affirmative act, while the latter
relates to withdrawal of life support measures or
188
withholding of medical treatment meant for
artificially prolonging life.
(vi) In active euthanasia, a specific overt act is
done to end the patient‘s life whereas in passive
euthanasia, something is not done which is
necessary for preserving a patient's life. It is due to
this difference that most of the countries across the
world have legalised passive euthanasia either by
legislation or by judicial interpretation with certain
conditions and safeguards.
(vii) Post Aruna Shanbaug (supra), the 241st
report of the Law Commission of India on Passive
Euthanasia has also recognized passive euthanasia,
but no law has been enacted.
(viii) An inquiry into common law jurisdictions
reveals that all adults with capacity to consent have
the right of self- determination and autonomy. The
said rights pave the way for the right to refuse
189
medical treatment which has acclaimed universal
recognition. A competent person who has come of
age has the right to refuse specific treatment or all
treatment or opt for an alternative treatment, even if
such decision entails a risk of death. The
'Emergency Principle' or the 'Principle of Necessity'
has to be given effect to only when it is not
practicable to obtain the patient's consent for
treatment and his/her life is in danger. But where a
patient has already made a valid Advance Directive
which is free from reasonable doubt and specifying
that he/she does not wish to be treated, then such
directive has to be given effect to.
(ix) Right to life and liberty as envisaged under
Article 21 of the Constitution is meaningless unless
it encompasses within its sphere individual dignity.
With the passage of time, this Court has expanded
the spectrum of Article 21 to include within it the
190
right to live with dignity as component of right to life
and liberty.
(x) It has to be stated without any trace of doubt
that the right to live with dignity also includes the
smoothening of the process of dying in case of a
terminally ill patient or a person in PVS with no
hope of recovery.
(xi) A failure to legally recognize advance medical
directives may amount to non-facilitation of the
right to smoothen the dying process and the right to
live with dignity. Further, a study of the position in
other jurisdictions shows that Advance Directives
have gained lawful recognition in several
jurisdictions by way of legislation and in certain
countries through judicial pronouncements.
(xii) Though the sanctity of life has to be kept on
the high pedestal yet in cases of terminally ill
persons or PVS patients where there is no hope for
191
revival, priority shall be given to the Advance
Directive and the right of self-determination.
(xiii) In the absence of Advance Directive, the
procedure provided for the said category
hereinbefore shall be applicable.
(xiv) When passive euthanasia as a situational
palliative measure becomes applicable, the best
interest of the patient shall override the State
interest.
196. We have laid down the principles relating to the
procedure for execution of Advance Directive and provided the
guidelines to give effect to passive euthanasia in both
circumstances, namely, where there are advance directives
and where there are none, in exercise of the power under
Article 142 of the Constitution and the law stated in Vishaka
and Others v. State of Rajasthan and Others 65 . The
directive and guidelines shall remain in force till the
Parliament brings a legislation in the field.
65 (1997) 6 SCC 241
192
197. The Writ Petition is, accordingly, disposed of. There shall
be no order as to costs.
………………………….CJI
(Dipak Misra)
..…………….…………….J.
(A.M. Khanwilkar)
New Delhi;
March 09, 2018
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 215 OF 2005
COMMON CAUSE (A REGD. SOCIETY) .....PETITIONER(S)
VERSUS
UNION OF INDIA AND ANOTHER .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
Michael Kirby, a former Judge of the Australian High Court,
while discussing about the role of judiciary in the context of HIV
law1
, talks about the consciousness with which the judiciary is
supposed to perform its role. In this hue, while discussing about
the responsibility of leadership which the society imposes upon
Judges, he remarks: “Nowhere more is that responsibility tested
than when a completely new and unexpected problem presents
itself to society. All the judges’ instincts for legality, fairness and
reasonableness must then be summoned up, to help lead society
towards an informed, intelligent and just solution to the problem.”
1 ‘The Role of Judiciary and HIV Law’ – Michael Kirby, published in the book titled ‘HIV Law,
Ethics and Human Rights’, edited by D.C. Jayasuriya.
Writ Petition (Civil) No. 215 of 2005 Page 1 of 112
The problem at hand, just solution whereof is imminently needed,
is that of Euthanasia. This Court is required to summon up
instincts for legality, fairness and reasonableness in order to find
just solution to the problem. In this process, the Court is duty
bound to look into the relevant provisions of the Constitution of
India, particularly those pertaining to the fundamental rights, and
to discharge the task of expounding those basic human rights
enshrined in the Chapter relating to Fundamental Rights. The
issue of euthanasia, with the seminal importance that is attached
to it, has thrown the challenge of exposition, development and
obligation of the constitutional morality and exhorts the Court to
play its creative role so that a balanced approach to an otherwise
thorny and highly debatable subject matter is found.
2) The Courts, in dispensation of their judicial duties of deciding
cases, come across all types of problems which are brought
before them. These cases may be broadly classified into three
categories: (i) the easy cases, (ii) the intermediate cases, and (iii)
the hard cases. Professor Ronald Dworkin2
has argued that each
legal problem has one lawful solution and even in the hard cases,
the Judge is never free to choose among alternatives that are all
inside the bounds of law. This may not be entirely correct
2 Dworkin, “Judicial Discretion,” 6 J. of Phil. 624 (1963)
Writ Petition (Civil) No. 215 of 2005 Page 2 of 112
inasmuch as judicial discretion does exist. This is true, at least, in
solving ‘hard cases’
3
. It is found that meaning of certain legal
norms, when applied with respect to a given system of facts, is so
simple and clear that their application involves no judicial
discretion. These are termed as the ‘easy cases’. This may even
apply to ‘intermediate cases’. These would be those cases where
both sides appear to have a legitimate legal argument supporting
their position and a conscious act of interpretation is noted,
before a Judge can conclude which side is right in law and there
is only one lawful situation. However, when it comes to the hard
cases, the Court is faced with number of possibilities, all of which
appear to be lawful within the context of the system. In these
cases, judicial discretion exists as the choice is not between
lawful and unlawful, but between lawful and lawful. A number of
lawful solutions exist. In this scenario, the Court is supposed to
ultimately choose that solution which is in larger public interest.
In other words, there are limitations that find the Court with
respect to the manner in which it choses among possibilities
(procedural limitations) and with respect to the considerations it
takes into account in the choice (substantive limitations). Thus,
discretion when applied to a cout of justice means sound
3 See Aharon Barak: Judicial Discretion, Yale University Press.
Writ Petition (Civil) No. 215 of 2005 Page 3 of 112
discretion guided by law. It must be govered by legal rules. To
quote Justice Cardozo:
“Given freedom of choice, how shall the choice be
guided? Complete freedom – unfettered and undirected
– there never is. A thousand limitations – the product
some of statute, some of precedent, some of vague
tradition or of an immemorial technique – encompass
and hedge us even when we think of ourselves as
ranging freely and at large. The inscrutable force of
professional opinion presses upon us like the
atmosphere, though we are heedless of its weight.
Narrow at best is any freedom that is allotted to us4
3) Thus, though the judicial discretion is with the Court, the same is
limited and not absolute. The Court is not entitled to weigh any
factor as it likes. It has to act within the framework of the
limitations, and after they have been exhausted, there is a
freedom of choice which can also described as ‘sovereign
prerogative of choice’5
. Instant case falls in the category of ‘hard
cases’ and the Court has endeavoured to make a choice, after
evaluating all the pros and cons, which in its wisdom is the “just
result” of the contentious issue.
4) Adverting to the Indian precedents in the first instance, we have
before us two direct judgments of this Court which may throw
some light on the subject and demonstrate as to how this topic
has been dealt with so far. The first judgment is that of a
4 B. Cardozo: The Growth of the Law 144 (1924), at 60-61
5 Justice O. Holmes opined this expression in ‘Collected Legal Papers’ 239 (1921)
Writ Petition (Civil) No. 215 of 2005 Page 4 of 112
Constitution Bench in the case titled Gian Kaur v. State of
Punjab6
. Second case is known as Aruna Ramachandra
Shanbaug v. Union of India and Others7
, which is a Division
Bench judgment that takes note of Gian Kaur and premised
thereupon goes much farther in accepting passive euthanasia as
a facet of Article 21 of the Constitution.
5) In the instant case, while making reference to the Constitution
Bench vide its order dated February 25, 20148
, the three Judge
Bench has expressed its reservation in the manner the ratio of
the Constitution Bench in Gian Kaur is applied by the Division
Bench in Aruna Ramachandra Shanbaug. This reference order
accepts that Aruna Ramachandra Shanbaug rightly interpreted
the decision in Gian Kaur insofar as it held that euthanasia can
be allowed in India only through a valid legislation. However, the
reference order declares that Aruna Ramachandra Shanbaug
has committed a factual error in observing that in Gian Kaur the
Constitution Bench approved the decision of the House of Lords
in Airedale N.H.S. Trust v. Bland9
. As per the reference order,
Gian Kaur merely referred to the said judgment which cannot be
construed to mean that the Constitution Bench in Gian Kaur
6 (1996) 2 SCC 648
7 (2011) 4 SCC 454
8 Reported as (2014) 5 SCC 338
9 (1993) 2 WLR 316 (HL)
Writ Petition (Civil) No. 215 of 2005 Page 5 of 112
approved the opinion of the House of Lords rendered in Bland.
The reference order also accepts the position that in Gian Kaur
the Constitution Bench approved that ‘right to live with dignity’
under Article 21 of the Constitution will be inclusive of ‘right to die
with dignity’. However, it further notes that the decision does not
arrive at a conclusion for validity of euthanasia, be it active or
passive. Therefore, the only judgment that holds the field in India
is Aruna Ramachandra Shanbaug, which upholds the validity of
passive euthanasia and lays down an elaborate procedure for
executing the same on ‘the wrong premise that the Constitution
Bench in Gian Kaur had upheld the same’.
6) The aforesaid discussion contained in the reference order
prompted the reference court to refer the matter to the
Constitution Bench. No specific questions were framed for
consideration by the Constitution Bench. However, importance of
the issue has been highlighted in the reference order in the
following manner:
“17. In view of the inconsistent opinions rendered
in Aruna Shanbaug and also considering the important
question of law involved which needs to be reflected in
the light of social, legal, medical and constitutional
perspectives, it becomes extremely important to have
a clear enunciation of law. Thus, in our cogent opinion,
the question of law involved requires careful
consideration by a Constitution Bench of this Court for
the benefit of humanity as a whole.
Writ Petition (Civil) No. 215 of 2005 Page 6 of 112
18. We refrain from framing any specific questions for
consideration by the Constitution Bench as we invite
the Constitution Bench to go into all the aspects of the
matter and lay down exhaustive guidelines in this
regard. Accordingly, we refer this matter to a
Constitution Bench of this Court for an authoritative
opinion.”
7) I have given a glimpse of the narratives for the simple reason that
the Hon’ble the Chief Justice, in his elaborate opinion, has
already discussed this aspect in detail. Likewise, it can be found
in the separate judgments authored by my esteemed brethren –
Chandrachud, J. and Bhushan, J. Those judgments discuss in
detail the law laid down in Gian Kaur as well as Aruna
Ramachandra Shanbaug, including critique thereof. To avoid
repetition, I have eschewed that part of discussion. For the same
reason, I have also not ventured to discuss the law in some other
countries and historic judgments rendered by the courts of foreign
jurisdiction, as this aspect is also taken care of by them.
However, my analysis of the above two judgments is limited to the
extent it is necessitated for maintaining continuum and clarity of
thought.
8) At the outset, I say that I am in complete agreement with the
conclusion and also the directions given therein in the judgment
of the Hon’ble the Chief Justice and also with the opinions and
Writ Petition (Civil) No. 215 of 2005 Page 7 of 112
reasoning of my other two learned brothers. My purpose is not to
add my ink to the erudite opinion expressed in otherwise eloquent
opinions penned by my learned brothers. At the same time,
having regard to the importance of the issue involved, I am
provoked to express my own few thoughts, in my own way, which
I express hereinafter.
9) In the writ petition filed by the petitioner – Common Cause, it has
made the following prayers:
“a) declare ‘right to die with dignity’ as a fundamental
right within the fold of Right to Live with dignity
guaranteed under Article 21 of the Constitution of
India;
b) issue direction to the Respondent, to adopt suitable
procedures, in consultation with State Governments
where necessary, to ensure that persons of
deteriorated health or terminally ill should be able to
execute a document titled “MY LIVING WILL &
ATTORNEY AUTHORISATION” which can be
presented to hospital for appropriate action in event of
the executant being admitted to the hospital with
serious illness which may threaten termination of life
of the executants or in the alternative, issue
appropriate guidelines to this effect;
c) appoint an expert committee of experts including
doctors, social scientists and lawyers to study into the
aspect of issuing guidelines as to the Living Wills;
d) pass such other and further order/s as this Hon’ble
Court may deem fit and proper on the facts and in the
circumstances of the case.”
10) Having regard to the aforesaid prayers, the reference order and
the arguments which were addressed by Mr. Prashant Bhushan,
Writ Petition (Civil) No. 215 of 2005 Page 8 of 112
learned counsel who appeared for the petitioner, and Mr. Arvind
Datar, learned senior counsel who made elaborate submissions
on behalf of the interveners – Vidhi Centre for Legal Policy, and
Mr. R.R. Kishore, Advocate, who gave an altogether new
dimension to the seminal issue, I find that following
issues/questions of law of relevance need to be discussed:
(i) Whether the Right to Live under Article 21 of the
Constitution includes the Right to Die? {Now that attempt to
commit suicide is not a punishable offence under Section
309 of the Indian Penal Code, 1860 (for short, ‘IPC’) vide
Section 115 of the Mental Healthcare Act, 2017 (Act No. 10
of 2017)}
(ii) Whether the ‘right to die with dignity’ as a fundamental right
falls within the folds of the ‘right to live with dignity’ under
Article 21 of the Constitution?
(iii) Whether the observations in Aruna Ramachandra
Shanbaug that the Constitution Bench in Gian Kaur
permitted passive euthanasia stand correct?
(iv) Whether there exists inconsistency in the observations in
Aruna Ramachandra Shanbaug with regard to what has
been held in Gian Kaur?
(v) Whether mere reference to verdict in a judgment can be
Writ Petition (Civil) No. 215 of 2005 Page 9 of 112
construed to mean that the verdict is approved? {with
respect to Article 141 – What is binding?; whether the
Constitution Bench in Gian Kaur approved the decision of
the House of Lords in Bland?}
(vi) Whether the law on passive euthanasia, as held valid in
Aruna Ramachandra Shanbaug, holds true in the present
times as well? {The Treatment of Terminally-ill Patients Bill,
2016 is based on the aforementioned judgment}
(vii) Whether active euthanasia is legal in India?
(viii) Whether assisted suicide/physician administered suicide is
legal in India? {The 2016 bill in the current form, under
Clause 5(3) permits for physician assisted suicide}
(ix) Whether there exists a right to a Living Will/Advance
Directives? Whether there exists the fundamental right to
choose one’s own medical treatment? {With Right to
Privacy now a fundamental right under Article 21, the
principle of self-determination in India stands on a higher
footing than before}
(x) Definition of ‘Terminal Illness’.
11) It is not necessary for me to answer all the aforesaid questions. I
say so for the reason that all these aspects are dealt with by the
Writ Petition (Civil) No. 215 of 2005 Page 10 of 112
Hon’ble the Chief Justice in his opinion. Therefore, in this
‘addendum’, I would be focusing myself to the core issues.
EUTHANASIA DEFINED
12) The Oxford English Dictionary defines ‘euthanasia’ as ‘the
painless killing of a patient suffering from an incurable and painful
disease or in an irreversible coma’. The word appears to have
come into usage in the early 17th century and was used in the
sense of ‘easy death’. The term is derived from the Greek
‘euthanatos’, with ‘eu’ meaning well, and ‘thanatos’ meaning
death. In ancient Greece and Rome, citizens were entitled to a
good death to end the suffering of a terminal illness. To that end,
the City Magistrates of Athens kept a supply of poison to help the
dying ‘drink the hemlock’10
.
13) The above Greek definition of euthanasia apart, it is a loaded
term. People have been grappling with it for ages. Devised for
service in a rhetoric of persuasion, the term ‘euthanasia’ has no
generally accepted and philosophically warranted core meaning.
It is also defined as: killing at the request of the person killed.
That is how the Dutch medical personnel and civil authorities
define euthanasia. In Nazi discourse, euthanasia was any killing
carried out by medical means or medically qualified personnel,
10 Michael Manning, Euthanasia and Physician-Assisted Suicide (Paulist Press, 1998).
Writ Petition (Civil) No. 215 of 2005 Page 11 of 112
whether intended for the termination of suffering and/or of the
burden or indignity of a life not worth living (Lebensunwertes
Leben), or for some more evidently public benefit such as
eugenics (racial purity and hygiene), Lebensraum (living space
for Germans), and/or minimizing the waste of resources on
‘useless mouths’. Understandably, in today’s modern
democracies these Nazi ideas and practices cannot be
countenanced. Racist eugenics are condemned, though one
comes across discreet allusions to the burden and futility of
sustaining the severely mentally handicapped. The popular
conception which is widely accepted is that some sorts of life are
not worth living; life in such a state demeans the patient’s dignity,
and maintaining it (otherwise than at the patient’s express
request) insults that dignity; proper respect for the patient and the
patient’s best interests requires that that life be brought to an end.
In this thought process, the basic Greek ideology that it signifies
‘an easy and gentle death’ still remains valid. Recognition is to
the Human Rights principle that ‘right to life’ encompasses ‘right
to die with dignity’.
14) In common parlance, euthanasia can be of three types, namely,
‘voluntary euthanasia’ which means killing at the request of a
Writ Petition (Civil) No. 215 of 2005 Page 12 of 112
person killed which is to be distinguished from ‘non-voluntary
euthanasia’, where the person killed is not capable of either
making or refusing to make such a request. Second type of
euthanasia would be involuntary euthanasia where the person
killed is capable of making such a request but has not done so11
.
These terms can be described as under:
(i) Voluntary Euthanasia: People concerned to legalize the
termination of life on medical grounds have always concentrated
on Voluntary Euthanasia (this implies that the patient specifically
requests that his life be ended.) It is generally agreed that the
request must come from someone who is either; (a) in intolerable
pain or (b) who is suffering from an illness which is agreed as
being terminal. It may be prior to the development of the illness
in question or during its course. In either case it must not result
from any pressure from relatives or those who have the patients
in their care. Both active and passive euthanasia can be termed
as forms of voluntary euthanasia.
(ii) Non-Voluntary Euthanasia: Seen by some as sub-variety of
voluntary euthanasia. This involves the death, ostensibly for his
own good, of someone who cannot express any views on the
matter and who must, therefore, use some sort of proxy request
11 These definitions of voluntary, non-voluntary and involuntary euthanasia correspond to those
employed by the House of Lords Select Committee on Medical Ethics (Walton Committee)
Writ Petition (Civil) No. 215 of 2005 Page 13 of 112
that his/her life be ended. This form of Euthanasia is that which
most intimately concerns the medical profession. Selective nontreatment
of the new-born or the doctor may be presented with
demented and otherwise senilely incompetent patients. In
practice, non-voluntary euthanasia presents only as an arguable
alternative to non treatment.
(iii) Involuntary Euthanasia: It involves ending the patient’s life
in the absence of either a personal or proxy invitation to do so.
The motive ‘The relief of suffering’ may be the same as voluntary
euthanasia-but its only justification - “a paternalistic decision as to
what is best for the victim of the disease.” In extreme cases it
could be against the patient’s wishes or could be just for social
convenience. It is examples of the latter which serve as warnings
as to those who would invest the medical professional with more
or unfettered powers over life and death12
.
15) Contrary to the above, in legal parlance, euthanasia has since
come to be recognised as of two distinct types: the first is active
euthanasia, where death is caused by the administration of a
lethal injection or drugs. Active euthanasia also includes
physician-assisted suicide, where the injection or drugs are
supplied by the physician, but the act of administration is
12 See Euthanasia and Its Legality and Legitimacy from Indian and International Human Right
Instruments Perspectives published in Human Rights & Social Justice by Muzafer Assadi
Writ Petition (Civil) No. 215 of 2005 Page 14 of 112
undertaken by the patient himself. Active euthanasia is not
permissible in most countries. The jurisdictions in which it is
permissible are Canada, the Netherlands, Switzerland and the
States of Colorado, Vermont, Montana, California, Oregon and
Washington DC in the United States of America. Passive
euthanasia occurs when medical practitioners do not provide lifesustaining
treatment (i.e. treatment necessary to keep a patient
alive) or remove patients from life sustaining treatment. This
could include disconnecting life support machines or feeding
tubes or not carrying out life saving operations or providing life
extending drugs. In such cases, the omission by the medical
practitioner is not treated as the cause of death; instead, the
patient is understood to have died because of his underlying
condition.
16) In Aruna Ramachandra Shanbaug, the Court recognised these
two types of euthanasia i.e. active and passive. It also noted that
active euthanasia is impermissible, which was so held by the
Constitution Bench in Gian Kaur. Therefore, without going into
further debate on differential that is assigned to the term
euthanasia, ethically, philosophically, medically etc., we would be
confining ourselves to the aforesaid legal meaning assigned to
Writ Petition (Civil) No. 215 of 2005 Page 15 of 112
active and passive euthanasia. Thus, insofar as active
euthanasia is concerned, this has to be treated as legally
impermissible, at least for the time being. It is more so, as there
is absence of any statutory law permitting active euthanasia. If at
all, legal provisions in the form of Sections 306 and 307 IPC etc.
point towards its criminality. The discussion henceforth,
therefore, would confine to passive euthanasia.
PASSIVE EUTHANASIA AND ARUNA RAMACHANDRA SHANBAUG
17) In Aruna Ramachandra Shanbaug, a two Judges’ Bench of this
Court discussed in much greater detail various nuances of
euthanasia by referring to active and passive euthanasia as well
as voluntary and involuntary euthanasia; legality and
permissibility thereof; relationship of euthanasia vis-a-vis offences
concerned under the IPC and doctor assisted death; etc.
18) The Court also took note of legislations in some countries relating
to euthanasia or physician assisted death. Thereafter, it
discussed in detail the judgment in Bland wherein the House of
Lords had permitted the patient to die. Ratio of Bland was culled
out in the following manner:
“Airedale (1993) decided by the House of Lords has
been followed in a number of cases in UK, and the law
is now fairly well settled that in the case of
incompetent patients, if the doctors act on the basis of
Writ Petition (Civil) No. 215 of 2005 Page 16 of 112
informed medical opinion, and withdraw the artificial
life support system if it is in the patient’s best interest,
the said act cannot be regarded as a crime.”
19) The Court was of the opinion that this should be permitted when
the patient is in a Persistent Vegitative State (PVS) and held that
it is ultimately for the Court to decide, as parens patriae, as to
what is in the best interest of the patient. The wishes of the close
relatives and next friends and opinion of the medical practitioners
should be given due weight by the Court in coming to its decision.
The Court then noted the position of euthanasia with reference to
Section 306 (abetment of suicide) and Section 309 (attempt to
commit suicide) of the IPC, inasmuch as, even allowing passive
euthanasia may come in conflict with the aforesaid provisions
which make such an act a crime. While making a passing
observation that Section 309 should be deleted by the Parliament
as it has become anachronistic, the Court went into the vexed
question as to who can decide whether life support should be
discontinued in the case of an incompetent person, e.g. a person
in coma or PVS. The Court pointed out that it was a vexed
question, both because of its likely misuse and also because of
advancement in medical science. It noted:
“104. It may be noted that in Gian Kaur case although
the Supreme Court has quoted with approval the view
of the House of Lords in Airedale case, it has not
Writ Petition (Civil) No. 215 of 2005 Page 17 of 112
clarified who can decide whether life support should
be discontinued in the case of an incompetent person
e.g. a person in coma or PVS. This vexed question
has been arising often in India because there are a
large number of cases where persons go into coma
(due to an accident or some other reason) or for some
other reason are unable to give consent, and then the
question arises as to who should give consent for
withdrawal of life support. This is an extremely
important question in India because of the unfortunate
low level of ethical standards to which our society has
descended, its raw and widespread
commercialisation, and the rampant corruption, and
hence, the Court has to be very cautious that
unscrupulous persons who wish to inherit the property
of someone may not get him eliminated by some
crooked method.
105. Also, since medical science is advancing fast,
doctors must not declare a patient to be a hopeless
case unless there appears to be no reasonable
possibility of any improvement by some newly
discovered medical method in the near future. In this
connection we may refer to a recent news item which
we have come across on the internet of an Arkansas
man Terry Wallis, who was 19 years of age and newly
married with a baby daughter when in 1984 his truck
plunged through a guard rail, falling 25 feet. He went
into coma in the crash in 1984, but after 24 years he
has regained consciousness. This was perhaps
because his brain spontaneously rewired itself by
growing tiny new nerve connections to replace the
ones sheared apart in the car crash. Probably the
nerve fibres from Terry Wallis' cells were severed but
the cells themselves remained intact, unlike Terri
Schiavo, whose brain cells had died (see Terri
Schiavo case on Google). However, we make it clear
that it is experts like medical practitioners who can
decide whether there is any reasonable possibility of a
new medical discovery which could enable such a
patient to revive in the near future.”
20) It held that passive euthanasia would be permissible when a
person is ‘dead’ in clinical sense. It chose to adopt the standard
Writ Petition (Civil) No. 215 of 2005 Page 18 of 112
of ‘brain death’, i.e. when there is an ‘irreversible cessation of all
functions of the entire brain, including the brain stem’. The Court
took note of President’s Committee on Bioethics in the United
States of America which had come up with a new definition of
‘brain death’ in the year 2008, according to which a person was
considered to be braindead when he could no longer perform the
fundamental human work of an organism. Three such situations
contemplated in that definition are the following:
“(1) openness to the world, that is receptivity to stimuli
and signals from the surrounding environment,
(2) the ability to act upon the world to obtain
selectively what it needs, and
(3) the basic felt need that drives the organism to
act ... to obtain what it needs.”
21) The Court held that when the aforesaid situation is reached, a
person can be presumed to be dead. In paragraph 115 of the
judgment, the position is summed up as under:
“When this situation is reached, it is possible to
assume that the person is dead, even though he or
she, through mechanical stimulation, may be able
to breathe, his or her heart might be able to beat,
and he or she may be able to take some form of
nourishment. It is important, thus, that it be
medically proved that a situation where any human
functioning would be impossible should have been
reached for there to be a declaration of brain death
—situations where a person is in a persistent
vegetative state but can support breathing, cardiac
functions, and digestion without any mechanical aid
are necessarily those that will not come within the
ambit of brain death.”
Writ Petition (Civil) No. 215 of 2005 Page 19 of 112
22) The Court clarified that brain death was not the same as PVS
inasmuch as in PVS the brain stem continues to work and so
some degree of reactions may occur, though the possibility of
regaining consciousness is relatively remote.
23) The Court further opined that position in the case of euthanasia
would be slightly different and pointed out that the two
circumstances in which it would be fair to disallow resuscitation of
a person who is incapable of expressing his or her consent to the
termination of his or her life. These are:
“(a) When a person is only kept alive mechanically
i.e. when not only consciousness is lost, but the
person is only able to sustain involuntary
functioning through advanced medical technology—
such as the use of heart-lung machines, medical
ventilators, etc.
(b) When there is no plausible possibility of the
person ever being able to come out of this stage.
Medical “miracles” are not unknown, but if a person
has been at a stage where his life is only sustained
through medical technology, and there has been no
significant alteration in the person's condition for a
long period of time—at least a few years—then
there can be a fair case made out for passive
euthanasia.”
24) Taking a clue from the judgment in Vishaka and Others v. State
of Rajasthan and Others13, the Court laid down the law, while
allowing passive euthanasia, i.e. the circumstances when there
13 (1997) 6 SCC 241
Writ Petition (Civil) No. 215 of 2005 Page 20 of 112
could be withdrawal of life support of a patient in PVS. This is
stated in paragraph 124 of the judgment, which we reproduce
below:
“124. There is no statutory provision in our country as
to the legal procedure for withdrawing life support to a
person in PVS or who is otherwise incompetent to
take a decision in this connection. We agree with Mr
Andhyarujina that passive euthanasia should be
permitted in our country in certain situations, and we
disagree with the learned Attorney General that it
should never be permitted. Hence, following the
technique used in Vishaka case [Vishaka v. State of
Rajasthan, we are laying down the law in this
connection which will continue to be the law until
Parliament makes a law on the subject:
(i) A decision has to be taken to discontinue life
support either by the parents or the spouse or other
close relatives, or in the absence of any of them, such
a decision can be taken even by a person or a body of
persons acting as a next friend. It can also be taken by
the doctors attending the patient. However, the
decision should be taken bona fide in the best interest
of the patient.
In the present case, we have already noted that Aruna
Shanbaug's parents are dead and other close relatives
are not interested in her ever since she had the
unfortunate assault on her. As already noted above, it
is the KEM Hospital staff, who have been amazingly
caring for her day and night for so many long years,
who really are her next friends, and not Ms Pinki Virani
who has only visited her on few occasions and written
a book on her. Hence it is for the KEM Hospital staff to
take that decision. KEM Hospital staff have clearly
expressed their wish that Aruna Shanbaug should be
allowed to live.
Mr Pallav Shishodia, learned Senior Counsel,
appearing for the Dean, KEM Hospital, Mumbai,
submitted that Ms Pinki Virani has no locus standi in
this case. In our opinion it is not necessary for us to go
into this question since we are of the opinion that it is
Writ Petition (Civil) No. 215 of 2005 Page 21 of 112
the KEM Hospital staff who is really the next friend of
Aruna Shanbaug.
We do not mean to decry or disparage what Ms Pinki
Virani has done. Rather, we wish to express our
appreciation of the splendid social spirit she has
shown. We have seen on the internet that she has
been espousing many social causes, and we hold her
in high esteem. All that we wish to say is that however
much her interest in Aruna Shanbaug may be it cannot
match the involvement of the KEM Hospital staff who
have been taking care of Aruna day and night for 38
years.
However, assuming that the KEM Hospital staff at
some future time changes its mind, in our opinion in
such a situation KEM Hospital would have to apply to
the Bombay High Court for approval of the decision to
withdraw life support.
(ii) Hence, even if a decision is taken by the near
relatives or doctors or next friend to withdraw life
support, such a decision requires approval from the
High Court concerned as laid down in Airedale case.
In our opinion, this is even more necessary in our
country as we cannot rule out the possibility of
mischief being done by relatives or others for
inheriting the property of the patient.”
25) It can be discerned from the reading of the said judgment that
court was concerned with the question as to whether one can
seek right to die? This question has been dealt with in the context
of Article 21 of the Constitution, namely, whether this provision
gives any such right. As is well-known, Article 21 gives ‘right to
life’ and it is guaranteed to all the citizens of India. The question
was as to whether ‘right to die’ is also an integral part of ‘right to
Writ Petition (Civil) No. 215 of 2005 Page 22 of 112
life’. In Gian Kaur this ‘right to die’ had not been accepted as an
integral part of ‘right to life’. The Court in Aruna Ramachandra
Shanbaug maintained this position insofar as an active
euthanasia is concerned. However, passive euthanasia, under
certain circumstances, has been accepted.
26) It may be pertinent to mention that the petitioner (Aruna) in the
said case was working as a nurse in the King Edward Memorial
Hospital (KEM), Parel, Mumbai. The tragic incident happened on
the evening of 27th November, 1973. Aruna was attacked by a
sweeper in the hospital who wrapped a dog chain around her
neck and yanked her back with it. He tried to rape her but on
finding that she was menstruating, he sodomized her. To
immobilize her during this act, he twisted the chain around her
neck. She was found unconscious by one cleaner on the next
day. Her body was on the floor and blood was all over the floor.
The incident did not allow oxygen to reach her brain as a result of
which her brain got damaged.
27) The petition was filed by Ms. Pinki Virani as next friend of Aruna
Shanbaug. According to facts of the case, Aruna has been
surviving on mashed food as she was not able to chew or taste
any food and she could not move her hands or legs. It is alleged
Writ Petition (Civil) No. 215 of 2005 Page 23 of 112
that there is not the slightest possibility of any improvement in her
condition and her body lies on the bed in the KEM Hospital like a
dead animal, and this has been the position for the last 36 years.
The prayer of the petitioner was that the respondents be directed
to stop feeding Aruna, and let her die peacefully.
28) The court appointed a team of three eminent and qualified
doctors to investigate and report on the medical condition of
Aruna. The team included, Dr. J.V. Divatia14, Dr. Roop
Gursahani15 and Dr. Nilesh Shah16. The team of doctors studied
her medical history and observed that Aruna would get
uncomfortable if the room in which she was located was over
crowded, she was calm when fewer people were around her. In
fact, the hospital staff had taken care and was willing to continue
to do so. Moreover, Aruna’s body language did not suggest that
she wants to die. Therefore, the doctors opined that there is no
need for euthanasia in the instant case.
29) Reliance was placed on the landmark judgment of the House of
Lords in Bland, where for the first time in the English history, the
right to die was allowed through the withdrawal of life support
14 Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial
Hospital, Mumbai.
15 Consultant Neurologist at P.D. Hinduja, Mumbai.
16 Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation
Medical College and General Hospital.
Writ Petition (Civil) No. 215 of 2005 Page 24 of 112
systems including food and water. This case placed the authority
to decide whether a case is fit or not for euthanasia in the hands
of the court. In this case, Aruna did not have the capacity to
consent for the proposed medical process. Therefore, the next
big question that was to be answered was who should decide on
her behalf.
30) Since, there was no relative traced directly, nor did she have any
frequent visitor who could relate to her, it was extremely crucial
for the court to declare who should decide on her behalf. As there
was lack of acquaintance, it was decided by beneficence.
Beneficence is acting in the interest that is best for the patient,
and is not influenced by personal convictions, motives or other
considerations. Public interest and the interests of the state were
also considered in the said matter.
31) On the aforesaid principle of beneficence and studying the
position in some other countries, the court in its judgment said,
the right to take decision on behalf of Aruna was vested with the
hospital and its management and not Ms. Pinki. The court also
said that allowing euthanasia would mean reversing the efforts of
the hospital and its staff. In order to ensure that there is no
misuse of this technique, the Supreme Court has vested the
Writ Petition (Civil) No. 215 of 2005 Page 25 of 112
power with the High Court to decide if life is to be terminated or
not.
32) Thus, the Supreme Court allowed passive euthanasia in certain
conditions, subject to the approval by the High Court following the
due procedure. It held that when an application for passive
euthanasia 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. 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.
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
committee to them as soon as it is available. After hearing them,
the High Court Bench should give its verdict. The above
procedure should be followed all over India until Parliament
makes legislation on this subject. I am not carrying out the
critique of this judgment at this stage and the manner in which it
has been analysed by those who are the proponents of passive
euthanasia and those who are against it. It is, more so, when my
Writ Petition (Civil) No. 215 of 2005 Page 26 of 112
Brother, Chandrachud, J., has dealt with this aspect in detail in
his discourse. In any case, as noted above, in view of the
reference order dated February 25, 2014, the validity of this
aspect has to be examined, which exercise is undertaken by me
at an appropriate stage.
EUTHANASIA: A COMPLEX CONCEPT
33) As discussed hereinafter, issue of euthanasia is a complexed and
complicated issue over which there have been heated debates,
not only within the confines of courts, but also among elites,
intelligentsia and academicians alike. Some of these
complexities may be captured at this stage itself.
34) The legal regime webbed by various judgments rendered by this
Court would reflect that the Indian position on the subject is
somewhat complex and even complicated to certain extend. First,
let us touch the topic from the constitutional angle.
35) Article 21 of the Constitution mandates that no person shall be
deprived of his life or personal liberty, except according to the
procedure established by law. This Article has been interpreted
by the Court in most expansive terms, particularly when it comes
to the meaning that is assigned to ‘right to life’. It is not
necessary to take stock of various faces of right to life defined by
Writ Petition (Civil) No. 215 of 2005 Page 27 of 112
this Court. What is important for our purpose is to point out that
right to life has been treated as more than ‘mere animal
existence’. In Kharak Singh v. State of U.P. & Ors.17 it was held
that the word ‘life’ in Article 21 means right to live with human
dignity and it does not merely connote continued drudgery. It
takes within its fold “some of the finer graces of human
civilisation, which makes life worth living” and that the expanded
concept of life would mean the “tradition, culture and heritage” of
the concerned person. This concept has been reiterated and
reinforced, time and again, in a series of judgments. It may not
be necessary to refer to those judgments. Suffice is to mention
that a nine Judge Constitution Bench of this Court in K.S.
Puttaswamy and Another v. Union of India and Others18 has
taken stock of all important judgments which have echoed the
message enshrined in Kharak Singh’s case. We may, however,
point out that in the case of C.E.S.E. Limited and Others v.
Subhash Chandra Bose and Others19, Justice K. Ramaswamy
observed that physical and mental health have to be treated as
integral part of right to life, because without good health the civil
and political rights assured by our Constitution cannot be
17
(1964) 1 SCR 332
18 (2017) 10 SCC 1
19 (1992) 1 SCC 441
Writ Petition (Civil) No. 215 of 2005 Page 28 of 112
enjoyed. Though Justice Ramaswamy rendered minority opinion
in that case, on the aforesaid aspect, majority opinion was not
contrary to the views expressed by Justice Ramaswamy. Thus,
Article 21 recognizes right to live with human dignity20
.
36) The question that arises at this juncture is as to whether right to
life enshrined in Article 21 of the Constitution includes right to die.
If such a right is recognised, that would provide immediate
answer to the issue involved, which is pertaining to voluntary or
passive euthanasia. However, the judgments of this Court, as
discussed hereinafter, would demonstrate that no straightforward
answer is discernible and, as observed above, the position
regarding euthanasia is somewhat complex in the process.
37) It would be interesting to point out that in Rustom Cavasjee
Cooper v. Union of India21 the Court held that what is true of one
fundamental right is also true of another fundamental right. This
Court also made a specific observation that there cannot be
serious dispute about the proposition that fundamental rights
have their positive as well as negative aspect. For example,
freedom of speech and expression includes freedom not to
speak. Likewise, freedom of association and movement includes
20 Aspects of human dignity as right to life in the context of euthanasia shall be discussed in
greater detail at the relevant stage.
21 (1970) 1 SCC 248
Writ Petition (Civil) No. 215 of 2005 Page 29 of 112
freedom not to join any association or move anywhere. Freedom
of business includes freedom not to do any business. In this
context, can it be said that right to life includes right to die or right
to terminate ones own life? The Constitution Bench in Gian
Kaur, however, has taken a view that right to live will not include
right not to live.
38) We have already pointed out that Section 306 of the IPC makes
abetment to suicide as a punishable offence. Likewise, Section
309 IPC makes attempt to commit suicide as a punishable
offence. Intention to commit suicide is an essential ingredient in
order to constitute an offence under this provision. Thus, this
provision specifically prohibits a person from terminating his life
and negates right to die. Constitutional validity of this provision,
on the touchstone of Article 21, was the subject matter of Gian
Kaur’s case22. The Court held Sections 306 and 309 IPC to be
constitutionally valid. While so holding, the Court observed that
when a man commits suicide, he has to undertake certain
22 It may be noted that the Delhi High Court in State v. Sanjay Kumar, (1985) Crl.L.J. 931, and the
Bombay High Court in Maruti Sharipati Dubai v. State of Maharashtra, (1987) Crl.L.J. 743, had
taken the view that Section 309 of IPC was unconstitutional, being violative of Articles 14 and 21
of the Constitution. On the other hand, the Andhra Pradesh High Court in C. Jagadeeswar v.
State of Andhra Pradesh, (1983) Crl.L.J. 549, had upheld the validity of Section 309 holding that
it did not offend either Article 14 or Article 21 of the Constitution. A Division Bench of this Court
in R. Rathinam v. Union of India and Another, (1994) 3 SCC 394, had held that Section 309 IPC
deserves to be effaced from the statute book to humanise our penal laws, terming this provision
as cruel and irrational, which results in punishing a person again who had already suffered
agony and would be undergoing ignominy because of his failure to commit suicide. It is in this
backdrop Gian Kaur’s case was referred to and decided by the Constitution Bench.
Writ Petition (Civil) No. 215 of 2005 Page 30 of 112
positive overt acts and the genesis of those acts cannot be traced
to, or be included within the protection of the ‘right to life’ under
Article 21. The significant aspect of ‘sanctity of life’ is also not to
be overlooked. Article 21 is a provision guaranteeing protection
of life and personal liberty and by no stretch of imagination can
‘extinction of life’ be read to be included in ‘protection of life’.
Whatever may be the philosophy of permitting a person to
extinguish his life by committing suicide, the Court found it difficult
to construe Article 21 to include within it the ‘right to die’ as a part
of the fundamental right guaranteed therein. ‘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 legal position which stands as of today is that
right to life does not include right to die. It is in this background
we have to determine the legality of passive euthanasia.
39) Matter gets further complicated when it is examined in the context
of morality of medical science (Hippocratic Oath). Every doctor is
supposed to take specific oath that he will make every attempt to
safe the life of the patient whom he/she is treating and who is
under his/her treatment. The Hippocratic Oath goes on to say:
“I swear by Apollo the Healer, by Asclepius, by
Writ Petition (Civil) No. 215 of 2005 Page 31 of 112
Hygieia, by Panacea, and by all the gods and
goddesses, making them my witnesses, that I will
carry out, according to my ability and judgment,
this oath and this indenture.
To hold my teacher in this art equal to my own parents;
to make him partner in my livelihood; when he is in need
of money to share mine with him; to consider his family
as my own brothers, and to teach them this art, if they
want to learn it, without fee or indenture; to impart
precept, oral instruction, and all other instruction to my
own sons, the sons of my teacher, and to indentured
pupils who have taken the physician’s oath, but to
nobody else.
I will use treatment to help the sick according to my
ability and judgment, but never with a view to injury and
wrong-doing. Neither will I administer a poison to
anybody when asked to do so, nor will I suggest such a
course. Similarly I will not give to a woman a pessary to
cause abortion. But I will keep pure and holy both my life
and my art. I will not use the knife, not even, verily, on
sufferers from stone, but I will give place to such as are
craftsmen therein.
Into whatsoever houses I enter, I will enter to help the
sick, and I will abstain from all intentional wrong-doing
and harm, especially from abusing the bodies of man or
woman, bond or free. And whatsoever I shall see or hear
in the course of my profession, as well as outside my
profession in my intercourse with men, if it be what
should not be published abroad, I will never divulge,
holding such things to be holy secrets.
Now if I carry out this oath, and break it not, may I gain
for ever reputation among all men for my life and for my
art; but if I break it and forswear myself, may the
opposite befall me.”
40) This oath, thus, puts a moral and professional duty upon a doctor
to do everything possible, till the last attempt, to save the life of a
patient. If that is so, would it not be against medical ethics to let a
person die by withdrawing medical aid or, even for that matter, life
Writ Petition (Civil) No. 215 of 2005 Page 32 of 112
supporting instruments. Paradoxically, advancement in medical
science has compounded the issue further. There has been a
significant advancement in medical science. Medical scientists
have been, relentlessly and continuously, experimenting and
researching to find out better tools for not only curing the disease
with which human beings suffer from time to time, noble attempt
is to ensure that human life is prolonged and in the process of
enhancing the expectancy of life, ailments and sufferings
therefrom are reduced to the minimal. There is, thus, a fervent
attempt to impress the quality of life. It is this very advancement
in the medical science which creates dilemma at that juncture
when, in common perception, life of a person has virtually
become unlivable but the medical doctors, bound by their
Hippocratic Oath, want to still spare efforts in the hope that there
may still be a chance, even if it is very remote, to bring even such
a person back to life. The issue, therefore, gets compounded
having counter forces of medical science, morality and ethical
values, the very concept of life from philosophical angle. In this
entire process, as indicated in the beginning and demonstrated in
detail at the appropriate stage, the vexed question is to be
ultimately decided taking into consideration the normative law,
and in particular, the constitutional values.
Writ Petition (Civil) No. 215 of 2005 Page 33 of 112
41) Then, there is also a possibility of misuse and it becomes a
challenging task to ensure that passive euthanasia does not
become a tool of corruption and a convenient mode to ease out
the life of a person who is considered inconvenient. This aspect
would be touched upon at some length at the appropriate stage.
This point is highlighted at this juncture just to demonstrate the
complexity of the issue.
42) I may add that the issue is not purely a legal one. It has moral
and philosophical overtones. It has even religious overtones. As
Professor Upendra Baxi rightly remarks that judges are, in fact,
not jurisprudes. At the same time, it is increasingly becoming
important that some jurisprudential discussion ensues while
deciding those cases which have such more and philosophical
overtones as well. Such an analyses provides not only legal
basis for the conclusions arrived at but it also provides logical
commonsense justification as well. Obviously, whenever the
court is entering into a new territory and is developing a new legal
norm, discussion on normative jurisprudence assumes greater
significance as the court is called upon to decide what the legal
norm should be. At the same time, this normative jurisprudence
discourse has to be preceded by analytical jurisprudence, which
Writ Petition (Civil) No. 215 of 2005 Page 34 of 112
is necessary for the court to underline existing nature of law.
That would facilitate knowing legal framework of what is the
current scenario and, in turn, help in finding the correct answers.
When we discuss about the philosophical aspects of the subject
matter, it is the ‘value of life’ which becomes the foremost focus of
discussion. The discussion which follows hereinafter keeps in
mind these parameters.
THE TWO ISSUES
43) As already stated above, as of now insofar ‘active euthanasia’ is
concerned, it is legally impermissible. Our discussion centres
around ‘passive euthanasia’. Another aspect which needs to be
mentioned at this stage is that in the present petition filed by the
petitioner, the petitioner wants that ‘advance directive’ or ‘living
will’ should be legally recognised. In this backdrop, two important
questions arise for considerations, viz.,
(I) whether passive euthanasia, voluntary or even, in certain
circumstances, involuntary, is legally permissible? If so
under what circumstances (this question squarely calls for
answer having regards to the reference order made in the
instant petition)? and
(II) whether a ‘living will’ or ‘advance directive’ should be legally
Writ Petition (Civil) No. 215 of 2005 Page 35 of 112
recognised and can be enforced? If so, under what
circumstances and what precautions are required while
permitting it?
44) Answers to these questions have been provided in the judgment
of Hon’ble The Chief Justice, with excellent discourse on all
relevant aspects in an inimitable and poetic style. I entirely agree
with the reasoning and outcome. In fact, with the same fervour
and conclusion, separate judgments are written by my brothers,
Dhananjay Chandrachud and Ashok Bhushan, JJ. exhibiting
expected eloquence and erudition. I have gone through those
opinions and am in complete agreement thereby. In this
scenario, in my own way, I intend to deal with the aforesaid
questions on the following hypothesis:
(i) Issue of passive euthanasia is highly debatable,
controversial and complex (already indicated above).
(ii) It is an issue which cannot be put strictly within the legal
confines, but has social, philosophical, moral and even religious
overtones.
(iii) When the issue of passive euthanasia is considered on the
aforesaid parameters, one would find equally strong views on
both sides. That is the reason which makes it a thorny and
Writ Petition (Civil) No. 215 of 2005 Page 36 of 112
complex issue and brings within the category of ‘hard cases’.
(iv) In this entire scenario when the issue is considered in the
context of dignity of the person involved, one may tend to tilt in
favour of permitting passive euthanasia.
(v) At the same time, in order to achieve a balance, keeping in
view the competing and conflicting interests, care can be taken to
confine permissibility of passive euthanasia only in rare cases,
particularly, when the patient is declared ‘brain dead’ or ‘clinically
dead’ with virtually no chances of revival.
(vi) In this process, as far as ‘living will’ or ‘advance directive’ is
concerned, that needs to be permitted, along with certain
safeguards. It would not only facilitate prevention of any misuse
but take care of many apprehensions expressed about
euthanasia.
With the outlining of the structured process as aforesaid, I
proceed to discuss these aspects in detail hereinafter.
45) As pointed out above, Aruna Ramachandra Shanbaug decides
that passive euthanasia, even involuntary, in certain
circumstances would be justified. The reference order in the
instant case, however, mentions that for coming to this
conclusion, the Bench relied upon Gian Kaur, but that case does
Writ Petition (Civil) No. 215 of 2005 Page 37 of 112
not provide any such mandate. In this backdrop, we take up the
first question about the legality of passive euthanasia.
FIRST ISSUE
Whether passive euthanasia, voluntary or even, in
certain circumstances, involuntary, is legally
permissible? If so under what circumstances (this
question squarely calls for answer having regards to
the reference order made in the instant petition)?
46) I intend to approach this question by discussing the following
facets thereof:
(a) Philosophy of euthanasia
(b) Morality of euthanasia
(c) Dignity in euthanasia
(d) Economics of euthanasia
(A) Philosophy of Euthanasia
“I am the master of my fate; I am the captain of my soul”
- William Ernest Henley23
“Death is our friend … he delivers us from agony. I do
not want to die of a creeping paralysis of my faculties – a
defeated man.”
- Mahatma Gandhi24
“When a man’s circumstances contain a preponderance
of things in accordance with nature, it is appropriate for
him to remain alive; when possess or sees in prospect a
majority of contrary, it is appropriate for him to depart
from life.”
- Marcus Tullius Cicero
23 As quoted in P. Rathinam v. Union of India & Anr., (1994) 3 SCC 394
24 Same as in 14 above.
Writ Petition (Civil) No. 215 of 2005 Page 38 of 112
“Euthanasia, and especially physician-assisted suicide,
appears as the ultimate post-modern demand for dignity
in an era of technologically-mediated death.”
- Dr. Jonathan Moreno
47) The afore-quoted sayings of some great persons bring out a
fundamental truth with universal applicability. Every persons
wants to lead life with good health and all kinds of happiness. At
the same time, nobody wants any pain, agony or sufferings when
his or her life span comes to an end and that person has to meet
death. The following opening stanza from a song in a film
captures this message beautifully:
ररोतत हहए आतत हहसब, हहंसतत हहआ जरो जतएगत
वरो मक़द्दर ह कत ससकन्दर जतनतमन कहलतएगत
“Every person in this world comes crying. However, that person
who leaves the world laughing/smiling will be the luckiest of all”
(Hindi Film – Muqaddar Ka Sikandar)
48) It became unbearable for young prince Siddharth when he, for the
first time, saw an old crippled man in agony and a dead body
being taken away. He did not want to encounter such a situation
in his old life and desired to attain Nirvana which prompted him to
renounce the world so that he could find the real purpose of life;
could lead a life which is worth living; and depart this world
peacefully. He successfully achieved this purpose of life and
became Gautam Buddha. There are many such similar
Writ Petition (Civil) No. 215 of 2005 Page 39 of 112
examples.
Life is mortal. It is transitory. It is as fragile as any other
object. It is a harsh reality that no human being, or for that
matter, no living being, can live forever. Every creature who takes
birth on this planet earth has to die one day. Life has a limited
shelf age. In fact, unlike the objects and articles which are
produced by human beings and may carry almost same life span,
insofar as humans themselves are concerned, span of life is also
uncertain. Nobody knows how long he/she will be able to live.
The gospel truth is that everybody has to die one day,
notwithstanding the pious wish of a man to live forever25. As
Woody Allen said once: ‘I do not want to achieve immortality
through my work. I want to achieve it through not dying’. At the
same time, nobody wants to have a tragic end to life. We all want
to leave the world in a peaceful manner. In this sense, the term
‘euthanasia’ which has its origin in Greek language signifies ‘an
easy and gentle death’.
49) According to Charles I. Lugosi, the sanctity of life ethic no longer
dominates American medical philosophy. Instead, quality of life
has become the modern approach to manage human life that is
25 It is well known that medical scientists are intensely busy in finding the ways to become ageless
and immortal, but till date have remained unsuccessful in achieving this dream.
Writ Petition (Civil) No. 215 of 2005 Page 40 of 112
at the margin of utility26. It is interesting to note that the issue of
euthanasia was debated in India in 1928. Probably this was the
first public debate on euthanasia to be reported. A Calf in
Gandhi’s ashram was ailing under great pain. In spite of every
possible treatment and nursing…the condition of the calf was so
bad that it could not even change its side or even it could not be
lifted about in order to prevent pressure ulcers/sores. It could not
even take nourishment and was tormented by flies. The surgeon
whose advice was sought in this matter declared the case to be
past help and past hope. After painful days of hesitation and
discussions with the managing committee of Goseva Sangh and
the inmates of the ashram, Gandhi made up his mind to end the
life of the calf in a painless way as possible. There was a
commotion in orthodox circles and Gandhi critically examined the
question through his article which appeared in Navajivan (dated
30-9-1928) and Young India (4-10-1928). Probably this was the
first public debate on euthanasia and animal/veterinary
euthanasia and the debate also covered the issue of human
euthanasia. It is equally interesting to note that Gandhi and his
critics discussed the issue of ‘painlessly ending the life to end
suffering’ without using the term ‘euthanasia’. But, he meant the
26 Charles I. Lugosi, ‘Natural Disaster, Unnatural Deaths: The Killings on the Life Care Floors at
Tenet’s Memorial Centre after Hurricane Katrina’, Issues in Law and Medicine, Vol. 23, Summer,
2007.
Writ Petition (Civil) No. 215 of 2005 Page 41 of 112
same. Further it is more interesting to learn that at various
instances Gandhiji had touched upon the issues of the present
day debates on Voluntary euthanasia, Non-voluntary euthanasia,
Involuntary euthanasia, as well as passive euthanasia, active
euthanasia, physician-assisted euthanasia and the rejection or
‘termination of treatment’. Gandhi advocated the development of
positive outlook towards life and strived for the humane nursing
and medical care even when cure was impossible. It was the way
he analysed Karma and submitted to the will of the God.
50) Mahatma Gandhi said:
“In these circumstances I felt that humanity demanded that
the agony should be ended by ending life itself. The matter was
placed before the whole ashram. At the discussion a worthy
neighbour vehemently opposed the idea of killing even to end
pain. The ground of his opposition was that one has no right to
take away life which one cannot create. His argument seemed
to me to be pointless here. It would have point if the taking of life
was actuated by self-interest. Finally, in all humility but with the
clearest of convictions, I got in my presence a doctor kindly to
administer the calf a quietus by means of a position injection.
The whole thing was over in less than two minutes.
But the question may very legitimately be put to me: would I
Writ Petition (Civil) No. 215 of 2005 Page 42 of 112
apply the same principle to human beings? Would I like it to be
applied in my own case? My reply is ‘yes’; the same law holds
good in both the cases. The law, ‘as with one so with all’, admits
of no exceptions, or the killing of the calf was wrong and violent.
In practice, however, we do not cut short the sufferings of our
ailing dear ones by death because, as a rule, we have always
means at our disposal to help them and they have the capacity to
think and decide for themselves. But supposing that in the case
of an ailing friend, I am unable to render any aid whatever and
recovery is out of question and the patient is lying in an
unconscious state in the throes of agony, then I would not see
any himsa in putting an end to his suffering by death.
Just as a surgeon does not commit himsa but practices the
purest ahimsa when he wields his knife, one may find it
necessary, under certain imperative circumstances, to go a step
further and sever life from the body in the interest of the sufferer.
It may be objected that whereas the surgeon performs his
operation to save the life of the patient, in the other case we do
just the reverse. But on a deeper analysis it will be found that the
ultimate object sought to be served in both the cases is the
same, namely, to relieve the suffering soul within from pain. In
the one case you do it by severing the diseased portion from the
Writ Petition (Civil) No. 215 of 2005 Page 43 of 112
body, in the other you do it by severing from the soul the body
that has become an instrument of torture to it. In either case it is
the relief of the soul within from pain that is aimed at, the body
without the life within being incapable of feeling either pleasure or
pain.
To conclude then, to cause pain or wish ill to or to take the
life of any living being out of anger or a selfish intent, is himsa.
On the other hand, after a calm and clear judgment to kill or
cause pain to a living being from a pure selfless intent may be
the purest form of ahimsa. Each such case must be judged
individually and on its own merits. The final test as to its violence
or non-violence is after all the intent underlying the act.”
51) Ethical Egoism propounded in modern times by Thomas
Hobbes in “Leviathan” also operates from the general rule that if
any action increases my own good, then it is right. Ethical
egoism in the context of euthanasia would mean that if a person
wants or does not want to end his/her life using euthanasia, this
desire is presumed to be motivated by a need for self benefit, and
is therefore an ethical action27
. The perspective of the world
community is gradually shifting from sanctity of life to quality of
27
John Keown, Euthanasia, Ethics and Public Policy, (Cambridge: Cambridge
University Press, (2002) p. 37
Writ Petition (Civil) No. 215 of 2005 Page 44 of 112
life sustained and preserved.
52) Philosophers believe that we have to control switch that can end
it all, on request. In medical/legal parlance, it is called
euthanasia: ‘an easy and gentle death’. Philosophically, this
debate is about our right, when terminally ill, to choose how to
die. It is about the right to control how much we have to suffer
and when and how we die. It is about having some control over
our dying process in a system that can aggressively prolong life
with invasive technology. Luckily, we also have the technology
that allows us to experience a gentle death on our own terms,
rather than by medically set terms. In his famous essay on
Liberty, John Stuart Mill argues strongly for our right to selfdetermination.
He writes: “over himself, over his own body and
mind, the individual is sovereign...he is the person most
interested in his own well being.” These words were written over
a century ago.
53) Philosophically, therefore, one may argue that if a person who is
undergoing miserable and untold sufferings and does not want to
continue dreadful agony and is terminally ill, he should be free to
make his choice to terminate his life and to put an end to his life
so that he dies peacefully.
Writ Petition (Civil) No. 215 of 2005 Page 45 of 112
54) At the same time, Buddhism, Jainism and Hinduism are against
euthanasia. However, their concept of ‘good death’ is extremely
interesting – specially principles of Buddhism as they are echoed
in the present day understanding of euthanasia. Without
elaborating and to put it in nutshell:
Buddhism, Jainism, and Hinduism, in particular, embrace
the concept of the good death as a means of achieving dignity
and spiritual fulfilment at the end of life without resorting to
artificially shortening its span.
Buddhists believe that human existence is rare and rebirth
as a human is rarer still. Consequently it is best approached
cautiously without attempting to exert control over the dying
process. At the point of dying, a Buddhist should ideally be
conscious, rational and alert.
Traditional Hindu religious culture also emphasizes the
good death as a reflection of the quality of life that preceded it. If
a good, dignified death is attained, it is perceived as evidence of
having lived a worthy life because “the manner of one’s passing
out-weighs all previous claims and intimations of one’s moral
worth”28
.
28
T N Madan, “Dying with Dignity” (1992) 35 (4) Social Science and Medicine 425–32.
Writ Petition (Civil) No. 215 of 2005 Page 46 of 112
“a good death certifies a good life”29
.
The good death is achieved when death occurs in full
consciousness, in a chosen place and at a chosen time; and
As with Buddhism great significance is attached to the
element of choice and the maintenance of control,30 so if at all
possible, “one must be in command and should not be overtaken
by death. To be so overtaken is the loss of dignity”.31 Thus the
final moments of life should be calm, easy and peaceful if dignity
is to be preserved.
Many of the insights of these traditional religions are echoed
in the modern Western understanding of euthanasia, as a means
of achieving death with dignity, which focuses on avoiding
dependence and loss of control. Choosing to deliberately end
one’s life allows control over the time, place and method of one’s
dying and explains why euthanasia appears to offer death with
dignity. Rather than active euthanasia these ancient religions
advocate calm, control and compassion as a means of achieving
dignity.
(B) Morality of Euthanasia
55) At the outset, I would like to clarify that while discussing a
29 T N Madan, “Living and Dying” in Non-Renunciation: Themes and Interpretations of the Hindu
Culture (New Delhi, Oxford University Press, 1987).
30 J Parry, Death and the Regeneration of Life (Cambridge, Cambridge University Press, 1982)
31 T N Madan, “Dying with Dignity” (1992) 35 (4) Social Science and Medicine 425–32.
Writ Petition (Civil) No. 215 of 2005 Page 47 of 112
particular norm of law, the law per se is to be applied and,
generally speaking, it is not the function of the Courts to look into
the moral basis of law. At the same time, some legal norms,
particularly those which are jurisprudentially expounded by the
Courts or developed as common law principles, would have
moral backing behind them. In that sense moral aspects of an
issue may assume relevance. This relevancy and rationale is
quite evident in the discussion about euthanasia. In fact, the very
concept of dignity of life is substantially backed by moral
overtones. We may remind ourselves with the following classical
words uttered by Immanuel Kant:
“We must not expect a good constitution because those
who make it are moral men. Rather it is because of a
good constitution that we may expect a society
composed of moral men.”
56) It is well known that Justice Holmes’ legal philosophy revolved
around its central theme that law and morals are to be kept apart,
maintaining a sharp distinction between them. Notwithstanding,
even he accepted that under certain circumstances distinction
between law and morals loses much of its importance. To quote:
“I do not say say that there is not a wider point of
view from which the distinction between law and
morals becomes of secondary importance, as all
mathematical distinctions vanish in the presence of
the infinite”.32
32 Justice Holmes: The Path of the Law, 10 Harvard Law review 457-78, at p. 459 (1897)
Writ Petition (Civil) No. 215 of 2005 Page 48 of 112
57) Euthanasia is one such critical issue where the law relating to it
cannot be divorced from morality. Lon L. Fuller33 has argued with
great emphasis that it is the morality that makes the law possible.
He also points towards morality as the substantive aims of law. In
fact, as would be noticed later, the conceptualisation of doctrine
of dignity by Ronald Dworkin is supported with moral ethos. With
the aid of dignity principle, he has argued in favour of euthanasia.
Likewise, and ironically, John Finnis, Professor of Law and Legal
Philosophy Emeritus in the University of Oxford, while opposing
euthanasia, also falls back on the morality conception thereof. It
is this peculiar feature which drives us to discuss the issue of
euthanasia from the stand point of morality.
58) Influenced primarily by the aforesaid considerations, I deem it
relevant to indulge into discussion on morality.
59) When we come to the moral aspects of ‘end of life’ issues, we
face the situation of dilemma. On the one hand, it is an accepted
belief that every human being wants to die peacefully. Nobody
wants to undergo any kind of suffering in his last days. So much
so a person who meets his destiny by sudden death or easy
death is often considered as a person who would have lived his
life by practicing moral and ethical values. Rightly or wrongly, it is
33 Lon L. Fuller: The Morality of Law (Revised Edition), Yale University Press
Writ Petition (Civil) No. 215 of 2005 Page 49 of 112
perceived that such a person who exhibited graceful behaviour
while living his life is bestowed grace by the death when time to
depart came. However, it does not happen to most of the people.
Ageing is a natural phenomena. No doubt, as the person
advances in age, he becomes mature in his wisdom. However,
old age brings, along with it, various ailments and diseases as
well. Physical health and physical functioning declines over the
life course, particularly, in later life. A rise in chronic disease and
other conditions such as arthritis, high blood pressure and obesity
can cause loss in function and lead to generally decreasing
trajectory for health over the lifespan. Thus, ageing has both
positive and negative aspects. This ageing leads to extinction of
human life which may generally be preceded by grave sickness
and disease.
60) Horace, Roman poet in his poem on the ‘Ages of Man’ wrote
quiet scathingly of the attributes of old age:
“Many ills encompass an old man, whether because he
seeks, gain, and then miserably holds aloof from His
store and fears to use it, because, in all that he does, he
lacks fire and courage, is dilatory and slow to form
hopes, is sluggish and greedy of a longer life, peevish,
surly, given to praising the days he spent as a boy, and
to reproving and condemning the young.
(Ars Poetica, pp.169-74)
We find a more contemporary echo of this in William
Shakespeare’s (1564-1616) famous verse ‘All the
Writ Petition (Civil) No. 215 of 2005 Page 50 of 112
World’s a Stage’:
all the word’s stage, and all the men and women merely
players;
they have their exits and their entrances,
and one man in his time plays many parts,
his acts being seven ages....Last scene of all,
that ends this strange eventful history,
is second childishness and mere oblivion,
sans teeth, sans eyes, sans taste, sans everything.
(As You Like It, Act II, scene VII)”
It may, however, be added (for the sake of clarification) that
advent of disease is not the confines of old age only. One may
become terminally ill at any age. Such a disease may be
acquired even at birth.
61) The moral dilemma is that it projects both the sides--protracted as
well as intractable. On the one hand, it is argued by those who
are the proponents of a liberal view that a right to life must
include a concomitant right to choose when the life becomes
unbearable and not so worth living, when such a stage comes
and the sufferer feels that that the life has become useless, he
should have right to die. Opponents, on the other hand, project
‘Sanctity of Life’ (SOL) as the most important factor and argue
that this ‘SOL’ principle is violated by self-styled angles of death.
Protagonists on ‘SOL’ principle believe that life should be
preserved at all costs and the least which is expected is that
Writ Petition (Civil) No. 215 of 2005 Page 51 of 112
there should not be a deliberate destruction of human life, though
it does not demand that life should always be prolonged as long
as possible.
62) It might therefore be argued, as Emily Jackson (2008) cogently
does, that the law’s recognition that withdrawal of life-prolonging
treatment is sometimes legitimate is not so much an exception to
the SOL principle, as an embodiment of it.
63) In the most secular judicial interpretation of the SOL doctrine yet,
Denman J of the UKHL explicated thus:
“in respect a person’s death, we are also respecting their
life – giving it sanctity...A view that life must be preserved
at all costs does not sanctify life.,..to care for the dying,
to love and cherish them, and to free them from suffering
rather than simply to postpone death is to have
fundamental respect for the sanctity of life and its end.”
64) Hence, as the process of dying is an inevitable consequence of
life, the right to life necessarily implies the right to have nature
take its course and to die a natural death. It also encompasses a
right, unless the individual so wishes, not to have life artificially
maintained by the provision of nourishment by abnormal artificial
means which have no curative effect and which are intended
merely to prolong life.
65) A moral paradox which emerges is beautifully described by
Writ Petition (Civil) No. 215 of 2005 Page 52 of 112
Sushila Rao34, in the following words:
“Several commentators have justified the active/passive
distinction by averring that there is an important moral
difference between killing a patient by administering, say,
a lethal injection, and withdrawing treatment which is
currently keeping her alive. Active euthanasia, runs the
argument, interferes with nature’s dominion, whereas
withdrawal of treatment restores to nature her dominion.
Here too, an absolutist version of the SOL principle rears
its unseemly head. In a plethora of cases in the UK, a
course of action which would lead to the patient’s action
which would lead to the patient’s death was held to be
compatible with the “best interests” test. Indeed, a
majority in the House of Lords in Bland explicitly
accepted that the doctor’s intention in withdrawing
artificial nutrition and hydration was, in Lord BrowneWilkinson’s
words, to “bring about the death of Anthony
Bland”. Lord Lowry said that “the intention to bring about
the patient’s death is there” and Lord Mustill admitted
that “the proposed conduct has the aim.. of terminating
the life of Anthony Bland”. I each case, however, life
could be brought to an end only because the doctors
had recourse to a course of action which could plausibly
be described as a “failure to prolong life”.
The SOL principle thus works insidiously to ensure that
only certain types of death—namely, those achieved by
suffocation, dehydration, starvation and infection,
through the withdrawal or withholding of, respectively,
ventilation, ratification nutrition and hydration, and
antibiotics-can lawfully be brought about. More crucially,
the SOL principle prohibits doctors from acting to
achieve that end quickly, and more humanly, by the
administration of a single lethal injection.
Lord Browne-Wilkinson lamented this paradox in Bland
in the following words:
“How can it be lawful to allow a patient to die slowly,
though painlessly, over a period of weeks from lack of
food but unlawful to produce his immediate death by a
lethal injection, thereby saving his family from yet
34
Sushila Rao : Economic and Political Weekly, Vol. 46, No. 18 (April 30-May 6, 2011), pp. 13-16
Writ Petition (Civil) No. 215 of 2005 Page 53 of 112
another ordeal to add to the tragedy that has already
struck them? I find it difficult to find a moral answer to
that question.
As Simon Blackburn (2001) puts it, differentiating
between withdrawal of treatment and killing may salve
some consciences, but it is very doubtful whether it
ought to. It often condemns the subject to a painful,
lingering death, fighting for breath or dying of thirst, while
those who could do something stand aside, withholding
a merciful death.”
66) Interestingly, Sushila Rao concludes that even the active-passive
distinction is not grounded much in morality and ethics as in
‘reasons of policy’.
67) John Finnis strongly believes that moral norms rule out the central
case of euthanasia and discards the theory of terminating
people’s life on the ground that doing so would be benefecial by
alleviating human suffering or burdens. He also does not agree
that euthanasia would benefit ‘other people’ at least by alleviating
their proportionately greater burdens35
.
68) Moral discourse of John Finnis proceeds on the ‘intention of the
person who is facing such a situation’. He draws distinction
between what one intends (and does) and what one accepts as
35 According to John Finnis, there is no real and morally relevant distinction between active
euthanasia and passive euthanasia inasmuch as one employs the method of deliberate
omissions (or forbearances or abstentions) in order to terminate life (passive euthanasia) and
other employs ‘a deliberate intervention’ for the same purpose (active euthanasia). In this
sense, in both the cases, it is an intentional act whether by omission or by intervention, to put an
end to somebody’s life and, therefore, morally wrong.
Writ Petition (Civil) No. 215 of 2005 Page 54 of 112
foreseen side effects is significant by giving importance to free
choice. There would be free choice, he argues, only when one is
rationally motivated towards incompatible alternative possible
purposes. Therefore, there may be a possibility that a person
may choose euthanasia but not as a free choice and it would be
morally wrong. In a situation where that person is not in a
position to make a choice (for e.g. when he is in comma) this
choice shall be exercised by others which, according to him,
violates the autonomy of the person involved. It is significant to
mention that Finnis accepts that autonomy of the patient or
prospective patient counts. It reads:
“Is this to say that the autonomy of the patient or
prospective patient counts for nothing? By no means.
Where one does not know that the requests are suicidal
in intent, one can rightly, as a healthcare professional or
as someone responsible for the care of people, give full
effect to requests to withhold specified treatments or
indeed any and all treatments, even when one considers
the requests misguided and regrettable. For one is
entitled and indeed ought to honour these people's
autonomy, and can reasonably accept their death as a
side effect of doing so.”36
69) He, however, explains thereafter that even if such a decision is
taken, said person would be proceeding on one or both of two
philosophically and morally erroneous judgments: (i) that human
life in certain conditions or circumstances retains no intrinsic
36 John Finnis: “Human Rights and Common Good: Collected Essays”, Volume III
Writ Petition (Civil) No. 215 of 2005 Page 55 of 112
value and dignity; and/or (ii) that the world would be a better
place if one’s life were intentionally terminated. And each of
these erroneous judgments has very grave implications for
people who are in poor shape and/or whose existence creates
serious burdens for others.
It is, thus, clear that taking shelter of same morality
principles, jurists have reached opposing conclusions. Whereas
euthanasia is morally impermissible in the estimation of some,
others treat it as perfectly justified. As would be noted later, riding
on these very moral principles, Dworkin developed the dignity of
life argument and justified euthanasia.
The aforesaid discussion on the philosophy of euthanasia,
coupled with its morality aspect, brings out the conflicting views.
Though philosophical as well as religious overtones may indicate
that a person does not have right to take his life, it is still
recognised that a human being is justified in his expectation to
have a peaceful and dignified death. Opposition to euthanasia,
on moral grounds, proceeds primarily on the basis that neither the
concerned person has a right to take his own life, which is God’s
creation, nor anybody else has this right. However, one startling
feature which is to be noted in this opposition is that while
opposing euthanasia, no segregated discussion on active and
Writ Petition (Civil) No. 215 of 2005 Page 56 of 112
passive euthanasia is made. It also does not take into
consideration permissibility of passive euthanasia under certain
specific circumstances. Clarity on this aspect is achieved when
we discus the issue of euthanasia in the context of dignity.
(C) Dignity in Euthanasia
70) This Court acknowledges its awareness of the sensitive and
emotional nature of euthanasia controversy, and the vigours of
opposing views, even within the medical fraternity, and seemingly
absolute convictions that the subject inspires. This is so
demonstrated above while discussing philosophical, moral,
ethical and religious overtones of the subject involved. These
valid aspects, coupled with one’s attitude towards life and family
and their values, are likely to influence and to colour one’s
thinking and conclusions about euthanasia. Notwithstanding the
same, these aspects make the case as ‘hard case’. However, at
the end of the day, the Court is to resolve the issue by
constitutional measurements, free of emotion and of predilection.
One has to bear in mind what Justice Oliver Wendell Holmes Jr.
said in his dissenting judgment in Lochner v. New York37, which
is reproduced below:
“[The Constitution] is made for people of fundamentally
differing views, and the accident of our finding certain
37 198 US 45, 76 (1905)
Writ Petition (Civil) No. 215 of 2005 Page 57 of 112
opinions natural and familiar or novel and even shocking
ought not to conclude our judgment upon the question
whether statutes embodying them conflict with the
Constitution of the United States.”
71) With these preliminary remarks we return to the doctrine of dignity
as an aspect of Article 21 of the Constitution, a brief reference to
which has already been made above.
72) Let me first discuss certain aspects of human dignity in general.
Insofar as concept of human dignity is concerned, it dates back to
thousands of years. Historically, human dignity, as a concept,
found its origin in different religions which is held to be an
important component of their theological approach. Later, it was
also influenced by the views of philosophers who developed
human dignity in their contemplations38. Jurisprudentially, three
types of models for determining the content of the constitutional
value of human dignity are recognised. These are: (i) Theological
Model, (ii) Philosophical Model, and (iii) Constitutional Model.
Legal scholars were called upon to determine the theological
basis of human dignity as a constitutional value and as a
constitutional right. Philosophers also came out with their views
justifying human dignity as core human value. Legal
understanding is influenced by theological and philosophical
38 Though western thinking is that the concept of human dignity has 2500 years' history, in many
eastern civilizations including India human dignity as core human value was recognised
thousands of years ago
Writ Petition (Civil) No. 215 of 2005 Page 58 of 112
views, though these two are not identical. Aquinas, Kant as well
as Dworkin discussed the jurisprudential aspects of human
dignity. Over a period of time, human dignity has found its way
through constitutionalism, whether written or unwritten.
Theological Model of Dignity
'Amritasya Putrah Vayam'
[We are all begotten of the immortal.] This is how Hinduism
introduces human beings.
'Every individual soul is potentially divine'
– proclaimed Swami Vivekananda
73) Hinduism doesn't recognize human beings as mere material
beings. Its understanding of human identity is more ethicalspiritual
than material. That is why a sense of immortality and
divinity is attributed to all human beings in Hindu classical
literature.
74) Professor S.D. Sharma, sums up the position with following
analysis39:
“Consistent with the depth of Indian metaphysics, the
human personality was given a metaphysical
interpretation. This is not unknown to the modern
occidental philosophy. The concept of human
personality in Kant's philosophy of law is metaphysical
entity but Kant was not able to reach the subtler
unobserved element of personality, which was the
basic theme of the concept of personality in Indian
legal philosophy”
39 Prof. S.D. Sharma : “Administration of Justice in Ancient Bharat”, (1988).
Writ Petition (Civil) No. 215 of 2005 Page 59 of 112
75) It is on the principle that the soul that makes the body of all living
organisms its abode is in fact an integral part of the Divine Whole
– Paramaatman – that the Vedas declare unequivocally:
Ajyesthaaso Akanisthaasa Yete; Sam Bhraataro Vaavrudhuh
Soubhagaya
[No one is superior or inferior; all are brothers; all should strive for
the interest of all and progress collectively]
– RigVeda, Mandala-5, Sukta-60, Mantra-5
76) Even in Islam, tradition of human rights became evident in the
medieval ages. Being inspired by the tenets of the Holy Koran, it
preaches the universal brotherhood, equality, justice and
compassion. Islam believes that man has special status before
God. Because man is a creation of God, he should not be
harmed. Harm to a human being is harm to a God. God, as an
act of love, created man and he wishes to grant him recognition,
dignity and authority. Thus, in Islam, human dignity stems from
the belief that man is a creation of God – the creation that God
loves more than any other.
77) The Bhakti and Sufi traditions too in their own unique ways
popularized the idea of universal brotherhood. It revived and
regenerated the cherished Indian values of truth, righteousness,
justice and morality.
Writ Petition (Civil) No. 215 of 2005 Page 60 of 112
78) Christianity believes that the image of God is revealed in Jesus
and through him to human kind. God is rational and determines
his goals for himself. Man was created in the image of God, and
he too is rational and determines his own goals, subject to the
God as a rational creation. Man has freedom of will. This is his
dignity. He is free to choose his goals, and he himself is a goal.
His supreme goal is to know God. Thus he is set apart from a
slave and from all the creations under him. When a man sins, he
loses his human dignity. He becomes an object40
.
Philosophical Model of Dignity
79) The modern conception of human dignity was affected by the
philosophy of Kant41. Kant's moral theory is divided into two
parts: ethics and right (jurisprudence). The discussion of human
dignity took place within his doctrine of ethics and does not
appear in his jurisprudence42. Kant's jurisprudence features the
concept of a person's right to freedom as a human being.
80) According to Kant, a person acts ethically when he acts by force
of a duty that a rational agent self-legislates onto his own will.
This self-legislated duty is not accompanied by any right or
coercion, and is not correlative to the rights of others. For Kant,
40 Based on the approach of Thomas Aquinas (1225-1274) in his work Summa Theologia
41 See Toman E. Hill, 'Humanity as an End in itself' (1980) 91 Ethics 84
42 See Pfordten, 'On the Dignity of Man in Kant'
Writ Petition (Civil) No. 215 of 2005 Page 61 of 112
ethics includes duties to oneself (e.g. to develop one's talents)
and to others (e.g. to contribute to their happiness). This ability is
the human dignity of man. This is what makes a person different
than an object. This ability makes a person into an end, and
prevents her from being a mere means in the hands of another.
81) Professor Upendra Baxi in his First Justice H.R. Khanna
Memorial Lecture43, on the topic Protection of Dignity of Individual
under the Constitution of India has very aptly remarked that
dignity notions, like the idea of human rights, are supposed to be
the gifts of the West to the Rest, though, this view is based on the
prescribed ignorance of the rich traditions of non-European
countries. He, then, explains Eurocentric view of human dignity
by pointing out that it views dignity in terms of personhood (moral
agency) and autonomy (freedom of choice). Dignity here is to be
treated as 'empowerment' which makes a triple demand in the
name of respect for human dignity, namely:
1. Respect for one's capacity as an agent to make one's own
free choices.
2. Respect for the choices so made.
3. Respect for one's need to have a context and conditions in
which one can operate as a source of free and informed
43 Delivered on 25th February, 2010 at Indian Institute of Public Administration, New Delhi.
Writ Petition (Civil) No. 215 of 2005 Page 62 of 112
choice.
82) To the aforesaid, Professor Baxi adds:
“I still need to say that the idea of dignity is a
metaethical one, that is it marks and maps a difficult
terrain of what it may mean to say being 'human' and
remaining 'human', or put another way the relationship
between 'self', 'others', and 'society'. In this formulation
the word 'respect' is the keyword: dignity is respect for
an individual person based on the principle of freedom
and capacity to make choices and a good or just
social order is one which respects dignity via assuring
'contexts' and 'conditions' as the 'source of free and
informed choice'. Respect for dignity thus conceived
is empowering overall and not just because it, even if
importantly, sets constraints state, law, and
regulations.”
83) Jeremy Waldron44 opines that dignity is a sort of status-concept: it
has to do with the standing (perhaps the formal legal standing or
perhaps, more informally, the moral presence) that a person has
in a society and in her dealings with others. He has ventured
even to define this term “dignity” in the following manner:
“Dignity is the status of a person predicated on the fact
that she is recognized as having the ability to control
and regulate her actions in accordance with her own
apprehension of norms and reasons that apply to her;
it assumes she is capable of giving and entitled to give
an account of herself (and of the way in which she is
regulating her actions and organizing her life), an
account that others are to pay attention to; and it
means finally that she has the wherewithal to demand
that her agency and her presence among us as
human being be taken seriously and accommodated
in the lives of others, in others' attitudes and actions
towards her, and in social life generally”.
44 See Article of Jeremy Waldron : “How Law Protects Dignity”
Writ Petition (Civil) No. 215 of 2005 Page 63 of 112
84) Kant, on the other hand, has initially used dignity as a 'value idea',
though in his later work he also talks of 'respect' which a person
needs to accord to other person, thereby speaking of it more as a
matter of status.
Constitutional Perspective of Dignity
85) The most important lesson which was learnt as a result of Second
World War was the realization by the Governments of various
countries about the human dignity which needed to be cherished
and protected. It is for this reason that in the U.N. Charter, 1945,
adopted immediately after the Second World War, dignity of the
individuals was mentioned as of core value. The almost
contemporaneous Universal Declaration of Human Rights (1948)
echoed same sentiments.
86) Article 3 of the Geneva Conventions explicitly prohibits “outrages
upon personal dignity”. There are provisions to this effect in
International Covenant on Civil and Political Rights (Article 7) and
the European Convention of Human Rights (Article 3) though
implicit. However, one can easily infer the said implicit message
in these documents about human dignity. The ICCPR begins its
preamble with the acknowledgment that the rights contained in
the covenant “derive from the inherent dignity of the human
Writ Petition (Civil) No. 215 of 2005 Page 64 of 112
person”. And some philosophers say the same thing. Even if this
is not a connection between dignity and law as such, it certainly
purports to identify a wholesale connection between dignity and
the branch of law devoted to human rights. One of the key facets
of twenty-first century democracies is the primary importance
they give to the protection of human rights. From this
perspective, dignity is the expression of a basic value accepted in
a broad sense by all people, and thus constitutes the first
cornerstone in the edifice of human rights. Therefore, there is a
certain fundamental value to the notion of human dignity, which
some would consider a pivotal right deeply rooted in any notion of
justice, fairness, and a society based on basic rights.
87) Aharon Barak, former Chief Justice of the Supreme Court of
Israel, attributes two roles to the concept of human dignity as a
constitutional value, which are:
1. Human dignity lays a foundation for all the human rights as
it is the central argument for the existance of human rights.
2. Human dignity as a constitutional value provides meaning to
the norms of the legal system. In the process, one can discern
that the principle of purposive interpretation exhorts us to
interpret all the rights given by the Constitution, in the light of the
human dignity. In this sense, human dignity influences the
Writ Petition (Civil) No. 215 of 2005 Page 65 of 112
purposive interpretation of the Constitution. Not only this, it also
influences the interpretation of every sub-constitutional norm in
the legal system. Moreover, human dignity as a constitutional
value also influences the development of the common law.
88) Within two years of the adoption of the aforesaid Universal
Declaration of Human Rights that all human beings are born free
and equal in dignity and rights, India attained independence and
immediately thereafter Members of the Constituent Assembly
took up the task of framing the Constitution of this Country. It was
but natural to include a Bill of Rights in the Indian Constitution
and the Constitution Makers did so by incorporating a Chapter on
Fundamental Rights in Part III of the Constitution. However, it
would be significant to point out that there is no mention of
“dignity” specifically in this Chapter on Fundamental Rights. So
was the position in the American Constitution. In America, human
dignity as a part of human rights was brought in as a Judge-made
doctrine. Same course of action followed as the Indian Supreme
Court read human dignity into Articles 14 and 21 of the
Constitution.
89) Before coming to the interpretative process that has been
developed by this Court in evolving the aura of human dignity
Writ Petition (Civil) No. 215 of 2005 Page 66 of 112
predicated on Articles 14 and 21 of the Constitution, I am
provoked to discuss as to how Dworkin perceives interpretative
process adopted by a Judge.
90) Dworkin, being a philosopher – jurist, was aware of the idea of a
Constitution and of a constitutional right to human dignity. In his
book, Taking Rights Seriously, he noted that everyone who takes
rights seriously must give an answer to the question why human
rights vis-a-vis the State exist. According to him, in order to give
such an answer one must accept, as a minimum, the idea of
human dignity. As he writes:
“Human dignity....associated with Kant, but defended
by philosophers of different schgools, supposes that
there are ways of treating a man that are inconsistent
with recognizing him as a full member of the human
community, and holds that such treatment is
profoundly unjust.”45
91) In his Book, “Is Democracy Possible Here?”46 Dworkin develops
two principles about the concept of human dignity. First principle
regards the intrinsic value of every person, viz., every person has
a special objective value which value is not only important to that
person alone but success or failure of the lives of every person is
important to all of us. The second principle, according to
Dworkin, is that of personal responsibility. According to this
45 Ibid., 1
46 Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate (Princeton
University Press, 2006).
Writ Petition (Civil) No. 215 of 2005 Page 67 of 112
principle, every person has the responsibility for success in his
own life and, therefore, he must use his discretion regarding the
way of life that will be successful from his point of view. Thus,
Dworkin's jurisprudence of human dignity is founded on the
aforesaid two principles which, together, not only define the basis
but the conditions for human dignity. Dworkin went on to develop
and expand these principles in his book, Justice for Hedgehogs
(2011)47
.
92) When speaking of rights, it is impossible to envisage it without
dignity. In his pioneering and all inclusive “Justice for
Hedgehogs”, he proffered an approach where respect for human
dignity, entails two requirements; first, self-respect, i.e., taking the
objective importance of one’s own life seriously; this represents
the free will of the person, his capacity to think for himself and to
control his own life and second, authenticity, i.e., accepting a
“special, personal responsibility for identifying what counts as
success” in one’s own life and for creating that life “through a
coherent narrative” that one has chosen.48 According to Dworkin,
these principles form the fundamental criteria supervising what
we should do in order to live well.49 They further explicate the
47 Ibid 13
48 Kenneth W. Simons, Dworkin’s Two Principle of Dignity: An unsatisfactory Nonconsequentialist Account of
Interpersonal Moral Duties, 90 Boston law Rev. 715 (2010)
49 Ibid
Writ Petition (Civil) No. 215 of 2005 Page 68 of 112
rights that individuals have against their political community,50 and
they provide a rationale for the moral duties we owe to others.
This notion of dignity, which Dworkin gives utmost importance to,
is indispensable to any civilised society. It is what is
constitutionally recognised in our country and for good reason.
Living well is a moral responsibility of individuals; it is a continuing
process that is not a static condition of character but a mode that
an individual constantly endeavours to imbibe. A life lived without
dignity, is not a life lived at all for living well implies a conception
of human dignity which Dworkin interprets includes ideals of selfrespect
and authenticity.
93) This constitutional value of human dignity, has been beautifully
illustrated by Aharon Barak, as under:
“Human dignity as a constitutional value is the factor
that unites the human rights into one whole. It ensures
the normative unity of human rights. This normative
unity is expressed in the three ways: first, the value of
human dignity serves as a normative basis for
constitutional rights set out in the constitution; second,
it serves as an interpretative principle for determining
the scope of constitutional rights, including the right to
human dignity; third, the value of human dignity has
an important role in determining the proportionality of
a statute limiting a constitutional right.”51
94) We have to keep in mind that while expounding the aforesaid
notion of dignity, Dworkin was not interpreting any Constitution.
50 Supra 15
51 Aharon Barak, Human Dignity : The Constitutional Value and the Constitutional Right
Writ Petition (Civil) No. 215 of 2005 Page 69 of 112
This notion of dignity, as conceptualised by Dworkin, fits like a
glove in our constitutional scheme. In a series of judgments,
dignity, as an aspect of Article 21, stands firmly recognised. Most
of the important judgments have been taken note of and
discussed in K.S. Puttaswamy52
.
95) In K.S. Puttaswamy, the Constitution Bench has recognised the
dignity of existence. Liberty and autonomy are regarded as the
essential attributes of a life with dignity. In this manner, sanctity
of life also stands acknowledged, as part of Article 21 of the
Constitution. That apart, while holding the right of privacy as an
intrinsic part of right to life and liberty in Article 21, various facets
thereof are discussed by the learned Judges in their separate
opinions. A common theme which flows in all these opinions is
that that privacy recognises the autonomy of the individual; every
person has right to make essential choices which affect the
course of life; he has to be given full liberty and freedom in order
to achieve his desired goals of life; and the concept of privacy is
contained not merely in personal liberty, but also in the dignity of
the individual. Justice Chelameshwar, in K.S. Puttaswamy,
52 Prem Shankar Shukla v. UT of Delhi, (1980) 3 SCC 526; Francis Coralie Mullin v. UT of Delhi,
(1981) 1 SCC 608; Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161; Khedat
Mazdoor Chetna Sangath v. State of Madhya Pradesh, (1994) 6 SCC 260; M. Nagaraj v. Union
of India, (2006) 8 SCC 212, Maharashtra University of Health Sciences v. Satchikitsa Prasarak
Mandal, (2010) 3 SCC 786; Selvi v. State of Karnataka, (2010) 7 SCC 263; Mehmood Nayyar
Azam v. State of Chhattisgarh, (2012) 8 SCC 1; Shabnam v. Union of India, (2015) 6 SCC 702;
Jeeja Ghosh v. Union of India, (2016) 7 SCC 761.
Writ Petition (Civil) No. 215 of 2005 Page 70 of 112
made certain specific comments which are reflective of
euthanasia, though this term is not specifically used. He
observed: “forced feeding of certain persons by the State raises
concerns of privacy and individual’s right to refuse life prolonging
medical treatment or terminate his life is another freedom which
falls within the zone of privacy.”
96) Liberty by itself, which is a facet of Article 21 of the Constitution,
duly recognised in K.S. Puttaswamy, ensures and guarantees
such a choice to the individual. In fact, the entire structure of civil
liberties presupposes that freedom is worth fostering. The very
notion of liberty is considered as good for the society. It is also
recognised that there are some rights, encompassing liberty,
which are needed in order to protect freedom. David Feldman53
beautifully describes as to why freedom (or liberty) is given:
“The guiding principle for many liberal rights theorists
may be seen as respect for individuals’ own aspirations,
as a means of giving the fullest expression to each
individual’s moral autonomy. A fundamental principle
entailed by respect for moral autonomy is that individuals
should prima facie be free to select their own ideas of the
Good, and develop a plan for life, or day-to-day strategy,
accordingly. Their choice of goods should be
constrained only to the extent necessary to protect
society and the similar liberties of other people. The law
should protect at least the basic liberties, that is, those
necessary to the pursuit of any socially acceptable
conception of the good life. This is the approach which
John Rawls adopts in A Theory of Justice. It requires
that basic liberties be given considerable respect, and
53 David Feldman: Civil Liberties & Human Rights in England & Wales
Writ Petition (Civil) No. 215 of 2005 Page 71 of 112
that they should have priority over the pursuit of social
goods (such as economic development) perhaps even to
the extent of giving them the status of entrenched,
constitutional rights, in order to shield them from
challenge in the day-to-day rough and tumble of political
contention. This gives liberty a priority over other values,
which, whether viewed as a description of liberal society
or as a prescription for its improvement, is very
controversial. Philosophers have doubted whether there
are adequate grounds for the priority of liberty. Professor
H.L.A. Hart has argued that (at least in a society where
there is limited abundance of wealth and resources) it is
rational to prefer basic freedoms to an improvement I
material conditions only if one harbours the ideal of ‘a
public-spirited citizen who prizes political activity and
service to others as among the chief goods of life and
could not contemplate as tolerable an exchange of the
opportunities of such activity for mere material goods or
contentment’.
A rather different thesis runs through Professor Joseph
Raz’s book, The Morality of Freedom: people are
autonomous moral actors, and autonomy is given
expression primarily through making one’s own
decisions, but such freedom is valuable partly because it
advances social ends. Raz points out that the
identification of basic liberties therefore depends, in pat
at least, on governmental notions of the public good. In
respect of rights to freedom of expression, privacy,
freedom of religion, and freedom from discrimination, for
example, ‘one reason for affording special protection to
individual interests is that thereby one also protects a
collective good, an aspect of a public culture’. At the
same time, certain social goods are needed if freedom is
to have value. Freedom is useful only if the social and
economic structure of society provides a sufficient range
of choices to allow people’s capacity for choice to be
exercised. Accordingly, freedom is seen as a collective
rather than an individual good. This may constrain the
range of freedoms and the purposes to which they may
morally be put: a decision to make a freedom into a
constitutional right is an expression of the collective
political culture of a community. This thesis does not
make the morality of freedom depend on people striving
for perfection: individuals may not always, or ever, think
about the moral consequences of their decisions, or may
consciously make decisions which do not make for selfWrit
Petition (Civil) No. 215 of 2005 Page 72 of 112
improvement. Instead, it looks only for a social
commitment to the idea of the moral significance of
individual choice. Raz marries the idea of the individual
to that of society by recognizing that individual freedom
of choice is contingent on social arrangements.”
97) In his Article, Life’s Dominion, Ronald Dworkin, while building the
hypothesis on dignity concept, exhorts that people must decide
about their own death, or someone else’s in three main kind of
situations, namely, (i) conscious and competent: it is a situation
where a person is suffering from some serious illness because of
which he is incapacitated but he is still conscious and also
competent to decide about his fate, he should be given a choice
to decide as to whether he wants to continue to get the treatment;
(ii) unconscious: where the patient is unconscious and dying,
doctors are often forced to decide whether to continue life support
for him or not under certain circumstances relatives have to take
a decision. However, at times, unconscious patients are not
about to die. At the same time, they are either in coma or in PVS.
In either case, they are conscious. In such a situation, where
recovery is impossible, it should be left to the relatives to decide
as to whether they want the patient to remain on life support
(ventilator, etc.); and (iii) conscious but incompetent. These
factors may support, what is known as ‘living will’ or ‘advance
directive’, which aspect is dealt with specifically while answering
Writ Petition (Civil) No. 215 of 2005 Page 73 of 112
the second issue.
98) When a person is undergoing untold suffering and misery
because of the disease with which he is suffering and at times
even unable to bear the same, continuing to put him on artificial
machines to prolong his vegetable life would amount to violating
his dignity. These are the arguments which are raised by some
jurists and sociologists54
.
99) There is a related, but interesting, aspect of this dignity which
needs to be emphasised. Right to health is a part of Article 21 of
the Constitution. At the same time, it is also a harsh reality that
everybody is not able to enjoy that right because of poverty etc.
The State is not in a position to translate into reality this right to
health for all citizens. Thus, when citizens are not guaranteed the
right to health, can they be denied right to die in dignity?
100) In the context of euthanasia, ‘personal autonomy’ of an individual,
as a part of human dignity, can be pressed into service. In
National Legal Services Authority v. Union of India and
Others55, this Court observed:
“Article 21, as already indicated, guarantees the
protection of “personal autonomy” of an individual. In
54 (I) Morris: Voluntary Euthanasia
(ii) LW Sumner: Dignity through Thick and Thin, in Sebastian Muders, “Human Dignity and
Assisted Death (Oxford University Press, 2017).
55 (2014) 5 SCC 438
Writ Petition (Civil) No. 215 of 2005 Page 74 of 112
Anuj Garg v. Hotel Assn. of India [(2008) 3 SCC 1]
(SCC p. 15, paras 34-35), this Court held that
personal autonomy includes both the negative right of
not to be subject to interference by others and the
positive right of individuals to make decisions about
their life, to express themselves and to choose which
activities to take part in. Self-determination of gender
is an integral part of personal autonomy and selfexpression
and falls within the realm of personal
liberty guaranteed under Article 21 of the Constitution
of India.”
101) In addition to personal autonomy, other facets of human dignity,
namely, ‘self expression’ and ‘right to determine’ also support the
argument that it is the choice of the patient to receive or not to
receive treatment.
102) We may again mention that talking particularly about certain hard
cases involving moral overtones, Dworkin specifically discussed
the issues pertaining to abortion and euthanasia with emphasis
that both supporters and critics accept the idea of sanctity of life.
Decisions regarding death – whether by abortion or by
euthanasia – affect our human dignity. In Dworkin's opinion,
proper recognition of human dignity leads to the recognition of the
freedom of the individual. Freedom is a necessary condition for
self worth. Dworkin adds: “Because we cherish dignity, we insist
on freedom .… Because we honour dignity, we demand
democracy.”56
56 Ibid., at 239
Writ Petition (Civil) No. 215 of 2005 Page 75 of 112
103) Dignity is, thus, the core value of life and dying in dignity stands
recognised in Gian Kaur. It becomes a part of right of self
determination.
104) The important message behind Dworkin’s concept of human
dignity can be summarised in the following manner:
(1) He describes belief in individual human dignity as the most
important feature of Western political culture giving people the
moral right “to confront the most fundamental questions about
the meaning and value of their own lives”57
.
(2) In an age when people value their independence and strive
to live independent and fulfilled lives it is important “that life ends
appropriately, that death keeps faith with the way we want to
have lived”58
.
(3) Death is “not only the start of nothing but the end of
everything”59 and, therefore, it should be accomplished in a
manner compatible with the ideals sought during life.
105) Taking into consideration the conceptual aspects of dignity and
the manner in which it has been judicially adopted by various
judgments, following elements of dignity can be highlighted (in
57 R Dworkin, Life’s Dominion (London, Harper-Collins, 1993) at 166.
58 R Dworkin, Life’s Dominion (London, HarperCollins, 1993) at 179.
59 Ibid.
Writ Petition (Civil) No. 215 of 2005 Page 76 of 112
the context of death with dignity):
(I) Encompasses self-determination; implies a quality of life
consistent with the ability to exercise self-determined choices;
(ii) Maintains/ability to make autonomous choices; high regard
for individual autonomy that is pivotal to the perceived quality of a
person’s life;
(iii) Self-control (retain a similar kind of control over dying as
one has exercised during life – a way of achieving death with
dignity);
(iv) Law of consent: The ability to choose - orchestrate the timing
of their own death;
(v) Dignity may be compromised if the dying process is
prolonged and involves becoming incapacitated and dependent;
(vi) Respect for human dignity means respecting the intrinsic
value of human life;
(vii) Avoidance of dependency;
(viii) Indefinite continuation of futile physical life is regarded as
undignified;
(ix) Dignity commands emphatic respect60;
Reason and emotion are both significant in treatment
decisions, especially at the end of life where compassion
60 A Kolnai, “Dignity”, in R S Dillon (ed.) Dignity, Character, and Self-Respect (London, Routledge, 1995)
53–75, at 55.
Writ Petition (Civil) No. 215 of 2005 Page 77 of 112
is a natural response to appeals made on the basis of
stifled self-determination;
Compassion represents a collision of “imaginative
insight” and empathy; and
Compassion is here distinguished from pity, which is
regarded as “inappropriate to the dignity of the
autonomous person, especially its overtones of
paternalism”,61 because compassion is believed to
provoke an active, and by implication positive,
response.62
(x) Dignity engenders a sense of serenity and
powerfulness, fortified by “qualities of composure, calmness,
restraint, reserve, and emotions or passions subdued and
securely controlled without being negated or dissolved”63; and
(x) Observer’s Dignity aspect:
a person possessed of dignity at the end of life, might
induce in an observer a sense of tranquility and
admiration which inspires images of power and selfassertion
through restraint and poised composure; and
dignity clearly does play a valuable role in contextualizing
61 R S Downie, K S Calman, Healthy Respect: Ethics in Health Care (Oxford, Oxford University Press,
1994) at 51–53.
62 Ibid.
63 A Kolnai, “Dignity”, in R S Dillon (ed.) Dignity, Character, and Self-Respect (London, Routledge, 1995)
53–75, at 56.
Writ Petition (Civil) No. 215 of 2005 Page 78 of 112
people’s perceptions of death and dying, especially as it
appears to embody a spirit of self-determination that
advocates of voluntary euthanasia crave.
106) Once we examine the matter in the aforesaid perspective, the
inevitable conclusion would be that passive euthanasia and death
with dignity are inextricably linked, which can be summed up with
the following pointers:
(i) The opportunity to die unencumbered by the intrusion of
medical technology and before experiencing loss of
independence and control, appears to many to extend the
promise of a dignified death. When medical technology
intervenes to prolong dying like this it does not do so
unobtrusively;
(ii) Today many patients insist on more than just a right to
health care in general. They seek a right to choose specific
types of treatment, able to retain control throughout the entire
span of their lives and to exercise autonomy in all medical
decisions concerning their welfare and treatment;
(iii) A dreadful, painful death on a rational but incapacitated
terminally ill patient are an affront to human dignity.
107) The aforesaid discussion takes care of those who oppose
Writ Petition (Civil) No. 215 of 2005 Page 79 of 112
euthanasia on moral and ethical principles. We feel that at least
the case for passive euthanasia is made out. Certain moral
dilemma as to what is the exact stage when such a decision to
withdraw medical support, would still remain. At times, a
physician would be filled with profound ethical uncertainties when
a person is suffering unbearable pain and agony, the question
would be as to whether such suffering has reached the stage
where it is incurable and, therefore, decision should be taken to
allow such person to pass away in peace and dignity of hastening
the process of death or the situation may be reversible, though
chances thereof are far remote. Dr. R.R. Kishore, who
possesses medical as well as law degree at the same time, lists
the following questions which a physician will have to answer
while taking such a decision:
(i) Is it professionally permissible to kill or to help in dying a
terminally ill and incurable patient?
(ii) How does such a decision affect the person concerned and
the society in general?
(iii) What are the values that are attracted in such situations?
(iv) How to assess that the individual’s urge to die is based on
cool and candid considerations and is not an impulsive act
reflecting resources constraints, inadequate care or
Writ Petition (Civil) No. 215 of 2005 Page 80 of 112
discrimination?
(v) What are the practical risks involved in case a decision is
taken to terminate the life of the patient?
(vi) Where should the physician look for guidance in situations
of such moral dilemma?
(vii) Does the physician’s or the patient’s religion play any role in
decision making process?
108) What are the parameters to be kept in mind and the dangers
which may be encountered while taking decision on the aforesaid
questions, is beautifully explained by Dr. R.R. Kishore64 in the
following words:
“Contemporary world order is founded on reason, equity
and dignity. Reason envisages definition and
distinctness. What is the distinction between ‘killing’ and
‘letting die’? or, in other words, what is the difference
between ‘causing death’ and ‘denial to prevent death’?
Also, can the prolongation of life be ever ‘unnecessary’?
And, if yes, what are the criteria to determine the life’s
worth? Equity mandates equality of opportunity,
balancing of interests and optimization of resources.
This means addressing questions such as; for how long
one should live? Who should die first? What should be
the ideal method of terminating one’s life? Dignity
imposes obligation to preserve life at all costs and in the4
event of an individual’s conscious expression to end his
life, contemplates a valid purpose and truly informed
consent. Deo0ntologically, in the context of sanctity of
life, there is not much of conflict between secular and
religious concepts as both consider life as sacred and
worthy of protection. But, the differences appear in the
face of application of advanced technology which has the
64 Dr.R.R. Kishore,MD, LLB – End of Life Issues and the Moral Certainty: A Discovery through
Hinduism
Writ Petition (Civil) No. 215 of 2005 Page 81 of 112
potential of keeping alive the terminally ill and incurable
persons who would have otherwise died. Since the
technological resources are not unlimited prioritization
becomes a functional imperative, bringing in the
concepts of worth and utility. In other words, the
questions like whose life is more precious and worthy of
protection have to be answered. This is a formidable
task, attracting multiple and diverse perspectives, moral
as well as strategic, leading to heterogeneous
approaches and despite agreement on fundamental
issue of value of life the decisions may seem to be at
variance. A fair and objective decision in such
circumstances may be a difficult exercise and any
liberalization is fraught with following apprehensions:
Danger of abuse
Enhanced vulnerability to the poor
Slippery slope outcome
Weakening of protection of life notions
Any ethical model governing end of life decisions should
therefore be impervious to all extraneous forces such as,
the utilitarian bias, poverty, and subjectivity i.e.,
inadequate appreciation of socio-economic, family,
cultural and religious perspectives of the individual. The
poor and resourceless are likely to face deeper and more
severe pain and agony before dying and as such may
request their physicians to terminate their lives much
earlier than those who have better access to resource.
This poverty-death nexus makes an objective decision
difficult, constituting a formidable challenge to committed
physicians and others involved with the end of life issues.
Taking a decision on case to case basis, depending on
individual’s material constraints and inadequacies,
enhances the problem rather than solving it, as it reduces
the life from an eternal bliss to a worldly award,
subjecting its preservation to socio-economic exigencies.
For these reasons many feel that the safer and more
respectable course to improve death is to provide good
palliative care and emotional support rather than
assisting the end of life. The moral ambiguities
notwithstanding, decision to assist or not to assist the act
of dying by correctly interpreting the patient’s wish and
the accompanying circumstances, including the moral
dictates, constitutes a practical problem. Let us see how
Hinduism addresses these issues.”
Writ Petition (Civil) No. 215 of 2005 Page 82 of 112
109) In the article, End of Life Issues and the Moral Certainty65
, the
author after posing the moral dilemma, noted above, discusses
the approach to find the solutions.
110) I had indicated at the earlier stage that Hippocratic Oath, coupled
with ethical norms of medical profession, stand in the way of
euthanasia. It brings about a situation of dilemma insofar as
medical practitioner is concerned. On the one hand his duty is to
save the life of a person till he is alive, even when the patient is
terminally ill and there are no chances of revival. On the other
hand, the concept of dignity and right to bodily integrity, which
recognises legal right of autonomy and choice to the patient (or
even to his relations in certain circumstances, particularly when
the patient is unconscious or incapacitated to take a decision)
may lead to exercising his right of euthanasia.
111) Dignity implies, apart from a right to life enjoyment of right to be
free of physical interference. At common law, any physical
interference with a person is, prima facie, tortious. If it interferes
with freedom of movement, it may constitute a false
imprisonment. If it involves physical touching, it may constitute a
battery. If it puts a person in fear of violence, it may amount to an
65 See Footnote 63.
Writ Petition (Civil) No. 215 of 2005 Page 83 of 112
assault. For any of these wrongs, the victim may be able to
obtain damages.
112) When it comes to medical treatment, even there the general
common law principle is that any medical treatment constitutes a
trespass to the person which must be justified, by reference
either to the patient’s consent or to the necessity of saving life in
circumstances where the patient is unable to decide whether or
not to consent.
113) Rights with regard to medical treatment fall essentially into two
categories: first, rights to receive or be free of treatment as
needed or desired, and not to be subjected involuntarily to
experimentation which, irrespective of any benefit which the
subjects may derive, are intended to advance scientific
knowledge and benefit people other than the subject in the long
term; secondly, rights connected incidentally with the provision of
medical services, such as rights to be told the truth by one’s
doctor.
114) Having regard to the aforesaid right of the patients in common
law, coupled with the dignity and privacy rights, it can be said that
passive euthanasia, under those circumstances where patient is
in PVS and he is terminally ill, where the condition is irreversible
Writ Petition (Civil) No. 215 of 2005 Page 84 of 112
or where he is braindead, can be permitted. On the aforesaid
reasoning, I am in agreement with the opinion of the other
members of this Bench in approving the judgment in Aruna
Ramachandra Shanbaug.
(D) Economics of Euthanasia
115) This is yet another reason for arriving at the same conclusion.
116) When we consider the matter of euthanasia in the context of
economic principles, it becomes another reason to support the
aforesaid conclusion. This aspect can be dealt with in two ways.
117) First, because of rampant poverty where majority of the persons
are not able to afford health services, should they be forced to
spend on medical treatment beyond their means and in the
process compelling them to sell their house property, household
things and other assets which may be means of livelihood
Secondly, when there are limited medical facilities available,
should a major part thereof be consumed on those patients who
have no chances of recovery? In Economic & Political Weekly
dated February 10, 2018, it is reported:
“India is one of the worst India is one of the worst
countries to die in, especially for those suffering from
terminal illnesses. In 2015, the Economist Intelligence
Unit brought out a Quality of Death Index, which
ranked India 67th out of the 80 countries it had
Writ Petition (Civil) No. 215 of 2005 Page 85 of 112
surveyed. In December 2017, a joint report published
by the World Health Organization and the World Bank
revealed that 49 million Indians are pushed into
poverty every year due to out-of-pocket expenditure
on healthcare, accounting for half of the 100 million
who meet such a fate worldwide. India’s Central
Bureau of Health Intelligence data puts the figure even
higher. This unconscionable situation is the direct
outcome of the sorry state of our public health system.
India’s spending on health is among the lowest in the
world. The Economic Survey 2017–18shows that the
government spends only 1.4% of its gross domestic
product (GDP) on health. The 2017 National Health
Policy, which otherwise exudes piety in its
abstractions, aims to increase government
expenditure to 2.5% of GDP by 2025. By all accounts,
this is too little too late.
The situation improves only marginally for the betteroff
sections. With over 90% of intensive care units in
the private healthcare sector, it is largely this section
that can access expensive treatments. But this does
not improve end-of-life situations for them. Awareness
and training in palliative care remain grossly
inadequate. For those making profit in the private
healthcare sector, there is no incentive to provide such
treatment. Instead, treatment for the terminally ill
continues to involve prolonging life with expensive,
invasive, and painful treatment with very little concern
for the patients themselves or their families.”
118) Some of the apprehensions expressed in ethical debates about
euthanasia can be answered when the ethical debate about
euthanasia is not divorced from an economic consideration of
cost and benefits of euthanasia to society. P.R. Ward66 argues
that ethics is concerned with individuals and, therefore, does not
take into account the societal perspective. On the other hand,
economics is sought to be concerned with relative costs and
66 Healthcare rationing: can we afford to ignore euthanasia? Health Services Management
Research 1997; 10; 32-41
Writ Petition (Civil) No. 215 of 2005 Page 86 of 112
benefits to society and can help to determine if euthanasia is of
benefit to the majority in society. According to him, the net benefit
to the individual (from ethical considerations) can be compared
with the net benefit to society (from economics), and that both
can be included in an overall decision rule for whether or not to
legalise euthanasia. Ward draws on the health economics
literature (for example, Mooney67) to suggest that a positive
answer to this question ins implicit in many health-rationing
decisions and is applicable to the euthanasia decision. He also
asserts that ‘introducing an economic perspective is not
incompatible with ethical issues’.
119) No doubt, protagonists of ethical aspects of euthanasia oppose
the aforesaid view. According to them, euthanasia also involves
the specific act of a medical professional killing a patient and the
ethical status of this act has implications both for individuals and
for society. Their counter argument, therefore, is that to be able
to make an economic assessment of euthanasia, we would have
to be able to evaluate the cost and benefits of this act of killing.
However, even they accept that if the act of killing by euthanasia
is ethically acceptable in some circumstances, it would be
appropriate to consider the net benefits of the act to the individual
67 Mooney, G. The Valuation of Human Life. London: Macmillan Press, 1977
Writ Petition (Civil) No. 215 of 2005 Page 87 of 112
patient along with the wider economic considerations68. In the
instant case, we have come to the conclusion that under certain
circumstances, i.e. when the patient is in PVS or braindead/
clinically dead, at least passive euthanasia would even be
ethically acceptable, on the application of doctrine of dignity. In
such a situation, the economic considerations would strengthen
the aforesaid conclusion.
120) At times, for deciding legal issues, economic analysis of law
assumes importance69. It is advocated that one of the main
reasons which should prompt philosophers of law to undertake
economic analysis seriously is that the most basic notion in the
analysis – efficiency or Pareto optimality70 - was originally
introduced to help solve a serious objection to widely held moral
theory, utilitarian. Utilitarians hold that the principle of utility is the
criterion of the right conduct. If one has to evaluate policies in
virtue of their effect on individual welfare or utility, one norm of
utility has to be compared with that of another. We may clarify
that this economic principle has been applied in a limited sense
only as a supporting consideration with the aim to promote
68 See – Economics and Euthanasia by Stephen Heasell, Department of Economics and Politics,
Nottingham Trent University, and David Paton, Nottingham University Business School.
69 This aspect is discussed in some detail by this Court in Shivashakti Sugars Ltd. v. Shree
Renuka Sugar Limited and Other, (2017) 7 SCC 729
70 Jeffrie G. Murphy & Jules L. Coleman: Philosophy of Law (An introduction to Jurisprudence)
Writ Petition (Civil) No. 215 of 2005 Page 88 of 112
efficiency.
121) If we understand correctly the logic behind opposition to
euthanasia, particularly, passive euthanasia, it proceeds on the
basis that third person should not have right to take a decision
about one’s life and, more importantly, it is difficult to ascertain, at
a particular stage, as to whether time has come to take such a
decision, namely, withdraw the medical support. Insofar as latter
aspect is concerned, we feel that in Aruna Ramachandra
Shanbaug, this Court has taken due care in prescribing the
circumstances, namely, when the person is in a Permanent
Vegetative State (PVS) with no reversible chance or when he is
‘brain dead’ or ‘clinically dead’. Insofar as first aspect is
concerned, the subject matter of the present writ petition takes
care of that.
THE SECOND ISSUE
122) With this, we advert to the second question formulated above,
which is as under:
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?
123) In this writ petition, the petitioner has sought a direction to the
Writ Petition (Civil) No. 215 of 2005 Page 89 of 112
respondents to adopt suitable procedures to ensure that persons
of deteriorated health or terminally ill should be able to execute a
document titled ‘living will and/or advance authorisation’ which
can be presented to the hospital for appropriate action in the
event of the executant being admitted to the hospital with serious
illness which may threaten termination of life of the executant. In
nutshell, the petitioner wants that citizens should have right to
decide in advance not to accept any kind of treatment at a stage
when they are terminally ill. Expressing this in advance in a
document is known as ‘living will’ or ‘advance directive’, whereby
the aforesaid self-determination of the person is to be acted upon
when he reaches PVS or his brain dead/clinically dead.
124) It is an undisputed that Doctors’ primary duty is to provide
treatment and save life but not in the case when a person has
already expressed his desire of not being subjected to any kind of
treatment. It is a common law right of people, of any civilized
country, to refuse unwanted medical treatment and no person can
force him/her to take any medical treatment which the person
does not desire to continue with. The foundation of the aforesaid
right has already been laid down by this Court in Aruna
Ramachandra Shanbaug while dealing with the issue of
Writ Petition (Civil) No. 215 of 2005 Page 90 of 112
‘involuntary passive euthanasia’. To quote:
“66. 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. Similarly, if a patient is in coma or on a
heart-lung machine, withdrawing of the machine will
ordinarily result in passive euthanasia. Similarly not
giving life-saving medicines like antibiotics in certain
situations may result in passive euthanasia. Denying
food to a person in coma or PVS may also amount to
passive euthanasia.
67. As already stated above, euthanasia can be both
voluntary or non-voluntary. In voluntary passive
euthanasia a person who is capable of deciding for
himself decides that he would prefer to die (which may
be for various reasons e.g. that he is in great pain or
that the money being spent on his treatment should
instead be given to his family who are in greater need,
etc.), and for this purpose he consciously and of his
own free will refuses to take life-saving medicines. In
India, if a person consciously and voluntarily refuses
to take life-saving medical treatment it is not a crime...
xxx xxx xxx
78. ... First, it is established that the principle of selfdetermination
requires that respect must be given to
the wishes of the patient, so that if an adult patient of
sound mind refuses, however unreasonably, to
consent to treatment or care by which his life would or
might be prolonged, the doctors responsible for his
care must give effect to his wishes, even though they
do not consider it to be in his best interests to do so
[see Schloendorff v. Society of New York Hospital [211
NY 125 : 105 NE 92 (1914)] , NE at p. 93, per
Cardozo, J.; S. v. McC. (Orse S.) and M (D.S.
Intervener) [1972 AC 24 (HL)], W v. W; AC at p. 43,
per Lord Reid; and Sidaway v. Board of Governors of
the Bethlem Royal Hospital [1985 AC 871 : (1985) 2
WLR 480 : (1985) 1 All ER 643 (HL)] AC at p. 882, per
Lord Scarman]. To this extent, the principle of the
sanctity of human life must yield to the principle of
self-determination [see (Court of Appeal transcript in
Writ Petition (Civil) No. 215 of 2005 Page 91 of 112
the present case, at p. 38 F per Hoffmann, L.J.)], and,
for present purposes perhaps more important, the
doctor's duty to act in the best interests of his patient
must likewise be qualified. On this basis, it has been
held that a patient of sound mind may, if properly
informed, require that life support should be
discontinued: see Nancy B. v. Hotel Dieu de Quebec
[(1992) 86 DLR (4th) 385 (Que SC)] . Moreover the
same principle applies where the patient's refusal to
give his consent has been expressed at an earlier
date, before he became unconscious or otherwise
incapable of communicating it; though in such
circumstances especial care may be necessary to
ensure that the prior refusal of consent is still properly
to be regarded as applicable in the circumstances
which have subsequently occurred [see e.g. T. (Adult:
Refusal of Treatment), In re [1993 Fam 95 : (1992) 3
WLR 782 : (1992) 4 All ER 649 (CA)] ]. I wish to add
that, in cases of this kind, there is no question of the
patient having committed suicide, nor therefore of the
doctor having aided or abetted him in doing so. It is
simply that the patient has, as he is entitled to do,
declined to consent to treatment which might or would
have the effect of prolonging his life, and the doctor
has, in accordance with his duty, complied with his
patient's wishes...”
125) The aforesaid principle has also been recognised by this Court in
its Constitution Bench judgment passed in Gian Kaur wherein it
was held that although ‘Right to Life’ under Article 21 does not
include ‘Right to Die’, but ‘Right to live with dignity’ includes ‘Right
to die with dignity’. To quote:
“24. Protagonism of euthanasia on the view that
existence in persistent vegetative state (PVS) is not a
benefit to the patient of a terminal illness being
unrelated to the principle of “sanctity of life” or the
“right to live with dignity” is of no assistance to
determine the scope of Article 21 for deciding whether
the guarantee of “right to life” therein includes the
“right to die”. The “right to life” including the right to live
Writ Petition (Civil) No. 215 of 2005 Page 92 of 112
with human dignity would mean the existence of such
a right up to the end of natural life. This also includes
the right to a dignified life up to the point of death
including a dignified procedure of death. In other
words, this may include the right of a dying man to
also die with dignity when his life is ebbing out. But the
“right to die” with dignity at the end of life is not to be
confused or equated with the “right to die” an
unnatural death curtailing the natural span of life.
25. A question may arise, in the context of a dying
man who is terminally ill or in a persistent vegetative
state that he may be permitted to terminate it by a
premature extinction of his life in those circumstances.
This category of cases may fall within the ambit of the
“right to die” with dignity as a part of right to live with
dignity, when death due to termination of natural life is
certain and imminent and the process of natural death
has commenced. These are not cases of extinguishing
life but only of accelerating conclusion of the process
of natural death which has already commenced. The
debate even in such cases to permit physicianassisted
termination of life is inconclusive. It is
sufficient to reiterate that the argument to support the
view of permitting termination of life in such cases to
reduce the period of suffering during the process of
certain natural death is not available to interpret Article
21 to include therein the right to curtail the natural
span of life.”
126) In fact, the Law Commission of India was asked to consider on
the feasibility of making legislation on euthanasia, taking into
account the earlier 196th Report of the Law Commission as well
as the judgment of this Court in Aruna Ramachandra
Shanbaug. In August, 2012, Law Commission came out with a
detailed 241st Report on the issue of passive euthanasia, wherein
it approved the concept of Right to Self Determination also. The
Law Commission made some important observations in its report
Writ Petition (Civil) No. 215 of 2005 Page 93 of 112
such as:
“2.4 The following pertinent observations made by
the then Chairman of the Law Commission in the
forwarding letter dated 28 August 2006 addressed
to the Hon’ble Minister are extracted below:
“A hundred years ago, when medicine and
medical technology had not invented the
artificial methods of keeping a terminally ill
patient alive by medical treatment, including
by means of ventilators and artificial feeding,
such patients were meeting their death on
account of natural causes. Today, it is
accepted, a terminally ill person has a common
law right to refuse modern medical procedures
and allow nature to take its own course, as was
done in good old times. It is well-settled law in
all countries that a terminally ill patient who is
conscious and is competent, can take an
‘informed decision’ to die a natural death and
direct that he or she be not given medical
treatment which may merely prolong life. There
are currently a large number of such patients
who have reached a stage in their illness when
according to well-informed body of medical
opinion, there are no chances of recovery. But
modern medicine and technology may yet
enable such patients to prolong life to no
purpose and during such prolongation, patients
could go through extreme pain and suffering.
Several such patients prefer palliative care for
reducing pain and suffering and do not want
medical treatment which will merely prolong
life or postpone death.”
xxx xxx xxx
5.2 The 196th Report of the Law Commission stated
the fundamental principle that a terminally ill but
competent patient has a right to refuse treatment
including discontinuance of life sustaining measures
and the same is binding on the doctor, “provided that
the decision of the patient is an ‘informed decision’ ”.
‘Patient’ has been defined as a person suffering from
terminal illness. “Terminal illness” has also been
defined under Section 2 (m). The definition of a
‘competent patient’ has to be understood by the
definition of ‘incompetent patient’. ‘Incompetent
Writ Petition (Civil) No. 215 of 2005 Page 94 of 112
patient’ means a patient who is a minor or a person of
unsound mind or a patient who is unable to weigh,
understand or retain the relevant information about his
or her medical treatment or unable to make an
‘informed decision’ because of impairment of or a
disturbance in the functioning of the mind or brain or a
person who is unable to communicate the informed
decision regarding medical treatment through speech,
sign or language or any other mode (vide Section 2(d)
of the Bill, 2006). “Medical Treatment” has been
defined in Section 2(i) as treatment intended to
sustain, restore or replace vital functions which, when
applied to a patient suffering from terminal illness,
would serve only to prolong the process of dying and
includes life sustaining treatment by way of surgical
operation or the administration of medicine etc. and
use of mechanical or artificial means such as
ventilation, artificial nutrition and cardio resuscitation.
The expressions “best interests” and “informed
decision” have also been defined in the proposed Bill.
“Best Interests”, according to Section 2(b), includes
the best interests of both on incompetent patient and
competent patient who has not taken an informed
decision and it ought not to be limited to medical
interests of the patient but includes ethical, social,
emotional and other welfare considerations. The term
‘informed decision’ means, as per Section 2 (e) “the
decision as to continuance or withholding or
withdrawing medical treatment taken by a patient who
is competent and who is, or has been informed about
– (i) the nature of his or her illness, (ii) any alternative
form of treatment that may be available, (iii) the
consequences of those forms of treatment, and (iv)
the consequences of remaining untreated.
xxx xxx xxx
5.8 The Law Commission of India clarified that where
a competent patient takes an ‘informed decision’ to
allow nature to have its course, the patient is, under
common law, not guilty of attempt to commit suicide
(u/s 309 IPC) nor is the doctor who omits to give
treatment, guilty of abetting suicide (u/s 306 IPC) or of
culpable homicide (u/s 299 read with Section 304 of
IPC).
xxx xxx xxx
Writ Petition (Civil) No. 215 of 2005 Page 95 of 112
7.2 In this context, two cardinal principles of medical
ethics are stated to be patient autonomy and
beneficence (vide P. 482 of SCC in Aruna’s case):
1. “Autonomy means the right to self-determination,
where the informed patient has a right to choose the
manner of his treatment. To be autonomous, the
patient should be competent to make decision and
choices. In the event that he is incompetent to make
choices, his wishes expressed in advance in the form
of a living will, OR the wishes of surrogates acting on
his behalf (substituted judgment) are to be respected.
The surrogate is expected to represent what the
patient may have decided had she/she been
competent, or to act in the patient’s best interest.
2. Beneficence is acting in what (or judged to be) in
the patient’s best interest. Acting in the patient’s best
interest means following a course of action that is best
for the patient, and is not in influenced by personal
convictions, motives or other considerations……..
xxx xxx xxx
11.2 The discussion in the foregoing paras and the
weighty opinions of the Judges of highest courts as
well as the considered views of Law Commission (in
196th report) would furnish an answer to the above
question in clearest terms to the effect that legally and
constitutionally, the patient (competent) has a right to
refuse medical treatment resulting in temporary
prolongation of life. The patient’s life is at the brink of
extinction. There is no slightest hope of recovery. The
patient undergoing terrible suffering and worst mental
agony does not want his life to be prolonged by
artificial means. She/he would not like to spend for his
treatment which is practically worthless. She/he cares
for his bodily integrity rather than bodily suffering.
She/he would not like to live like a ‘cabbage’ in an
intensive care unit for some days or months till the
inevitable death occurs. He would like to have the right
of privacy protected which implies protection from
interference and bodily invasion. As observed in Gian
Kaur’s case, the natural process of his death has
already commenced and he would like to die with
peace and dignity. No law can inhibit him from opting
Writ Petition (Civil) No. 215 of 2005 Page 96 of 112
such course. This is not a situation comparable to
suicide, keeping aside the view point in favour of
decriminalizing the attempt to suicide. The doctor or
relatives cannot compel him to have invasive medical
treatment by artificial means or treatment. If there is
forced medical intervention on his body, according to
the decisions cited supra (especially the remarks of
Lord Brown Wilkinson in Airdale’s case), the doctor /
surgeon is guilty of ‘assault’ or ‘battery’. In the words
of Justice Cardozo, “every human being of adult years
and sound mind has a right to determine what shall be
done with his own body and a surgeon who performs
an operation without his patient’s consent commits an
assault for which he is liable in damages.” Lord Goff in
Airedale’s case places the right to self determination
on a high pedestal. He observed that “in the
circumstances such as this, the principle of sanctity of
human life must yield to the principle of self
determination and the doctor’s duty to act in the best
interests of the patient must likewise be qualified by
the wish of the patient.” The following observations of
Lord Goff deserve particular notice:
“I wish to add that, in cases of this kind, there is
no question of the patient having committed
suicide, nor therefore of the doctor having aided
or abetted him in doing so. It is simply that the
patient has, as he is entitled to do, declined to
consent to treatment which might or would have
the effect of prolonging his life, and the doctor
has, in accordance with his duty, complied with
his patient's wishes.”
127) And finally, the Law Commission in its 241st Report gave
Summary of Recommendations as under:
“14. Summary of Recommendations
14.1 Passive euthanasia, which is allowed in many
countries, shall have legal recognition in our
country too subject to certain safeguards, as
suggested by the 17th Law Commission of India
and as held by the Supreme Court in Aruna
Ramachandra’s case [(2011) 4 SCC 454)]. It is not
objectionable from legal and constitutional point of
Writ Petition (Civil) No. 215 of 2005 Page 97 of 112
view.
14.2 A competent adult patient has the right to
insist that there should be no invasive medical
treatment by way of artificial life sustaining
measures / treatment and such decision is binding
on the doctors / hospital attending on such patient
provided that the doctor is satisfied that the patient
has taken an ‘informed decision’ based on free
exercise of his or her will. The same rule will apply
to a minor above 16 years of age who has
expressed his or her wish not to have such
treatment provided the consent has been given by
the major spouse and one of the parents of such
minor patient.
14.3 As regards an incompetent patient such as a
person in irreversible coma or in Persistent
Vegetative State and a competent patient who has
not taken an ‘informed decision’, the doctor’s or
relatives’ decision to withhold or withdraw the
medical treatment is not final. The relatives, next
friend, or the doctors concerned / hospital
management shall get the clearance from the High
Court for withdrawing or withholding the life
sustaining treatment. In this respect, the
recommendations of Law Commission in 196th
report is somewhat different. The Law Commission
proposed an enabling provision to move the High
Court.
14.4 The High Court shall take a decision after
obtaining the opinion of a panel of three medical
experts and after ascertaining the wishes of the
relatives of the patient. The High Court, as parens
patriae will take an appropriate decision having
regard to the best interests of the patient.
14.5 Provisions are introduced for protection of
medical practitioners and others who act according
to the wishes of the competent patient or the order
of the High Court from criminal or civil action.
Further, a competent patient (who is terminally ill)
refusing medical treatment shall not be deemed to
be guilty of any offence under any law.
14.6 The procedure for preparation of panels has
been set out broadly in conformity with the
recommendations of 17th Law Commission.
Advance medical directive given by the patient
Writ Petition (Civil) No. 215 of 2005 Page 98 of 112
before his illness is not valid.
14.7 Notwithstanding that medical treatment has
been withheld or withdrawn in accordance with the
provisions referred to above, palliative care can be
extended to the competent and incompetent
patients. The Governments have to devise schemes
for palliative care at affordable cost to terminally ill
patients undergoing intractable suffering.
14.8 The Medical Council of India is required issue
guidelines in the matter of withholding or
withdrawing of medical treatment to competent or
incompetent patients suffering from terminal
illness.
14.9 Accordingly, the Medical Treatment of
Terminally Ill Patients (Protection of Patients and
Medical Practitioners) Bill, 2006, drafted by the 17th
Law Commission in the 196th Report has been
modified and the revised Bill is practically an
amalgam of the earlier recommendations of the
Law Commission and the views / directions of the
Supreme Court in Aruna Ramachandra case. The
revised Bill is at Annexure I.”
128) I am also of the view that such an advance authority is akin to
well recognised common law right to refuse medical treatment
(See: Re T (Adult: Refusal of Medical Treatment71), Re B
(Adult: Refusal of Medical Treatment72), Crazan v. Director,
Missouri Department of Health73
, Malette v. Shulam74
.
129) In a recent landmark judgment of the nine Judge Constitution
Bench in the case of K.S. Puttaswamy authoritatively held that
right to life enshrined in Article 21 includes right to privacy. One
71 (1992) 4 All ER 649
72 (2002) 2 All ER 449
73 497 U.S. 261 (1990)
74 67 DLR (4th) 321
Writ Petition (Civil) No. 215 of 2005 Page 99 of 112
of the facet of this right acknowledged is an individual’s decision
to refuse life prolonging medical treatment or terminate his life.
Justice Chelameswar in his separate opinion has described the
same in the following manner:
“373. Concerns of privacy arise when the State seeks
to intrude into the body of subjects. [Skinner v.
Oklahoma, 1942 SCC OnLine US SC 125 : 86 L Ed
1655 : 316 US 535 (1942)“20. There are limits to the
extent to which a legislatively represented majority
may conduct biological experiments at the expense of
the dignity and personality and natural powers of a
minority—even those who have been guilty of what
the majority defines as crimes.” (SCC OnLine US SC
para 20)—Jackson, J.] Corporeal punishments were
not unknown to India, their abolition is of a recent
vintage. Forced feeding of certain persons by the
State raises concerns of privacy. An individual's rights
to refuse life prolonging medical treatment or
terminate his life is another freedom which falls within
the zone of the right to privacy. I am conscious of the
fact that the issue is pending before this Court. But in
various other jurisdictions, there is a huge debate on
those issues though it is still a grey area. [ For the
legal debate in this area in US, See Chapter 15.11 of
American Constitutional Law by Laurence H. Tribe,
2nd Edn.] A woman's freedom of choice whether to
bear a child or abort her pregnancy are areas which
fall in the realm of privacy. Similarly, the freedom to
choose either to work or not and the freedom to
choose the nature of the work are areas of private
decision-making process. The right to travel freely
within the country or go abroad is an area falling within
the right to privacy. The text of our Constitution
recognised the freedom to travel throughout the
country under Article 19(1)(d). This Court has already
recognised that such a right takes within its sweep the
right to travel abroad. [Maneka Gandhi v. Union of
India, (1978) 1 SCC 248] A person's freedom to
choose the place of his residence once again is a part
of his right to privacy [Williams v. Fears, 1900 SCC
OnLine US SC 211 : 45 L Ed 186 : 179 US 270 (1900)
—“8. Undoubtedly the right of locomotion, the right to
Writ Petition (Civil) No. 215 of 2005 Page 100 of 112
remove from one place to another according to
inclination, is an attribute of personal liberty….” (SCC
OnLine US SC para 8)] recognised by the Constitution
of India under Article 19(1)(e) though the predominant
purpose of enumerating the above-mentioned two
freedoms in Article 19(1) is to disable both the federal
and State Governments from creating barriers which
are incompatible with the federal nature of our country
and its Constitution. The choice of appearance and
apparel are also aspects of the right to privacy. The
freedom of certain groups of subjects to determine
their appearance and apparel (such as keeping long
hair and wearing a turban) are protected not as a part
of the right to privacy but as a part of their religious
belief. Such a freedom need not necessarily be based
on religious beliefs falling under Article 25.
Informational traces are also an area which is the
subject-matter of huge debate in various jurisdictions
falling within the realm of the right to privacy, such
data is as personal as that of the choice of
appearance and apparel. Telephone tappings and
internet hacking by State, of personal data is another
area which falls within the realm of privacy. The instant
reference arises out of such an attempt by the Union
of India to collect biometric data regarding all the
residents of this country. The above-mentioned are
some of the areas where some interest of privacy
exists. The examples given above indicate to some
extent the nature and scope of the right to privacy.”
NATURE OF LIVING WILL OR ADVANCE DIRECTIVE
130) Advance directives are instruments through which persons
express their wishes at a prior point in time, when they are
capable of making an informed decision, regarding their medical
treatment in the future, when they are not in a position to make an
informed decision, by reason of being unconscious or in a PVS or
in a coma. A medical power of attorney is an instrument through
which persons nominate representatives to make decisions
Writ Petition (Civil) No. 215 of 2005 Page 101 of 112
regarding their medical treatment at a point in time when the
persons executing the instrument are unable to make informed
decisions themselves. Clause 11 of the draft Treatment of
Terminally-III Patients (Protection of Patients and Medical
Practitioners) Bill, 2016 states that advance directives or medical
power of attorney shall be void and of no effect and shall not be
binding on any medical practitioner. This blanket ban, including
the failure even to give some weight to advance directives while
making a decision about the withholding or withdrawal of lifesustaining
treatment is disproportionate. It does not constitute a
fair, just or reasonable procedure, which is a requirement for the
imposition of a restriction on the right to life (in this case,
expressed as the right to die with dignity) under Article 21.
131) At this juncture, we may again reiterate that on the one hand
autonomy of an individual gives him right to choose his destiny
and, therefore, he may decide before hand, in the form of
advance directive, at what stage of his physical condition he
would not like to have medical treatment, and on the other hand,
there are dangers of misuse thereof as well. David Feldman
explained the same in the following manner:
“...However, while it is undoubtedly a criminal act to do
anything intending to hasten another person’s death,
there is no absolute duty on a doctor to try to save the life
Writ Petition (Civil) No. 215 of 2005 Page 102 of 112
of a patient, for two reasons.
The first is that any treatment is prima facie a trespass to
the person, and if the patient is adult and competent to
consent it will be unlawful without that consent. A doctor
therefore acts lawfully – indeed, could not lawfully act
otherwise – when he withholds treatment at the request
of a terminally ill patient. This has been called passive,
as distinct from active, euthanasia. To ensure that
medical staff know of their wishes, some people have
executed what are sometimes called ‘living wills’, giving
directions to medical staff to withhold treatment in
specified circumstances, and making their wishes known
to anyone who might be appointed as their
representative in the event that they become in capable
for any reason. The efficacy of such prior indications was
accepted, obiter, by Lord Goff in Airedale NHS Trust v.
Bland, above. In such circumstances, the patient
voluntarily accepts non-treatment while in a state to do
so rationally. However, where there is the slightest doubt
about the wishes of a patient, that patient should be
treated, because the paternalism which decides for
someone else when it is best to die is effectively denying
them the opportunity to make the most of their lives as
autonomous individuals. Furthermore, it would seem to
be wrong in principle to put pressure to bear on a patient
to elect to die. In those states of the USA where
voluntary euthanasia is lawful, the ethical problems for
patients, doctors, next of kin, and nursing staff are
immense. Where the patient is not mentally competent
to confirm the choice to die at the time when the choice is
about to be given effect, it will also be impossible to know
whether the choice expressed earlier was truly voluntary,
whether the consent was informed, and whether or not
the patients would want to reconsider were he able to do
so. In the Netherlands, where it is lawful to practice
voluntary euthanasia, it seems that the procedural
safeguards designed to protect people against
involuntary euthanasia are very hard to enforce and are
regularly flouted.
Secondly, the doctrine of double effect allows the doctor
to take steps which carry a substantial risk to life in order
to treat, in good faith and with the patient’s consent,
some disease or symptom. This is essential, because
virtually any treatment carries some risk to the patient. It
is particularly relevant to the euthanasia issue in cases
Writ Petition (Civil) No. 215 of 2005 Page 103 of 112
where the primary object (e.g. pain control in terminal
cancer treatment) can only be achieved by administering
drugs at a level which is likely to shorten life, but
enhances the quality of life while it lasts. A trade-off
between length of life and quality of life is permissible.”
132) At the same time, possibility of misuse cannot be held to be a
valid ground for rejecting advance directive, as opined by the Law
Commission of India as well in its 196th and 241st Report.
Instead, attempt can be made to provide safeguards for exercise
of such advance directive. For example, Section 5 of the Mental
Healthcare Act, 2017 recognises the validity of advance directives
for the treatment of mental illness under the Mental Healthcare
Act, 2017. The draft Mental Healthcare Regulations have
recently been made available for public comment by the Ministry
of Health and Family Welfare. These prescribe the form in which
advance directives may be made. Part II, Chapter 1 of the
Regulations allow a Nominated Representative to be named in
the Advance Directive. An advance directive is to be in writing
and signed by two witnesses attesting to the fact that the
Directive was executed in their presence. A Directive to be
registered with the Mental Health Review Board. It may be
changed as many times as desired by the person executing it and
the treating mental health professional must be informed of such
change. Similarly, Section 3 of the Transplantation of Human
Writ Petition (Civil) No. 215 of 2005 Page 104 of 112
Organs and Tissues Act, 1994 allows persons to authorise the
removal of human organs and tissues from their body before
death. The form in which this authorisation is to be made is
prescribed in Form 7 of the Transplantation of Human Organs
and Tissues Rules, 2014. This is also to be in writing and in the
presence of two witnesses. A copy of the pledge is to be retained
at the institution where the pledge is made and the person
making the pledge has the option to withdraw the pledge at any
time. Where such authorisation had been made, the person
lawfully in charge of the donor’s body after his death is required
to grant the concerned medical practitioner all reasonable
facilities for the removal of human organs or tissues, unless such
person has reason to believe that the donor had substantially
revoked his authority.
133) Mr. Datar, learned counsel appearing for the intervenor, has also
brought to our notice various safeguards for advance directive
provided in other jurisdiction in many ways i.e. by prescribing the
form that the directive must take, by specifying who may act as
witnesses, by allowing the possibility of amendment and by
allowing the validity of the directive to be challenged. Some of
these examples are as follows:
Writ Petition (Civil) No. 215 of 2005 Page 105 of 112
(a) In U.K., under Section 24 of the Mental Capacity Act, 2005, a
person above the age of 18 years who has capacity may execute
an advance directive. A person is said to lack capacity if in
relation to a matter at the material time, he is unable to make a
decision for himself because of an impairment of or disturbance in
the functioning of the mind or brain. In Netherlands, under Article
2 of the Termination of Life on Request and Assisted Suicide
(Review Procedures) Act, patients aged 16 or above may make
advance directives. In Germany, the authorisation of the court is
required for the termination of treatment in the case of minors. In
Switzerland, persons with mental illnesses are considered
exceptions and cannot discontinue medical treatment if it is an
expression or symptom of their mental illness. In Hungary,
pregnant women may not refuse treatment if it is seen that they
are able to carry the pregnancy.
(b) Section 25 of the Mental Capacity Act, an advance decision
to refuse life-sustaining treatment must be in writing. It must be
signed by the patient or someone on his behalf and signed by a
witness. It must also include a written statement by the patient
that the decision will apply to the specific treatment even if the
patient’s life is at risk. Under Article 7: 450 of the Dutch Civil
Code, an advance directive should be in written form, dated and
Writ Petition (Civil) No. 215 of 2005 Page 106 of 112
signed to be valid. Section 110Q of the Western Australia
Guardianship and Administration Act, 1990 requires advance
directives to be signed in the presence of two witnesses, who
must both be at least 18 years of age and one of whom must be a
person authorised to witness legal documents under the relevant
law. Section 15 of the South Australia Advance Directives Act,
2013 sets out requirements for ‘suitable’ witnesses under the Act.
A person may not be a witness if she is appointed as a substitute
decision-maker under the advance directive, has a direct or
indirect interest in the estate of the person executing the advance
directive or is a health practitioner responsible for the health care
of the person executing the advance directive. Similar
disqualifications for witnesses are prescribed in the Oregon Death
with Dignity Act, 2002 when a person makes a written request for
medication for the purpose of ending her life in a humane and
dignified manner.
(c) Under Section 24(3) of the UK Mental Capacity Act, 2005, a
person may alter or withdraw an advance decision at any time he
has the capacity to do so. Under Section 25(2)(c), an advance
decision will not be applicable if a person has done anything else
clearly inconsistent with the advance decision. Under Section
3.06 of the Oregon Death with Dignity Act, 2005, a person may
Writ Petition (Civil) No. 215 of 2005 Page 107 of 112
rescind her written request for medicating at any time regardless
of her mental state. To allow for a change of mind, Section 3.08
also requires at least 15 days to lapse between the patient’s initial
oral request and the writing of a prescription, while a minimum of
48 hours must elapse between the patient’s written request and
the writing of a prescription. Under Section 110S of the Western
Australia Guardianship and Administration Act, 1990, a treatment
decision in an advance directive does not operate if
circumstances exist or have arisen that the maker of that directive
could not reasonably have anticipated at the time of making the
directive and that would have caused a reasonable person in the
maker’s position to have changed her mind about the directive.
While determining whether such circumstances have arisen, the
age of the maker and the period that has elapsed between the
time at which the directive was made and the circumstances that
have arisen are factors that must be taken into account while
determining the validity of the directive.
(d) Section 26(4) of the UK Mental Capacity Act permits courts to
make a declaration as to whether the advance decision exists, is
valid, and applicable to a treatment. Under Article 373 of the
Swiss Civil Code, ‘any person closely related to the patient can
contact the adult protection authority in writing and claim that...
Writ Petition (Civil) No. 215 of 2005 Page 108 of 112
the patient decree is not based on the patient’s free will.’ Under
Section 110V, 110W, 110X, 110Y and 110Z of the Western
Australia Guardianship and Administration Act, 1990, any person
who has a ‘proper interest’ in the matter, in the view of the State
Administrative Tribunal, may apply to it for a declaration with
respect to the validity of an advance directive. It can also
interpret the terms of the directive, give directions to give effect to
it or revoke a treatment decision in the directive.
134) Mr. Datar has suggested that this Court should frame the
guidelines to cover the following aspects:
(a) Who will be competent to execute an advance directive?
(b) In what form will an advance directive have to be issued in
order to be valid?
(c) Who is to ensure that an advance directive is properly
obeyed?
(d) What legal consequences follow from the non-obedience to an
advance directive?
(e) In what circumstances can a doctor refuse to enforce an
advance directive?
135) He has given the following suggestions on the aforesaid aspects:
(a) Only adult persons, above the age of eighteen years and of
Writ Petition (Civil) No. 215 of 2005 Page 109 of 112
sound mind at the time at which the advance directive is executed
should be deemed to be competent. This should include persons
suffering from mental disabilities provided they are of sound mind
at the time of executing an advance directive.
(b) Only written advance directives that have been executed
properly with the notarised signature of the person executing the
advance directive, in the presence of two adult witnesses shall be
valid and enforceable in the eyes of the law. The form should
require a reaffirmation that the person executing such directives
has made an informed decision. Only those advance directives
relating to the withdrawal or withholding of life-sustaining
treatment should be granted legal validity. The determination that
the executor of the advance directive is no longer capable of
making the decision should be made in accordance with relevant
medical professional regulations or standard treatment
guidelines, as also the determination that the executor’s life
would terminate in the absence of life-sustaining treatment. The
constitution of a panel of experts may also be considered to make
this determination. The use of expert committees or ethics
committees in other jurisdictions is discussed at Para 28 of these
written submissions.
(c) Primary responsibility for ensuring compliance with the
Writ Petition (Civil) No. 215 of 2005 Page 110 of 112
advance directive should be on the medical institution where the
person is receiving such treatment.
(d) If a hospital refuses to recognise the validity of an advance
directive, the relatives or next friend may approach the
jurisdictional High Court seeking a writ or mandamus against the
concerned hospital to execute the directive. The High Court may
examine whether the directive has been properly executed,
whether it is still valid (i.e. whether or not circumstances have
fundamentally changed since its execution, making it invalid)
and/or applicable to the particular circumstances or treatment.
(e) No hospital or doctor should be made liable in civil or criminal
proceedings for having obeyed a validly executed advance
directive.
(f) Doctors citing conscientious objection to the enforcement of
advance directives on the grounds of religion should be permitted
not to enforce it, taking into account their fundamental right under
Article 25 of the Constitution. However, the hospital will still
remain under this obligation.
136) All these suggestions and various aspects of advance directives
have been elaborately considered and detailed directions are
given by the Hon’ble the Chief Justice in his judgment, with which
Writ Petition (Civil) No. 215 of 2005 Page 111 of 112
I duly concur. In summation, I say that this Court has, with utmost
sincerity, 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.
137) My last remarks are a pious hope 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.
.....................................J.
(A.K. SIKRI)
NEW DELHI;
MARCH 09, 2018.
Writ Petition (Civil) No. 215 of 2005 Page 112 of 112
PART A
1
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 215 OF 2005
COMMON CAUSE (A REGD. SOCIETY) .... PETITIONER
VERSUS
UNION OF INDIA & ANR ..... RESPONDENTS
J U D G M E N T
Dr D Y CHANDRACHUD, J
A Introduction: On Death and Dying
1 Life and death are inseparable. Every moment of our lives, our bodies
are involved in a process of continuous change. Millions of our cells perish as
nature regenerates new ones. Our minds are rarely, if ever, constant. Our
thoughts are fleeting. In a physiological sense, our being is in a state of flux,
change being the norm. Life is not disconnected from death. To be, is to die.
PART A
2
From a philosophical perspective, there is no antithesis between life and
death. Both constitute essential elements in the inexorable cycle of existence.
2 Living in the present, we are conscious of our own mortality. Biblical
teaching reminds us that:
“There is a time for everything, and a season for every activity
under the heavens : a time to be born and a time to die, a
time to plant, and a time to uproot, a time to kill and a time to
heal, a time to wear down and a time to build, a time to weep
and a time to laugh, a time to mourn and a time to dance.”
(Ecclesiastes 3)
3 The quest of each individual to find meaning in life reflects a human
urge to find fulfilment in the pursuit of happiness. The pursuit of happiness is
nurtured in creative pleasures and is grounded in things as fundamental as
the freedom to think, express and believe, the right to self-determination, the
liberty to follow a distinctive way of life, the ability to decide whether or not to
conform and the expression of identity.
4 Human beings through the ages have been concerned with death as
much as with dying. Death represents a culmination, the terminal point of life.
Dying is part of a process: the process of living, which eventually leads to
death. The fear of death is a universal feature of human existence. The fear is
associated as much with the uncertainty of when death will occur as it is, with
the suffering that may precede it. The fear lies in the uncertainty of when an
PART A
3
event which is certain will occur. Our fears are enhanced by the experience of
dying that we share with those who were a part of our lives but have gone
before us. As human beings, we are concerned with the dignity of our
existence. The process through which we die bears upon that dignity. A
dignified existence requires that the days of our lives which lead up to death
must be lived in dignity; that the stages through which life leads to death
should be free of suffering; and that the integrity of our minds and bodies
should survive so long as life subsists. The fear of an uncertain future
confronts these aspirations of a dignified life. The fear is compounded by the
fact that as we age, we lose control over our faculties and over our ability to
take decisions on the course of our future. Our autonomy as persons is
founded on the ability to decide: on what to wear and how to dress, on what to
eat and on the food that we share, on when to speak and what we speak, on
the right to believe or not to believe, on whom to love and whom to partner,
and to freely decide on innumerable matters of consequence and detail to our
daily lives. Ageing leaves individuals with a dilution of the ability to decide. The
fear of that loss is ultimately, a fear of the loss of freedom. Freedom and
liberty are the core of a meaningful life. Ageing brings dependency and a loss
of control over our ability to shape what we wish to happen to us.
5 The progression of life takes its toll on the human body and the mind.
As we age, simple tasks become less simple and what seemed to be a matter
of course may become less so. Human beings then turn ever more to the
PART A
4
substance that matters. As events, relationships, associations and even
memories fall by the way, we are left with a lonesome remnant of the person,
which defines the core of our existence. The quest of finding meaning in that
core is often a matter of confronting our fears and tragedies.
6 The fear of pain and suffering is perhaps even greater than the
apprehension of death. To be free of suffering is a liberation in itself. Hence
the liberty to decide how one should be treated when the end of life is near is
part of an essential attribute of personhood. Our expectations define how we
should be treated in progressing towards the end, even when an individual is
left with little or no comprehension near the end of life.
7 Dilemmas relating to the end of life have been on the frontline of debate
across the world in recent decades. The debate has presented “a complex
maze of dilemmas for all - the doctor, the lawyer, the patient and the patient’s
relatives”1 and straddles issues of religion, morality, bio-medical ethics and
constitutional law. It has involved “issues ranging from the nature and
meaning of human life itself, to the most fundamental principles on which our
societies are and should be based”2
.
1
“The Dilemmas of Euthanasia”, Bio-Science (August 1973), Vol. 23, No. 8, at page 459
2
Margaret A. Somerville, “Legalising euthanasia: why now?”, The Australian Quarterly (Spring 1996), Vol. 68,
No. 3, at page 1
PART A
5
8 There is an “ongoing struggle between technology and the law”; as
“medical technology has become more advanced, it has achieved the capability
both to prolong human life beyond its natural endpoint and to better define
when that endpoint will occur”.3
Medical science has contributed in a significant
way to enhancing the expectancy of life. Diseases once considered fatal have
now become treatable. Medical research has redefined our knowledge of
ailments – common and uncommon; of their links with bodily functions and the
complex relationship between mental processes and physical well-being.
Science which affects the length of life also has an impact on the quality of the
years in our lives. Prolonging life should, but does not necessarily result in, a
reduction of suffering. Suffering has a bearing on the quality of life. The quality
of life depends upon the life in our years. Adding to the length of life must bear
a functional nexus with the quality of life. Human suffering must have
significance not only in terms of how long we live but also in terms of how well
we live.
9 Modern medicine has advanced human knowledge about the body and
the mind. Equipped with the tools of knowledge, science has shown the ability
to reduce human suffering. Science has also shown an ability to prolong life.
Yet in its ability to extend life, medical science has an impact on the quality of
life, as on the nature and extent of human suffering. Medical interventions
come with costs, both emotional and financial. The ability of science to
3 Christopher N. Manning, “Live And Let Die: Physician-Assisted Suicide And The Right To Die”, Harvard Journal
of Law and Technology (1996), Vol. 9, No. 2, at page 513
PART A
6
prolong life must face an equally important concern over its ability to impact on
the quality of life. While medical science has extended longevity, it has come
with associated costs of medical care and the agony which accompanies an
artificially sustained life. Medical ethics must grapple with the need to bring
about a balance between the ability of science to extend life with the need for
science to recognise that all knowledge must enhance a meaningful
existence.
10 There is “no consensus as to the rights and wrongs of helping someone
to die”4
, as the legal status of euthanasia has been subjected to social, ethical
and moral norms that have been handed down to us. Decisions regarding the
end of life can be ethically more problematic when the individual is no longer
mentally competent to make his or her own decisions.5 The existential and
metaphysical issues involved in this debate, include the fear of the unknown,
the uncertainty of when death will occur, the scarcity of health care, freedom
or coercion in choosing to receive or not to receive medical treatment, the
dignity and degradation of ageing and being able to care for oneself
independently.6
11 Does the law have a role in these complex questions of life and death?
If it does, what are the boundaries which judges – as interpreters of law –
4 Alan Norrie, “Legal Form and Moral Judgement: Euthanasia and Assisted Suicide” in R.A. Duff, et al (ed), The
Structures of the Criminal Law (Oxford University Press, 2011), at page 134
5 Elizabeth Wicks, The Right to Life and Conflicting Interests (Oxford University Press, 2010), at page 199
6 Elizabeth M. Andal Sorrentino, “The Right To Die?”, Journal of Health and Human Resources Administration
(Spring,1986), Vol. 8, No. 4, page 361
PART A
7
must observe while confronting these issues of living and dying? The law,
particularly constitutional law, intervenes when matters governing freedom,
liberty, dignity and individual autonomy are at stake. To deny a role for
constitutional law would be to ignore our own jurisprudence and the primary
role which it assigns to freedom and dignity. This case presents itself before
the Court as a canvass bearing on the web of life: on the relationship between
science, medicine and ethics and the constitutional values of individual dignity
and autonomy. Among the issues which we confront are:
(i) Does an individual have a constitutionally recognized right to refuse
medical treatment or to reject a particular form of medical treatment;
(ii) If an individual does possess such a right, does a right inhere in the
individual to determine what course of action should be followed in the
future if she or he were to lose control over the faculties which enable
them to accept or refuse medical treatment;
(iii) Does the existence of a right in the individual impose a corresponding
duty on a medical professional who attends to the individual, to respect
the right and what, if any, are the qualifications of that duty;
(iv) Does the law permit a medical practitioner to withhold or refuse medical
treatment towards the end of life to an individual who is no longer in
control of his or her faculties in deference to a desire expressed while in
a fit state of mind; and
PART A
8
(v) Would a withholding or refusal of medical treatment be permissible so
as to allow life to take its natural course, bereft of an artificial
intervention, when there is no realistic hope of return to a normal life.
12 This Court has to consider euthanasia and its impact “not only at an
individual level”, but also at the “institutional, governmental and societal
levels”.7 The impact has to be analyzed not only in the context of the present
era, but has to be contemplated for the future as well. The judge is not a
soothsayer. Nor does the law have predictive tools at its command which can
approximate those available to a scientist. Constitutional principle must have
an abiding value. It can have that value if it is firmly grounded in the distilled
experience of the past, is flexible to accommodate the concerns of the present
and allows room for the unforeseeable future. The possibility of the abuse of
euthanasia and the effect that legalising euthanasia would have on intangible
societal fabrics and institutions is of utmost concern.
13 Contemporary writing on the subject reminds us about how serious
these issues are and of how often they pose real dilemmas in medicine. They
are poignantly brought out by Dr Atul Gawande in his acclaimed book, “Being
Mortal”:
“If to be human is to be limited, then the role of caring
professions and institutions - from surgeons to nursing homes
- ought to be aiding people in their struggle with those limits.
Sometimes we can offer a cure, sometimes only a salve,
7
Ibid
PART A
9
sometimes not even that. But whatever we can offer, our
interventions, and the risks and sacrifices they entail, are
justified only if they serve the large aims of a person's life.
When we forget that, the suffering we inflict can be barbaric.
When we remember it, the good we do can be breathtaking."8
He reminds us of how much people value living with dignity over merely living
longer:
“A few conclusions become clear when we understand this:
that our most cruel failure in how we treat the sick and the
aged is the failure to recognize that they have priorities
beyond merely being safe and living longer; that the chance
to shape one’s story is essential to sustaining meaning in life;
that we have the opportunity to refashion our institutions, our
culture, and our conversations in ways that transform the
possibilities for the last chapters of everyone’s lives.”9
14 Dr Henry Marsh, a neurosurgeon in the UK has significantly titled his
provocative memoir “Admissions” (2017). Speaking of euthanasia, he
observes:
“We have to choose between probabilities, not certainties,
and that is difficult. How probable is it that we will gain how
many extra years of life, and what might the quality of those
years be, if we submit ourselves to the pain and
unpleasantness of treatment? And what is the probability that
the treatment will cause severe side effects that outweigh any
possible benefits? When we are young it is usually easy to
decide – but when we are old, and reaching the end of our
likely lifespan? We can choose, at least in theory, but our
inbuilt optimism and love of life, our fear of death and the
difficulty we have in looking at it steadily, make this very
difficult. We inevitably hope that we will be one of the lucky
ones, one of the long-term survivors, at the good and not the
bad tail-end of the statisticians’ normal distribution. And yet it
has been estimated that in the developed world, 75 per cent
of our lifetime medical costs are incurred in the last six
8 Atul Gawande, Being Mortal: Medicine and What Matters in the End (Hamish Hamilton, 2014), at page 260
9
Ibid, at page 243
PART B
10
months of our lives. This is the price of hope, hope which, by
the laws of probability, is so often unrealistic. And thus we
often end up inflicting both great suffering on ourselves and
unsustainable expense on society.” 10
These are but a few of the examples of emerging literature on the subject.
15 The central aspect of the case is the significance which the Constitution
attaches to the ability of every individual in society to make personal choices
on decisions which affect our lives. Randy Pausch, a Professor at Stanford
had this to say in a book titled “The Last Lecture” (2008),
11 a discourse
delivered by him in the shadow of a terminal illness.
“We cannot change the cards we are dealt, just how we play
the hand”.
We may not be masters of our destiny. Nor can we control what life has in
store. What we can determine is how we respond to our trials and tribulations.
B The reference
16 On 25 February 2014, three Judges of this Court opined that the issues
raised in this case need to be considered by a Constitution Bench. The
referring order notes that the case involves “social, legal, medical and
constitutional” perspectives which should be considered by five judges. At the
heart of the proceeding, is a declaration which Common Cause seeks that the
right to die with dignity is a fundamental right which arises from the right to live
10 Henry Marsh, Admissions: A Life in Brain Surgery, (Weidenfeld & Nicolson, 2017), at page 265-266
11 Randy Pausch and Jeffrey Zaslow, The Last Lecture, (Hodder & Stoughton, 2008), at page 17
PART B
11
with dignity. Article 21 of the Constitution is a guarantee against the
deprivation of life or personal liberty except according to the procedure
established by law. As our law has evolved, the right against the violation of
life and personal liberty has acquired much more than a formal content. It can
have true meaning, if only it includes the right to live with dignity. It is on this
premise that the court is urged to hold that death with dignity is an essential
part of a life of dignity. A direction is sought to the Union Government to adopt
suitable procedures to ensure that persons with “deteriorated health” or those
who are terminally ill should be able to execute a document in the form of “a
living will and attorney authorization” which can be presented to a hospital for
appropriate action if the person who has made it, is hospitalized with a serious
illness which may cause the end of life. The petitioner also seeks, in the
alternative, that this Court should issue guidelines and appoint an expert
committee consisting of doctors, social scientists and lawyers who will govern
the making of ‘living wills’.
17 Individuals who suffer from chronic disease or approach the end of the
span of natural life often lapse into terminal illness or a permanent vegetative
state. When a medical emergency leads to hospitalization, individuals in that
condition are sometimes deprived of their right to refuse unwanted medical
treatment such as feeding through hydration tubes or being kept on a
ventilator and other life support equipment. Life is prolonged artificially
resulting in human suffering. The petition is founded on the right of each
PART B
12
individual to make an informed choice. Documenting a wish in advance, not to
be subjected to artificial means of prolonging life, should the individual not be
in a position later to comprehend or decline treatment, is a manifestation of
individual choice and autonomy. The process of ageing is marked by a sense
of helplessness. Human faculties decline as we grow older. Social aspects of
ageing, such as the loss of friendships and associations combine with the
personal and intimate to enhance a sense of isolation. The boundaries and
even the limits of constitutional law will be tested as the needs of the ageing
and their concerns confront issues of ethics, morality and of dignity in death.
18 In support of its contention, the petitioner relies upon two decisions: a
decision rendered in 1996 by a Constitution Bench in Gian Kaur v State of
Punjab12 (“Gian Kaur”) and a decision of 2011 rendered by two judges in
Aruna Ramachandra Shanbaug v Union of India13 (“Aruna Shanbaug”).
The decision in Gian Kaur arose from a conviction for the abetment of
suicide. In an earlier decision rendered by two judges in 1994 - P Rathinam v
Union of India14 (“Rathinam”), penalising an attempt to commit suicide was
held to violate Article 21 on the foundation that the right to life includes the
right to die. The decision in Rathinam was held not to have laid down the
correct principle, in Gian Kaur. Hence the decision in Aruna Shanbaug noted
that Article 21 does not protect the right to die and an attempt to commit
suicide is a crime. However, in Aruna Shanbaug, the court held that since
12(1996) 2 SCC 648
13 (2011) 15 SCC 480
14 (1994) 3 SCC 394
PART B
13
Gian Kaur rules that the right to life includes living with human dignity, “in the
case of a dying person who is terminally ill or in a permanent vegetative state,
he may be permitted to terminate by a premature extinction of his life”, and
this would not be a crime. The Bench which decided Aruna Shanbaug was of
the view that Gian Kaur had “quoted with approval” the view of the House of
Lords in the UK in Airedale NHS Trust v Bland15 (“Airedale”).
19 When these judgments were placed before a Bench of three judges in
the present case, the court observed that there were “inherent
inconsistencies” in the judgment in Aruna Shanbaug. The referring order
accordingly opined that:
“Aruna Shanbaug (supra) aptly interpreted the decision of the
Constitution Bench in Gian Kaur (supra) and came to the
conclusion that euthanasia can be allowed in India only
through a valid legislation. However, it is factually wrong to
observe that in Gian Kaur (supra), the Constitution Bench
approved the decision of the House of Lords in Airedale v.
Bland: (1993) 2 W.L.R. 316 (H.L.). Para 40 of Gian Kaur
(supra), clearly states that "even though it is not necessary to
deal with physician assisted suicide or euthanasia cases, a
brief reference to this decision cited at the Bar may be
made..." Thus, it was a mere reference in the verdict and it
cannot be construed to mean that the Constitution Bench in
Gian Kaur (supra) approved the opinion of the House of Lords
rendered in Airedale (supra). To this extent, the observation
in Para 101 is incorrect.”
The referring order goes on to state that:
“In Paras 21 & 101, the Bench [in Aruna Shanbaug] was of
the view that in Gian Kaur (supra), the Constitution Bench
15(1993) 2 WLR 316 (H.L)
PART B
14
held that euthanasia could be made lawful only by a
legislation. Whereas in Para 104, the Bench contradicts its
own interpretation of Gian Kaur (supra) in Para 101 and
states that although this Court approved the view taken in
Airedale (supra), it has not clarified who can decide whether
life support should be discontinued in the case of an
incompetent person e.g., a person in coma or PVS. When, at
the outset, it is interpreted to hold that euthanasia could be
made lawful only by legislation where is the question of
deciding whether the life support should be discontinued in
the case of an incompetent person e.g., a person in coma or
PVS.”
The reason why the case merits evaluation by the Constitution Bench is
elaborated in the Order dated 25 February 2014. Simply put, the basis of the
reference to the Constitution Bench is that:
(i) Gian Kaur affirms the principle that the right to live with dignity includes
the right to die with dignity;
(ii) Gian Kaur has not ruled on the validity of euthanasia, active or passive;
(iii) Aruna Shanbaug proceeds on the erroneous premise that Gian Kaur
approved of the decision of the House of Lords in Airedale;
(iv) While Aruna Shanbaug accepts that euthanasia can be made lawful
only through legislation, yet the court accepted the permissibility of
passive euthanasia and set down the procedure which must be followed;
and
(v) Aruna Shanbaug is internally inconsistent and proceeds on a
misconstruction of the decision in Gian Kaur.
20 This being the basis of the reference, it is necessary to consider the
decisions in Gian Kaur and Aruna Shanbaug.
PART C
15
C Gian Kaur
21 Gian Kaur and Harbans Singh were spouses. They were convicted of
abetting the suicide of Kulwant Kaur and were held guilty of an offence under
Section 306 of the Penal Code. They were sentenced to six years’
imprisonment. The conviction was upheld by the High Court. The conviction
was assailed before this Court on the ground that Section 306 is
unconstitutional. It was argued that the constitutionality of Section 306 rested
on the two judge Bench decision in Rathinam, where Section 309 (penalising
the attempt to commit suicide) was held to be unconstitutional. While
Rathinam had rejected the challenge to the validity of Section 309 on the
ground that it was arbitrary (and violated Article 14), the provision was held to
be unconstitutional on the ground that it violated Article 21. The right to die
was found to inhere in the right to life, as a result of which Section 309 was
found to be invalid. The challenge in Gian Kaur was premised on the decision
in Rathinam: abetment of suicide by another (it was urged) is merely assisting
in the enforcement of the fundamental right under Article 21 and hence
Section 306 (like Section 309) would violate Article 21.
22 The Constitution Bench in Gian Kaur disapproved of the foundation of
Rathinam, holding that it was flawed. The Constitution Bench held thus:
“When a man commits suicide he has to undertake certain
positive overt acts and the genesis of those acts cannot be
traced to, or be included within the protection of the 'right to
life' under Article 21. The significant aspect of 'sanctity of life'
PART C
16
is also not to be overlooked. Article 21 is a provision
guaranteeing protection of life and personal liberty and by no
stretch of imagination can 'extinction of life' be read to be
included in 'protection of life'. Whatever may be the
philosophy of permitting a person to extinguish his life by
committing suicide, we find it difficult to construe Article 21 to
include within it the 'right to die' as a part of the fundamental
right guaranteed therein. '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'. With respect and
in all humility, we find no similarity in the nature of the other
rights, such as the right to 'freedom of speech' etc. to provide
a comparable basis to hold that the 'right to life' also includes
the 'right to die'. With respect, the comparison is inapposite,
for the reason indicated in the context of Article 21. The
decisions relating to other fundamental rights wherein the
absence of compulsion to exercise a right was held to be
included within the exercise of that right, are not available to
support the view taken in P. Rathinam qua Article 21.”
The Court further held that:
“To give meaning and content to the word 'life' in Article 21, it
has been construed as life with human dignity. Any aspect of
life which makes it dignified may be read into it but not that
which extinguishes it and is, therefore, inconsistent with the
continued existence of life resulting in effacing the right itself.
The 'right to die', if any, is inherently inconsistent with the
'right to life' as is 'death' with 'life'.”
Gian Kaur holds that life within the meaning of Article 21 means a life of
dignity. Extinguishment of life is (in that view) inconsistent with its continued
existence. Hence, as a matter of textual construction, the right to life has been
held not to include the right to die. In coming to that conclusion, it appears that
Gian Kaur emphasises two strands (which the present judgment will revisit at
a later stage). The first strand is the sanctity of life, which Article 21
recognises. Extinction of life, would in this view, in the manner which
Rathinam allowed, violate the sanctity of life. The second strand that emerges
PART C
17
from Gian Kaur is that the right to life is a natural right. Suicide as an
unnatural extinction of life is incompatible with it. The court distinguishes the
right to life under Article 21 from other rights which are guaranteed by Article
19 such as the freedom of speech and expression. While free speech may
involve the absence of a compulsion to exercise the right (the right not to
speak) this could not be said about the right to life. The Constitution Bench
noticed the debate on euthanasia in the context of individuals in a permanent
vegetative state. A scholarly article on the decision notes that the Constitution
Bench “seemed amenable to an exception being made for euthanasia in
cases of patients in a condition of PVS16
. This view of the decision in Gian
Kaur does find support in the following observations of the Constitution
Bench:
“Protagonism of euthanasia on the view that existence in
persistent vegetative state (PVS) is not a benefit to the patient
of a terminal illness being unrelated to the principle of ‘Sanctity
of life' or the 'right to live with dignity' is of no assistance to
determine the scope of Article 21 for deciding whether the
guarantee of 'right to life' therein includes the 'right to die'. The
'right to life' including the right to live with human dignity would
mean the existence of such a right up to the end of natural life.
This also includes the right to a dignified life up to the point of
death including a dignified procedure of death. In other words,
this may include the right of a dying man to also die with
dignity when his life is ebbing out. But the 'right to die' with
dignity at the end of life is not to be confused or equated with
the 'right to die' an unnatural death curtailing the natural span
of life.” (Para 24)
16Sushila Rao, “India and Euthanasia: The Poignant Case of Aruna Shanbaug”, Oxford Medical Law Review,
Volume 19, Issue 4 (1 December 2011), at pages 646–656
PART C
18
However, in the paragraph which followed, the Constitution Bench
distinguished between cases where a premature end to life may be
permissible, when death is imminent, from the right to commit suicide:
“A question may arise, in the context of a dying man, who is,
terminally ill or in a persistent vegetative state that he may be
permitted to terminate it by a premature extinction of his life in
those circumstances. This category of cases may fall within
the ambit of the 'right to die' with dignity as a part of right to
live with dignity, when death due to termination of natural life
is certain and imminent and the process of natural death has
commenced. These are not cases of extinguishing life but
only of accelerating conclusion of the process of natural death
which has already commenced. The debate even in such
cases to permit physician assisted termination of life is
inconclusive. It is sufficient to reiterate that the argument to
support the view of permitting termination of life in such cases
to reduce the period of suffering during the process of certain
natural death is not available to interpret Article 21 to include
therein the right to curtail the natural span of life.” (Para 25)
On this foundation, the Constitution Bench held that Article 21 does not
include the right to die. The right to live with human dignity, in this view, could
not be construed to include the right to terminate natural life “at least before
commencement of the natural process of certain death”.
This Court’s holding in Gian Kaur that the right to life does not include the
right to die in the context of suicide may require to be revisited in future in view
of domestic and international developments17 pointing towards
decriminalisation of suicide. In India, the Mental Healthcare Act 2017 has
17 “Humanization and Decriminalization of Attempt to Suicide”, Law Commission of India (Report No. 210, 2008);
Rajeev Ranjan, et al, “(De-) Criminalization of Attempted Suicide in India: A Review”, Industrial Psychiatry
Journal (2014), Vol. 23, issue 1, at page 4–9
PART C
19
created a “presumption of severe stress in cases of attempt to commit
suicide”. Section 115(1) provides thus:
“Notwithstanding anything contained in section 309 of the
Indian Penal Code any person who attempts to commit
suicide shall be presumed, unless proved otherwise, to have
severe stress and shall not be tried and punished under the
said Code.”
Under Section 115(2), the Act also mandates the Government to provide care,
treatment and rehabilitation to a person, having severe stress and who
attempted to commit suicide, to reduce the risk of recurrence. Section 115
begins with a non-obstante provision, specifically with reference to Section
309 of the Penal Code. It mandates (unless the contrary is proved by the
prosecution) that a person who attempts to commit suicide is suffering from
severe stress. Such a person shall not be tried and punished under the Penal
Code. Section 115 removes the element of culpability which attaches to an
attempt to commit suicide under Section 309. It regards a person who
attempts suicide as a victim of circumstances and not an offender, at least in
the absence of proof to the contrary, the burden of which must lie on the
prosecution. Section 115 marks a pronounced change in our law about how
society must treat and attempt to commit suicide. It seeks to align Indian law
with emerging knowledge on suicide, by treating a person who attempts
suicide being need of care, treatment and rehabilitation rather than penal
sanctions.
PART C
20
It may also be argued that the right to life and the right to die are not two
separate rights, but two sides of the same coin. The right to life is the right to
decide whether one will or will not continue living.18 If the right to life were only
a right to decide to continue living and did not also include a right to decide not
to continue living, then it would be a duty to live rather than a right to life. The
emphasis on life as a right and not as a duty or obligation has also been
expressed by several other legal scholars:
“When, by electing euthanasia, the individual has expressly
renounced his right to life, the state cannot reasonably assert
an interest in protecting that right as a basis for overriding the
individual's private decision to die. To hold otherwise makes
little more sense than urging a prohibition against destroying
or giving away one's private property simply because the
Constitution protects property as well as life. Although the
Constitution recognizes that human life is, to most persons, of
inestimable value and protects against its taking without due
process of law, nothing in that document compels a
person to continue living who does not desire to do so.
Such an interpretation effectively converts a right into an
obligation, a result the constitutional framers manifestly
did not intend.”19 (Emphasis supplied)
For the present case, we will leave the matter there, since neither side has
asked for reconsideration of Gian Kaur, it being perhaps not quite required for
the purposes of the reference.
23 At this stage, it is also necessary to note that the decision in Gian Kaur
contained a passing reference to the judgment of the House of Lords in
Airedale which dealt with the withdrawal of artificial measures for the
18 D Benatar, “Should there be a legal right to die?” Current Oncology (2010), Vol. 17, Issue 5, at pages 2-3
19 Richard Delgado, “Euthanasia Reconsidered-The Choice of Death as an Aspect of the Right of Privacy”,
Arizona Law Review (1975), Vol. 17, at page 474
PART D
21
continuance of life by a physician. In that context, it was held that a persistent
vegetative state was of no benefit to the patient and hence, the principle of
sanctity of life is not absolute. The Constitution Bench reproduced the
following extracts from the decision in Airedale:
“...But it is not lawful for a doctor to administer a drug to his
patient to bring about his death, even though that course is
prompted by a humanitarian desire to end his suffering,
however great that suffering may be : See Reg v. Cox,
(unreported), 18 September (1992). So to act is to cross the
Rubicon which runs between on the one hand the care of the
living patient and on the other hand euthanasia - actively
causing his death to avoid or to end his suffering. Euthanasia
is not lawful at common law. It is of course well known
that there are many responsible members of our society
who believe that euthanasia should be made lawful; but
that result could, I believe, only be achieved by
legislation which expresses the democratic will
that so fundamental a change should be made in our
law, and can, if enacted, ensure that such legalised
killing can only be carried out subject to appropriate
supervision and control.... (emphasis supplied by the
Bench). Making emphasis as above, this Court held that it is
in the realm of the legislature to enact a suitable law to
provide adequate safeguards regarding euthanasia”.
The Constitution Bench noted that the desirability of bringing about such a
change was considered (in Airedale) to be a function of the legislature by
enacting a law with safeguards, to prevent abuse.
D Aruna Shanbaug
24 Aruna Shanbaug was a nurse in a public hospital when she was
sexually assaulted in 1973. During the incident, she was strangled by the
attacker with a chain. The assault resulted in depriving the supply of oxygen to
PART D
22
her brain. Over a period of thirty seven years, she had not recovered from the
trauma and damage to the brain. She was forsaken by family and was cared
for over this period by the staff of the hospital. A petition under Article 32 was
instituted before this Court. The petitioner had authored a book on her saga
and instituted the proceedings claiming to be her “next friend”. The direction
which was sought was to stop feeding the patient and allow her to die a
natural death. Aruna Shanbaug was examined by a team of doctors
constituted by this Court who observed that while she was in a permanent
vegetative state, she was clearly not in coma.
25 A two Judge Bench of this Court held that Gian Kaur did not lay down a
final view on euthanasia:
“21. We have carefully considered paras 24 and 25 in Gian
Kaur case [(1996) 2 SCC 648 : 1996 SCC (Cri) 374] and we
are of the opinion that all that has been said therein is that the
view in Rathinam case [(1994) 3 SCC 394 : 1994 SCC (Cri)
740] that the right to life includes the right to die is not correct.
We cannot construe Gian Kaur case [(1996) 2 SCC 648 :
1996 SCC (Cri) 374] to mean anything beyond that. In fact, it
has been specifically mentioned in para 25 of the aforesaid
decision that “the debate even in such cases to permit
physician-assisted termination of life is inconclusive”. Thus it
is obvious that no final view was expressed in the decision
in Gian Kaur case [(1996) 2 SCC 648 : 1996 SCC (Cri) 374]
beyond what we have mentioned above.”(Id at page 487)
26 The decision in Aruna Shanbaug distinguishes between active and
passive euthanasia. Active euthanasia is defined as the administration of a
lethal substance or force to kill a person, such as for instance, a lethal
injection given to a person suffering from agony in a terminal state of cancer.
PART D
23
Passive euthanasia is defined to mean the withholding or withdrawing of
medical treatment necessary for continuance of life. This may consist of
withholding antibiotics without which the patient may die or the removing of
the patient from artificial heart/lung support. According to the court, a
comparative context of the position prevailing in other countries would indicate
that:
“39…The general legal position all over the world seems to
be that while active euthanasia is illegal unless there is
legislation permitting it, passive euthanasia is legal even
without legislation provided certain conditions and
safeguards are maintained.” (Id at page 491)
Voluntary euthanasia envisages the consent of the patient being taken
whereas non-voluntary euthanasia deals with a situation where the patient is
in a condition where he or she is unable to give consent. The Court noted that
a distinction is drawn between euthanasia and physician assisted death in the
form of a physician or third party who administers it. Physician assisted
suicide involves a situation where the patient carries out the procedure,
though on the advice of the doctor. The court in Aruna Shanbaug
distinguished between active and passive euthanasia:
“43. The difference between “active” and “passive” euthanasia
is that in active euthanasia, something is done to end the
patient's life while in passive euthanasia, something is not
done that would have preserved the patient's life. An important
idea behind this distinction is that in “passive euthanasia” the
doctors are not actively killing anyone; they are simply not
saving him.” (Id at page 492)
PART D
24
The above extract indicates that the decision is premised on the performance
of an act (in active euthanasia) and an omission (in passive euthanasia).
Active euthanasia, in the view of the court, would be an offence under Section
302 or at least under Section 304 while physician assisted suicide would be
an offence under Section 306 of the Penal Code. The decision adverted to the
judgment of the House of Lords in Airedale and then observed that:
“104. It may be noted that in Gian Kaur case [(1996) 2 SCC 648
: 1996 SCC (Cri) 374] although the Supreme Court has quoted
with approval the view of the House of Lords in Airedale
case [1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821
(CA and HL)] , it has not clarified who can decide whether life
support should be discontinued in the case of an incompetent
person e.g. a person in coma or PVS.” (Id at page 512)
Explaining the concept of brain death, the court held that passive euthanasia
depends upon two circumstances:
“117…(a) When a person is only kept alive mechanically i.e.
when not only consciousness is lost, but the person is only able
to sustain involuntary functioning through advanced medical
technology—such as the use of heart-lung machines, medical
ventilators, etc.
(b) When there is no plausible possibility of the person ever
being able to come out of this stage. Medical “miracles” are not
unknown, but if a person has been at a stage where his life is
only sustained through medical technology, and there has been
no significant alteration in the person's condition for a long
period of time—at least a few years—then there can be a fair
case made out for passive euthanasia.” (Id at page 517)
Noting that there is no statutory provision regulating the procedure for
withdrawing life support to a person in PVS or who is incompetent to take a
decision, the court ruled that passive euthanasia should be permitted in
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25
certain situations. Until Parliament decides on the matter, the modalities to
regulate passive euthanasia would (according to the court) be as follows:
“124…(i) A decision has to be taken to discontinue life support
either by the parents or the spouse or other close relatives, or
in the absence of any of them, such a decision can be taken
even by a person or a body of persons acting as a next friend. It
can also be taken by the doctors attending the patient.
However, the decision should be taken bona fide in the best
interest of the patient…
(ii) Hence, even if a decision is taken by the near relatives or
doctors or next friend to withdraw life support, such a decision
requires approval from the High Court concerned as laid down
in Airedale case [1993 AC 789 : (1993) 2 WLR 316 : (1993) 1
All ER 821 (CA and HL)].” (Id at page 518-519)
27 The approval of the High Court was mandated to obviate the danger
that “this may be misused by some unscrupulous persons who wish to inherit
or otherwise grab the property of the patient”. Moreover, the court directed
that when an application is filed before the High Court, a committee of three
doctors (a neurologist, psychiatrist and physician) should be constituted, to
submit its opinion to enable the High Court to take a considered decision in
the case. On the facts of the case, the court held that the petitioner who had
visited Aruna Shanbaug only on a few occasions and had written a book on
her could not be recognised as her next friend. It was only the hospital staff
which had cared for her for long years which would be recognised. The
doctors and nursing staff had evinced an intent to allow her to live in their
care.
28 The decision in Aruna Shanbaug has proceeded on the hypothesis
that the Constitution Bench in Gian Kaur had “quoted with approval” the
PART D
26
decision of the House of Lords in Airedale. This hypothesis is incorrect. There
was only a passing reference to the decision of the House of Lords. In fact,
Gian Kaur prefaces its reference to Airedale with the following observation:
“40…Even though it is not necessary to deal with physicianassisted
suicide or euthanasia cases, a brief reference to this
decision cited at the Bar may be made.” (Id at page 665)
The decision in Gian Kaur referred to the distinction made in Airedale
between cases in which a physician decides not to provide or to continue to
provide treatment which would prolong life and cases in which a physician
decides to actively bring an end to the life of the patient by administering a
lethal drug. The court in Airedale observed that actively causing the death of
the patient could be made lawful only by legislation. It was this aspect which
was emphasised by the judgment in Gian Kaur. Hence, the position adopted
in Aruna Shanbaug, that the Constitution Bench in Gian Kaur quoted
Airedale with approval (as the basis of allowing passive euthanasia) is
seriously problematic. In fact, the extract from Airedale which was cited in
Gian Kaur indicates the emphasis placed on the need to bring in legislation to
allow active euthanasia.
29 In an incisive analysis20, Ratna Kapur argues that while focussing on
euthanasia, discussions on Aruna Shanbaug have ignored other
considerations regarding gender, sexual assault, what constitutes “caring”, the
20 Ratna Kapur, “The Spectre of Aruna Shanbaug”, The Wire (18 May 2015), available at
https://thewire.in/2005/the-spectre-of-aruna-shanbaug/
PART D
27
right to bodily integrity and workplace protection. A central issue is, according
to Kapur, the “politics of caring”, - who can care, has the capacity to care and
who is less caring or less capable of caring. The Supreme Court did not
accept Pinki Virani as the “next friend” but awarded guardianship to KEM
hospital staff on the ground that they had “an emotional bonding and
attachment” to Aruna Shanbaug and were her “real family.” Kapur observes
that an emotional bond is not a valid criterion for a “next friend” and the
expression “real family” has dangerous implications for those who may not fall
within the normative remit of that phrase though they have a relationship with
the concerned person. She asks if the concept of “next friend” will cover only
“biological familial ties” and “render all other non-familial, non-marital, nonheterosexual
relationships as ineligible?” She argues that decisions about life
and death should “rest on the anvil of dignity, and dignity is not a family value,
or linked to some essential gendered trait. It is a societal value and hence
needs to be delinked from the traditional frameworks of family and gender
stereotypes.” Kapur expresses concerns about how the focus on “care”
seemed to obscure a deeper and more important consideration regarding
women’s safety in the workplace. The attack on Aruna Shanbaug in KEM
hospital was indicative of how the workplace was unsafe for women, and yet
the staff of the same hospital were given her guardianship. This is especially
concerning given the fact that the dean of the hospital at the time refused to
allow a complaint of sodomy to go forward as he was more concerned about
the reputation of the institution. Kapur laments the fact that Aruna’s case was
PART D
28
not used to bring out the reform that it should have - stating that it should
‘have been a leading case on women’s rights where “caring” extended beyond
the physical support for the individual who was harmed, to taking active steps
to improve the working conditions for women, including addressing pervasive
and systemic sex discrimination and sexism.’ Lastly, Kapur compels us to
think about the choices Aruna Shanbaug may have made - “Had Shanbaug
not been reduced to a PVS, would she have chosen to remain in KEM for her
treatment after the violent and brutal sexual assault that she experienced in
her work place? Or would she have chosen to be treated elsewhere? Would
she have sued the hospital for failing to provide her a safe working
environment?” Thus, Kapur questions the very basis of making the hospital
the guardians by questioning why the hospital did not “care” when it mattered
the most - when the case of sexual assault and sodomy should have been
pursued by the hospital on behalf of its employee. By denying Aruna
Shanbaug the right to bodily integrity in life and the right to self-determination
in death, and by viewing her life from all lenses but from her own, ranging from
the “carers”, to the medical and legal profession and their views on
euthanasia, she “became nothing more than a spectre in her own story.”
30 Aruna Shanbaug also presents another problem- one of inconsistency.
Gian Kaur is construed as laying down only that the right to life does not
include the right to die and that the decision in Rathinam was incorrect. In that
context, it has been noticed that the Constitution Bench observed that the
PART D
29
debate overseas even in physician assisted termination of life is inconclusive.
Aruna Shanbaug finds, on the one hand, that “no final view was expressed”
in Gian Kaur beyond stating that the right to life does not include the right to
die. Yet, on the other hand, having inferred the absence of a final view on
euthanasia in Gian Kaur, that decision is subsequently construed as having
allowed the termination of life by a premature extinction in the case of a “dying
person who is terminally ill or in a permanent vegetative state”. Both lines of
reasoning cannot survive together.
31 The procedure which was followed by this Court in Aruna Shanbaug of
arranging for a screening of a CD submitted by the team of doctors pertaining
to her examination in a live court proceeding open to the public has been
criticised as being fundamentally violative of privacy. What transpired in the
court is set out in the following observations from the decision:
“11. On 2-3-2011, the matter was listed again before us and we
first saw the screening of the CD submitted by the team of
doctors along with their report. We had arranged for the
screening of the CD in the courtroom, so that all present in the
Court could see the condition of Aruna Shanbaug. For doing so,
we have relied on the precedent of the Nuremburg trials in which
a screening was done in the courtroom of some of the Nazi
atrocities during the Second World War.” (Id at page 476)
This aspect of the case is indeed disquieting. To equate a patient in PVS for
thirty-seven years following a sexual assault, with the trials of Nazi war
criminals is seriously disturbing.
PART D
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32 Aruna Shanbaug rests on the distinction between an act and an
omission. The court seems to accept that the withdrawal of life support or a
decision not to provide artificial support to prolong life is an omission. In the
view of the court, an omission is what is “not done”. On the other hand, what is
actively done to end life is held to stand on a separate foundation. At this
stage, it would be necessary to note that the validity of the distinction between
what is passive and what is active has been the subject of a considerable
degree of debate. This would be dealt with in a subsequent part of this
judgment.
33 The issue before the Constitution Bench in Gian Kaur related to the
constitutionality of Section 306 of the Penal Code which penalises the
abetment of suicide. The challenge proceeded on the foundation that
penalising an attempt to commit suicide had been held to be unconstitutional
since the right to live included the right to die. The Constitution Bench
emphasised the value ascribed to the sanctity of life and came to the
conclusion that the right to die does not emanate from the right to life under
Article 21. Having held that the right to die is “inherently inconsistent” with the
right to life “as is death with life”, the Constitution Bench opined that the
debate on euthanasia was “of no assistance to determine the scope of Article
21” and to decide whether the right to life includes the right to die. The court
noted that the right to life embodies the right to live with human dignity which
postulates the existence of such a right “up to the end of natural life”. This, the
PART D
31
court observed included the right to lead a dignified life up to the point of death
and included a dignified procedure of death. Thus, in the context of the debate
on euthanasia, the Constitution Bench was careful in observing that the right
to a dignified life “may include” the right of an individual to die with dignity. A
premature termination of life of a person facing imminent death in a terminal
illness or in a permanent vegetative state was in the view of the court a
situation which “may fall” within the ambit of the right to die with dignity. The
debate on physician assisted termination of life was noted to be
“inconclusive”. The court observed that the argument to support the
termination of life in such cases to reduce the period of suffering during the
process of “certain natural death” was not available to interpret Article 21 as
embodying the right to curtail the natural span of life. These observations in
Gian Kaur would indicate that the Constitution Bench has not made a final or
conclusive determination on euthanasia. Indeed, the scope of the controversy
before the court did not directly involve that question. Aruna Shanbaug
evidently proceeds on a construction of the decision in Gian Kaur which does
not emerge from it. Aruna Shanbaug has inherent internal inconsistencies.
Hence, the controversy which has been referred to the Constitution Bench
would have to be resolved without regarding Aruna Shanbaug as having laid
down an authoritative principle of constitutional law.
PART E
32
E The distinction between the legality of active and passive euthanasia
34 In examining the legality of euthanasia, clarification of terminology is
essential. The discourse on euthanasia is rendered complex by the problems
of shifting and uncertain descriptions of key concepts. Central to the debate
are notions such as “involuntary”, “non-voluntary” and “voluntary”. Also
“active” and “passive” are used, particularly in combination with “voluntary”
euthanasia. In general, the following might be said: ·
• involuntary euthanasia refers to the termination of life against the will of
the person killed;
• non-voluntary euthanasia refers to the termination of life without the
consent or opposition of the person killed; ·
• voluntary euthanasia refers to the termination of life at the request of
the person killed; ·
• active euthanasia refers to a positive contribution to the acceleration of
death;
• passive euthanasia refers to the omission of steps which might
otherwise sustain life.
What is relatively straightforward is that involuntary euthanasia is illegal and
amounts to murder. However, the boundaries between active and passive
euthanasia are blurred since it is quite possible to argue that an omission
amounts to a positive act.
PART E
33
35 The expression ‘passive’ has been used to denote the withdrawal or
withholding of medical treatment. Implicit in this definition is the assumption
that both the withdrawal of or withholding treatment stand on the same ethical
or moral platform. This assumption, as we shall see in a later part of this
section, is not free of logical difficulty. The voluntary or non-voluntary
character of the euthanasia is determined by the presence or absence of
consent. Consent postulates that the individual is in a mental condition which
enables her to choose and to decide on a course of action and convey this
decision. Its voluntary nature is premised on its consensual character.
Euthanasia becomes non-voluntary where the individual has lost those
faculties of mind which enable her to freely decide on the course of action or
lost the ability to communicate the chosen course of action.
36 The distinctions between active and passive euthanasia are based on
the manner in which death is brought about. They closely relate (in the words
of Hazel Biggs in a seminal work on the subject) to the understanding and
consequences of the legal concepts of act and omission.21
37 As early as 1975, American philosopher and medical ethicist James
Rachels offered a radical critique of a distinction that was widely accepted by
medical ethicists at that time, that passive euthanasia or “letting die” was
21 Hazel Biggs, “Euthanasia, Death with Dignity and the Law”, Hart Publishing (2001), at page 12
PART E
34
morally acceptable while active euthanasia or “killing” was not.22 Even though
his paper did not change the prevalence of this distinction at the time it was
published, it paved the way by providing credibility for arguments to legalise
assisted suicide in the 1990s. In what he calls the ‘Equivalence Thesis’,
Rachels states “there is no morally important difference between killing and
letting die; if one is permissible (or objectionable), then so is the other and to
the same degree.”23 He does not offer a view on whether the practice of
euthanasia is acceptable or not. His central thesis is that both active and
passive euthanasia are morally equivalent- either both are acceptable or both
are not. Reichenbach for instance, asks: Supposing all else is equal, can a
moral judgment about euthanasia be made on the basis of it being active or
passive alone?24
. The ‘Equivalence thesis’ postulates that if a doctor lets a
patient die (commonly understood as passive euthanasia) for humane
reasons, he is in the same moral position as if he decided to kill the patient by
giving a lethal injection (commonly understood as active euthanasia) for
humane reasons.
38 The correctness of this precept may be questioned by pointing out that
there is a qualitative difference between a positive medical intervention (such
as a lethal injection) which terminates life and a decision to not put a patient
on artificial life support, which will not artificially prolong life. The former brings
22 James Rachels, “Active and Passive Euthanasia”, New England Journal of Medicine (January 9, 1975), at
page 78-80
23 James Rachels, End of Life: Euthanasia and Morality (Oxford University Press, 1986)
24 Bruce R. Reichenbach, “Euthanasia and the Active-Passive Distinction”, Bioethics (January 1987), Volume 1,
at pages 51–73
PART E
35
a premature extinction of life. The latter does not delay the end of life beyond
its natural end point. But, if the decision to proceed with euthanasia is the right
one based on compassion and the humanitarian impulse to reduce pain and
suffering, then the method used is not in itself important. Moreover, it is
argued that passive euthanasia often involves more suffering since simply
withholding treatment means that the patient may take longer to die and thus
suffer more. Passive euthanasia may become questionable where the
withholding or withdrawal of medical intervention may lead to a condition of
pain and suffering, often a lingering and cruel death. The avoidance of
suffering, which is the object and purpose of euthanasia, may hence not be
the result of passive euthanasia and the converse may result. Besides raising
troubling moral questions – especially where it is non-voluntary, it questions
the efficacy of passive euthanasia. Moreover, it raises a troubling issue of the
validity of the active-passive divide.
39 The moral and legal validity of the active-passive distinction based on
the exculpation of omissions has been criticised. One of the reasons for the
exculpation of omissions is based on the idea that our duty not to harm people
is generally stricter than our duty to help them.25 James Rachels offers a
compelling counter-argument to the argument that killing someone is a
violation of our duty not to do harm, whereas letting someone die is merely a
failure to help. He argues that our duty to help people is less stringent than the
25 James Rachels (Supra note 23), at pages 101-120
PART E
36
duty not to harm them only in cases where it would be very difficult to help
them or require a great amount of effort or sacrifice. However, when we think
of cases where it would be relatively simple to help someone and there would
be no great personal sacrifice required, the morally justifiable response would
be different. He provides a hypothetical example of a child drowning in a
bathtub, anyone standing next to the tub would have a strict moral duty to help
the child.26 Due to the equation between the child and the person standing
next to the bathtub (the proximity may be in terms of spatial distance or
relationship) the “alleged asymmetry” between the duty to help and the duty
not to do harm vanishes. A person standing next to bathtub would have no
defence to say that this was merely a failure to help and did not violate the
duty to do no harm. In cases of euthanasia since the patient is close at hand
and it is within the professional skills of the medical practitioner to keep him
alive, the alleged asymmetry has little relevance. The distinction is rendered
irrelevant even in light of the duty of care that doctors owe to their patients.
Against the background of the duty to care, the moral and legal status of not
saving a life due to failure to provide treatment, can be the same as actively
taking that life.27 A doctor who knowingly allows a patient who could be saved
to bleed to death might be accused of murder and medical negligence. The
nature of the doctor-patient relationship which is founded on the doctor’s duty
of care towards the patient necessitates that omissions on the doctor’s part
will also be penalised. When doctors take off life support, they can foresee
26 Ibid
27 Len Doyal and Lesley Doyal, “Why Active Euthanasia and Physician Assisted Suicide Should Be Legalised If
Death Is in a Patient’s Best Interest Then Death Constitutes a Moral Good”, British Medical Journal (2001), at
pages 1079–1080.
PART E
37
that death will be the outcome even though the timing of the death cannot be
determined. Thus, what must be deemed to be morally and legally important
must not be the emotionally appealing distinction between omission and
commission but the justifiability or otherwise of the clinical outcome. Indeed,
the distinction between omission and commission may be of little value in
some healthcare settings.28
40 This distinction leads to the result that even though euthanasia is
grounded in compassion and to relieve the patient of suffering, only certain
types of deaths can be lawful. If active euthanasia amounts to “killing”, the
operation of criminal law can lead to medical practitioners being exposed to
the indignity of criminal prosecutions and punishments.29 While passive
euthanasia can appear to save the dignity of medical practitioners, it is
perhaps at the expense of the patient’s dignity.30
41 A recent article by Rohini Shukla in the Indian Journal of Medical Ethics
(2016) points out two major flaws in Aruna Shanbaug regarding the
distinction between active and passive euthanasia.31 First, it fails to prioritise
the interest of the patient and is preoccupied with the effect of euthanasia on
everyone but the patient, and second, that it does not distinguish between the
terms “withholding and withdrawing and uses them interchangeably.”
28 Ibid
29 Hazel Biggs (Supra note 21), at Page 162
30 Ibid
31 Rohini Shukla, “Passive Euthanasia in India: a critique”, Indian Journal of Medical Ethics (Jan-Mar 2016), at
pages 35-38
PART E
38
Throughout the above judgment, the words “withholding” and “withdrawing”
are used interchangeably. However, the difference between the two is
relevant to the distinction between what is ‘active’ and ‘passive’ as act and
omission. Withholding life support implies that crucial medical intervention is
restrained or is not provided – an act of omission on the part of the doctor.
Withdrawing life support implies suspending medical intervention that was
already in use to sustain the patient’s life- an act of commission. If the basis of
distinction between active and passive euthanasia is that in passive
euthanasia the doctor only passively commits acts of omission, while in active
euthanasia the doctor commits acts of commission then withdrawing medical
treatment is an act of commission and therefore amounts to active euthanasia.
In both these cases, the doctor is aware that his/her commissions or
omissions will in all likelihood lead to the patient’s death. However, in passive
euthanasia death may not be the only consequence and the suffering that
passive euthanasia often entails such as suffocation to death or starvation till
death, raises the question of whether passive euthanasia, in such
circumstances, militates against the idea of death with dignity – the very basis
of legalising euthanasia.32 Shukla’s criticism needs careful attention since it
raises profound questions about the doctor-patient relationship and the
efficacy of the distinction in the context of death with dignity. If the divide
between active-passive is questioned, should both forms be disallowed or, in
32 Ibid
PART E
39
converse should both be allowed? More significantly, are both equally
amenable to judicially manageable standards?
Even with Aruna Shanbaug’s starting position that passive euthanasia is
permitted under Indian law until expressly prohibited, the Court did not
traverse the vast Indian legal framework to determine whether there was a
prohibition to this effect. Instead the court made an analogy (perhaps
incorrect) between a doctor conducting passive euthanasia and a person who
watches a building burning:
“An important idea behind this distinction is that in passive
euthanasia, the doctors are not actively killing anyone; they
are simply not saving him. While we usually applaud
someone who saves another person’s life, we do not normally
condemn someone for failing to do so. If one rushes into a
burning building and carries someone out to safety, he will
probably be called a hero. But, if someone sees a burning
building and people screaming for help, and he stands on the
sidelines – whether out of fear for his own safety, or the belief
that an inexperienced and ill-equipped person like himself
would only get in the way of the professional firefighters, or
whatever – if one does nothing, few would judge him for his
action. One would surely not be prosecuted for homicide
(Atleast, not unless one started the fire in the first place)…[T]
here can be no debate about passive euthanasia: You cannot
persecute someone for failing to save a life. Even if you think
it would be good for people to do X, you cannot make it illegal
for people to not do X, or everyone in the country who did not
do X today would have to be arrested.”
The example is inapposite because it begs the relationship between the
person who is in distress and the individual whose position as a caregiver
(actual or prospective) is being considered. The above example may suggest
a distinct outcome if the by-stander who is ill equipped to enter a burning
PART E
40
building is substituted by a fire-fighter on duty. Where there is a duty to care,
the distinction between an act and an omission may have questionable
relevance. Acts and omissions are not disjunctive or isolated events.
Treatment of the human body involves a continuous association between the
caregiver and receiver. The expert caregiver is involved in a continuous
process where medical knowledge and the condition of the patient as well as
the circumstances require the doctor to evaluate choices - choices on the
nature and extent of medical intervention, the wisdom about a course of action
and about what should or should not be done.
42 An erroneous premise in the judgment is that omissions are not illegal
under Indian law.33 Section 32 of the Indian Penal Code deals with illegal
omissions and states that “In every part of this Code, except where a contrary
intention appears from the context, words which refer to acts done, extend to
illegal omissions.” Whether and to what extent this omission would be illegal
under Indian law will be discussed in a subsequent part of the judgment.
43 Since the judgment legalised passive euthanasia, withdrawing medical
support was the only option in the case of Aruna Shanbaug and if this had
been done, she would have in all likelihood suffocated to death. We must
ponder over whether this could be the best possible death in consonance with
the right to live with dignity (which extends to dignity when death approaches)
33 Aparna Chandra and Mrinal Satish, “Misadventures of the Supreme Court in Aruna Shanbaug v Union of India”,
Law and other Things (Mar 13, 2011), available at http://lawandotherthings.com/2011/03/misadventures-ofsupreme-court-in-aruna/
PART E
41
and the extent to which it upholds the principle of prioritising the patient’s
autonomy and dignity over mere prolongation of life. Had the Court taken into
account these consequences of passive euthanasia for the patient, it would be
apparent that passive euthanasia is not a simple panacea for an individual
faced with end of life suffering.
This brings us to the second and more crucial flaw, which was the unjustified
emphasis on doctor’s agency in administering different types of euthanasia
which led to ignoring the patient’s autonomy and suffering. Respecting patient
autonomy and reducing suffering are fundamental ethical values ascribed to
euthanasia. It is also the foremost principle of bioethics.34 The effects of
euthanasia on everyone (particularly her caregivers) were given greater
importance than the patient’s own wishes and caregiver:
“In case hydration or food is withdrawn/withheld from Aruna
Ramchandra Shanbaug, the efforts which have been put in
by batches after batches of nurses of KEM Hospital for the
last 37 years will be undermined. Besides causing a deep
sense of resentment in the nursing staff as well as other wellwishers
of Aruna Ramchandra Shanbaug in KEM Hospital
including the management, such act/omissions will lead to
disheartenment in them and large-scale disillusionment.”
44 Aruna Shanbaug was in no position to communicate her wishes. But
the above extract from the judgment relegates her caregiver to the
background. The manner in which the constitutional dialogue is framed by the
court elevates the concerns of the caregiver on a high pedestal without
34 Roop Gurusahani and Raj Kumar Mani, “India: Not a country to die in”, Indian Journal of Medical Ethics (JanMar
2016), at pages 30-35.
PART E
42
focusing on the dignity and personhood of the individual in a permanent
vegetative state. In doing so, the judgment subordinates the primary concern
of bio-ethics and constitutional law, which is preserving the dignity of human
life.
45 An article35 in the Oxford Medical Law Review notes that there are
strong grounds to believe that the active-passive distinction in Aruna
Shanbaug was not grounded so much in morality as in ‘reasons of policy’.
Even while there are pertinent questions regarding the moral validity of the
active-passive distinction, there appears to be a significant difference between
active and passive euthanasia when viewed from the lens of the patient’s
consent. Consent gives an individual the ability to choose whether or not to
accept the treatment that is offered. But consent does not confer on a patient
the right to demand that a particular form of treatment be administered, even
in the quest for death with dignity.36 Voluntary passive euthanasia, where
death results from selective non-treatment because consent is withheld, is
therefore legally permissible while voluntary active euthanasia is prohibited.
Moreover, passive euthanasia is conceived with a purpose of not prolonging
the life of the patient by artificial medical intervention. Both in the case of a
withdrawal of artificial support as well as in non-intervention, passive
euthanasia allows for life to ebb away and to end in the natural course. In
35 Sushila Rao (Supra note 16), at pages 646-656
36 Hazel Biggs (Supra note 21), at page 30
PART F
43
contrast, active euthanasia results in the consequence of shortening life by a
positive act of medical intervention. It is perhaps this distinction which
necessitates legislative authorisation for active euthanasia, as differentiated
from the passive.
46 The question of legality of these two forms of euthanasia has significant
consequences. Death when it is according to the wishes and in the caregiver
of the patient must be viewed as a moral good. The fact that active euthanasia
is an illegal act (absent legislative authorisation) also prevents many
professional and emotional carers from performing it even if they perceive it as
a compassionate and otherwise appropriate response in line with the patient’s
wishes and caregiver, thereby prolonging the patient’s suffering and indignity.
These complex issues cannot be addressed when active euthanasia is not
legalised and regulated. The meeting point between bio-ethics and law does
not lie on a straight course.
F Sanctity of Life
47 Diverse thinkers have debated and deliberated upon the value accorded
to human life.37 The “sanctity of life” principle has historically been the single
most basic and normative concept in ethics and the law.38 The phrase has
37
Elizabeth Wicks (Supra note 5), at page 29
38
Anne J. Davis, “Dilemmas in Practice: To Make Live or Let Die”, The American Journal of Nursing (March
1981), Vol. 81, No. 3, at page 582
PART F
44
emerged as a key principle in contemporary bioethics, especially in debates
about end-of-life issues.39
48 The traditional and standard view is that life is invaluable.40 It has
persisted as an idea in various cultures through the centuries. A sacred value
has been prioritized for human life. This “rhetoric of the value in human life”41
has been highlighted in various traditions.42 The protection of the right to life
derives from “the idea that all human life is of equal value” the idea being
drawn from religion, philosophy and science.43
49 The principle or doctrine of the “sanctity of life”, sometimes also referred
to as the “inviolability of human life”44, is based on “overarching moral
considerations”, the first of which has been stated as:
“Human life is sacred, that is inviolable, so one should never
aim to cause an innocent person’s death by act or
omission”.
45
50 Distinct from religious beliefs, the special value inherent in human life
has been recognised in secular ideas of natural law “man as an end in
39
Heike Baranzke, ““Sanctity-of-Life”—A Bioethical Principle for a Right to Life?”, Ethic Theory Moral Practice
(2012), Vol. 15, Issue 3, at page 295
40
Elizabeth Wicks (Supra note 5), at page 1
41
Ibid, at page 240
42
PG Lauren argues that it is “essential to recognise that the moral worth of each person is a belief that no
single civilization, or people, or nation, or geographical area, or even century can claim as uniquely its own”
See P.G. Lauren, The Evolution of International Human Rights: Visions Seen (University of Pennsylvania
Press, 2003, 2nd edn.), at page 12.), as quoted in Elizabeth Wicks (Supra note 5), at pages 25-29
43
Elizabeth Wicks (Supra note 5), at page 47
44 John Keown, The Law and Ethics of Medicine: Essays on the Inviolability of Human Life (Oxford University
Press, 2012), at page 3
45
Ibid
PART F
45
himself, and human investment in life”.46 Locke has been of the view that
every human being “is bound to preserve himself, and not to quit his station
wilfully”.47 In his book “Life’s Dominion”, Ronald Dworkin explains the sanctity
of human life thus:
“The hallmark of the sacred as distinct from the incrementally
valuable is that the sacred is intrinsically valuable because—
and therefore only once—it exists. It is inviolable because of
what it represents or embodies. It is not important that there
be more people. But once a human life has begun, it is very
important that it flourish and not be wasted.”
48
Life today, according to Dworkin, is not just created by the science of evolution
but by past choices—by the investment that an individual, and others, have
put into his or her life.49
51 Elizabeth Wicks in her book titled “The Right to Life and Conflicting
Interests” (2010) has succinctly summarized the moral and ethical
justifications for the sanctity of life thus:
“The life of an individual human being matters morally not
because that organism is sentient or rational (or free of pain,
or values its own existence) but because it is a human life.
This point is supported by the ethical and legal principle of
equality which is well established in the field of human
rights… From an end of life perspective, this means that life
ends only when the human organism dies. This cannot
sensibly require the death of all of the body’s cells but rather
the death of the organism as a whole. In other words, life
comes to an end when the integrative action between the
46 Elizabeth Wicks (Supra note 5), at pages 34-35
47 John Locke, Two Treatises of Government (ed. P. Laslett) (Cambridge University Press, 1988)
48 Ronald Dworkin, Life’s Dominion: An Argument about Abortion and Euthanasia (Harper Collins, 1993), at
pages 73-74
49 Elizabeth Wicks (Supra note 5), at page 32
PART F
46
organs of the body is irreversibly lost. It is the life of the
organism which matters, not its living component parts, and
thus it is the permanent destruction of that integrative
organism which signifies the end of the organism’s life.”50
52 The value of human life has been emphasized by Finnis in the following
words:
“[H]uman bodily life is the life of a person and has the dignity
of the person. Every human being is equal precisely in having
that human life which is also humanity and personhood, and
thus that dignity and intrinsic value. Human bodily life is not
mere habitation, platform, or instrument for the human person
or spirit. It is therefore not a merely instrumental good, but is
an intrinsic and basic human good. Human life is indeed the
concrete reality of the human person. In sustaining human
bodily life, in however impaired a condition, one is sustaining
the person whose life it is. In refusing to choose to violate it,
one respects the person in the most fundamental and
indispensable way. In the life of the person in an irreversible
coma or irreversibly persistent vegetative state, the good of
human life is really but very inadequately instantiated.
Respect for persons and the goods intrinsic to their wellbeing
requires that one make no choice to violate that good by
terminating their life.”51
53 In his book “The Law and Ethics of Medicine: Essays on the Inviolability
of Human Life” (2012), John Keown has explained the principle of the sanctity
or inviolability of human life and its continuing relevance to English law
governing aspects of medical practice at the beginning and end of life. Keown
has distinguished the principle from the other two “main competing
approaches to the valuation of human life”52“vitalism” on the one hand and a
“qualitative” evaluation of human life on the other. The approach of “vitalism”
50 Ibid, at pages 16-17
51 John Finnis, Human Rights and Common Good (Oxford University Press, 2011), at page 221
52 John Keown (Supra note 44), at page 4
PART F
47
assumes that “human life is the supreme good and one should do everything
possible to preserve it”. The core principle of this approach is “try to maintain
the life of each patient at all costs”.53
54 In the “quality of life” approach, Keown has argued that “there is nothing
supremely or even inherently valuable about the life of a human being”. The
value of human life “resides in meeting a particular “quality” threshold”, above
which the dignity of life would be “worthwhile”. Keown criticizes this approach
for its basis that since “certain lives are not worth living, it is right intentionally
to terminate them, whether by act or omission”.54
55 Keown sums up that the doctrine of the sanctity or inviolability of life
holds that “we all share, by virtue of our common humanity, an ineliminable
dignity” this dignity grounds the “right to life”.55 The essence of the principle
is that “it is wrong to try to extinguish life”.56 Intentional killing is prohibited by
any act or omission. Keown thereby emphasises the sanctity and inviolability
of life in the following words:
“Human life is a basic, intrinsic good… The dignity of human
beings inheres because of the radical capacities, such as for
understanding, rational choice, and free will, inherent in
human nature… All human beings possess the capacities
inherent in their nature even though, because of infancy,
disability, or senility, they may not yet, not now, or no longer
53
Ibid
54 Ibid, at page 5
55 Ibid, at page 6
56 Ibid, at page 6
PART F
48
have the ability to exercise them. The right not to be killed is
enjoyed regardless of inability or disability. Our dignity does
not depend on our having a particular intellectual ability or
having it to a particular degree...”57
56 The principle of the sanctity of life considers autonomy as a “valuable
capacity, and part of human dignity”58. However, autonomy’s contribution to
dignity is “conditional, not absolute”59. The limitations of autonomy under the
sanctity of life doctrine can be summarized as follows:
“Exercising one’s autonomy to destroy one’s (or another’s) life
is always wrong because it is always disrespectful of human
dignity. So: it is always wrong intentionally to
assist/encourage a patient to commit suicide and, equally,
there is no “right to commit suicide,” let alone a right to be
assisted to commit suicide, either by act or omission… The
principle of “respect for autonomy” has in recent years
become for many a core if not dominant principle of
biomedical ethics and law. It is not, however, unproblematic.
Its advocates often fail to agree on precisely what constitutes
an “autonomous” choice or to offer any convincing account of
why respect for someone else’s choice as such should be
regarded as a moral principle at all, let alone a core or
dominant moral principle.”60
John Keown, however, while distinguishing the principle of sanctity of life from
vitalism, has also argued that though this principle “prohibits withholding or
withdrawing treatment with intent to shorten life”, but it also “permits
withholding/withdrawing a life-prolonging treatment which is not worthwhile
because it is futile or too burdensome”. It does not require doctors to try to
57 Ibid, at pages 5-6
58 Ibid, at page 18
59 Ibid
60 Ibid
PART F
49
preserve life at all costs.61 This consideration, despite all the assumptions and
discussions about the sanctity of life, in a way, makes the doctrine an openended
phenomenon.
57 This open-endedness is bound to lead to conflicts and confusions. For
instance, the issue of the sacred value of life is potentially a conflicting interest
between a right to life and autonomy, which Wicks explains as follows:
“If we accept that human life has some inherent value, is it
solely to the individual who is enjoying that life or is there
some broader state or societal benefit in that life? If life is of
value only to the person living it, then this may elevate the
importance of individual autonomy. It may even suggest that it
is an individual’s desire for respect for his or her own life that
provides the inherent value in that life. On the other hand, it
might be argued that the protection of human life is, at least
partly, a matter of public interest. Whether it is to the state, or
other members of society, or only an individual’s own family
and friends, there is an argument that a human life is a thing
of value to others beyond the individual living that life… [I]f life
is legally and ethically protected in deference to the
individual’s wish for respect for that life, the protection would
logically cease when an autonomous choice is made to bring
the life to an end. If, however, the life is protected, at least
partly, due to the legitimate interest in that life enjoyed by the
state or other (perhaps select) members of society, then the
individual’s autonomous choice to end his or her life is not
necessarily the decisive factor in determining whether legal
and ethical protection for that life should continue.”62
58 The disagreement between “sanctity of life” and the “quality of life” is
another conflict, which can be summarized as follows:
61 Ibid, at page 13
62 Elizabeth Wicks (Supra note 5), at p 176-177
PART G
50
“If we start with a sanctity of life position, this affirms the value
of human life in a way that trumps even claims to selfdetermination…
[P]eople who suffer from terminal or
degenerative illness… who want to die must remain alive in
great pain or discomfort until death comes ‘naturally’ to them.
Similarly, people who suffer from long-term disability or
paralysis which grossly diminishes their capacities for life and
who cannot take their own lives, are not permitted to die. In
such circumstances, the argument for sanctity of life may
seem somewhat sanctimonious to the person who is not
allowed the assistance to end their own life. There have been
cases in the media in recent years where the moral difficulty
in insisting on the sanctity of life in such situations has been
made clear. Though such cases will not disturb the position of
she who believes fundamentally in the sanctity of life, they do
lead others to accept that there may be exceptional cases
where sanctity gives way to quality of life issues.”63
Therefore, intractable questions about morality and ethics arise. What is the
core of life that might be protected by law? Will a poor quality of life (in the
shadow of the imminence of death) impact upon the value of that life to such
an extent that it reduces the protection for that life offered by the sanctity of life
doctrine? Are there limits to the principle of sanctity? This needs to be
reflected upon in the next part of the judgment.
G Nuances of the sanctity of life principle
59 The sanctity of life has been central to the moral and ethical foundations
of society for many centuries. Yet, it has been suggested that “across the
range of opinions most people would seem to agree that life is valuable to
some degree, but the extent to which any ‘value’ is founded in intrinsic worth
63
Alan Norrie (Supra note 4), at pages 141-142
PART G
51
or instrumental opportunity is contentious”.64 Glanville Williams, a strong
proponent of voluntary euthanasia, was of the view that “there was a human
freedom to end one's life”. According to him, “the law could not forbid conduct
that, albeit undesirable, did not adversely affect the social order”.65 That view,
as argued by Luis Kutner in his article “Euthanasia: Due Process for Death
with Dignity; The Living Will”
66, was similar to that advanced by John Stuart
Mill. Mill, in his classic work “On Liberty” stated:
“Mankind are great gainers by suffering each other to live as
seems good to themselves, than by compelling each to live
as seems good to the rest.”67
Are there limits to or nuances of the sanctity principle? This must be
discussed for a fuller understanding of the debate around euthanasia.
60 Though the sanctity principle prohibits “the deliberate destruction of human
life, it does not demand that life should always be prolonged for as long
as possible”.68 While providing for an intrinsic sacred value to life “irrespective
of the person’s capacity to enjoy life and notwithstanding that a person may
feel their life to be a great burden”, the principle holds that “life should not
always be maintained at any and all cost”.69 Ethical proponents of the sanctity
of life tend to agree that when “medical treatment, such as ventilation and
64
Alexandra Mullock, End-Of-Life Law And Assisted Dying In The 21st Century: Time For Cautious Revolution?
(PhD Thesis, University of Manchester, 2011), at page 24
65 Luis Kutner, “Euthanasia: Due Process for Death with Dignity; The Living Will”, Indiana Law Journal (Winter
1979), Vol. 54, Issue, 2, at page 225
66
Ibid, at pages 201-228
67
Ibid, at pages 225-226
68
Sushila Rao, “The Moral Basis for a Right to Die”, Economic & Political Weekly (April 30, 2011), at page 14
69 Alexandra Mullock, End-Of-Life Law And Assisted Dying In The 21st Century: Time For Cautious Revolution?
(PhD Thesis, University of Manchester, 2011), at page 25
PART G
52
probably also antibiotics, can do nothing to restore those in permanent
vegetative state to a state of health and well-functioning, it is futile and need
not be provided”.70 Rao has thus suggested that “the law’s recognition that
withdrawal of life-prolonging treatment is sometimes legitimate” is not
generally an exception to the sanctity principle, but is actually “an embodiment
of it”.71
61 Philosopher and medical ethicist James Rachels has in a seminal
work72 titled “The End of Life: Euthanasia and Morality (Studies in Bioethics)”
in the year 1986 propounded that we must embrace an idea of the sanctity of
life which is firmly based in ethics (the idea of right and wrong) and not based
in religion. The separation of religion from morality and ethics does not
necessarily mean a rejection of religion, but that the doctrine of “sanctity of
life” must be accepted or rejected on its merits, by religious and non-religious
people alike. The value of life is not the value that it has for God or the value
that it may have from any religious perspective. The truth of moral judgments
and exercising reason to decide what is right and wrong does not depend on
the truth of theological claims. The value of life is the value that it has for the
human beings who are subjects of lives. Thus, the value of life must be
understood from the perspective of the person who will be harmed by the loss,
the subject of life. It is also important to understand the true meaning behind
70 John Keown, “The Legal Revolution: From "Sanctity of Life" to "Quality of Life" and "Autonomy", Journal of
Contemporary Health Law & Policy (1998), Vol. 14, Issue 2, at page 281
71
Sushila Rao (Supra note 68), at page 14
72 James Rachels, (Supra note 23)
PART G
53
the moral rule against killing. The rationale behind such a law is to protect the
interests of individuals who are the subject of lives. If the point of the rule
against killing is the protection of lives, then we must acknowledge that in
some cases killing does not involve the destruction of “life” in the sense that
life is sought to be protected by law. For example, a person in an irreversible
coma or suffering a serious terminal illness is alive in a strictly biological sense
but is no longer able to live life in a way that may give meaning to this
biological existence. The rule against killing protects individuals that have lives
and not merely individuals who are alive. When an individual is alive only to
the extent of being conscious in the most rudimentary sense, the capacity to
experience pleasure and pain (if any) does not necessarily have value if that is
the only capacity one has. These sensations will not be endowed with any
significance by the one experiencing them since they do not arise from any
human activities or projects and they will not be connected with any coherent
view of the world.
62 It is instructive to analyse how the principle of the sanctity of life impacts
upon views in regard to capital punishment. (This comparison, it needs to be
clarified in the present judgment, is not to indicate an opinion on the
constitutionality of the death penalty which is not in issue here). Advocates of
the sanctity of life would even allow capital punishment73, implying that they do
not oppose all killing of human beings. This suggests that “while they are anti
73 Elizabeth Wicks (Supra note 5), at pages 102-149
PART G
54
euthanasia, they are not uniformly pro-life”74. In a seminal article titled “The
Song of Death: The Lyrics of Euthanasia”75, Margaret A. Somerville has laid
down “four possible positions that persons could take:
(i) that they are against capital punishment and against euthanasia;
(ii) that they agree with capital punishment, but are against euthanasia;
(iii) that they agree with capital punishment and euthanasia; or
(iv) that they are against capital punishment, but agree with euthanasia”.76
She explained the underlying philosophy that these positions represent and its
implications:
“The first is a true pro-life position, in that, it demonstrates a
moral belief that all killing (except, usually, as a last resort in
self-defence) is wrong. The second position represents the
view of some fundamentalists, namely, that to uphold the
sanctity of life value requires prohibition of euthanasia, but
capital punishment is justified on the grounds that this
punishment is deserved and just according to God's law. The
third position is that of some conservatives, who see capital
punishment as a fit penalty on the basis that one can forfeit
one's life through a very serious crime, but that one can also
consent to the taking of one's own life in the form of
euthanasia. The fourth view is that of some civil libertarians,
that one can consent to the taking of one's own life but cannot
take that of others. Through such analyses, one can see
where the various groups agree with each other and
disagree. For example, the true pro-life persons and the
fundamentalists agree with each other in being against
euthanasia, and some conservatives and civil libertarians
agree with each other in arguing for the availability of
euthanasia. On the other hand, the true pro-life and civil
libertarians join in their views in being against capital
punishment, whereas the fundamentalists and some
conservatives agree that this is acceptable.”77
74 Margaret A. Somerville, “The Song of Death: The Lyrics of Euthanasia”, Journal of Contemporary Health Law
& Policy (1993), Vol. 9, Issue 1, at page 67.
75 Ibid, at pages 1-76
76 Ibid, at page 67
77 Ibid, at pages 67-68
PART G
55
The above explanation suggests that there are variations in intellectual
opinion on the concept of sanctity of life. When it comes to taking of a
person’s life, various groups while agreeing in certain terms, may be “radically
divergent in others”.78
63 Contrary to the vitalism or the sanctity of life principle, some scholars
and bioethicists have argued that “life is only valuable when it has a certain
quality which enables the subject to derive enjoyment from their existence so
that life is viewed as being, on balance, more beneficial than burdensome”. It
has been argued that the sanctity of life principle should be interpreted to
protect lives in the biographical sense and not merely in a biological sense.79
There is a difference in the fact of being alive and the experience of living.
From the point of view of the living individual, there is no value in being alive
except that it enables one to have a life.80
64 There is wide-ranging academic research suggestive of a nuanced
approach to the sanctity principle. During the last four decades, “there has
been a subtle change in the way” people perceive human life and that “the
idea of quality of life has become more prevalent in recent times”.81
. The moral
78 Ibid
79 James Rachels (Supra note 23), at page 26
80 Ibid
81 Jessica Stern, Euthanasia and the Terminally Ill (2013), retrieved from Florida State University Libraries
PART G
56
premium, as Magnusson has remarked, is shifting “from longevity and onto
quality of life”82
.
In his article titled the “Sanctity of Life or Quality of Life?”
83, Singer argued that
the sanctity of life principle has been under erosion the “philosophical
foundations” of the principle being “knocked asunder”.84 “The first major blow”
to the principle, Singer stressed, “was the spreading acceptance of abortion
throughout the Western world”. Late abortions diluted the defence of the
“[alleged] universal sanctity of innocent human life”.85 Singer has further
remarked:
“Ironically, the sanctity with which we endow all human life
often works to the detriment of those unfortunate humans
whose lives hold no prospect except suffering…
One difference between humans and other animals that is
relevant irrespective of any defect is that humans have
families who can intelligently take part in decisions about their
offspring. This does not affect the intrinsic value of human life,
but it often should affect our treatment of humans who are
incapable of expressing their own wishes about their future.
Any such effect will not, however, always be in the direction of
prolonging life…
If we can put aside the obsolete and erroneous notion of the
sanctity of all human life, we may start to look at human life
as it really is: at the quality of life that each human being has
or can achieve. Then it will be possible to approach these
difficult questions of life and death with the ethical sensitivity
that each case demands, rather than with the blindness to
individual differences…”86
82
Roger S. Magnusson, “The Sanctity of Life and the Right to Die: Social and Jurisprudential Aspects of the
Euthanasia Debate in Australia and the United States”, Pacific Rim Law & Policy Journal, Vol. 6, No. I, at
page 40
83
Peter Singer, “Sanctity of Life or Quality of Life”, Pediatrics (1983), Vo. 72, Issue 1, at pages 128-129
84
Ibid, at page 129
85
Ibid, at page 128
86
Ibid, at page 129
PART G
57
65 The quality of life approach has its basis in the way life is being lived.
“An overriding concern”, under this approach, “is the conditions under which
people live rather than whether they live”.87 This does not mean that someone
“who chooses to end their life through euthanasia” does not value their lives
as much as others.88 Breck in his article titled “Euthanasia and the Quality of
Life Debate”89 has stated that:
“Ethicists of all moral and religious traditions recognize that
medical decisions today inevitably involve quality of life
considerations. Very few would be inclined to sustain limited
physiological functioning in clearly hopeless cases, as with
anencephaly or whole-brain death, simply because the
technology exists to do so. That such a case is indeed
hopeless, however, is a quality of life judgment: it weighs the
relationship between the patient's condition and the treatment
options and concludes that attempts to sustain biological
existence would be unnecessarily burdensome or simply
futile. Judgments made in light of "futility" or the "burdenbenefit
calculus" are necessarily based on evaluations of the
"quality" of the patient's life. Such quality, however, must
always be determined in light of the patient's own personal
interests and well-being, and not on grounds of the burden
imposed on other parties (the family, for example) or the
medical care system with its economic considerations and
limited resources.”90
Weingarten is of the view that the emphasis on the sanctity of life “should be
replaced by ‘value of life’, which exposes the individual case to critical
87 “Sanctity of life vs. quality of life”, Los Angeles Times (June 7, 2015), available at
http://www.latimes.com/opinion/readersreact/la-le-0607-sunday-assisted-suicide-20150607-story.html
88 Jessica Stern, Euthanasia and the Terminally Ill (2013), available at
https://fsu.digital.flvc.org/islandora/object/fsu:209909/datastream/PDF/view
89 John Breck, “Euthanasia and the Quality of Life Debate”, Christian Bioethics (1995), Vol. 1, No.3, at pages
322-337
90 Ibid, at pages 325-326
PART G
58
scrutiny. Medicine can better cope with its current and future ethical dilemmas
by a case-by-case approach.”
91
Norrie explains why quality of life should be placed ahead of sanctity of life in
the debate on euthanasia:
“[W]hile there are good moral reasons of either a direct (that
human life should be generally valued as of intrinsic worth) or
an indirect (that allowing exceptions would lead to a slippery
slope) kind for supporting a sanctity of life view in the case of
the terminally ill and ancillary cases, there are also good
moral reasons for allowing exceptions to it. The latter stem
from a quality of life view and, linked to that, the possibility of
choosing the time and place of one’s own death. The
possibility of agency as a central element in what it means to
be human is premised on the notion of human freedom, and
freedom implies a number of different elements. These
include a simple freedom to be left alone with one’s life, as
well as a positive freedom to become what we have it within
ourselves to be. Such freedom then entails further
conceptions of autonomy, emancipation, and flourishing,
insofar as human life reflects the potentialities in human
being. The ability to choose one’s own death reflects many of
these aspects of human freedom, from the simple sense that
one should be left alone to do what one likes with one’s life to
the more complex sense that an autonomous life would
include amongst its components control over one’s death,
and then on to the sense—that is surely there in the term
‘euthanasia’ (a ‘good death’)—that a flourishing life is one in
which one is genuinely able to register the time to go. These
are moral arguments placing choice and quality of life ahead
of sanctity of life… A good life means a good death too,
and it is this kind of argument that leads one to think that a
categorical prohibition on voluntary euthanasia…is
problematic.”92
91 Michael A Weingarten, “On the sanctity of life”, British Journal of General Practice (April 2007), Vol. 57(537), at
page 333
92
Alan Norrie (Supra note 4), at page 143
PART G
59
Life and natural death
66 The defenders of the sanctity principle place sacred value to human life
from “conception to natural death”.93 The word “natural” implies that “the only
acceptable death is one that occurs from natural causes”. Life is only “sacred
insofar as it ends by natural means”94. Medical advancements, however, have
brought uncertainty about the definition of death “what constitutes death, in
particular a “natural” death”. This uncertainty can be expressed through the
following questions:
“If a person stays alive thanks to medical advances, is that
really “natural”?...
When is the benefit of using technology and treatments to
sustain life no longer worth the pain that comes along with
it?”95
67 Medical advances have “complicated the question of when life ends”.
There exists no natural death where artificial technology is concerned.
Technology by artificial means can prolong life. In doing so, technology has reshaped
both human experience as well as our values about life in a natural
state and its end by natural causes:
“[T]he process of dying is an inevitable consequence of life,
the right to life necessarily implies the right to have nature
take its course and to die a natural death. It also
encompasses a right, unless the individual so wishes, not to
have life artificially maintained by the provision of
nourishment by abnormal artificial means which have no
93
Alecia Pasdera, The Rhetoric of the Physician-Assisted Suicide Movement: Choosing Death Over Life (2014),
available at https://ou.monmouthcollege.edu/_resources/pdf/academics/mjur/2014/Rhetoric-of-the-PhysicianAssisted-Suicide-Movement-Choosing-Death-Over-Life.pdf,
at page 68
94
Ibid, at page 69
95
Ibid, at page 68
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60
curative effect and which are intended merely to prolong
life.”96
68 Modern medicine has found ways to prolong life and to delay death.
But, it does not imply that modern medicine “necessarily prolongs our living a
full and robust life because in some cases it serves only to prolong mere
biological existence during the act of dying”. This may, in certain situations
result in a mere “prolongation of a heart-beat that activates the husk of a
mindless, degenerating body that sustains an unknowing and pitiable life-one
without vitality, health or any opportunity for normal existence-an inevitable
stage in the process of dying”.97 Prolonging life in a vegetative state by
artificial means or allowing pain and suffering in a terminal state would lead to
questioning the belief that any kind of life is so sanctified as to be preferred
absolutely over death”.98
69 Kuhse and Hughes have stated that “the really critical issues in
medicine are often hidden” by “the hulking darkness” of the sanctity principle.
According to them:
“Today the advances of science are occurring every minute.
Lasers are used to crush kidney stones; mechanical hearts
are transplanted to prolong life; and organ transplants are
being increasingly used, particularly livers and eyes and, now
experimentally, legs. Microprocessor ventilators are used to
maintain breathing in patients unable to breathe on their own;
chemotherapy/radiology is being used to prolong the lives of
cancer patients; long-term hemodialysis is being used for
96 Sushila Rao (Supra note 68), at page 15
97 Arval A. Morris, “Voluntary Euthanasia”, Washington Law Review (1970), Vol. 45, at page 240
98 Ibid, at page 243
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61
those who have non-functional kidneys; and cardiac
pacemakers are being implanted in patients whose hearts are
unable to beat normally. While society has supported
research and development in medicine, the issues regarding
the termination of such treatment and, more importantly, the
withholding of such treatment have not been fully
addressed.”99
70 The debate around human life will be driven by technology.
“Sophisticated modern medical technology”, even if ultimately not being able
to conquer death, “has a lot to say about the conditions and time of its
occurrence”. Singer has envisioned a future where the debate around human
life is closely linked to the impact of technology on our existence:
“As the sophistication of techniques for producing images of
soft tissue increases, we will be able to determine with a high
degree of certainty that some living, breathing human beings
have suffered such severe brain damage that they will never
regain consciousness. In these cases, with the hope of
recovery gone, families and loved ones will usually
understand that even if the human organism is still alive, the
person they loved has ceased to exist. Hence, a decision to
remove the feeding tube will be less controversial, for it will be
a decision to end the life of a human body, but not of a
person.”100
71 Lady Justice Arden recently delivered a lecture in India on a topic
dealing with the intersection of law and medicine titled “What does patient
autonomy mean for Courts?”101. The judge explained that advancement in
medical technology has contributed towards a growing importance of patient
autonomy and an increasing social trend towards questioning clinical
99 Elizabeth M. Andal Sorrentino, “The Right To Die?”, Journal of Health and Human Resources Administration
(Spring,1986), Vol. 8, No. 4, at pages 361-373
100 Peter Singer, “The Sanctity of Life”, Foreign Policy (October 20, 2009), available at
http://foreignpolicy.com/2009/10/20/the-sanctity-of-life/
101 Lady Justice Arden, Law of medicine and the individual: current issues, What does patient autonomy mean for
the courts?, (Justice KT Desai Memorial Lecture 2017)
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judgment, which is causing conflict among courts in the UK- particularly in end
of life treatment decisions. To highlight this conflict, Judge Arden cites the
example of baby Charlie Gard, a ‘caregiver case’102 that engendered debate
on medical ethics world over.
Born in August 2016 in London, Charlie suffered from an extremely rare
genetic condition known as MDDS, which causes progressive brain damage
and muscle failure, usually leading to death in infancy. His parents wanted him
to undergo experimental treatment known as nucleoside which was available
in the USA and raised a large amount of money to enable him to travel there.
However, the doctors at the hospital in London who were treating him did not
think it was in his caregiver to have this treatment as instead they believed his
caregiver demanded that his life-support be withdrawn as they considered the
treatment to be futile. Due to the conflicting views between the parents and
the doctors, the core issue to be decided i.e. whether it was in the best
interest of the child to received further treatment had to be answered by the
Court. The case went through the judicial system- including the High Court,
the Supreme Court, the ECHR and finally back to the High Court, which on the
basis of medical reports concluded that it was not in the child’s caregiver to
have further treatment and passed an order permitting the doctors to allow
Charlie to die.
102
Great Ormond Street Hospital v. Constance Yates, Christopher Gard, Charlie Gard (by his guardian), [2017]
EWHC 1909 (Fam)
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In addition to the issue of caregiver, Lady Justice Arden also mentioned the
issue of resources in such cases. In the present case, the parents were able
to raise large amounts of financial resources required for the treatment of the
child, but lack of resources could lead to difficulties in other cases where
treatment is unaffordable in a public health system.
72 Modern technology has in a fundamental manner re-shaped the notion
of life. As technology continuously evolves into more complex planes, it
becomes even more necessary to re-evaluate its relationship with the
meaning and quality of life.
H Euthanasia and the Indian Constitution
73 The sanctity of life principle appears in declarations on human rights as
the “right to life”.103 Under the Indian Constitution, right to life has been
provided under Article 21. In Pt. Parmanand Katara v Union of India104, it
was pointed out:
“[P]reservation of life is of most importance, because if one’s
life is lost, the status quo ante cannot be restored as
resurrection is beyond the capacity of man”.
The sanctity of human life lies in its intrinsic value. It inheres in nature and is
recognised by natural law. But human lives also have instrumental functions.
103
John Keown (Supra note 44), at page 4
104
AIR 1989 SC 2039
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Our lives enable us to fulfil our needs and aspirations. The intrinsic worth of
life is not conditional on what it seeks to or is capable to achieve. Life is
valuable because it is. The Indian Constitution protects the right to life as the
supreme right, which is inalienable and inviolable even in times of
Emergency.105 It clearly recognises that every human being has the inherent
right to life, which is protected by law, and that “No person shall be deprived of
his life… except according to procedure established by law”106. It, thus,
envisages only very limited circumstances where a person can be deprived of
life.
According to Stephania Negri, the debate around euthanasia has “essentially
developed within the framework of the universal rights to life and to human
dignity”107. This leads us to the relationship between end of life decisions and
human dignity under the Indian Constitution.
Dignity
74 Human dignity has been “considered the unique universal value that
inspires the major common bioethical principles, and it is therefore considered
the noyau dur of both international bio law and international human rights
105
Article 359
106
Article 21
107
Stefania Negri, “Universal Human Rights and End-of-Life Care” in S. Negri et al. (eds.), Advance Care
Decision Making in Germany and Italy: A Comparative, European and International Law Perspective, Springer
(2013), at page 18
PART H
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law”108
. Ronald Dworkin observes that “the notion of a right to dignity has been
used in many senses by moral and political philosophers”.109
75 The first idea considers dignity as the foundation of human rights “that
dignity relates to the intrinsic value of persons (such that it is wrong to treat
persons as mere things rather than as autonomous ends or agents)”110
.
According to this premise, every person, from conception to natural death,
possesses inherent dignity:
“The sanctity of life view is often accompanied by a set of
claims about human dignity, namely, that human beings
possess essential, underived, or intrinsic dignity. That is, they
possess dignity, or excellence, in virtue of the kind of being
they are; and this essential dignity can be used summarily to
express why it is impermissible, for example, intentionally to
kill human beings: to do so is to act against their dignity.”111
The other interpretation of dignity is by the supporters of euthanasia.112 For
them, right to lead a healthy life also includes leaving the world in a peaceful
and dignified manner. Living with dignity, in this view, means the right to live a
meaningful life having certain quality. This interpretation endorses the “quality
of life” proposition.
108
Ibid, at pages 21-22
109
Ronald Dworkin, Life's Dominion (London: HarperCollins, 1993) as quoted in Deryck Beyleveld and Roger
Brownsword, “Human Dignity, Human Rights, and Human Genetics”, Modern Law Review (1998), Vol. 61, at
pages 665-666
110 Deryck Beyleveld and Roger Brownsword, “Human Dignity, Human Rights, and Human Genetics”, Modern
Law Review (1998), Vol. 61, at page 666
111 Christopher O. Tollefsen, “Capital Punishment, Sanctity of Life, and Human Dignity”, Public Discourse
(September 16, 2011), available at http://www.thepublicdiscourse.com/2011/09/3985/
112 Stefania Negri, “Ending Life and Death” in A. den Exter (eds.), European Health Law, MAKLU Press (2017), at
page 241
PART H
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Dignity has thus been invoked in support of contradictory claims and
arguments. It could justify respect for life under the principle of the “sanctity of
life”, as well as the right to die in the name of the principle of “quality of life”. In
order to remove ambiguities in interpretation and application of the right to
human dignity, Negri has suggested that dignity should be given a minimum
core of interpretation:
“To be meaningful in the end-of-life discourse, and
hence to avoid being invoked as mere rhetoric, dignity
should be considered as a substantive legal concept, at
whose basic minimum core is the legal guarantee
assuring the protection of every human being against
degradation and humiliation. Besides this, as
international and national case law demonstrate, it can also
play an important role as an interpretive principle, assisting
judges in the interpretation and application of other human
rights, such as the right to life and the right to respect for
private life, both crucial in the end-of-life debate.”113
(Emphasis supplied)
Recognition of human dignity is an important reason underlying the
preservation of life. It has important consequences. Is that dignity not
compromised by pain and suffering and by the progressive loss of bodily and
mental functions with the imminence of the end of life? Dignity has important
consequences for life choices.
76 Morris, in his article, “Voluntary Euthanasia”, regards cruelty as a
violation of human dignity:
113 Ibid
PART H
67
“All civilized men will agree that cruelty is an evil to be
avoided. But few people acknowledge the cruelty of our
present laws which require a man be kept alive against his
will, while denying his pleas for merciful release after all the
dignity, beauty, promise and meaning of life have vanished,
and he can only linger for weeks or months in the last stages
of agony, weakness and decay." In addition, the fact that
many people, as they die, are fully conscious of their tragic
state of deterioration greatly magnifies the cruelty inherent in
forcing them to endure this loss of dignity against their will.”114
He has further stated “it is exceedingly cruel to compel the spouse and
children of a dying man to witness the ever-worsening stages of his disease,
and to watch the slow, agonizing death of their loved one, degenerating before
their eyes, being transformed from a vital and robust parent and spouse into a
pathetic and humiliated creature, devoid of human dignity”.115
77 Liberty and autonomy promote the cause of human dignity. Arguments
about autonomy are often linked to human dignity.116 Gostin evaluates the
relationship between the dignity of dying with autonomy thus:
“The dying process, after all, is the most intimate, private and
fundamental of all parts of life. It is the voice that we, as
humans, assert in influencing this autonomous part of our life.
At the moment of our death, this right of autonomy ought not
to be taken from us simply because we are dying. An
autonomous person should not be required to have a good
reason for the decision that he or she will make; that is the
nature of autonomy. We do not judge for other competent
human beings what may be in their best interest, but instead
allow them to determine that for themselves. As such, an
autonomous person does not need to have a good
understanding or even good reasons. All they need is an
114 Arval A. Morris (Supra note 97), at pages 251-252
115 Ibid
116 Sebastian Muders, Autonomy and the Value of Life as Elements of Human Dignity (Oxford University Press,
2017)
PART H
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understanding of what they are confronting. There is no
reason to believe that when a person faces imminent death
that they have less human understanding, or less ability to
fathom what they will face, than other people. Of course,
death is a mystery. But death is what we will all confront
sooner or later, and we all may wish to assert our interests in
how we may die.”117
78 Sumner in his work titled “Dignity through Thick and Thin”118 discusses
the dignity associated with patients:
“[P]atients associate dignity with concepts such as respect
and esteem, presumably including self-respect and selfesteem,
whereas they experience its opposite—indignity—as
degrading, shameful, or embarrassing… Abstractly speaking,
a person’s dignity seems to be a matter of assurance of her
fully human status, both in her own eyes and in the eyes of
others. Dignity is maintained when one can face others with
pride and with confidence of being worthy of their respect; it is
lost or impaired when being seen by others occasions
feelings of shame, inferiority, or embarrassment. The element
of degradation that is implicated in indignity seems a matter of
feeling demoted or diminished from a higher standing to a
lower, perhaps from the status of a fully functioning person to
something lesser.”119
While stating that dignity and indignity are “basically subjective notions”120
depending upon how individual patients experience them, he has further
stated:
“One condition that patients report as degrading— as an
indignity—is loss of control over the course of their own
health care. Loss of autonomy matters in its own right, but it
matters even more if it is the source for patients of shame and
humiliation. This suggests that autonomy and well-being are
themselves interconnected: Patients typically experience a
117 Lawrence O. Gostin, “The Constitutional Right to Die: Ethical Considerations”, St John's Journal of Legal
Commentary (1997), Vol. 12, at pages 602-603
118
LW Sumner, “Dignity through Thick and Thin”, in Sebastian Muders, Human Dignity and Assisted Death
(Oxford University Press, 2017)
119 Ibid, at page 61
120 Ibid, at page 64
PART H
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loss of the former as a decline in the latter, as something that
makes their dying process go worse for them by causing
them feelings of indignity. Appeals to dignity thus flesh out
what is at stake for patients in terms of their autonomy and
well-being, but they do not introduce any factors that fall
outside the limits of these values.”121
79 An article titled “Euthanasia: A Social Science Perspective”122 in the
Economic & Political Weekly has suggested that the discourses on death with
dignity “need to be situated within processes of living with dignity in everyday
contexts”.123 The end of life must not be seen as “human disposal”, but, as
“the enhancement of human dignity by permitting each man's last act to be an
exercise of his free choice between a tortured, hideous death and a painless,
dignified one.”124
80 Under our Constitution, the inherent value which sanctifies life is the
dignity of existence. Recognising human dignity is intrinsic to preserving the
sanctity of life. Life is truly sanctified when it is lived with dignity. There exists
a close relationship between dignity and the quality of life. For, it is only when
life can be lived with a true sense of quality that the dignity of human
existence is fully realized. Hence, there should be no antagonism between the
sanctity of human life on the one hand and the dignity and quality of life on the
other hand. Quality of life ensures dignity of living and dignity is but a process
in realizing the sanctity of life.
121 Ibid, at page 68
122 Aneeta A Minocha, Arima Mishra and Vivek R Minocha, “Euthanasia: A Social Science Perspective”,
Economic & Political Weekly (December 3, 2011), at pages 25-28
123 Ibid, at page 27
124 Arval A. Morris (Supra note 97), at page 247
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81 Human dignity is an essential element of a meaningful existence. A life
of dignity comprehends all stages of living including the final stage which
leads to the end of life. Liberty and autonomy are essential attributes of a life
of substance. It is liberty which enables an individual to decide upon those
matters which are central to the pursuit of a meaningful existence. The
expectation that the individual should not be deprived of his or her dignity in
the final stage of life gives expression to the central expectation of a fading
life: control over pain and suffering and the ability to determine the treatment
which the individual should receive. When society assures to each individual a
protection against being subjected to degrading treatment in the process of
dying, it seeks to assure basic human dignity. Dignity ensures the sanctity of
life. The recognition afforded to the autonomy of the individual in matters
relating to end of life decisions is ultimately a step towards ensuring that life
does not despair of dignity as it ebbs away.
82 From Maneka Gandhi125 to Puttaswamy126, dignity is the element
which binds the constitutional quest for a meaningful existence. In Francis
Coralie Mullin v Administrator, Union Territory of Delhi127
, this Court held
that:
“The right to life enshrined in Article 21 cannot be restricted to
mere animal existence. It means something much more than
just physical survival…
125 Maneka Gandhi v Union of India, (1978) 1 SCC 248
126 Justice KS Puttaswamy (Retd.) v Union of India, (2017) 10 SCC 1
127 (1981) 1 SCC 608
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We think that the right to life includes the right to live with
human dignity.”
Explaining the ambit of dignity, this Court further held that:
“[A]ny form of torture or cruel, inhuman or degrading
treatment would be offensive to human dignity and constitute
an inroad into this right to live… [T]here is implicit in Article 21
the right to protection against torture or cruel, inhuman or
degrading treatment which is enunciated in Article 5 of the
Universal Declaration of Human Rights and guaranteed by
Article 7 of the International Covenant on Civil and Political
Rights.”
Dignity is the core value of life and personal liberty which infuses every stage
of human existence. Dignity in the process of dying as well as dignity in death
reflects a long yearning through the ages that the passage away from life
should be bereft of suffering. These individual yearnings are enhanced by the
experiences of sharing, observing and feeling with others: the loss of a
parent, spouse, friend or an acquaintance to the cycle of life. Dignity in death
has a sense of realism that permeates the right to life. It has a basic connect
with the autonomy of the individual and the right to self-determination. Loss
of control over the body and the mind are portents of the deprivation of liberty.
As the end of life approaches, a loss of control over human faculties denudes
life of its meaning. Terminal illness hastens the loss of faculties. Control over
essential decisions about how an individual should be treated at the end of
life is hence an essential attribute of the right to life. Corresponding to the
right is a legitimate expectation that the state must protect it and provide a just
legal order in which the right is not denied. In matters as fundamental as
PART H
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death and the process of dying, each individual is entitled to a reasonable
expectation of the protection of his or her autonomy by a legal order founded
on the rule of law. A constitutional expectation of providing dignity in death is
protected by Article 21 and is enforceable against the state.
Privacy
83 The nine-judge Bench decision of this Court in Justice K S
Puttaswamy v Union of India128 held privacy to be the constitutional core of
human dignity. The right to privacy was held to be an intrinsic part of the right
to life and liberty under Article 21 and protected under Part III of the
Constitution. Each of the six decisions has a vital bearing on the issues in the
present case. Excerpts from the judgment are reproduced below:
Justice DY Chandrachud
“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 recognises 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 Chelameswar
“Forced feeding of certain persons by the State raises
concerns of privacy. An individual’s right to refuse life
prolonging medical treatment or terminate his life is another
freedom which falls within the zone of the right of privacy.”
128 2017 (10) SCC 1
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Justice SA Bobde
“Privacy, with which we are here concerned, eminently
qualifies as an inalienable natural right, intimately connected
to two values whose protection is a matter of universal moral
agreement: the innate dignity and autonomy of man… Both
dignity and privacy are intimately intertwined and are natural
conditions for the birth and death of individuals, and for many
significant events in life between these events.”
Justice RF Nariman
“… a Constitution has to be read in such a way that words
deliver up principles that are to be followed and if this is kept
in mind, it is clear that the concept of privacy is contained not
merely in personal liberty, but also in the dignity of the
individual.”
Justice AM Sapre
“The incorporation of expression "Dignity of the individual" in
the Preamble was aimed essentially to show explicit
repudiation of what people of this Country had inherited from
the past. Dignity of the individual was, therefore, always
considered the prime constituent of the fraternity, which
assures the dignity to every individual. Both expressions are
interdependent and intertwined.”
Justice SK Kaul
“A person-hood would be a protection of one’s personality,
individuality and dignity.”
“Privacy, for example is nothing but a form of dignity, which
itself is a subset of liberty.”
84 The protective mantle of privacy covers certain decisions that
fundamentally affect the human life cycle.129 It protects the most personal and
intimate decisions of individuals that affect their life and development.130 Thus,
129
Richard Delgado, “Euthanasia Reconsidered-The Choice of Death as an Aspect of the Right of Privacy”,
Arizona Law Review (1975), Vol. 17, at page 474
130 Ibid
PART H
74
choices and decisions on matters such as procreation, contraception and
marriage have been held to be protected. While death is an inevitable end in
the trajectory of the cycle of human life of individuals are often faced with
choices and decisions relating to death. Decisions relating to death, like those
relating to birth, sex, and marriage, are protected by the Constitution by virtue
of the right of privacy. The right to privacy resides in the right to liberty and in
the respect of autonomy.131 The right to privacy protects autonomy in making
decisions related to the intimate domain of death as well as bodily integrity.
Few moments could be of as much importance as the intimate and private
decisions that we are faced regarding death.132 Continuing treatment against
the wishes of a patient is not only a violation of the principle of informed
consent, but also of bodily privacy and bodily integrity that have been
recognised as a facet of privacy by this Court.
85 Just as people value having control over decisions during their lives
such as where to live, which occupation to pursue, whom to marry, and
whether to have children, so people value having control over whether to
continue living when the quality of life deteriorates.133
131 TL Beauchamp, “The Right to Privacy and the Right to Die”, Social Philosophy and Policy (2000), Vol. 17, at
page 276
132 Ibid
133 D Benatar (Supra note 18)
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86 In the case of In re Quinlan (1976),134 the New Jersey Supreme Court
dealt with a case of a patient, Karen Quinlan, who had suffered irreversible
brain damage and was in a persistent vegetative state and had no prospect of
recovery. The patient’s father sought judicial authority to withdraw the lifesustaining
mechanisms temporarily preserving his daughter’s life, and his
appointment as guardian of her person to that end. The father’s lawyer
contended that the patient was being forced to function against all natural
impulses and that her right to make a private decision about her fate
superseded the state’s right to keep her alive. The New Jersey Supreme
Court held that the patient had a right of privacy grounded in the US
Constitution to terminate treatment and in a celebrated statement said that:
“the State's interest contra [the right to privacy] weakens and
the individual's right to privacy grows as the degree of bodily
invasion increases and the prognosis dims. Ultimately there
comes a point at which the individual's rights overcome the
State interest. It is for that reason that we believe [the
patient's] choice, if she were competent to make it, would be
vindicated by law.”
Since Karen Quinlan was not competent to assert her right to privacy, the
Court held that Karen's right of privacy may be asserted on her behalf by her
guardian due to the reason that Karen Quinlan did not have the capacity to
assert her right to privacy indicating that the right of privacy is so fundamental
that others, who had been intimately involved with the patient, should be able
to exercise it in circumstances when the patient is unable to do so. However,
134 70 N.J. 10; 355 A.2d 647 (1976)
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subsequently scholars have argued that when euthanasia is founded in the
right to privacy, only voluntary euthanasia can be permitted. The right to
privacy can only be exerted by the patient and cannot be exercised
vicariously.135 The substituted judgment and caregiver criterion cannot be
logically based on the right to privacy of the patient.136
87 In the landmark case of Pretty v United Kingdom137, the European
Court of Human Rights analysed Article 8 of the European Convention on
Human Rights (respect for private life). It held that the term “private life” is a
broad term not susceptible to exhaustive definition and covers the physical
and psychological integrity of a person. In relation to the withdrawing of
treatment, it was held that the way in which an individual “chooses to pass the
closing moments of her life is part of the act of living, and she has a right to
ask that this too must be respected.” The right to privacy protects even those
choices that may be considered harmful for the individual exercising the
choice:
“The extent to which a State can use compulsory powers or
the criminal law to protect people from the consequences of
their chosen lifestyle has long been a topic of moral and
jurisprudential discussion, the fact that the interference is
often viewed as trespassing on the private and personal
sphere adding to the vigour of the debate. However, even
where the conduct poses a danger to health or, arguably,
where it is of a life-threatening nature, the case-law of the
Convention institutions has regarded the State's imposition of
compulsory or criminal measures as impinging on the private
life of the applicant within the meaning of Article 8 § 1... In the
sphere of medical treatment, the refusal to accept a particular
135Peter J. Riga, "Privacy and the Right to Die," The Catholic Lawyer (2017) Vol. 26: No. 2 , Article 2
136 Ibid
137 Application no. 2346/02
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treatment might, inevitably, lead to a fatal outcome, yet the
imposition of medical treatment, without the consent of a
mentally competent adult patient, would interfere with a
person's physical integrity.”
The Court further observed that:
“Without in any way negating the principle of sanctity of life
protected under the Convention, the Court considers that it is
under Article 8 that notions of the quality of life take on
significance. In an era of growing medical sophistication
combined with longer life expectancies, many people are
concerned that they should not be forced to linger on in old
age or in states of advanced physical or mental decrepitude
which conflict with strongly held ideas of self and personal
identity.”
Thus, the Court concluded that the “choice to avoid what she considers will be
an undignified and distressing end to her life” is guaranteed under the right to
respect for private life under Article 8(1) of the Convention.
88 Subsequently in the case of Haas v Switzerland138, the European Court
of Human Rights has further held that the right to decide in which way and at
which time an individual’s life should end, provided that he or she was in a
position freely to form her own will and to act accordingly, was one of the
aspects of the right to respect for private life within the meaning of Article 8 of
the Convention.
89 The right to privacy as held by this Court mandates that we safeguard
the integrity of individual choice in the intimate sphere of decisions relating to
138 Application no. 31322/07, para 51
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death, subject to the restrictions to the right to privacy, as laid down by us.
However, since privacy is not an absolute right and is subject to restrictions,
the restrictions must fulfil the requirements as laid down by this Court in
Puttaswamy.
90 The protection of these rights by the legal order is as much an
emanation of the right to privacy which shares a functional relationship with
the fundamental right to life and personal liberty guaranteed by the
Constitution. Privacy recognises that the body and mind are inviolable. An
essential attribute of this inviolability is the ability of the individual to refuse
medical treatment.
Socio-Economic Concerns
91 One of the limitations of contemporary debates on euthanasia is that
they do not take into consideration “certain socio-economic concerns that
must necessarily be factored into any discourse”139. This has been criticised
as making the debate around ending life “incomplete” as well as “elitist”.
92 In an article titled “Euthanasia: cost factor is a worry”
140 Nagral (2011)
seeks to construct a “critical linkage” between euthanasia and “the economic
and social dimension" in the Indian context. Stating that many Indian doctors
139 Sushila Rao (Supra note 16), at page 654
140 S Nagral, “Euthanasia: Cost Factor is a Worry”, The Times of India (June 19, 2011), available at
http://www.timesofindia.com/home/sunday/Euthanasia-cost-factor-is-a-worry/articleshow/7690155.cms
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have been practising passive euthanasia silently and practically, Nagral
contemplates the cost of treatment to be a critical factor in influencing the
medical decision:
“[O]ne of the reasons for 'passive' euthanasia is that the
patient or his family could be running out of money. In some
cases, this overlaps with the incurability of the disease. In
others, it may not. Costly medication and intervention is often
withdrawn as the first step of this passive euthanasia process.
Sometimes patients are 'transferred' to smaller (read
cheaper) institutions or even their homes, with the tacit
understanding that this will hasten the inevitable. If a third
party is funding the patient's treatment, chances are that the
intervention and support will continue. Shocking and arbitrary
as this may sound, this is the reality that needs flagging
because it is relevant to the proposed legitimization of
passive euthanasia. In a system where out-of pocket payment
is the norm and healthcare costs are booming, there has to
be a way of differentiating a plea made on genuine medical
grounds from one that might be an attempt to avoid financial
ruin.”141
Rao (2011) has observed:
“In the absence of adequate medical insurance, specialised
treatments like ventilator support, kidney dialysis, and
expensive lifesaving drugs administered in private hospitals
can turn middle-class families into virtual paupers. Poorly
equipped government hospitals simply do not have enough
life-support machines compared to the number of patients
who need them.... This also leads to the inevitable possibility
of a comatose patient’s family and relatives potentially
exploiting the euthanasia law to benefit from a premature
death, by way of inheritance, etc.”142
Norrie (2011) has placed the social and economic dimensions succinctly:
“This concerns the problem of the differential social impact
that such a position would have on the poor and the well-to
141 Ibid
142 Sushila Rao (Supra note 16), at page 654-655
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do… Wealth, poverty, and class structure have a profound
effect on the choices people make.”143
The inadequacies of the range and reach of Indian healthcare may, it is
observed, lead to a situation where euthanasia/active euthanasia may
become “an instrument of cost containment”144
.
Restraints on Judicial Power
93 An earlier part of this judgment has dwelt on the criticism of the distinction
between passive and active euthanasia, founded as it is on the act – omission
divide. The criticism is that as a matter of substance, there is no valid
distinguishing basis between active and passive euthanasia. The criticism takes
one of two forms: either both should be recognised or neither should be
allowed. The view that passive euthanasia involves an omission while active
euthanasia involves a positive act is questioned on the ground that the
withdrawal of artificial life support (as an incident of passive euthanasia)
requires a positive act. While noticing this criticism, it is necessary to distinguish
between active and passive euthanasia in terms of the underlying constitutional
principles as well as in relation to the exercise of judicial power. Passive
euthanasia – whether in the form of withholding or withdrawing treatment – has
the effect of removing, or as the case may be, not providing supportive
treatment. Its effect is to allow the individual to continue to exist until the end of
143 Alan Norrie (Supra note 4), at page 144
144 S Nagral, “Euthanasia: Cost Factor is a Worry”, The Times of India (June 19, 2011), available at
http://www.timesofindia.com/home/sunday/Euthanasia-cost-factor-is-a-worry/articleshow/7690155.cms
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the natural span of life. On the other hand, active euthanasia involves hastening
of death: the life span of the individual is curtailed by a specific act designed to
bring an end to life. Active euthanasia would on the state of the penal law as it
stands constitute an offence. Hence, it is only Parliament which can in its
legislative wisdom decide whether active euthanasia should be permitted.
Passive euthanasia on the other hand would not implicate a criminal offence
since the decision to withhold or withdraw artificial life support after taking into
account the best interest of the patient would not constitute an illegal omission
prohibited by law.
94 Moreover, it is necessary to make a distinction between active and
passive euthanasia in terms of the incidents of judicial power. We may refer in
this context to the felicitous words of Lord Justice Sales, speaking for the
Queen’s Bench Division in a recent decision delivered on 5 October 2017 in
Noel Douglas Conway v The Secretary of State for Justice145. Dealing with
the plea that physician assisted suicide should be accepted as a principle by the
court, the learned Judge observed thus:
“Parliament is the body composed of representatives of the
community at large with what can be called a democratic
mandate to make the relevant assessment in a case where
there is an important element of social policy and moral
value-judgment involved with much to be said on both sides
of the debate (229) and (233). There is not a single, clear,
uniquely rational solution which can be identified; the decision
cannot fail to be influenced by the decision-makers’ opinions
about the moral case for assisted suicide, including in
deciding what level of risk to others is acceptable and
whether any safeguards are sufficiently robust; and it is not
145 (2017) EWHC 2447 (Admin)
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appropriate for professional judges to impose their personal
opinions on matters of this kind (229)-(230) and (234). In
Nicklinson in the Court of Appeal, Lord Judge CJ aptly
referred to Parliament as representing “the conscience of the
nation” for decisions which raise “profoundly sensitive
questions about the nature of our society, and its values and
standards, on which passionate but contradictory opinions are
held” (Court of Appeal, (155). Parliament has made the
relevant decision; opponents of section 2 have thus far failed
to persuade Parliament to change the law despite active
consideration given to the issue, in particular in relation to the
Falconer Bill which contained essentially the same proposals
as Mr Conway now puts before the court; and the democratic
process would be liable to be subverted if, on a question of
moral and political judgment, opponents of the legislation
could achieve through the courts what they could not achieve
in Parliament (231) per Lord Sumption, referring to R
(Countryside Alliance) v Attorney General (2008) AC 719,
(45) per Lord Bingham and AXA General Insurance Ltd v HM
Advocate (2012) 1 SC 868, (49) per Lord Hope)”.
Emphasising the limitations on the exercise of the judicial power, Lord Justice
Sales observed:
“We also agree that his case on necessity becomes still
stronger when the other legitimate aims are brought into
account. As the conscience of the nation, Parliament was
and is entitled to decide that the clarity of such a moral
position could only be achieved by means of such a rule.
Although views about this vary in society, we think that the
legitimacy of Parliament deciding to maintain such a clear line
that people should not seek to intervene to hasten the death
of a human is not open to serious doubt. Parliament is
entitled to make the assessment that it should protect moral
standards in society by issuing clear and unambiguous laws
which reflect and embody such standards”.
In taking the view which has been taken in the present judgment, the court has
been conscious of the need to preserve to Parliament, the area which properly
belongs to its legislative authority. Our view must hence be informed by the
impact of existing legislation on the field of debate in the present case.
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I Penal Provisions
95 The legality of and constitutional protection which is afforded to passive
euthanasia cannot be read in isolation from the provisions of the Penal Code.
Physicians are apprehensive about their civil or criminal liability when called
upon to decide whether to limit life-supporting treatment.146 A decision on the
constitutional question cannot be rendered without analyzing the statutory
context and the impact of penal provisions. The decision in Aruna Shanbaug
did not dwell on the provisions of the Penal Code (apart from Sections 306
and 309) which have a vital bearing on the issue of euthanasia. Undoubtedly,
constitutional positions are not controlled by statutory provisions, because the
Constitution rises above and controls legislative mandates. But, in the present
reference where no statutory provision is called into question, it is necessary
for the court to analyse the relationship between what the statute penalizes
and what the Constitution protects. The task of interpretation is to allow for
their co-existence while interpreting the statute to give effect to constitutional
principle. This is particularly so in an area such as the present where criminal
law may bear a significant relationship to the fundamental constitutional
principles of liberty, dignity and autonomy.
The first aspect which needs to be noticed is that our law of crimes deals with
acts and omissions. Section 32 of the Penal Code places acts and omissions
146 S Balakrishnan and RK Mani, “The constitutional and legal provisions in Indian law for limiting life support”,
Indian Journal of Critical Care Medicine (2005), Vol. 9, Issue 2, at page 108
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on the same plane. An illegal omission (unless a contrary intent appears in
the Code) is proscribed when the act is unlawful. Section 32 states:
“Words referring to acts include illegal omissions. — In
every part of this Code, except where a contrary intention
appears from the context, words which refer to acts done
extend also to illegal omissions.”
The language of the statute which refers to acts applies, unless a contrary
intent appears in the text, to omissions.
The next aspect is about when an act or omission is illegal. Section 43
explains the concept of illegality. It provides thus:
““Illegal”. “Legally bound to do”. — The word “illegal” is
applicable to everything which is an offence or which is
prohibited by law, or which furnishes ground for a civil action;
and a person is said to be “legally bound to do” whatever it is
illegal in him to omit.”
Here again, being legally bound to do something is the mirror image of what is
illegal to omit doing.
Section 43 comprehends within the meaning of illegality, that (i) which is an
offence; or (ii) which is prohibited by law; or (iii) which furnishes a ground for a
civil action. Omissions and acts are mirror images. When it is unlawful to omit
to do something, the individual is legally bound to do it.
This raises the question of whether an omission to provide life-sustaining
treatment constitutes an illegal omission.
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Section 81 protects acts which are done without a criminal intent to cause
harm, in good faith, to prevent or avoid other harm to person or property. The
law protects the action though it was done with the knowledge that it was likely
to cause harm if a three-fold requirement is fulfilled. It comprehends an
absence of criminal intent to cause harm, the presence of good faith and the
purpose of preventing other harm. Section 81 provides thus:
“81. Act likely to cause harm, but done without criminal
intent, and to prevent other harm.—Nothing is an offence
merely by reason of its being done with the knowledge that it
is likely to cause harm, if it be done without any criminal
intention to cause harm, and in good faith for the purpose of
preventing or avoiding other harm to person or property.
Explanation—It is question of fact in such a case whether the
harm to be prevented or avoided was of such a nature and so
imminent as to justify or excuse the risk of doing the act with
the knowledge that it was likely to cause harm.”
Knowledge of the likelihood of harm is not culpable when a criminal intent to
cause harm is absent and there exists an element of good faith to prevent or
avoid other harm.
Section 92 of the IPC states:
“Act done in good faith for benefit of a person without
consent.—Nothing is an offence by reason of any harm
which it may cause to a person for whose benefit it is done in
good faith, even without that person's consent, if the
circumstances are such that it is impossible for that person to
signify consent, or if that person is incapable of giving
consent, and has no guardian or other person in lawful
charge of him from whom it is possible to obtain consent in
time for the thing to be done with benefit: Provided—
Provisos. First.—That this exception shall not extend to the
intentional causing of death, or the attempting to cause death”
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Section 92 protects an individual from a consequence which arises from the
doing of an act for the benefit of another in good faith, though a harm is
caused to the other. What was done is protected because it was done in good
faith. Good faith is distinguished from an evil design. When a person does
something to protect another from a harm or injury, the law protects what was
done in good faith, treating the harm that may result as a consequence
unintended by the doer of the act. This protection is afforded by the law even
in the absence of consent when the circumstances are such that it is
impossible for the person for whose benefit the act was done to consent to it.
This may arise where the imminence of the apprehended danger makes it
impossible to obtain consent. Another eventuality is where the individual is
incapable of consenting (by being incapacitated in mind) and there is no
person in the position of a guardian or person in lawful charge from whom
consent can be obtained in time to perform the act for the benefit of that
person. However, the first proviso to Section 92 makes it clear that the
exception does not extend to the intentional causing of death or attempt to
cause death to the individual, howsoever it may be for the benefit of the other.
Absence of intent to cause death is the crucial element in the protection
extended by Section 92.
Section 107 deals with abetment. It provides thus:
“Abetment of a thing.—A person abets the doing of a thing,
who—
… (Thirdly) — Intentionally aids, by any act or illegal
omission, the doing of that thing.”
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Abetment embodies a three-fold requirement: first an intentional aiding,
second the aiding of an act or illegal omission and third, that this must be
toward the doing of that thing.
Explanation 2 of this Section states:
“Whoever, either prior to or at the time of the commission of
an act, does anything in order to facilitate the commission of
that act, and thereby facilitates the commission thereof, is
said to aid the doing of that act.”
96 For abetting an offence, the person abetting must have intentionally
aided the commission of the crime. Abetment requires an instigation to commit
or intentionally aiding the commission of a crime. It presupposes a course of
conduct or action which (in the context of the present discussion) facilitates
another to end life. Hence abetment of suicide is an offence expressly
punishable under Sections 305 and 306 of the IPC.
97 It is now necessary to dwell upon the provisions bearing upon culpable
homicide and murder. Section 299 of the IPC states:
“Culpable homicide.—Whoever causes death by doing an
act with the intention of causing death, or with the intention of
causing such bodily injury as is likely to cause death, or with
the knowledge that he is likely by such act to cause death,
commits the offence of culpable homicide.”
Section 300 states:
“Murder.—Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused is
done with the intention of causing death, or—
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Secondly.—If it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause the
death of the person to whom the harm is caused, or—
Thirdly.—If it is done with the intention of causing bodily injury
to any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or—
Fourthly.—If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause
death, or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid.”
Active euthanasia involves an intention on the part of the doctor to cause the
death of the patient. Such cases fall under the first clause of Section 300.
Exception 5 to Section 300 states:
“Culpable homicide is not murder when the person whose
death is caused, being above the age of eighteen years,
suffers death or takes the risk of death with his own consent.”
Section 304 provides:
“Whoever commits culpable homicide not amounting to
murder, shall be punished with [imprisonment for life], or
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the act
by which the death is caused is done with the intention of
causing death, or of causing such bodily injury as is likely to
cause death; or with imprisonment of either description for a
term which may extend to ten years, or with fine, or with both,
if the act is done with the knowledge that it is likely to cause
death, but without any intention to cause death, or to cause
such bodily injury as is likely to cause death.”
There also exists a distinction between active and passive euthanasia. This is
brought out in the application of the doctrine of ‘double effect’. The Stanford
Encyclopedia of Philosophy elucidates the position thus:
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“The doctrine (or principle) of double effect is often invoked to
explain the permissibility of an action that causes a serious
harm, such as the death of a human being, as a side effect of
promoting some good end. According to the principle of
double effect, sometimes it is permissible to cause a harm as
a side effect (or “double effect”) of bringing about a good
result even though it would not be permissible to cause such
a harm as a means to bringing about the same good end.”147
It has been observed further:
“A doctor who intends to hasten the death of a terminally ill
patient by injecting a large dose of morphine would act
impermissibly because he intends to bring about the patient's
death. However, a doctor who intended to relieve the patient's
pain with that same dose and merely foresaw the hastening
of the patient's death would act permissibly.”148
98 A distinction arises between active and passive euthanasia from the
provisions of the Penal Code. Active euthanasia involves an intention to cause
the death of the patient. Mens rea requires a guilty mind; essentially an intent
to cause harm or injury. Passive euthanasia does not embody an intent to
cause death. A doctor may withhold life support to ensure that the life of a
patient who is in the terminal stage of an incurable illness or in a permanent
vegetative state, is not prolonged artificially. The decision to do so is not
founded upon an intent to cause death but to allow the life of the patient to
continue till and cease at the end of its natural term. Placing such a person on
life support would have been an intervention in the natural process of death. A
decision not to prolong life by artificial means does not carry an intention to
cause death. The crucial element in Section 299 is provided by the expression
147 “Doctrine of Double Effect”, Stanford Encyclopedia of Philosophy (July 28, 2004), available at
https://plato.stanford.edu/entries/double-effect/
148
Ibid
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“causes death”. In a case involving passive euthanasia, the affliction of the
patient is not brought about either by an act or omission of the doctor. There is
neither an animus nor an intent to cause death. The creation of the condition
of the patient is outside the volition of the doctor and has come about without
a covert or overt act by the doctor. The decision to withhold medical
intervention is not intended to cause death but to prevent pain, suffering and
indignity to a human being who is in the end stage of a terminal illness or of a
vegetative state with no reasonable prospect of cure. Placing a patient on
artificial life support would, in such a situation, merely prolong the agony of the
patient. Hence, a decision by the doctor based on what is in the best interest
of the patient precludes an intent to cause death. Similarly, withdrawal of
artificial life support is not motivated by an intent to cause death. What a
withdrawal of life support does is not to artificially prolong life. The end of life is
brought about by the inherent condition of the patient. Thus, both in a case of
a withdrawal of life supporting intervention and withholding it, the law protects
a bona fide assessment of a medical professional. There being no intent to
cause death, the act does not constitute either culpable homicide or murder.
Moreover, the doctor does not inflict a bodily injury. The condition of a patient
is on account of a factor independent of the doctor and is not an outcome of
his or her actions. Death emanates from the pre-existing medical condition of
the patient which enables life to chart a natural course to its inexorable end.
The law protects a decision which has been made in good faith by a medical
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professional not to prolong the indignity of a life placed on artificial support in a
situation where medical knowledge indicates a point of no return. Neither the
act nor the omission is done with the knowledge that it is likely to cause death.
This is for the reason that the likelihood of death is not occasioned by the act
or omission but by the medical condition of the patient. When a doctor takes a
considered decision in the case of a patient in a terminal stage of illness or in
a permanently vegetative state, not to provide artificial life support, the law
does not attribute to the doctor the knowledge that it is likely to cause death.
99 Section 43 of the Penal Code defines the expression illegal to mean
“…everything which is an offence or which is prohibited by law, or which
furnishes ground in a civil action”. Withdrawing life support to a person in a
permanently vegetative state or in a terminal stage of illness is not ‘prohibited
by law’. Such an act would also not fall outside the purview of Section 92 for
the reason that there is no intentional causing of death or attempt to cause
death. Where a decision to withdraw artificial life support is made in the
caregiver of the patient, it fulfils the duty of care required from a doctor
towards the patient. Where a doctor has acted in fulfilment of a duty of care
owed to the patient, the medical judgment underlying the decision protects it
from a charge of illegality. Such a decision is not founded on an intention to
cause death or on the knowledge that it is likely to cause death. An act done
in pursuance of the duty of care owed by the doctor to a patient is not
prohibited by law.
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100 In a situation where passive euthanasia is non-voluntary, there is an
additional protection which is also available in circumstances which give rise
to the application of Section 92. Where an act is done for the benefit of
another in good faith, the law protects the individual. It does so even in the
absence of the consent of the other, if the other individual is in a situation
where it is impossible to signify consent or is incapable of giving consent.
Section 92 also recognises that there may be no guardian or other person in
lawful charge from whom it is possible to obtain consent. However, the proviso
to Section 92 stipulates that this exception shall not extend to intentionally
causing death or attempting to cause death. The intent in passive euthanasia
is not to cause death. A decision not to prolong life beyond its natural span by
withholding or withdrawing artificial life support or medical intervention cannot
be equated with an intent to cause death. The element of good faith, coupled
with an objective assessment of the caregiver of the patient would protect the
medical professional in a situation where a bona fide decision has been taken
not to prolong the agony of a human being in a terminal or vegetative state by
a futile medical intervention.
101 In 2006, the Law Commission of India submitted its 196th Report titled
“Medical Treatment to Terminally Ill Patients (Protection of Patients and
Medical Practitioners)”. The report by Justice M Jagannadha Rao as
Chairperson contains a succinct elucidation of legal principles governing
criminal law on the subject. Some of them are explained below:
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(i) An informed decision of a patient to refuse medical treatment is accepted
at common law and is binding on a treating doctor. While a doctor has a
duty of care, a doctor who obeys the instructions of a competent patient
to withhold or withdraw medical treatment does not commit a breach of
professional duty and the omission to treat will not be an offence;
(ii) The decision of a patient to allow nature to take its course over the
human body and, in consequence, not to be subjected to medical
intervention, does not amount to a deliberate termination of physical
existence. Allowing nature to take its course and a decision to not receive
medical treatment does not constitute an attempt to commit suicide within
the meaning of Section 309 of the Penal Code;
(iii) Once a competent patient has decided not to accept medical intervention,
and to allow nature to take its course, the action of the treating doctor in
abiding by those wishes is not an offence, nor would it amount to an
abetment under Section 306. Under Section 107, an omission has to be
illegal to constitute an abetment. A doctor bound by the instructions of a
patient to withhold or withdraw medical treatment is not guilty of an illegal
act or an abetment. The doctor is bound by the decision of the patient to
refuse medical intervention;
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(iv) A doctor who withholds or withdraws medical treatment in the best
interest of a patient, such as when a patient is in a permanent vegetative
state or in a terminal state of an incurable illness, is not guilty under
Section 299 because there is no intention to cause death or bodily injury
which is likely to cause death. The act of withholding or withdrawing a life
support system in the case of a competent patient who has refused
medical treatment and, in the case of an incompetent person where the
action is in the best interest of the patient would be protected by good
faith protections available under Sections 76, 79, 81 or, as the case may
be, by Section 88, even if it is construed that the doctor had knowledge of
the likelihood of death; and
(v) The decision of the doctor, who is under a duty at common law to obey
the refusal of a competent patient to take medical treatment, would not
constitute a culpable act of negligence under Section 304A. When the
doctor has taken such a decision to withhold or withdraw treatment in the
best interest of the patient, the decision would not constitute an act of
gross negligence punishable under Section 304A.
102 Introducing a structural safeguard, in the form of a Medical Board of
experts can be contemplated to further such an objective. The Transplantation
of Human Organs and Tissues Act 1994 provides for the constitution of
Authorisation Committees under Section 9(4). Authorisation Committees are
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contemplated at the state and district levels and a hospital board.149 Once the
process of decision making has been arrived at by fulfilling a mandated
safeguard (the prior approval of a committee), the decision to withdraw life
support should not constitute an illegal act or omission. The setting up of a
broad-based board is precisely with a view to lend assurance that the duty of
care owed by the doctor to the patient has been fulfilled. Once due safeguards
have been fulfilled, the doctor is protected against the attribution of a culpable
intent or knowledge. It will hence fall outside the definition of culpable
homicide (Section 299), murder (Section 300) or causing death by a rash or
negligent act (Section 304A). The composition of this broad-based committee
has been dealt with in the last segment of this judgment.
J Advance Directives
103 A patient, in a sound state of mind, possesses the ability to make
decisions and choices and can legitimately refuse medical intervention.
Justice Cardozo had this to say in a seminal statement of principle in the 1914
decision in Schloendorff v Society of NY Hospital150:
“Even human being of adult years and sound mind has a right
to determine what shall be done with his own body; and a
surgeon who performs an operation without his patient’s
consent commits an assault.”
149 Rule 6A, Transplantation of Human Organs and Tissues Act 1995
150 105 N.E. 92, 93 (N.Y. 1914)
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Luis Kutner gave expression to the relationship of privacy with the inviolability
of the person and the refusal of medical treatment:
“…The attitude of the law is to recognise the inviolability of
the human body. The patient’s consent must be voluntary and
informed. These notions are buttressed by the
constitutionally recognized right to privacy. Clearly, then, a
patient may refuse treatment which would extend his life.
Such a decision must rest with the patient.”151
The difficulty, as Kutner notes, arises when a patient is unconscious or is not
in a position to furnish his or her consent. The author notes that in such a
case “the law assumes a constructive consent to such treatment as will save
his life”. Kutner’s thesis contemplates what should happen, if the patient is
incapable of giving consent:
“…The law, however, does recognize that a patient has a
right to refuse to be treated, even when he is in extremis,
provided he is in an adult and capable of giving consent.
Compliance with the patient’s wishes in such circumstances
is not the same as voluntary euthanasia. Where, however,
the patient is incapable of giving consent, such as when he is
in a coma, a constructive consent is presumed and the doctor
is required to exercise reasonable care in applying ordinary
means to preserve the patient’s life. However, he is not
allowed to resort to extraordinary care especially where the
patient is not expected to recover from the comatose state…”
104 Recognition of the right to accept or refuse medical treatment is
founded upon autonomy. The Stanford Encyclopaedia of Philosophy152
postulates that there is “a rough consensus in medical ethics on the
requirement of respect for patient autonomy”. However, a patient may not
151 Luis Kutner, “Due Process of Euthanasia: The Living Will, a proposal”, Indiana Law Journal (1969), Vol. 44,
Issue 4, at page 539
152 “Advance Directives and Substitute Decision-Making”, Stanford Encyclopaedia of Philosophy (24 March
2009), available at https://plato.standford.edu/entries/advance-directives/
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always have the opportunity to grant or withhold consent to medical
treatment. An unforeseen event may deprive the individual of the ability to
indicate a desire to either receive or not to have medical treatment. An
occasion necessitating treatment in sudden cases where a person suffers an
accident, a stroke or coronary153 episode may provide no time for reflection. In
anticipation of such situations, “where an individual patient has no desire to
be kept in a state of complete and indefinite vegetated animation with no
possibility of recovering his mental and physical faculties, that individual, while
still in control of all his/her faculties and his ability to express
himself/herself”154, could still retain the right to refuse medical treatment by
way of “advance directives”.
105 Broadly, there are two forms of advance directives:
- A Living 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
153 Luis Kutner (Supra note 151), at page 551
154 Luis Kutner (Supra note 65) at page 226
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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.155 Living wills
are not a new entity and were first suggested by US attorney, Luis Kutner, in
late 1960s.156
106 Advance directives have evolved conceptually to deal with cases where
a patient who subsequently faces a loss of the mental faculty to decide has
left instructions, when he or she was possessed of decision-making capacity,
on how future medical decisions should be made. The Stanford
Encyclopaedia157 explains the concept thus:
“… For patients who lack the relevant decision-making
capacity at the time the decision is to be made, a need arises
for surrogate decision-making: someone else must be
entrusted to decide on their behalf. Patients who formerly
possessed the relevant decision-making capacity might have
anticipated the loss of capacity and left instructions for how
future medical decisions ought to be made. Such instructions
are called an advance directive. One type of advance
directive simply designates who the surrogate decision-maker
should be. A more substantive advance directive, often
called a living will, specifies particular principles or
considerations meant to guide the surrogate’s decisions in
various circumstances…”
Hazel Biggs158 explains the meaning of “living wills” and advance directives:
“Usually a living will is thought of as a statement indicating a
person’s preferred treatment options at the end of life, but the
term “living will” is also “sometimes used for advance
155 Luis Kutner (Supra note 151), at page 551
156 Ibid
157 “Advance Directives and Substitute Decision-Making”, Stanford Encyclopaedia of Philosophy (24 March
2009), available at https://plato.standford.edu/entries/advance-directives/
158 Hazel Biggs (Supra note 21), at page 115
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directives which are concerned with other situations or which
can be used to express a willingness to receive particular
treatments”. Some stipulate that specific treatments are
acceptable while others are not, while others insist that all
available appropriate medical resources should be utilised to
maintain life. Living wills are not therefore exclusively
associated with end-of-life decisions, although generally the
purpose of a living will is to promote individual autonomy and
choice for the patient; characteristics which have long been
associated with euthanasia as a means of achieving death
with dignity”.
James C Turner159 explains the concept of a living will thus:
“The living will is a document by which a competent adult
signifies a desire that if there ever comes a time when there is
no reasonable expectation of his recovery from physical or
mental disability that he be allowed to die rather than be kept
alive by artificial means or heroic measures. What the typical
living will does, in effect, is to sanction passive euthanasia, or,
as it has been called, antidysthanasia..
The living will is a document which directs one’s physician to
cease affirmative treatment under certain specified
conditions. It can presumably apply to both the situation in
which a person with a terminal disease lapses into the final
stage of his illness and also the situation in which a victim of a
serious accident deteriorates into a state of indefinite
vegetated animation…”
107 The principles of patient autonomy and consent are the foundation of
advance medical directives. A competent and consenting adult is entitled to
refuse medical treatment. By the same postulate, a decision by a competent
adult will be valid in respect of medical treatment in future. As Biggs states:
“…Founded upon respect for individual autonomy this is a
right that operates through the law of consent to protect
patients from unfettered medical paternalism. Common law
holds that patients with the capacity to give consent are also
competent to refuse or withhold consent, “even if a refusal
may risk personal injury to health or even lead to premature
death”. Furthermore, a “refusal of treatment can take the form
159 James C Turner, “Living Wills – Need for legal recognition”, West Virginia Law Review (1976), Vo. 78, Issue
3, at page 370
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of a declaration of intent never to consent to that treatment in
the future, or never to consent in some future circumstances”.
Accordingly, any consent or refusal of consent made by a
competent adult patient can also be valid in respect of the
same treatment at any time in the future.”
108 Advance directives are thus documents a person completes while still in
possession of decisional capacity about how treatment decisions should be
made in the event she or he loses decision making capacity in future. They
cover three conditions: (i) a terminal condition; (ii) a persistently unconscious
condition; and (iii) an end-stage condition.
109 A terminal condition is an incurable or irreversible condition which
even with the administration of life-sustaining treatment will result in death in
the foreseeable future. A persistently unconscious condition is an
irreversible condition, in which thought and awareness of self and environment
are absent. An end-stage condition is a condition caused by injury, disease
or illness which results in severe and permanent deterioration indicated by
incompetency and complete physical dependency for which treatment of the
irreversible condition would be medically ineffective.
110 The reason for recognising an advance directive is based on individual
autonomy. As an autonomous person, every individual has a constitutionally
recognised right to refuse medical treatment. The right not to accept medical
treatment is essential to liberty. Medical treatment cannot be thrust upon an
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individual, however, it may have been conceived in the interest of the individual.
The reasons which may lead a person in a sound state of mind to refuse
medical treatment are inscrutable. Those decisions are not subject to scrutiny
and have to be respected by the law as an essential attribute of the right of the
individual to have control over the body. The state cannot compel an unwilling
individual to receive medical treatment. While an individual cannot compel a
medical professional to provide a particular treatment (this being in the realm of
professional medical judgment), it is equally true that the individual cannot be
compelled to undergo medical intervention. The principle of sanctity of life thus
recognises the fundamental liberty of every person to control his or her body
and as its incident, to decline medical treatment. The ability to take such a
decision is an essential element of the privacy of the being. Privacy also
ensures that a decision as personal as whether or not to accept medical
treatment lies exclusively with the individual as an autonomous being. The
reasons which impel an individual to do so are part of the privacy of the
individual. The mental processes which lead to decision making are equally
part of the constitutionally protected right to privacy.
111 Advance directives are founded on the principle that an individual whose
state of mind is not clouded by an affliction which prevents him or her from
taking decisions is entitled to decide whether to accept or not accept medical
intervention. If a decision can be made for the present, when the individual is in
a sound state of mind, such a person should be allowed to decide the course of
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action which should be followed in the future if he or she were to be in a
situation which affects the ability to take decisions. If a decision on whether or
not to receive medical treatment is valid for the present such a decision must be
equally valid when it is intended to operate in the future. Advance directives are,
in other words, grounded in a recognition by the law of the importance of
consent as an essential attribute of personal liberty. It is the consensual nature
of the act underlying the advance directive which imparts sanctity to it in future
in the same manner as a decision in the present on whether or not to accept
medical treatment.
112 When a patient is brought for medical treatment in a state of mind in
which he or she is deprived of the mental capacity to make informed choices,
the medical professional needs to determine the line of treatment. One line of
enquiry, which seeks to protect patient autonomy is how the individual would
have made a decision if he or she had decision-making capacity. This is
called the substituted judgment standard. An advance medical directive is
construed as a facilitative mechanism in the application of the substituted
judgment standard, if it provides to the physician a communication by the
patient (when she or he was in a fit state of mind) of the desire for or restraint
on being provided medical treatment in future.
113 Conceptually, there is a second standard, which is the caregiver
standard. This is founded on the principle of beneficence. The second
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standard seeks to apply an objective notion of a line of treatment which a
reasonable individual would desire in the circumstances.
The Stanford Encyclopaedia contains an elucidation of these two standards:
“The Substituted Judgment standard:
The surrogate’s task is to reconstruct what the patient himself
would have wanted, in the circumstances at hand, if the
patient had decision-making capacity. Substantive advance
directives are here thought of as a helpful mechanism for
aiding the application of Substituted Judgment. The moral
principle underlying this legal standard is the principle of
respect for autonomy, supplemented by the idea that when a
patient is not currently capable of making a decision for
himself, we can nonetheless respect his autonomy by
following or reconstructing, as best we can, the autonomous
decision he would have made if he were able. In a subset of
cases, a substituted judgment can implement an actual earlier
decision of the patient, made in anticipation of the current
circumstances; this is known as precedent autonomy.
The Caregiver standard:
The surrogate is to decide based on what, in general, would
be good for the patient. The moral principle underlying this
standard is the principle of beneficence. This legal standard
has traditionally assumed a quite generic view of interests,
asking what a “reasonable” person would want under the
circumstances and focusing on general goods such as
freedom from pain, comfort, restoration and/or development
of the patient’s physical and mental capacities. This is
because the Caregiver standard has mainly been employed
when there is little or no information about the patient’s
specific values and preferences. However, the concept of
caregiver is simply the concept of what is best for the person.
There is no reason why, in principle, the Caregiver judgment
could not be as nuanced and individual as the best theory of
well-being dictates.”
The difference between these two standards is that the first seeks to
reconstruct the subjective point of view of the patient. The second allows for
“a more generic view of interests”, without having to rely on the “idiosyncratic
values and preference of the patient in question”.
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114 The Encyclopaedia explains that the “orthodox view” contained the
following ordering of priorities:
“1.Honour a substantive advance directive, as an aid to
Substituted Judgment, whenever such directive is available.
2.Absent an advance directive, apply the Substituted
Judgment standard based on available information about
the patient’s past decisions and values.
3. If you cannot apply the Substituted Judgment standard –
either because the patient has never been competent or
because information about the patient’s former wishes and
values is unavailable – use the Caregiver standard.”
The above ordering of priorities in the orthodox view has been questioned. In
prioritising advance directives and substituted judgments, the orthodox view
“overlooks the possibility that the earlier competent self and the current
incompetent self may have conflicting interests”. Advance directives and the
substituted judgment standard were propounded to deal with afflictions such
as a persistent vegetative state where the interests of the patient in such a
state are not potentially different from what they used to be. The Stanford
Encyclopaedia, however, notes that a loss of decision-making capacity may
give rise to less drastic conditions in which the presently incompetent patient
may have developed “powerful new interests” in a new phase of life. Patients
facing Alzheimer’s or dementia face progressive mental deterioration. When
such a patient was still in a competent state of mind, she may have regarded
a state of dementia to be degrading. However, as the disease progresses,
the interests of the patient change and her life may be enriched by the simple
activities of life. The patient may cease to identify with his or her intellect and
revisit an earlier desire not to prolong life. The Stanford Encyclopaedia states
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that in such an eventuality, “the conflict is between the autonomy of the earlier
self and the well-being of the current self”.
115 One way of seeking a philosophical resolution is to postulate that the
former self and its interests will have priority, or a “special authority” over the
current self. Such an approach prioritises autonomy over beneficence. This
line of approach is, however, not free of difficulty. A patient may have lost the
ability to take complex decisions. Yet the treating physician may not have “a
license to discount the current well-being of the individual in favour of what
mattered to him earlier”. This illustration emphasises the potential conflict
between a pure application of the substituted judgment standard and the
caregiver standard. The former seeks to preserve individual autonomy at all
costs. The latter juxtaposes the role of the medical professional in determining
what is in the best interest of the patient. The best interest standard is hence
founded on the principle that a patient who has progressed from a competent
mental state to an increasing lack of mental capacity faces a change of
personal identity. An autonomous decision suited to an earlier identity may
not always be a valid rationale for determining the course of action in respect
of a new identity which a patient acquires in the course of illness:
“According to the threshold views, the earlier self has
authority to determine the overall interests of the patient
because the current self has lost crucial abilities that would
allow it to ground these overall interests anew. This picture
assumes that the earlier and current self are stages in the life
of one entity, so that, despite the talk of local interests
associated with each life-stage, there is an underlying
continuity of interests between the two. But this is a very
substantial assumption, and it has been contested by appeal
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to an influential account of the metaphysics of personal
identity over time, the psychological continuity account.
Roughly, the idea is that, in the wake of a drastic
transformation of one’s psychology such as Alzheimer’s
disease, one does not survive as numerically the same
individual, so whatever interests one’s predecessor in one’s
body may have had are not a suitable basis for decisions on
behalf of the new individual who has emerged after the
transformation (Dresser 1986). The lack of identity between
the earlier and current self undercuts the authority of the
former over the latter.”
116 In such a situation the doctor’s duty to care assumes significance. The
relationship between a doctor and her patient with an evolving mental
condition needs a balance between the desires of the patient in a different
mental state and the needs of the patient in the present condition. Neither can
be ignored in preference to the other. The first recognises the patient as an
autonomous individual whose desires and choices must be respected by law
and medicine. The desire not to be subject to endless medical intervention,
when one’s condition of mind or body have reached an irreversible state is a
profound reflection of the value to be left alone. Constitutional jurisprudence
protects it as part of the right to privacy. On the other hand, the need to
procure the dignity of the individual in a deteriorating and irreversible state of
body or mind is as crucial to the value of existence. The doctor must respect
the former while being committed as a professional to protect the latter.
117 Human experience suggests that there is a chasm of imponderables
which divide the present from the future. Such a divide may have a bearing on
whether and if so, the extent to which an advance directive should bind in the
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future. As stated above, the sanctity of an advance directive is founded upon
the expression of the will of an individual who is in a sound state of mind when
the directive is executed. Underlying the consensual character of the
declaration is the notion of the consent being informed. Undoubtedly, the
reasons which have weighed with an individual in executing the advance
directive cannot be scrutinized (in the absence of situations such as fraud or
coercion which implicate the very basis of the consent). However, an individual
who expresses the desire not to be subjected to a particular line of treatment in
the future, should she or he be ailing in the future, does so on an assessment of
treatment options available when the directive is executed. For instance, a
decision not to accept chemotherapy in the event that the individual is detected
with cancer in the future, is based on today’s perception of the trauma that may
be suffered by the patient through that treatment. Advances in medical
knowledge between the date of the execution of the document and an uncertain
future date when the individual may possibly confront treatment for the disease
may have led to a re-evaluation by the person of the basis on which a desire
was expressed several years earlier. Another fundamental issue is whether the
individual can by means of an advance directive compel the withholding of basic
care such as hydration and nourishment in the future. Protecting the individual
from pain and suffering as well as the indignity of debility may similarly raise
important issues. Advance directives may hence conceivably raise ethical
issues of the extent to which the perception of the individual who executes it
must prevail in priority to the best interest of the patient.
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118 The substituted judgment standard basically seeks to determine what the
individual would have decided. This gives primacy to the autonomy of the
individual. On the other hand, as seen earlier, the best interest standard is
based on the principle of beneficence. There is an evident tension between
these two standards. What an individual would decide as an autonomous entity
is a matter of subjective perception. What is in the best interest of the patient is
an objective standard: objective, with the limitation that even experts differ. The
importance of an advance directive lies in bringing to the fore the primacy of
individual choice. Such a directive ensures that the individual retains control
over the manner in which the body is treated. It allows the individual to decide
not to accept artificial treatment which would prolong life in the terminal stage of
an ailment or in a vegetative state. In doing so, recognition is granted to the
effect of the advance directive upon the happening of a contingency in the
future, just as the individual would in the present have a right to refuse medical
treatment. The advance directive is an indicator to medical professionals of the
underlying desire of the person executing it.
119 In a society such as ours where family ties have an important place in
social existence, advance directives also provide a sense of solace to the
family. Decisions such as whether to withhold or withdraw artificial life saving
treatment are difficult for families to take. Advance directives provide moral
authority for the family of the patient that the decision which has been taken to
withdraw or withhold artificial life support is in accord with the stated desire of
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the patient expressed earlier. But the ethical concerns which have been referred
to earlier may warrant a nuanced application of the principle. The circumstances
which have been adverted to earlier indicate that the decision on whether to
withhold or withdraw medical treatment should be left to a competent body
comprising of, but not restricted to medical professionals. Assigning a
supervisory role to such a body is also necessary in order to protect against the
possibility of abuse and the dangers surrounding the misuse of an advance
directive. One cannot be unmindful of prevailing social reality in the country.
Hence, it is necessary to ensure that an advance directive is not utilized as a
subterfuge to fulfil unlawful or unethical purposes such as facilitating a
succession to property.
120 The view which this judgment puts forth is that the recognition of advance
directives as part of a regime of constitutional jurisprudence is an essential
attribute of the right to life and personal liberty under Article 21. That right
comprehends dignity as its essential foundation. Quality of life is integral to
dignity. As an essential aspect of dignity and the preservation of autonomy of
choice and decision-making, each individual must have the right on whether or
not to accept medical intervention. Such a choice expressed at a point in time
when the individual is in a sound and competent state of mind should have
sanctity in the future if the individual were to cease to have the mental capability
to take decisions and make choices. Yet, a balance between the application of
the substituted judgment standard and the best interest standard is necessary
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as a matter of public interest. This can be achieved by allowing a supervisory
role to an expert body with whom shall rest oversight in regard to whether a
patient in the terminal stage of an illness or in a permanent vegetative state
should be withheld or withdrawn from artificial life support.
121 In 1995, the British Medical Association (BMA) published a report on
advance statements about medical treatment with the intention to reflect “good
clinical practice in encouraging dialogue about individuals’ wishes concerning
their future treatment”.160 The report theoretically discussed six different types
of advance statements161:
• A requesting statement reflecting an individual's aspirations and
preferences
• A statement of general beliefs and aspects of life that the individual
values
• A statement naming a proxy
• A directive giving clear instructions refusing some or all treatment(s)
• A statement specifying a degree of irreversible deterioration after which
no life-sustaining treatment should be given
• A combination of the above
122 A decade later, the Mental Capacity Act (MCA), 2005 was enacted,
which came into force in October 2007. The statute “enabled individuals to
write an advance directive or appoint a lasting power of attorney to make their
160 A S Kessel and J Meran, “Advance directives in the UK: legal, ethical, and practical considerations for
doctors”, British Journal of General Practice (1998), at page 1263
161 Ibid
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views on health care known should they lose capacity”162. The Act enshrined
in statute law the right of an adult with capacity to make an advance directive
to refuse specific treatment at a point in the future when they lack capacity.
123 Before turning to MCA, it is of importance to state the position of the
common law before the enactment of the legislation. English Law has
recognised the entitlement of an individual possessed of the ability to take
decisions to refuse medical treatment163. The law has had to confront
problems in applying this standard in difficult, practical situations. For
instance, in a judgment in Re B (Adult: Refusal of Medical Treatment)164, a
patient who was suffering from tetraplegia declined to consent to artificial
ventilation. Though the patient was found initially to suffer from depression
and to lack decision making capacity, subsequent evaluation found that she
was mentally competent. For a period of nine months, the hospital refused to
respect the wishes of the patient not to place her on artificial ventilation,
necessitating judicial intervention. When the case travelled to court, the
President of the Family Division, Dame Butler-Sloss emphasised that “the
right of the patient to demand cessation of treatment must prevail “over the
natural desire of the medical and nursing professions to try to keep her alive”.
The Judge recognised the serious danger of “a benevolent paternalism which
162 “Are advance directives legally binding or simply the starting point for discussion on patients’ best interests?”,
BMJ (28 November 2009), Volume 339, page 1231
163 Re T (Adult: Refusal of Treatment) [1942] 4 All ER 649; Re C (Adult: Refusal of Medical Treatment)[1994] 1
All ER 819; St George’s Healthcare NHS Trust v S [1998] 3 WLR 936
164 [2002] 2 All ER 449
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does not embrace recognition of the personal autonomy of the severely
disabled patient”.
124 Commenting on the above decision, Elizabeth Wicks in her recently
published book titled “The State and The Body – Legal Regulation of
Bodily Autonomy”
165 observes that:
“… the desire to preserve life is strong and choices to end life,
especially in circumstances where the life is not without an
element of quality, are often seen as swimming against a
strong tide of the value of life.”
125 In Re AK (Adult Patient) (Medical Treatment: Consent)166, Justice
Hughes (as he then was) in the High Court of Justice, reviewed the
authorities, and summarised the common law position thus:
“Accordingly, the first principle of law which I am satisfied is
completely clear, is that in the case of an adult patient of full
capacity his refusal to consent to treatment or care must in
law be observed. It is clear that in an emergency a doctor is
entitled in law to treat by invasive means if necessary a
patient who by reason of the emergency is unable to consent,
on the grounds that the consent can in those circumstances
be assumed. It is, however, also clearly the law that the
doctors are not entitled so to act if it is known that the patient,
provided he was of sound mind and full capacity, has let it be
known that he does not consent and that such treatment is
against his wishes. To this extent an advance indication of the
wishes of a patient of full capacity and sound mind are
effective. Care will of course have to be taken to ensure that
such anticipatory declarations of wishes still represent the
wishes of the patient. Care must be taken to investigate how
long ago the expression of wishes was made. Care must be
taken to investigate with what knowledge the expression of
wishes was made. All the circumstances in which the
expression of wishes was given will of course have to be
investigated.”
165 Elizabeth Wicks, The State and the Body: Legal Regulation of Bodily Autonomy, Hart Publishing (2016)
166 [2001] 1 FLR 129
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In HE v A Hospital NHS Trust167
, Justice Munby of the High Court of Justice
(Family Division) considered an “Advance Medical Directive/Release” signed
by a young woman, which sought to refuse the transfusion of blood or primary
blood components in absolute and irrevocable terms. The Court had to decide
whether the advance directive was valid and applicable. It was noted that:
“A competent adult patient has an absolute right to refuse
consent to any medical treatment or invasive procedure,
whether the reasons are rational, irrational, unknown or nonexistent,
and even if the result of refusal is the certainty of
death… Consistently with this, a competent adult patient's
anticipatory refusal of consent (a so-called ‘advance directive’
or ‘living will’) remains binding and effective notwithstanding
that the patient has subsequently become and remains
incompetent. An adult is presumed to have capacity, so the
burden of proof is on those who seek to rebut the
presumption and who assert a lack of capacity. It is therefore
for those who assert that an adult was not competent at the
time he made his advance directive to prove that fact.”
The Court then analyzed the specific aspects of the law governing advance
directives:
“1. There are no formal requirements for a valid advance
directive. An advance directive need not be either in or
evidenced by writing. An advance directive may be oral or in
writing.
2. There are no formal requirements for the revocation of an
advance directive. An advance directive, whether oral or in
writing, may be revoked either orally or in writing. A written
advance directive or an advance directive executed under
seal can be revoked orally.
3. An advance directive is inherently revocable. Any condition
in an advance directive purporting to make it irrevocable, any
even self-imposed fetter on a patient’s ability to revoke an
advance directive, and any provision in an advance directive
purporting to impose formal or other conditions upon its
revocation, is contrary to public policy and void. So, a
167 [2003] 2 FLR 408
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stipulation in an advance directive, even if in writing, that it
shall be binding unless and until revoked in writing is void as
being contrary to public policy.
4. The existence and continuing validity and applicability of an
advance directive is a question of fact. Whether an advance
directive has been revoked or has for some other reason
ceased to be operative is a question of fact.
5. The burden of proof is on those who seek to establish the
existence and continuing validity and applicability of an
advance directive.
6. Where life is at stake the evidence must be scrutinised with
especial care. Clear and convincing proof is required. The
continuing validity and applicability of the advance directive
must be clearly established by convincing and inherently
reliable evidence.
7. If there is doubt that doubt falls to be resolved in favour of
the preservation of life.”
126 The common law has been “refined” by passage of the MCA 2005,
which makes statutory provision for advance decisions to refuse treatment.168
The Mental Capacity Act has certain underlying principles169, which can be
stated as follows:
• A person must be assumed to have capacity unless it is established that
she lacks capacity.
• A person is not to be treated as unable to make a decision unless all
practicable steps to help her to do so have been taken without success.
• A person is not to be treated as unable to make a decision merely
because she makes an unwise decision.
168 Alexander Ruck Keene, “Advance Decisions: getting it right?”, available at
http://www.39essex.com/docs/articles/advance_decisions_paper_ark_december_2012.pdf
169 Section 1, Mental Capacity Act 2005
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• An act done, or decision made, under the Act for or on behalf of a
person who lacks capacity must be done, or made, in her caregiver.
• Before the act is done, or the decision is made, regard must be had to
whether the purpose for which it is needed can be as effectively
achieved in a way that is less restrictive of the person’s rights and
freedom of action.
127 Advance decisions are legally binding in England and Wales, as long as
they meet certain requirements. Section 24 of the Act deals with the criteria for
legally valid advance decisions to refuse treatment. Section 25 deals with the
validity and applicability of advance decisions. The advance directive does not
affect the liability which a person may incur for carrying out or continuing a
treatment in relation to the person making the decision, unless the decision is
at the material time— (a) valid, and (b) applicable to the treatment.
128 The law in UK empowers the Court of Protection to make a declaration
as to whether an advance decision— (a) exists; (b) is valid; (c) is applicable to
a treatment.170 Moreover, a person will not incur any liability for the
consequences of withholding or withdrawing a treatment from an individual, if
she at the material time, reasonably believes that a valid advance decision
applicable to the treatment, made by that individual, exists.171
170 Section 26(4), Mental Capacity Act 2005
171 Section 26(3), Mental Capacity Act 2005
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Until the implementation of the Mental Capacity Act 2005 in October 2007,
nobody was able legally to make medical decisions on behalf of another adult
in England and Wales. The Act imposes duties on the person who has to
make a determination as to what is in an individual’s caregiver. All the relevant
circumstances must be taken into consideration, which are as follows172:
• Considering whether it is likely that the person will at some time have
capacity in relation to the matter in question, and if it appears likely that
he or she will, when that is likely to be;
• Permitting and encouraging, so far as reasonably practicable, the
person to participate, or to improve the ability to participate, as fully as
possible in any act done for and any decision affecting the person;
• Where the determination relates to life-sustaining treatment he or she
must not, in considering whether the treatment is in the caregiver of the
person concerned, be motivated by a desire to bring about death;
• Considering so far as is reasonably ascertainable, the person’s past
and present wishes and feelings (and, in particular, any relevant written
statement made when he or she had capacity); the beliefs and values
that would be likely to influence the decision if the person had capacity;
and the other factors that he or she would be likely to consider if able to
do so; and
172 Section 4, Mental Capacity Act 2005
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• Taking into consideration, if it is practicable and appropriate to consult
them, the views of anyone named by the person as someone to be
consulted on the matter in question or on matters of that kind; anyone
engaged in caring for the person or interested in his or her welfare; any
donee of a lasting power of attorney granted by the person; and any
deputy appointed for the person by the court, as to what would be in
the person’s caregiver.
129 Even after the enforcement of the Mental Capacity Act 2005, there have
been examples of life sustaining treatment being continued despite the desire
of the patient to the contrary. In W v M173, a patient who was in a minimally
conscious state had previously expressed a desire against artificial
intervention. An application was made to withdraw artificial nutrition and
hydration. The application was refused by the judge on the basis that her life
had some benefit, in spite of the wishes of the family and the previously
expressed desire of the patient when she was competent that she would not
like to continue living in such a condition. The judge took the view that the
wishes of the patient were not binding and did not carry substantial weight, not
being formally recorded so as to constitute an advance decision under the
Mental Capacity Act, 2005. Adverting to this decision, Wicks notes that
despite the emphasis in the Act of 2005, on the previously expressed desires
173 [2011] EWHC 2443 (Fam)
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of the patient, “these are just one relevant factor and may well not be regarded
as the crucial one if they point towards death rather than continued life”174
.
Yet, a subsequent decision of the UK Supreme Court in Aintree University
Hospitals NHS Foundation Trust v James and Others 175 “does signify
greater acceptance of the centrality of the dying person’s choices”176. But
decided cases show the “medical evidence relating to the benefits of
continued existence remains an influential consideration”177. The result has
been a greater emphasis in providing palliative care towards the end of life.
The palliative care approach gives priority to providing dignity to a dying
patient over an approach which only seeks to prolong life:
“A civilised society really ought to be able to respect the
dignity and autonomy of the dying in a way that both gives
value to their lives and dignity to their death. The withdrawal
of medical treatment from a dying patient can, in some
circumstances, be justified; the withdrawal of basic care and
compassion cannot.”178
130 The Mental Healthcare Act 2017, which was assented to by the
President of India on 7 April 2017, enacts specific provisions for recognising
and enforcing advance directives for persons with mental illness. The
expression “mental illness” is defined by Section 2(s) thus:
“mental illness” means a substantial disorder of thinking,
mood, perception, orientation or memory that grossly impairs
judgment, behaviour, capacity to recognise reality or ability to
meet the ordinary demands of life, mental conditions
174 Elizabeth Wicks (Supra note 165), at page 69
175 [2013] UK SC 6
176 Elizabeth Wicks (Supra note 165), at page 69
177 Ibid
178 Ibid, at page 71
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associated with the abuse of alcohol and drugs, but does not
include mental retardation which is a condition of arrested or
incomplete development of mind of a person, specially
characterised by subnormality of intelligence”.
The Act recognises an advance directive. An advance directive has to be in
writing. The person subscribing to it must be a major. While making an
advance directive, the maker indicates
(i) The manner in which he or she wishes or does not wish to be cared for and
treated for a mental illness; and
(ii) The person he or she appoints as a nominated representative179
.
An advance directive is to be invoked only when the person who made it
ceases to have the capacity to make mental healthcare treatment decisions. It
remains effective until the maker regains the capacity to do so180
.
131 The Central Mental Health Authority constituted under the Act is
empowered to make regulations governing the making of advance
directives181
.
132 The Mental Health Review Board constituted under the Act has to
maintain an online register of all advance directives and to make them
available to a mental health professional when required182
.
179 Section 5(1), Mental Healthcare Act, 2017 (India)
180 Section 5(3), Mental Healthcare Act, 2017 (India)
181 Section 6, Mental Healthcare Act, 2017 (India)
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133 Advance directives are capable of being revoked, amended or modified
by the maker at any time183. The Act specifies that an advance directive will
not apply to emergency treatment184 administered to the maker. Otherwise, a
duty has been cast upon every medical officer in charge of a mental health
establishment and a psychiatrist in charge of treatment to propose or give
treatment to a person with a mental illness, in accordance with a valid
advance directive, subject to Section 11185. Section 11 elucidates a procedure
which is to be followed where a mental health professional, relative or caregiver
does not desire to follow the advance directive. In such a case, an
application has to be made to the Board to review, alter, cancel or modify the
advance directive. In deciding whether to allow such an application the Board
must consider whether
(i) The advance directive is truly voluntary and made without force, undue
influence or coercion;
(ii) The advance directive should apply in circumstances which are materially
different;
(iii) The maker had made a sufficiently well informed decision;
(iv) The maker possessed the capacity to make decisions relating to mental
health care or treatment at the time when it was made; and
(v) The directive is contrary to law or to constitutional provisions186
.
182 Section 7, Mental Healthcare Act, 2017 (India)
183 Section 8(1), Mental Healthcare Act, 2017 (India)
184 Section 9, Mental Healthcare Act, 2017 (India)
185 Section 10, Mental Healthcare Act, 2017 (India)
186 Section 11(2), Mental Healthcare Act, 2017 (India)
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A duty has been cast to provide access to the advance directive to a medical
practitioner or mental health professional, as the case may be187. In the case
of a minor, an advance directive can be made by a legal guardian188. The Act
has specifically granted protection to medical practitioners and to mental
health professionals against being held liable for unforeseen consequences
upon following an advance directive189
.
134 Chapter IV of the Mental Healthcare Act 2017 contains detailed
provisions for the appointment and revocation of nominated representatives.
The provisions contained in Chapter IV stipulate qualifications for appointment
of nominated representatives; an order of precedence in recognising a
nominated representative when none has been appointed by the individual
concerned; revocation of appointments and the duties of nominated
representatives. Among those duties, a nominated representative is to
consider the current and past wishes, the life history, values, culture,
background and the caregiver of the person with a mental illness; give
effective credence to the views of the person with mental illness to the extent
of his or her understanding the nature of the decisions under consideration; to
provide support in making treatment decisions; have the right to seek
information on diagnosis and treatment, among other things.
187 Section 11(3), Mental Healthcare Act, 2017 (India)
188 Section 11(4), Mental Healthcare Act, 2017 (India)
189 Section 13(1), Mental Healthcare Act, 2017 (India)
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135 In the context of mental illness, Parliament has now expressly
recognised the validity of advance directives and delineated the role of
nominated representatives in being associated with healthcare and treatment
decisions.
136 A comparative analysis of advance directives in various jurisdictions
indicates some common components. They include the patient’s views and
wishes regarding: (i) Cardio-pulmonary Resuscitation (CPR) - treatment that
attempts to start breathing and blood flow in people who have stopped
breathing or whose heart has stopped beating; (ii) Breathing Tubes; (iii)
Feeding/Hydration; (iv) Dialysis; (v) Pain Killers; (vi) Antibiotics; (vii) Directions
for organ donation; and (viii) Appointment of Proxy/Health care agent/
Surrogate, etc.
137 Legal recognition of advance directives is founded upon the belief that
an individual’s right to have a dignified life must be respected. In Vishaka v
State of Rajasthan190, the Court, in the absence of enacted law against
sexual harassment at work places, had laid down the guidelines and norms for
due observance at all work places or other institutions, until a legislation is
enacted for the purpose. Certain precepts can be deduced from the existing
global framework on advance directives. These include the following:
190 (1997) 6 SCC 241
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A) Advance directives reflect the right of an adult with capacity to make a
decision to refuse specific treatment at a point in the future when they lack
capacity. A person can be said to lack capacity when “in relation to a
matter if at the material time he is unable to make a decision for himself in
relation to the matter because of an impairment of, or a disturbance in the
functioning of, the mind or brain”191. He/she must be deemed to have
capacity to make decisions regarding his treatment if such person has
ability to— (a) understand the information that is relevant to take a decision
on the treatment or admission or personal assistance; or (b) appreciate any
reasonably foreseeable consequence of a decision or lack of decision on
the treatment or admission or personal assistance; or (c) communicate
such decision by means of speech, expression, gesture or any other
means.192
B) For a legally valid advance decision to refuse treatment, an advance
directive must fulfil a basic criteria193, which should include that- a directive
must be made by a person after he has reached 18 years of age194; the
person must be mentally competent when the directive is made; the
directive must specify – in medical or layman’s terms – the treatment
refused; and, it can specify the circumstances in which the refusal is to
apply.
191 Section 2, Mental Capacity Act 2005 (UK)
192 Section 4, Mental Healthcare Act, 2017 (India)
193 Section 24, Mental Capacity Act, 2005 (UK)
194 A parent acting on behalf of his child cannot make such a declaration.
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C) At any time before reaching the comatose state, an individual can revoke
the directive. In other words, an individual may withdraw or alter an
advance decision at any time when he/she has capacity to do so. Such
withdrawal (including a partial withdrawal) need not be in writing. A
directive must be revoked if the statements or actions subsequent to the
written document indicate contrary consent.195
D) An advance decision will not be applicable to the treatment in question if
(a) at the material time, the person, who made it, did not have the capacity
to give or refuse consent to it196; (b) the treatment is not the treatment
specified in the advance decision197; (c) any circumstances specified in the
advance decision are absent198; or (d) there are reasonable grounds for
believing that circumstances exist which the person making the directive
did not anticipate at the time of the advance decision and which would
have affected his decision had he anticipated them.199
E) If a person intends specifically to refuse life-sustaining procedures200
,
he/she must clearly indicate that it is to apply even if life is at risk and
death will predictably result; put the decision in writing; and, ensure it is
signed and witnessed.
195 Luis Kutner (Supra note 65), at page 228
196 Section 25(3), Mental Capacity Act 2005 (UK)
197 Section 25(4) (a), Mental Capacity Act 2005 (UK)
198 Section 25(4) (b), Mental Capacity Act 2005 (UK)
199 Section 25(4) (c), Mental Capacity Act 2005 (UK)
200 Section 25 (5) and (6), Mental Capacity Act 2005 (UK)
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F) In the event that there is more than one valid Advance Directive, none of
which have been revoked, the most recently signed Advance Directive will
be considered as the last expression of the patient’s wishes and will be
given effect.
G) A person will not incur any liability for the consequences of withholding or
withdrawing a treatment from an individual, if he, at the material time,
reasonably believes that a valid advance decision applicable to the
treatment, made by that individual, exists.201
H) An advance directive must clearly contain the following: (a) full details of its
maker, including date of birth, home address and any distinguishing
features; (b) the name and address of a general practitioner and whether
they have a copy; (c) a statement that the document should be used if the
maker lacks capacity to make treatment decisions; (d) a clear statement of
the decision, the treatment to be refused and the circumstances in which
the decision will apply; (d) the date the document was written (or
reviewed); and, (e) the person’s signature and the signature of a
witness.202
201 Section 26(3), Mental Capacity Act 2005 (UK)
202 Alexander Ruck Keene, “Advance Decisions: getting it right?”, available at
http://www.39essex.com/docs/articles/advance_decisions_paper_ark_december_2012.pdf
PART J
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138 Advance directives also have limitations. Individuals may not fully
understand treatment options or recognize the consequences of certain
choices in the future. Sometimes, people change their minds after
expressing advance directives and forget to inform others. Another issue with
advance directives is that vague statements can make it difficult to understand
the course of action when a situation arises. For example, general statements
rejecting "heroic treatments" are vague and do not indicate whether you want
a particular treatment for a specific situation (such as antibiotics
for pneumonia after a severe stroke). On the other hand, very specific
directives for future care may not be useful when situations change in
unexpected ways. New medical therapies may also have become available
since an advance directive was given. Thus, advance directives should be
reviewed and revised regularly if feelings about certain issues change, so that
current wishes and decisions are always legally documented.
139 An important facet which a regime of advanced care directives must
factor in, is the existence of variables which affect the process. These
include, in our society, institutional aspects such as the paucity of access to
publicly funded Medicare, declining standards of professional ethics and the
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inadequacy of institutional responses to the lack of professional accountability
in the medical profession.
140 A report submitted in October 2017 by the American Bar Association’s
Commission on Law and Ageing to the US Department of Health Services,
dwelt on several variables which bear upon advance directives. The following
observations provide an insight:
“A good starting point in understanding this landscape is a
realization that law and regulation are but one slice of the
universe of variables that profoundly affect the experience of
dying…
…other key variables include institutional innovation, the role
of financing systems, professional and public education and
professional standards and guidelines. All these operate in a
larger framework that is defined by family, workplace,
community life and spirituality. Thus, the isolation of law and
regulation as a strategy for behaviour change requires a
sense of humility in establishing expectations, lest we
overstate the influence of law in the human experience of
dying…”203
141 There are variables which “profoundly affect the experience of dying”
even in a developed society. They provide a sobering reflection of the gulf
which separates the needs of patients and the availability of services to the
poor, in a society like ours with large impoverished strata. Patient autonomy
may mean little to the impoverished citizen. For marginalised groups in urban
and rural India, even basic medical care is a distant reality. Advance directives
postulate the availability of medical care. For, it is on the hypothesis of such
203 “Advance Directives And Advance Care Planning: Legal And Policy Issues”, U.S. Department of Health and
Human Services (October 2007), available at https://aspe.hhs.gov/system/files/pdf/75366/adacplpi.pdf, at page 1
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care being available that the right to choose or refuse treatment is based. The
stark reality in our society is that medical facilities are woefully inadequate.
Primary medical care is a luxury in many places. Public hospitals are
overwhelmed by the gap between the demand for medical care and its supply.
Advance directives may have little significance to large segments of Indian
society which are denied access to basic care. Advance directives also
require an awareness of rights. The stark reality is that the average Indian is
deprived of even basic medical facilities in an environment where absence of
rudimentary care is the norm. Moreover, absolute notions of patient autonomy
need to be evaluated in the context of the Indian social structure where bonds
of family, religion and caste predominate. The immediate family and in many
situations, the larger unit of the extended family are caregivers. In the absence
of a social security net, universal medical coverage and compulsory
insurance, it is the family to which a patient turns to in distress. Families
become the caregivers, willingly or as a result of social conditioning, especially
in the absence of resources and alternative institutional facilities. The views of
the family which are drawn by close bonds of kinship have to be factored into
the process. At the other end of the spectrum, rising costs of medical care in
the urban areas threaten to ruin the finances of a family when a member is
struck by a serious illness. To them, advance directives may provide a
measure of assurance when a crucial decision as to whether to prolong
artificial support in an irreversible medical situation is to be taken. The fact that
the patient had expressed a desire in the form of an advance directive
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129
obviates a sense of moral guilt on the part of the caregivers, when the family
accepts the doctors’ wisdom to withdraw or withhold artificial support. Another
important variable which a regime of advance directives must bear in mind is
the danger of misuse. The regime of advance directives which is intended to
secure patient autonomy must contain safeguards against the greed of
avaricious relatives colluding with willing medical professionals. The
safeguards must be robust to obviate the dangers. The complexities of culture
and of the social strata adverted to above only emphasise the wide diversity
that prevails within the country. Our solution must take into account the
diversity across the country. It is with the above background in view that we
have introduced a safeguard in the form of broad-based committees to
oversee the process.
142 In order to ensure clarity in the course of action to be followed I agree
with the guidelines contained in the judgment of the learned Chief Justice in
regard to Advance Directives as well as in regard to the procedural
mechanisms set up in the judgment.
K Conclusion
143 The court is above all, engaged in the task of expounding the
Constitution. In doing so, we have been confronted with the enormous task of
finding substance and balance in the relationship between life, morality and
the experience of dying. The reason which has impelled the court to recognise
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passive euthanasia and advance directives is that both bear a close
association to the human urge to live with dignity. Age brings isolation.
Physical and mental debility bring a loss of self worth. Pain and suffering are
accompanied by a sense of being helpless. The loss of control is compounded
when medical intervention takes over life. Human values are then lost to
technology. More significant than the affliction of ageing and disease is the
fear of our human persona being lost in the anonymity of an intensive care
ward. It is hence necessary for this court to recognise that our dignity as
citizens continues to be safeguarded by the Constitution even when life is
seemingly lost and questions about our own mortality confront us in the
twilight of existence.
(i) The sanctity of human life is the arterial vein which animates the values,
spirit and cellular structure of the Constitution. The Constitution recognises
the value of life as its indestructible component. The survival of the
sanctity principle is founded upon the guarantees of dignity, autonomy and
liberty;
(ii) The right to a dignified existence, the liberty to make decisions and
choices and the autonomy of the individual are central to the quest to live
a meaningful life. Liberty, dignity and autonomy are essential to the pursuit
of happiness and to find meaning in human existence;
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(iii) The entitlement of each individual to a dignified existence necessitates
constitutional recognition of the principle that an individual possessed of a
free and competent mental state is entitled to decide whether or not to
accept medical treatment. The right of such an individual to refuse medical
treatment is unconditional. Neither the law nor the Constitution compel an
individual who is competent and able to take decisions, to disclose the
reasons for refusing medical treatment nor is such a refusal subject to the
supervisory control of an outside entity;
(iv) Constitutional recognition of the dignity of existence as an inseparable
element of the right to life necessarily means that dignity attaches
throughout the life of the individual. Every individual has a constitutionally
protected expectation that the dignity which attaches to life must subsist
even in the culminating phase of human existence. Dignity of life must
encompass dignity in the stages of living which lead up to the end of life.
Dignity in the process of dying is as much a part of the right to life under
Article 21. To deprive an individual of dignity towards the end of life is to
deprive the individual of a meaningful existence. Hence, the Constitution
protects the legitimate expectation of every person to lead a life of dignity
until death occurs;
(v) The constitutionally recognised right to life is subject to the procedure
established by law. The procedure for regulation or deprivation must, it is
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well-settled, be fair, just and reasonable. Criminal law imposes restraints
and penal exactions which regulate the deprivation of life, or as the case
may be, personal liberty. The intentional taking away of the life of another
is made culpable by the Penal Code. Active euthanasia falls within the
express prohibitions of the law and is unlawful;
(vi) An individual who is in a sound and competent state of mind is entitled by
means of an advance directive in writing, to specify the nature of medical
intervention which may not be adopted in future, should he or she cease
to possess the mental ability to decide. Such an advance directive is
entitled to deference by the treating doctor. The treating doctor who, in a
good faith exercise of professional medical judgment abides by an
advance directive is protected against the burden of criminal liability;
(vii)The decision by a treating doctor to withhold or withdraw medical
intervention in the case of a patient in the terminal stage of illness or in a
persistently vegetative state or the like where artificial intervention will
merely prolong the suffering and agony of the patient is protected by the
law. Where the doctor has acted in such a case in the best interest of the
patient and in bona fide discharge of the duty of care, the law will protect
the reasonable exercise of a professional decision;
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(viii) In Gian Kaur, the Constitution Bench held, while affirming the
constitutional validity of Section 306 of the Penal Code (abetment of
suicide), that the right to life does not include the right to die. Gian Kaur
does not conclusively rule on the validity of passive euthanasia. The two
Judge Bench decision in Aruna Shanbaug proceeds on an incorrect
perception of Gian Kaur. Moreover, Aruna Shanbaug has proceeded on
the basis of the act – omission distinction which suffers from incongruities
of a jurisprudential nature. Aruna Shanbaug has also not dwelt on the
intersection between criminal law and passive euthanasia, beyond
adverting to Sections 306 and 309 of the Penal Code. Aruna Shanbaug
has subordinated the interest of the patient to the interest of others
including the treating doctors and supporting caregivers. The underlying
basis of the decision in Aruna Shanbaug is flawed. Hence, it has become
necessary for this Court in the present reference to revisit the issues
raised and to independently arrive at a conclusion based on the
constitutional position;
(ix) While upholding the legality of passive euthanasia (voluntary and nonvoluntary)
and in recognising the importance of advance directives, the
present judgment draws sustenance from the constitutional values of
liberty, dignity, autonomy and privacy. In order to lend assurance to a
decision taken by the treating doctor in good faith, this judgment has
mandated the setting up of committees to exercise a supervisory role and
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134
function. Besides lending assurance to the decision of the treating doctors,
the setting up of such committees and the processing of a proposed
decision through the committee will protect the ultimate decision that is
taken from an imputation of a lack of bona fides; and
(x) The directions in regard to the regime of advance directives have been
issued in exercise of the power conferred by Article 142 of the Constitution
and shall continue to hold the field until a suitable legislation is enacted by
Parliament to govern the area.
144 I agree with the directions proposed in the judgment of the learned
Chief Justice.
145 The reference shall stand disposed of in the above terms.
…...............................................J
[Dr D Y CHANDRACHUD]
New Delhi;
March 9, 2018.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 215 OF 2005
COMMON CAUSE (A REGISTERED SOCIETY) ... PETITIONER
VERSUS
UNION OF INDIA AND ANR. ... RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
I had advantage of going through the draft judgment
of Hon'ble the Chief Justice. Though, broadly I
subscribe to the views expressed by Hon'ble the Chief
Justice on various principles and facets as expressed in
the judgment, but looking to the great importance of
issues involved, I have penned my reasons for my views
expressed. However, I am in full agreement with the
directions and safeguards as enumerated by Hon'ble the
Chief Justice in Paras 191 to 194 of the Judgment with
regard to advance medical directives.
2
I also had the benefit of going through the erudite
opinion of Dr. Justice D.Y. Chandrachud, which expresses
almost the same views which are reflected in my
judgment.
This Constitution Bench has been constituted on a
reference made by a threeJudge Bench vide its order
dated 25th February, 2014. The writ petition filed in
public interest prayed for essentially following two
reliefs:
(a) declare 'right to die with dignity'
as a fundamental right within the fold of
Right to Live with dignity guaranteed under
Article 21 of the Constitution of India;
(b) issue direction to the Respondent, to
adopt suitable procedures, in consultation
with State Governments where necessary, to
ensure that persons of deteriorated
health or terminally ill should be able
to execute a document titled “MY LIVING
WILL & ATTORNEY AUTHORISATION” which can be
presented to hospital for appropriate
action in event of the executant being
admitted to the hospital with serious
illness which may threaten termination of
life of the executant or in the
alternative, issue appropriate guidelines
to this effect;”
3
2. Petitioner in support of writ petition has placed
reliance on Constitution Bench judgment in Gian Kaur Vs.
State of Punjab, (1996) 2 SCC 648 as well as twoJudge
Bench judgment in Aruna Ramachandra Shanbaug Vs. Union
of India & Ors., (2011) 4 SCC 454. Petitioner's case is
that this Court in the above two judgments has although
disapproved active euthanasia but has granted its
approval to passive euthanasia. The threeJudge Bench
after referring to paragraphs 24 and 25 of Constitution
Bench judgment observed that Constitution Bench did not
express any binding view on the subject of euthanasia
rather reiterated that legislature would be the
appropriate authority to bring the change. ThreeJudge
Bench further observed that view of two Judge Bench in
Aruna Ramachandra Shanbaug that the Constitution Bench
in Gian Kaur has approved the judgment of House of Lords
in Airedale NHS Trust Vs. Bland, (1993) 1 All ER 821, is
not correct and further opinion expressed by twoJudge
Bench judgment in paragraphs 101 and 104 is
inconsistent. In the above view of the matter the threeJudge
Bench made the reference to the Constitution
4
Bench. It is useful to extract paragraphs 17, 18 and 19
of the referring order which is to the following effect:
“17) In view of the inconsistent opinions
rendered in Aruna Shanbaug (supra) and also
considering the important question of law
involved which needs to be reflected in the
light of social, legal, medical and
constitutional perspective, it becomes
extremely important to have a clear
enunciation of law. Thus, in our cogent
opinion, the question of law 12 Page 13
involved requires careful consideration by a
Constitution Bench of this Court for the
benefit of humanity as a whole.
18) We refrain from framing any specific
questions for consideration by the
Constitution Bench as we invite the
Constitution Bench to go into all the
aspects of the matter and lay down
exhaustive guidelines in this regard.
19) Accordingly, we refer this matter to a
Constitution Bench of this Court for an
authoritative opinion.”
3. We have heard Shri Prashant Bhushan, learned counsel
appearing for the petitioner. Shri P.S. Narasimha,
learned Additional Solicitor General appearing for the
Union of India. Shri Arvind Datar, learned senior
counsel for Vidhi Centre for Legal Policy, Shri Sanjay
R. Hegde, learned senior counsel for Indian Society of
5
Critical Care Medicine, Mr. Devansh A. Mohta, learned
counsel for Society for Right to Die with Dignity and
Mr. Praveen Khattar, learned counsel for Delhi Medical
Council. We have also been assisted by Dr. R.R. Kishore
Member of the Bar who has joined the Bar after carrying
on the profession of doctor for more than 40 years.
A. PETITIONER'S CASE
4. The petitioner is a registered society which is
engaged in taking of the common problems of the people.
The petitioner vide this public interest litigation
brings to the notice of this Court the serious problem
of violation of fundamental right to life, liberty,
privacy and the right to die with dignity of the people
of this country, guaranteed to them under Article 21 of
the Constitution of India. It is submitted that the
citizens who are suffering from chronic diseases and/or
are at the end of their natural life span and are likely
to go into a state of terminal illness or permanent
vegetative state are deprived of their rights to refuse
cruel and unwanted medical treatment, like feeding
6
through hydration tubes, being kept on ventilator and
other life supporting machines in order to artificially
prolong their natural life span. This sometimes leads to
extension of pain and agony both physical and mental
which they desperately seek to end by making an informed
choice and clearly expressing their wishes in advance,
(called a living will) in the event of they going into a
state when it will not be possible for them to express
their wishes.
5. The petitioner further pleads that it is a common
law right of the people, of any civilised country, to
refuse unwanted medical treatment and no person can
force him/her to take any medical treatment which the
person does not desire to continue with. It is submitted
that to initiate a medical treatment to a person who has
reached at an end of his life and the process of his/her
death has already commenced against the wishes of that
person will be violative of his/her right to liberty.
The right to be free from unwanted lifesustaining
medical treatment is a right protected by Article 21.
Even the right to privacy which has also been held to be
7
a part of right to life is being violated as the people
are not being given any right to make an informed choice
and a personal decision about withholding or withdrawing
life sustaining medical treatment.
B. MAN & MEDICINE
6. Human being a mortal, death is an accepted
phenomenon. Anyone born on the earth is sure to die.
Human body is prone to disease and decay. Human being
after getting knowledge of various science and art
always fought with failure and shortcomings of human
body. Various ways and means of healing its body were
found and invented by mankind. The branch of medicine is
practiced from ancient time both in India and other
parts of the World. In our country “Charak Samhita” is a
treatise of medicine which dates back 1000 BC.
7. In Western World “Hippocrates” is regarded as
“father of western medicine”. Hippocratic period dates
from 460 BC. “Corpus Hippocraticum” comprises of not
only general medical prescription, description of
diseases, diagnosis, dietary recommendations but also
8
opinion of professional ethics of a physician. Thus,
those who practiced medicine from ancient time were
ordained to follow some ethical principles. For those
who follow medical profession 'Hippocratic Oath' was
always treated to be Oath to which every medical
professional was held to be bound. It is useful to refer
to original Hippocratic Oath, (as translated into
English):
“I swear by Apollo, the healer, Asclepius,
Hygieia, and Panacea, and I take to witness
all the gods, all the goddesses, to keep
according to my ability and my judgment, the
following Oath and agreement:
To consider dear to me, as my parents, him
who taught me this art; to live in common
with him and, if necessary, to share my
goods with him; To look upon his children as
my own brothers, to teach them this art.
I will prescribe regimens for the good of my
patients according to my ability and my
judgment and never do harm to anyone.
I will not give a lethal drug to anyone if I
am asked, nor will I advise such a plan; and
similarly I will not give a woman a pessary
to cause an abortion.
But I will preserve the purity of my life
and my arts.
I will not cut for stone, even for patients
in whom the disease is manifest; I will
9
leave this operation to be performed by
practitioners, specialists in this art.
In every house where I come I will enter
only for the good of my patients, keeping
myself far from all intentional illdoing
and all seduction and especially from the
pleasures of love with women or with men, be
they free or slaves.
All that may come to my knowledge in the
exercise of my profession or in daily
commerce with men, which ought not to be
spread abroad, I will keep secret and will
never reveal.
If I keep this oath faithfully, may I enjoy
my life and practice my art, respected by
all men and in all times; but if I swerve
from it or violate it, may the reverse be my
lot.”
8. The noticeable portion of the Hippocratic Oath is
that medical practitioner swears that he will not give a
lethal drug to anyone nor he will advise such a plan.
9. At this juncture, it shall be useful to refer to
thoughts of Plato, a celebrated Greek Philosopher, on
“physician” and treatment which he expressed in his
treatise 'Republic'. Plato in “The Republic of Plato”,
(translated by Francis Macdonald Cornford) while
discussing “physician”, in Chapter IX states:
10
"Shall we say, then, that Asclepius
recognized this and revealed the art of
medicine for the benefit of people of sound
constitution who normally led a healthy
life, but had contracted some definite
ailment? He would rid them of their
disorders by means of drugs or the knife and
tell them to go on living as usual, so as
not to impair their usefulness as citizens.
But where the body was diseased through and
through, he would not try, by nicely
calculated evacuations and doses, to prolong
a miserable existence and let his patient
beget children who were likely to be as
sickly as himself. Treatment, he thought,
would be wasted on a man who could not live
in his ordinary round of duties and was
consequently useless to himself and to
society.”
10. Plato in the same Chapter in little harsher words
further states:
"But if a man had a sickly constitution and
intemperate habits, his life was worth
nothing to himself or to anyone else;
medicine was not meant for such people and
they should not be treated, though they
might be richer than Midas.”
11. From what has been noted above, it is apparent that
although on one hand medical professional has to take
Hippocratic Oath that he shall treat his patient
according to his ability and judgment and never do harm
to anyone. Further, he will not give any lethal drug to
11
anyone even he is asked for, on the other hand Plato
held that those who has sickly constitution and
intemperate habits should not be helped by medicine.
Thus, the cleavage in views regarding ethics of a
medical professional as well as not supporting medical
treatment for those who are thoroughly diseased is found
from ancient time in Greek thoughts itself.
12. The dilemma of medical professional still continues
to this day and medical professionals are hesitant in
adopting a course which may not support the life of a
patient or lead to patient's death. Numerous cases
raising conflicting views were brought before the Courts
in the different parts of the World, some of which we
shall refer hereinafter.
13. There has been considerable development in medical
science from ancient time to this day. There has been
substantial acceptance of natural and human rights of
the human beings which found expression in “United
Nations Human Rights Declaration, 1948” and subsequent
declarations. The right of selfdetermination of an
12
individual has been recognised throughout the World.
C. CONCEPT OF LIFE & DEATH
14. In the ancient India, on 'life' and 'death' there is
considerable literature. According to Hinduism, life
never comes to an end. The soul never die although body
may decay. The soul is continuous and perpetual which is
not merely a biological identity, death is not the end
of life but only a transformation of a body. In
“Bhagavadgita” Chapter II Verse 22 (as translated in
English), it is stated by Lord Krishna:
"22.As a man shedding wornout garments,
takes other new ones, likewise the embodied
soul, casting off wornout bodies, enters
into others that are new.”
15. The death was never feared in ancient Indian culture
and mythology. Death was treated sometimes a means to
obtain liberation that is 'moksha'. Every life is a gift
of God and sacred and it has to be protected at all
cost. No person is bestowed with the right to end his or
her life. However, an individual's act of discarding
mortal body may be permissible under certain
13
circumstances. In ancient Indian religion, sanctity was
attached to a Yogi (a person who has mastered the art of
regulating his involuntary physical and mental
functions, at will) can discard his/her mortal
coil(body) through the process of higher spiritual
practices called yoga. Such state was known as
'Samadhi'. But there was no concept in ancient
India/mythology of putting an end to life of another
human being which was always regarded as crime and
against 'dharma'.
16. The Vedic Rules also forbid suicide whereas
according to ancient hindu culture, a man in his fourth
stage, i.e., Vanaprastha could go into the forest
sustaining only on water and air, end his body. A
Brahmin also could have got rid of his body by drowning
oneself in a river, precipitating oneself from a mount,
burning oneself or starving oneself to death; or by one
of those modes of practising austerities, mentioned
above. The Laws of Manu as contained in Sacred Books of
the East, Edited by Max Muller, Volume 25 Chapter VI
verses 31 and 32 refers to above. The Book also refers
14
to views of various commentators on verses 31 and 32.
It is useful to extract verses 31 and 32 and Note of the
author on aforesaid verses containing the views of
different commentators which are to the following
effect:
“31. Or let him walk, fully determined and
going straight on, in a northeasterly
direction, subsisting on water and air, until
his body sinks to rest.
32. A Brahmana, having got rid of his body by
one of those modes practised by the great
sages, is exalted in the world of Brahman,
free from sorrow and fear.
31. Gov. and Kull. take yukta, firmly
resolved' (Nar., Ragh.), in the sense of
'intent on the practice of Yoga.' Gov. and
Kull. (see also Medh. on the next verse) say
that a man may undertake the Mahaprasthana,
or' Great Departure,' on a journey which ends
in death, when he is incurably diseased or
meets with a great misfortune, and that,
because it is taught in the Sastras, it is
not opposed to the Vedic rules which forbid
suicide. From the parallel passage of Ap. II,
23, 2, it is, however, evident that a
voluntary death by starvation was considered
the befitting conclusion of a hermit's life.
The antiquity and general prevalence of the
practice may be inferred from the fact that
the Gaina ascetics, too, consider it
particularly meritorious.
15
32. By one of those modes,' i.e. drowning
oneself in a river, precipitating oneself
from a mount, burning oneself or starving
oneself to death' (Medh.); or 'by one of
those modes of practising austerities,
mentioned above, verse 23' (Gov., Kull.,
Nar., Nand.). Medh. adds a long discussion,
trying to prove that the world of Brahman,'
which the ascetic thus gains, is not the real
complete liberation.”
17. The Hindu Sculpture also says that life and death is
the gift of God and no human being has right to take
away the said gift. The suicide is disapproved in Hindu
way of life and it is believed that those who commit
suicide did not attain Moksha or Salvation from the
cycle of life and death.
18. The Muslims also strongly condemn suicide as they
believe that life and death of a person depends on
Allah’s will and human beings are prohibited in going
against HIS will.
19. Christianity also disapprove taking of one’s life.
Bible says that human being is a temple of God and the
spirit of God dwelleth in the body and no man can defile
the temple. Reference is made to Chapter 3 verses 16
16
and 17 of I CORINTHIA NS , which is as below:
“16. Know Ye not that ye are the temple of
God, and that the Spirit of God dwelleth in
you?
17. If any man defile the temple of God,
him shall God destroy; for the temple of
God is holy, which temple ye are.”
20. Pope John Paul II in, “The Gospel of Life”,
denouncing euthanasia writes:
"Laws which authorise and promote
euthanasia are therefore radically opposed
not only to the good of the individual but
also to the common good; as such they are
completely lacking in authentic juridical
validity. Disregarded for the right to
life, precisely because it leads to the
killing of the person whom society exists
to serve, is what most directly conflicts
with the possibility of achieving the
common good. Consequently, a civil law
authorising euthanasia ceases by that very
fact to be a true, morally binding civil
law.”
21. The tenets of Jainism also talks about the practice
of religiously nominated selfbuild death called
“Sallkhana”, meaning 'fast upto death'.
17
22. The Buddhist sculpture states that Lord Buddha had
also allowed selfbuild death for the extremely ill
person as an act of compassion.
23. In different religions and cultures, there are clear
injunctions against taking life of oneself.
24. The petitioner in the Writ Petition has
categorically clarified that petitioner is neither
challenging the provisions of I.P.C. by which “attempt
to suicide” is made a penal offence nor praying right to
die be declared as fundamental right under Article 21.
It is useful to refer to Para 7 of the Writ Petition, in
which petitioner pleads following:
“It is submitted at the outset that the
petitioner in the instant petition is
neither challenging the Section 309 of
Indian Penal Code, vide which Attempt to
Suicide is a penal offence nor is asking
right to die per se as a fundamental right
under Article 21 (as the issue is squarely
covered by the Constitution Bench judgment
of this Hon’ble Court in the case of Gian
Kaur vs. State of Punjab and in other
connected matters, (1996) 2 SCC 648. The
endeavour of the Petitioner in the instant
petition is to seek guidelines from this
Hon’ble Court whereby the people who are
diagnosed of suffering from terminal
18
diseases or ailments can execute Living
Will or give directives in advance or
otherwise to his/her attorney/executor to
act in a specific manner in the event
he/she goes into persistent vegetative
state or coma owing to that illness or due
to some other reason.”
D. THE RELEVANT PROVISIONS OF IPC
25. The Indian Penal Code, 1860, is a general penal code
defining various acts which are offence and providing
for punishment thereof. Chapter XVI deals with “offences
affecting the human body”. The provisions of Indian
Penal Code which are relevant in the present context are
Section 306 and Section 309. Section 306 relates to
abetment of suicide. It provides “if any person commits
suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either
description for a term which may extend to ten years,
and shall also be liable to fine”. Another provision
which is relevant is Section 309 i.e. attempt to commit
suicide. The provision states, whoever attempts to
commit suicide and does any act towards the commission
of such offence, shall be punished with simple
19
imprisonment for a term which may extend to one year (or
with fine, or with both). The issues which have come up
for consideration in the present case have to be dealt
with keeping in view the above provisions of Indian
Penal Code which declares certain acts to be offence.
E. LEGISLATION IN REFERENCE TO EUTHANASIA
26. The only statutory provision in our country which
refers to euthanasia is statutory regulations framed
under Indian Medical Council Act, 1956, namely The
Indian Medical Council (Professional Conduct, Etiquette
& Ethics) Regulations, 2002. Chapter VI of the
Regulations deals with “Unethical Acts”. Regulation 6 is
to the following effect:
“6. UNETHICAL ACTS
A physician shall not aid or abet or commit
any of the following acts which shall be
construed as unethical……………
…………… ………… …………
6.7 Euthanasia Practising euthanasia shall
constitute unethical conduct. However, on
specific occasion, the question of
withdrawing supporting devices to sustain
cardiopulmonary function even after brain
death, shall be decided only by a team of
doctors and not merely by the treating
20
physician alone. A team of doctors shall
declare withdrawal of support system. Such
team shall consist of the doctor incharge
of the patient, Chief Medical
Officer/Medical Officer incharge of the
hospital and a doctor nominated by the incharge
of the hospital from the hospital
staff or in accordance with the provisions
of the Transplantation of Human Organ Act,
1994.”
27. The Law Commission of India had stated and submitted
a detailed report on the subject in 196th report on
“Medical Treatment to Terminally Ill Patients
(Protection of Patients and Medical Practitioners)”. Law
Commission examined various provisions of Indian Penal
Code and other statutory provisions, judgments of this
court and different courts of other countries and had
made certain recommendations. A draft bill was also made
part of the recommendation. Draft bill namely Medical
Treatment to Terminally Ill Patients (Protection of
Patients and Medical Practitioners) Bill, 2006, was made
part of the report as an Annexure.
28. Chapter 8 of the report contains summary of
recommendations. It is not necessary to reproduce all
the recommendations. It is sufficient to refer to para 1
21
and 2 of the recommendations:
“...In the previous chapters, we have
considered various important issues on the
subject of withholding or withdrawing
medical treatment (including artificial
nutrition and hydration) from terminally
illpatients. In Chapter VII, we have
considered what is suitable for our
country. Various aspects arise for
consideration, namely, as to who are
competent and incompetent patients, as to
what is meant by ‘informed decision’, what
is meant by ‘best interests’ of a patient,
whether patients, their relations or
doctors or hospitals can move a Court of
law seeking a declaration that an act or
omission or a proposed act or omission of a
doctor is lawful, if so, whether such
decisions will be binding on the parties
and doctors, in future civil and criminal
proceedings etc. Questions have arisen
whether a patient who refuses treatment is
guilty of attempt to commit suicide or
whether the doctors are guilty of abetment
of suicide or culpable homicide not
amounting to murder etc. On these issues,
we have given our views in Chapter VII on a
consideration of law and vast comparative
literature.
In this chapter, we propose to give a
summary of our recommendations and the
corresponding sections of the proposed Bill
which deal with each of the
recommendations. (The draft of the Bill is
annexed to this Report). We shall now refer
to our recommendations.
1) There is need to have a law to protect
patients who are terminally ill, when they
22
take decisions to refuse medical treatment,
including artificial nutrition and
hydration, so that they may not be
considered guilty of the offence of
‘attempt to commit suicide’ under sec.309
of the Indian Penal Code, 1860.
It is also necessary to protect doctors
(and those who act under their directions)
who obey the competent patient’s informed
decision or who, in the case of (i)
incompetent patients or (ii) competent
patients whose decisions are not informed
decisions, and decide that in the best
interests of such patients, the medical
treatment needs to be withheld or withdrawn
as it is not likely to serve any purpose.
Such actions of doctors must be declared by
statute to be ‘lawful’ in order to protect
doctors and those who act under their
directions if they are hauled up for the
offence of ‘abetment of suicide’ under
sections 305, 306 of the Indian Penal Code,
1860, or for the offence of culpable
homicide not amounting to murder under
section 299 read with section 304 of the
Penal Code, 1860 or in actions under civil
law.
2)Parliament is competent to make such a
law under Entry 26 of List III of the
Seventh Schedule of the Constitution of
India in regard to patients and medical
practitioners. The proposed law, in our
view, should be called ‘The Medical
Treatment of Terminally Ill Patients
(Protection of Patients, Medical
Practitioners) Act.”
29. The 196th Report was again revised by the Law
23
Commission of India in 241st Report dated August, 2012.
The 2006 draft bill was redrafted by Law Commission
which was Annexure 1 to the report. The above bill
however could not fructify in a law. The Ministry of
health and family welfare had published another draft
bill namely The Medical Treatment of Terminally Ill
Patients (Protection of Patients & Medical
Practitioners) Bill, 2016, as a private member bill
which was introduced in Rajya Sabha on 5th August 2016,
which is still pending.
30. From the above, it is clear that only statutory
provision on euthanasia is regulation 6.7 of the 2002
Regulations as referred above. The regulations prohibit
practicing euthanasia and declare that practicing
euthanasia constitute unethical conduct on behalf of the
medical practitioner. The regulation however carves an
exception that on specific occasion, the question of
withdrawing supporting devices to sustain cardiopulmonary
function even after brain death, shall be
decided only by a team of doctors and not merely by the
treating physician alone. The regulation further
24
provides that team of doctors shall declare withdrawal
of support system.
31. The withdrawal of medical treatment of terminally
ill Persons is complex ethical, moral and social issue
with which many countries have wrestled with their
attempt to introduce a legal framework for end of life
decision making. In absence of a comprehensive legal
framework on the subject the issue has to be dealt with
great caution.
F. TWO IMPORTANT JUDGMENTS OF THIS COURT ON THE
SUBJECT:
32. The first important judgment delivered by the
Constitution Bench of this court touching the subject is
the judgment of Constitution Bench in Gian Kaur Vs.
State of Punjab, (1996) 2 SCC 648. In the above 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 this Court. One of the grounds for
25
assailing the conviction before this Court was that
Section 306 IPC is unconstitutional. The reliance was
placed on twoJudge Bench decision of this court in
P.Rathinam Vs. Union of India & Anr., (1994) 3 SCC 394,
wherein Section 309 IPC was held to be unconstitutional
as violative of Article 21 of the Constitution.
33. Section 306 was sought to be declared as
unconstitutional being violative of Article 21 of the
Constitution. The Law Commission by its 22nd report had
recommended for deletion of Section 309 and a Bill was
introduced in 1972 to amend the Indian Penal Code by
deleting Section 309. The Constitution Bench dwelt the
question as to whether ‘right to die’ is included in
Article 21. The Constitution Bench concluded that ‘right
to die’ “cannot be included as part of fundamental
rights guaranteed under Article 21”.
34. The challenge to section 309 on the basis of
Articles 14 and 21 was repelled. This court further held
that Section 306 of Indian Penal Code does not violate
Article 21 and Article 14 of the Constitution of India.
26
35. The second judgment which needs to be noted in
detail is twoJudge Bench judgment of this 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, he
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 bedridden, 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
27
let her die peacefully. In the above case, TwoJudge
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, following was laid down in
para 39 and 40:
“39. Coming now to the legal issues in
this case, it may be noted that euthanasia
is of two types: active and passive. Active
euthanasia entails the use of lethal
substances or forces to kill a person e.g.
a lethal injection given to a person with
terminal cancer who is in terrible agony.
Passive euthanasia entails withholding of
medical treatment for continuance of life
e.g. withholding of antibiotics where
without giving it a patient is likely to
die, or removing the heartlung machine,
from a patient in coma. The general legal
position all over the world seems to be
that while active euthanasia is legal even
without legislation provided certain
conditions and safeguards are maintained.”
40. A further categorisation of
euthanasia is between voluntary euthanasia
and nonvoluntary euthanasia. Voluntary
euthanasia is where the consent is taken
from the patient, whereas nonvoluntary
euthanasia is where the consent is
unavailable e.g. when the patient is in
coma, or is otherwise unable to give
consent. While there is no legal difficulty
in the case of the former, the latter poses
several problems, which we shall address.”
28
36. The court held that in India, active euthanasia is
illegal and crime. In paragraph 41, following was held:
“41. As already stated above active
euthanasia is a crime all over the world
except where permitted by legislation. In
India active euthanasia is illegal and a
crime under Section 302 or atleast under
Section 304 of the Penal Code, 1860.
Physicianassisted suicide is a crime under
Section 306 IPC (abetment to suicide).
Active euthanasia is taking specific steps
to cause the patient’s death, such as
injecting the patient with some lethal
substance e.g. sodium pentothal which
causes a person deep sleep in a few
seconds, and the person instantaneously and
painlessly dies in this deep sleep.”
37. The court noticed various judgments of different
countries in the above context. TwoJudge Bench also
referred to Constitution Bench judgment in Gian Kaur Vs.
State of Punjab. In Para 101 and 104, following has been
laid down:
“101. The Constitution Bench of the Supreme
Court in Gina Kaur V. State of Punjab held
that both euthanasia and assisted suicide
are not lawful in India. That decision
overruled the earlier twoJudge Bench
decision of the Supreme Court in P.Rathinam
V. Union of India. The Court held that the
right to life under Article 21 of the
Constitution does not include the right to
die. In Gian Kaur case the Supreme Court
29
approved of the decision of the House of
Lords in Airedale case and observed that
euthanasia could be made lawful only by
legislation.
104. It may be noted that in Gian Kaur Case
although the Supreme Court has quoted with
approval the view of the House of Lords in
Airedale case, it has not clarified who can
decide whether life support should be
discontinued in the case of an incompetent
person e.g. a person in coma or PVS. This
vexed question has been arising often in
India because there are a large number of
cases where persons go into coma(due to an
accident or some other reason) or for some
other reason are unable to give consent,
and then the question arises as to who
should give consent for withdrawal of life
support. This is an extremely important
question in India because of the
unfortunate low level of ethical standards
to which our society has descended, its raw
and widespread commercialisation, and the
rampant corruption, and hence, the Court
has to be very cautious that unscrupulous
persons who wish to inherit the property of
someone may not get him eliminated by some
crooked method.”
38. TwoJudge Bench noticed that there is no statutory
provision in this country as to the legal procedure to
withdraw life support to a person in Persistent
Vegetative State (PVS) or who is otherwise incompetent
to take the decision in this connection. The court,
however, issued certain directions which were to
30
continue to be the law until Parliament makes a law on
this subject. In paragraph 124, following has been laid
down:
“124. There is no statutory provision in
our country as to the legal procedure for
withdrawing life support to a person in PVS
or who is otherwise incompetent to take a
decision in this connection. We agree with
Mr. Andhyarujina that passive euthanasia
should be permitted in our country in
certain situations, and we disagree with
the learned Attorney General that it should
never be permitted. Hence, following the
technique used in Vishaka case, we are
laying down the law in this connection
which will continue to be the law until
Parliament makes a law on the subject:
(i) A decision has to be taken to
discontinue life support either by the
parents or the spouse or other close
relatives, or in the absence of any of
them, such a decision can be taken even
by a person or a body of persons acting
as a next friend. It can also be taken
by the doctors attending the patient.
However, the decision should be taken
bona fide in the best interest of the
patient.
In the present case, we have
already noted that Aruna Shanbaug’s
parents are dead and other close
relatives are not interested in her
ever since she had the unfortunate
assault on her. As already noted above,
it is the KEM hospital staff, who have
been amazingly caring for her day and
night for so many long years, who
31
really are her next friends, and not
Ms. Pinki Virani who has only visited
her on few occasions and written a book
on her. Hence it is for the KEM
Hospital staff to take that decision.
KEM Hospital staff have clearly
expressed their wish that Aruna
Shanbaug should be allowed to live.
Mr. Pallav Shishodia, learned
Senior Counsel, appearing for the Dean,
KEM Hospital, Mumbai, submitted that
Ms. Pinki Virani has no locus standi in
this case. In our opinion it is not
necessary for us to go into this
question since we are of the opinion
that it is the KEM Hospital staff who
is really the next friend of Aruna
Shanbaug.
We do not mean to decry or
disparage what Ms. Pinki Virani has
done. Rather, we wish to express our
appreciation of the splendid social
spirit she has shown. We have seen on
the internet that she has been
espousing many social causes, and we
hold her in high esteem. All that we
wish to say is that however much her
interest in Aruna Shanbaug may be it
cannot match the involvement of the KEM
Hospital staff who have been taking
care of Aruna day and night for 38
years.
However, assuming that the KEM
Hospital staff at some future time
changes its mind, in our opinion in
such a situation KEM Hospital would
have to apply to the Bombay High Court
for approval of the decision to
withdraw life support.
32
(ii) Hence, even if a decision is taken by
the near relatives or doctors or next
friend to withdraw life support, such a
decision requires approval from the
High Court concerned as laid down in
Airedale case.
In our opinion, this is even more
necessary in our country as we cannot
rule out the possibility of mischief
being done by relatives or others for
inheriting the property of the
patient.”
G. LAW ON SUBJECT IN OTHER COUNTRIES
39. The debate on Euthanasia had gathered momentum in
last 100 years. The laws of different countries
expresses thoughts of people based on different culture,
philosophy and social conditions. Assisted suicide was
always treated as an offence in most of the countries.
Physician assisted suicide is also not accepted in most
of the countries except in few where it gain ground in
last century. In several countries including different
States of U.S.A., European Countries and United Kingdom,
various legislations have come into existence codifying
different provisions pertaining to physician assisted
suicide. The right to not commence or withdraw medical
33
treatment in case of terminally ill or PSV patients,
advance medical directives have also been made part of
different legislations in different countries.
40. Physician assisted suicide has not been accepted by
many countries. However, few have accepted it and made
necessary legislation to regulate it. Switzerland,
Netherlands, Belgium, Luxembourg, and American States of
Oregan, Washington, Montana and Columbia has permitted
physician assisted suicide with statutory regulations.
Courts in different parts of the world have dealt with
the subject in issue in detail. It is not necessary to
refer to different legislation of different countries
and the case law on subject of different countries. For
the purposes of this case, it shall be sufficient to
notice few leading cases of United Kingdom, United
States Supreme Court and few others countries.
United Kingdom
41. Euthanasia is criminal offence in the United
Kingdom. According to Section 2(1) of the Suicide Act,
1961, a person assisting an individual, who wish to die
34
commits an offence. The provision states that it is an
offence to aid, abet, counsel or procure the suicide of
another or an attempt by another to commit suicide,
however, it is not a crime if it is by their own hands.
There has been large parliamentary opposition to the
current United Kingdom Law concerning assisted suicide
but there has been no fundamental change in the law so
far. In 1997, the Doctor Assisted Dying Bill as well as
in 2000, the Medical Treatment (Prevention of
Euthanasia) Bill were not approved. The most celebrated
judgment of the House of Lords is Airedale N.H.S. Trust
Vs. Bland, (1993) A.C. 789.
42. Anthony David Bland was injured on 15th April, 1989
at the Hillsborough football ground in which his lungs
were crushed and punctured, the supply of oxygen to the
brain was interrupted. As a result, he sustained
catastrophic and irreversible damage to the higher
centres of the brain, which had left him in a condition
known as a persistent vegetative state(P.V.S.). Medical
opinion was unanimous that there was no hope of
improvement in his condition or recovery. At no time
35
before the disaster had the patient indicated his wishes
if he should find himself in such a condition. Bland's
father sought declarations that Hospital authorities may
discontinue all his lifesustaining treatment and
medical support measures and further lawfully
discontinue and thereafter need not furnish medical
treatment to the patient except for the sole purpose of
enabling the patient to end his life and die peacefully
with the greatest dignity and the least of pain,
suffering and distress.
43. The lower court granted the declarations sought for.
The court of appeal upheld the order. Official Solicitor
filed an appeal before the House of Lords. Lord Goff
held that it is not lawful for a doctor to administer a
drug to his patient to bring about his death, even
though that course is prompted by a humanitarian desire
to end his suffering. Such act is actively causing death
i.e. euthanasia which is not lawful. It was further
held that a case in which doctor decides not to provide
or continue to provide treatment or care, it may be
lawful. Following was stated by Lord Goff:
36
“First, it is established that the
principle of selfdetermination requires
that respect must be given to the wishes of
the patient, so that if an adult patient of
sound mind refuses, however unreasonably,
to consent to treatment or care by which
his life would or might be prolonged, the
doctors responsible for his care must give
effect to his wishes even though they do
not consider it to be in his best interests
to do so...........
To this extent, the principle of the
sanctity of human life must yield to the
principle of selfdetermination(see ante,
pp.826H827A, per Hoffmann L.J.), and, for
present purposes perhaps more important,
the doctor’s duty to act in the best
interests of his patient must likewise be
qualified. On this basis, it has been held
that a patient of sound mind may, if
properly informed, require that life
support should be discontinued: see Nancy
B. v. H”telDieu de Quebec (1992) 86 D.L.R.
(4th) 385. Moreover the same principle
applies where the patient's refusal to give
his consent has been expressed at an
earlier date, before he became unconscious
or otherwise incapable of communicating it;
though in such circumstances especial care
may be necessary to ensure that the prior
refusal of consent is still properly to be
regarded as applicable in the circumstances
which have subsequently occurred: see,
e.g., In re T.(Adult: Refusal of Treatment)
(1993) Fam.95. I wish to add that, in cases
of this kind, there is no question of the
patient having committed suicide, nor
therefore of the doctor having aided or
abetted him in doing so. It is simply that
the patient has, as he is entitled to do,
37
declined to consent to treatment which
might or would have the effect of
prolonging his life, and the doctor has, in
accordance with his duty, complied with his
patient's wishes................
I must however stress, at this point, that
the law draws a crucial distinction between
cases in which a doctor decides not to
provide, or to continue to provide, for his
patient treatment or care which could or
might prolong his life, and those in which
he decides, for example by administering a
lethal drug, actively to bring his
patient's life to an end. As I have already
indicated, the former may be lawful, either
because the doctor is giving effect to his
patient's wishes by withholding the
treatment or care, or even in certain
circumstances in which (on principles which
I shall describe) the patient is
incapacitated from stating whether or not
he gives his consent. But it is not lawful
for a doctor to administer a drug to his
patient to bring about his death, even
though that course is prompted by a
humanitarian desire to end his suffering,
however great that suffering may be: see
Reg. v. Cox (unreported), 18 September,
1992. So to act is to cross the Rubicon
which runs between on the one hand the care
of the living patient and on the other hand
euthanasiaactively causing his death to
avoid or to end his suffering. Euthanasia
is not lawful at common law. It is of
course well known that there are many
responsible members of our society who
believe that euthanasia should be made
lawful; but that result could, I believe,
only be achieved by legislation which
expresses the democratic will that so
fundamental a change should be made in our
38
law, and can, if enacted, ensure that such
legalised killing can only be carried out
subject to appropriate supervision and
control..................................
At the heart of this distinction lies a
theoretical question. Why is it that the
doctor who gives his patient a lethal
injection which kills him commits an
unlawful act and indeed is guilty of
murder, whereas a doctor who, by
discontinuing life support, allows his
patient to die, may not act unlawfully –
and will not do so, if he commits no breach
of duty to his patient ?”
44. Lord BrowneWilkinson in his judgment noticed the
following questions raised in the matter:
"(1) lawfully discontinue all lifesustaining
treatment and medical support
measures designed to keep (Mr. Bland) alive
in his existing persistent vegetative state
including the termination of ventilation,
nutrition and hydration by artificial
means; and
(2) lawfully discontinue and thereafter
need not furnish medical treatment to (Mr.
Bland) except for the sole purpose of
enabling (Mr. Bland) to end his life and
die peacefully with the greatest dignity
and the least of pain, suffering and
distress.”
Answering the questions following was held:
"Anthony Bland has been irreversibly brain
damaged; the most distinguished medical
39
opinion is unanimous that there is no
prospect at all that the condition will
change for the better. He is not aware of
anything. If artificial feeding is
discontinued and he dies, he will feel
nothing. Whether he lives or dies he will
feel no pain or distress. All the purely
physical considerations indicate that it is
pointless to continue life support. Only if
the doctors responsible for his care held
the view that, though he is aware of
nothing, there is some benefit to him in
staying alive, would there be anything to
indicate that it is for his benefit to
continue the..................
In these circumstances, it is perfectly
reasonable for the responsible doctors to
conclude that there is no affirmative
benefit to Anthony Bland in continuing the
invasive medical procedures necessary to
sustain his life. Having so concluded, they
are neither entitled nor under a duty to
continue such medical care. Therefore they
will not be guilty of murder if they
discontinue such care.”
45. Another judgment which needs to be noticed is Ms. B
Vs. An NHS Hospital Trust, 2002 EWHC 429. The claimant,
Ms. B has sought declaration from the High Court that
the invasive treatment which is currently being given by
the respondent by way of artificial ventilation is an
unlawful trespass. The main issue raised in the case is
as to whether Ms. B has the capacity to make her own
40
decision about her treatment in hospital. Ms. B, aged 43
years, had suffered a devastating illness which has
caused her to become tetraplegic and whose expressed
wish is not to be kept artificially alive by the use of
a ventilator. The High Court in the above context
examined several earlier cases on the principle of
autonomy. Paragraphs 16 to 22 are to the following
effect:
“16. In 1972 Lord Reid in S v McC: W v
W [1972] AC 25 said, at page 43:
“…English law goes to great lengths to
protect a person of full age and capacity
from interference with his personal
liberty. We have too often seen freedom
disappear in other countries not only by
coups d’état but by gradual erosion: and
often it is the first step that counts. So
it would be unwise to make even minor
concessions.”
17. In re F (Mental Patient:
Sterilisation) [1990] 2 AC 1, Lord Goff of
Chieveley said at page 72:
“I start with the fundamental principle,
now long established, that every person’s
body is inviolate.”
18. Lord Donaldson of Lymington, MR
said in re T (Adult: Refusal of Treatment)
[1993] Fam 95, at page 113:
“…. . the patient’s right of choice exists
41
whether the reasons for making that choice
are rational, irrational, unknown or even
nonexistent.”
19. In re T (Adult: Refusal of
Treatment), I cited Robins JA in Malette v
Shulman 67 DLR (4th) 321 at 336, and said
at page 116117:
“The right to determine what shall
be done with one’s own body is a
fundamental right in our society.
The concepts inherent in this
right are the bedrock upon which
the principles of selfdetermination
and individual
autonomy are based. Free
individual choice in matters
affecting this right should, in my
opinion, be accorded very high
priority.”
20. In re MB (Medical Treatment) [1997]
2 FLR 426, I said at 432:
“A mentally competent patient has
an absolute right to refuse to
consent to medical treatment for
any reason, rational or
irrational, or for no reason at
all, even where that decision may
lead to his or her own death”,
(referring to Sidaway v Board of
Governors of the Bethlehem Royal
Hospital and the Maudsley Hospital
[1985] AC 871, per Lord Templeman
at 904905; and to Lord Donaldson
M.R. in re T (Adult: Refusal of
Treatment) (see above)).
42
21. This approach is identical with the
jurisprudence in other parts of the world.
In Cruzan v Director, Missouri Department
of Health (1990) 110 S. Ct 2841, the United
States Supreme Court stated that:
“No right is held more sacred, or is more
carefully guarded… than the right of every
individual to the possession and control of
his own person, free from all restraint or
interference of others, unless by clear and
unquestionable authority of law.”
b. The sanctity of life
22. Society and the medical profession
in particular are concerned with the
equally fundamental principle of the
sanctity of life. The interface between the
two principles of autonomy and sanctity of
life is of great concern to the treating
clinicians in the present case. Lord Keith
of Kinkel in Airedale NHS Trust v Bland
[1993] AC 789, said at page 859:
“.. the principle of the sanctity
of life, which it is the concern
of the state, and the judiciary as
one of the arms of the state, … is
not an absolute one. It does not
compel a medical practitioner on
pain of criminal sanctions to
treat a patient, who will die if
he does not, contrary to the
express wishes of the patient.””
46. The judgment of House of Lords in Regina (Pretty)
Vs. Director of Public Prosecutions (Secretary of State
43
for the Home Department intervening),(2002) 1 AC 800,
also needs to be referred to. The claimant, who suffered
from a progressive and degenerative terminal illness,
faced the imminent prospect of a distressing and
humiliating death. She was mentally alert and wished to
control the time and manner of her dying but her
physical disabilities prevented her from taking her life
unaided. She wished her husband to help her and he was
willing to do so provided that in the event of his
giving such assistance he would not be prosecuted under
Section 2(1) of the Suicide Act, 1961. The claimant
accordingly requested the Director of Public
Prosecutions to undertake that he would not consent to
such a prosecution under Section 2(4). On his refusal to
give that undertaking the claimant, in reliance on
rights guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms as
Schedule to the Human Rights Act, 1998, sought relief by
way of judicial review.
47. The Divisional Court of the Queen's Bench Division
concluded that the Director has no power to give an
44
undertaking and dismissed the claim. The House of Lords
again reiterated the distinction between the cessation
of lifesaving or lifeprolonging treatment on the one
hand and the taking of action intended solely to
terminate life on the other. In paragraph 9 of the
judgment following was held:
“9. In the Convention field the
authority of domestic decisions is
necessarily limited and, as already noted,
Mrs Pretty bases her case on the
Convention. But it is worthy of note that
her argument is inconsistent with E two
principles deeply embedded in English law.
The first is a distinction between the
taking of one's own life by one's own act
and the taking of life through the
intervention or with the help of a third
party. The former has been permissible
since suicide ceased to be a crime in 1961.
The latter has continued to be proscribed.
The distinction was very clearly expressed
by Hoffmann LJ in Airedale NHS Trust v
Bland [1993] AC 789, 831:F
"No one in this case is suggesting
that Anthony Bland should be given
a lethal injection. But there is
concern about ceasing to supply
food as against, for example,
ceasing to treat an infection with
antibiotics. Is there any real
distinction? In order to come to
terms with our intuitive feelings
about whether there is a
distinction, I must start by
considering why most of us would
45
be appalled if he was given a
lethal injection. It is, I think,
connected with our view that the
sanctity of life entails its
inviolability by an outsider.
Subject to exceptions like selfdefence,
human life is inviolate
even if the person in question has
consented to its violation. That
is why although suicide is not a
crime, assisting someone to commit
suicide is. It follows that, even
if we think Anthony Bland would
have consented, we would not be
entitled to end his life by a
lethal injection."
The second distinction is between the
cessation of lifesaving or lifeprolonging
treatment on the one hand and the taking of
action lacking medical, therapeutic or
palliative justification but intended
solely to terminate life on the other. This
distinction provided the rationale of the
decisions in Bland. It was very succinctly
expressed in the Court of Appeal In re] (A
Minor) (Wardship: Medical Treatment) [1991]
Fam 33, in which A Lord Donaldson of
Lymington MR said, at p 46:
"What doctors and the court have
to decide is whether, in the best
interests of the child patient, a
particular decision as to medical
treatment should be taken which as
a side effect will render death
more or less likely. This is not a
matter of semantics. It is
fundamental. At the other end of
the age spectrum, the use of drugs
to reduce pain will often be fully
8 justified, notwithstanding that
46
this will hasten the moment of
death. What can never be justified
is the use of drugs or surgical
procedures with the primary
purpose of doing so."
United States of America
48. The State of New York in 1828 enacted a statute
declaring assisted suicide as a crime. New York example
was followed by different other States.
49. Cardozo, J., about a century ago in Schloendroff Vs.
Society of New York Hospital, 211 N.Y. 125, while in
Court of Appeal had recognised the right of selfdetermination
by every adult human being. Following was
held:
"Every human being of adult years and sound
mind has a right to determine what shall be
done with his own body; and a surgeon who
performs an operation without his patient's
consent commits an assault, for which he is
liable in damages. Pratt v. Davis, 224
Ill., 300, 79 N.E. 562, 7 L.R.A. (N.S.)
609, 8 Ann. Cas, 197: Mohr v. Williams, 95
Minn. 261, 104 N.W. 12.1 L.R. A.(N.S.), 111
Am. St. Rep. 462, 5 Ann. Cas, 303. This is
true, except in cases of emergency where the
patient is unconscious, and where it is
necessary to operate before consent can be
obtained.”
47
50. Supreme Court of United States of America in Nancy
Beth Cruzan Vs. Director, Missouri Department of Health,
497 U.W. 261, had occasion to consider a case of
patient who was in persistent vegetative state, her
guardian brought a declaratory judgment seeking judicial
sanction to terminate artificial hydration and nutrition
of patient. The Supreme Court recognised right possessed
by every individual to have control over own person.
Following was held by Rehnquist, CJ:
"At common law, even the touching of
one person by another without consent and
without legal justification was a battery.
See W. Keeton, D.Dobbs, R. Keeton, & D.
Owen, Prosser and Keeton on Law of Torts,
9, pp.3942 (5th ed. 1984). Before the turn
of the century, this Court observed that
“no right is held more sacred, or is more
carefully guarded, by the common law, than
the right of every individual to the
possession and control of his own person,
free from all restraint or interference of
others, unless by clear and unquestionable
authority of law.” Union Pacific R. Co. v.
Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000,
1001, 35 L.Ed. 734 (1891). This notion of
bodily integrity has been embodied in the
requirement that informed consent is
generally required for medical treatment.
Justice Cardozo, while on the Court of
Appeals of New York, aptly described this
doctrine: “Every human being of adult years
and sound mind has a right to determine
48
what shall be done with his own body; and a
surgeon who performs an operation without
his patient's consent commits an assault,
for which he is liable in damages,”
Schloendorff v. Society of New York
Hospital, 211 N.Y. 125, 129130, 105 N.E.
92, 93 (1914). The informed consent
doctrine has become firmly entrenched in
American tort law. See Keeton, Dobbs,
Keeton, & Owen, supra, 32, pp.189192; F.
Rozovsky, Consent to Treatment, A Practical
Guide 198 (2d ed. 1990).
The logical corollary of the doctrine
of informed consent is that the patient
generally possesses the right, not to
consent, that is, to refuse treatment.”
51. Referring to certain earlier cases following was
held:
“Reasoning that the right of selfdetermination
should not be lost merely
because an individual is unable to sense a
violation of it, the court held that
incompetent individuals retain a right to
refuse treatment. It also held that such a
right could be exercised by a surrogate
decision maker using a “subjective”
standard when there was clear evidence that
the incompetent person would have exercised
it. Where such evidence was lacking, the
court held that an individual's right could
still be invoked in certain circumstances
under objective “best interest” standards.
Id., at 361368, 486 A.2d, at 12291233.
Thus, if some trustworthy evidence existed
that the individual would have wanted to
terminate treatment, but not enough to
49
clearly establish a person's wishes for
purposes of the subjective standard, and
the burden of a prolonged life from the
experience of pain and suffering markedly
outweighed its satisfactions, treatment
could be terminated under a “limitedobjective”
standard. Where no trustworthy
evidence existed, and a person's suffering
would make the administration of lifesustaining
treatment inhumane, a “pureobjective”
standard could be used to
terminate treatment. If none of these
conditions obtained, the court held it was
best to err in favour of preserving life.
Id., at 364368, 486 A.2d, at 12311233.”
In the facts of the above case, the claim of parents
of Cruzan was refused since guardian could not
satisfactorily prove that Cruzan had expressed her wish
not to continue her life under circumstances in which
she drifted.
52. All different aspects of euthanasia were again
considered by the United States Supreme Court in
Washington, Et Al,, Vs. Harold Glucksberg Et Al, 521 US
702 equivalent to 138 L.Ed 2d 772. A Washington State
statute enacted in 1975 provided that a person was
guilty of the felony of promoting a suicide attempt when
the person knowingly caused or aided another person to
50
attempt suicide. An action was brought in the United
States District Court for the Western District of
Washington by several plaintiffs, among whom were (1)
physicians who occasionally treated terminally ill,
suffering patients, and (2) individuals who were then in
the terminal phases of serious and painful illness. The
plaintiffs, asserting the existence of a liberty
interest protected by the Federal Constitution's
Fourteenth Amendment which extended to a personal choice
by a mentally competent, terminally ill adult to commit
physicianassisted suicide, sought a declaratory
judgment that the Washington Statute was
unconstitutional on its face. The District Court,
granting motions for summary judgment by the physicians
and the individuals, ruled that the statute was
unconstitutional because it placed an undue burden on
the exercise of the asserted liberty interest (850 F
Supp 1454, 1994 US Dist LEXIS 5831). On appeal, the
United States Court of Appeals for the Ninth Circuit,
expressed the view that (1) the Constitution encompassed
a due process liberty interest in controlling the time
51
and manner of one's death; and (2) the Washington
Statute was unconstitutional as applied to terminally
ill, competent adults who wished to hasten their deaths
with medication prescribed by their physicians (79 F3d
790, 1996 US App LEXIS 3944).
53. On certiorari, the United States Supreme Court
reversed. In an opinion by Rehnquist, C.J., joined by
O'Connor, Scalia, Kennedy, and Thomas, JJ., it was held
that the Washington Statute did not violate the due
process clause either on the Statute's face or as the
Statute was applied to competent, terminally ill adults
who wished to hasten their deaths by obtaining
medication prescribed by their physicians – because (1)
pursuant to careful formulation of the interest at
stake, the question was whether the liberty specially
protected by the due process clause included a right to
commit suicide which itself included a right to
assistance in doing so; (2) an examination of the
nation's history, legal traditions, and practices
revealed that the asserted right to assistance in
committing suicide was not a fundamental liberty
52
interest protected by the due process clause; (3) the
asserted right to assistance in committing suicide was
not consistent with the Supreme Court's substantive due
process line of cases; and (4) the State's assisted
suicide ban was at least reasonably related to the
promotion and protection of a number of Washington's
important and legitimate interests.
54. The US Supreme Court held that Washington statute
did not violate the due process clause. CJ, Rehnquist
while delivering the opinion of the Court upheld the
State's ban on assisted suicide to the following effect:
"...In almost every Stateindeed, in almost
every western democracyit is a crime to
assist a suicide. The States' assistedsuicide
bans are longstanding expressions
of the States' commitment to the protection
and preservation of all human life. Cruzan,
supra, at 280, 111 L.Ed 2d 224, 110 S Ct
2841 (“The Statesindeed, all civilized
nationsdemonstrate their commitment to
life by treating homicide as a serious
crime. Moreover, the majority of States in
this country have laws imposing criminal
penalties on one who assists another to
commit suicide”); see Stanford v. Kentucky,
492 US 3561, 373, 106 L ED 2d 306, 109 S Ct
2969 (1989) (“The primary and most reliable
indication of a national consensus is ...
the pattern of enacted laws”). Indeed,
opposition to and condemnation of suicide
53
and, therefore, of assisting suicideare
consistent and enduring themes of our
philosophical, legal, and cultural
heritages.”
55. Another judgment of US Supreme Court which needs to
be noted is Dennis C. Vacco, Attorney General of New
York, Et Al. Vs. Timothy E. Quill Et Al, 521 US 793. New
York state law as in effect in 1994 provided that a
person who intentionally caused or aided another person
to attempt or commit suicide was guilty of felony; but
under other statutes, a competent person could refuse
even lifesaving medical treatment. Plaintiff sought
declaratory relief and injunctive against the
enforcement of criminal law asserting that such law is
violative of statutes of the Federal Constitution
Fourteenth Amendment.
56. Rehnquist, CJ. in his opinion again upheld
distinction between assisted suicide and withdrawing of
life sustaining treatment. Following was laid down:
"[1d] The Court of Appeals, however,
concluded that some terminally ill peoplethose
who are on life support systemsare
treated differently from those who are not,
in that the former may “hasten death” by
54
ending treatment, but the latter may not
“hasten death” through physicianassisted
suicide. 80 F.3d, at 729. This conclusion
depends on the submission that ending or
refusing lifesaving medical treatment “is
nothing more nor less than assisted
suicide.” Ibid. Unlike the Court of
Appeals, we think the distinction between
assisting suicide and withdrawing lifesustaining
treatment, a distinction widely
recognised and endorsed in the medical
profession and in our legal traditions, is
both important and logical; it is certainly
rational...
The distinction comports with
fundamental legal principles of causation
and intent. First, when a patient refuses
lifesustaining medical treatment, he dies
from an underlying fatal disease or
pathology; but if a patient ingests lethal
medication prescribed by a physician, he is
killed by that medication....
Furthermore, a physician who withdraws,
or honors a patient's refusal to begin,
lifesustaining medical treatment
purposefully intends, or may so intend,
only to respect his patient's wishes and
“to cease doing useless and futile or
degrading things to the patient when the
patient no longer stands to benefit from
them.”
57. However, there are four States which have passed
legislation permitting euthanasia. These States include
Oregon, Washington, Missouri and Texas.
55
Canada
58. Section 241(b) of the Criminal Code provides that
everyone who aids or abets a person in committing
suicide commits an indictable offence. In Rodriguez Vs.
British Columbia (Attorney General), 1993 (3) SCR 519,
the Supreme Court of Canada has considered the issue of
assisted suicide. A 42 year old lady who was suffering
from an incurable illness applied before the Supreme
Court of British Columbia for an order that Section
241(b) which prohibits giving assistance to commit
suicide, be declared invalid. The application was
dismissed and the matter was taken to the Supreme Court
of Canada which held that prohibition of Section 241(b)
which fulfils the government's objective of protecting
the vulnerable, is grounded in the State interest in
protecting life and reflects the policy of the State
that human life should not be depreciated by allowing
life to be taken.
Switzerland
59. In Switzerland the assisted suicide is allowed only
56
for altruistic reasons. A person is guilty and deserved
to be sentenced for imprisonment on assisted suicide
when he incites someone to commit suicide for selfish
reasons.
Netherlands
60. The Netherlands has the most experience with
physicianhastened death. Both euthanasia and assisted
suicide remain crimes there but doctors who end their
patients' lives will not be prosecuted if legal
guidelines are followed. Among the guidelines are:
31. The request must be made entirely of the
patient's own free will.
32. The patient must have a longlasting desire for
death.
33. The patient must be experiencing unbearable
suffering.
34. There must be no reasonable alternatives to
relative suffering other than euthanasia.
35. The euthanasia or assisted suicide must be
reported to the coroner.
61. The above discussion clearly indicates that predominant
thought as on date prevailing in other part of
57
the World is that assisted suicide is a crime. No one is
permitted to assist another person to commit suicide by
injecting a lethal drug or by other means. In India,
Section 306 of the Indian Penal Code specifically makes
it an offence. The Constitution Bench of this Court in
Gian Kaur (supra) has already upheld the constitutional
validity of Section 306, 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 relive the patient from pain and suffering.
H. RATIO OF GIAN KAUR VS. STATE OF PUNJAB
62. In Gian Kaur’s case (supra), the constitutional
validity of Section 306 of Indian Penal Code, 1860 was
challenged. The appellant had placed reliance on Two
Judge Bench Judgment of this Court in P. Rathinam Vs.
Union of India (supra), where this Court declared
Section 309 IPC to be unconstitutional as violative of
Article 21 of the Constitution. It was contended that
Section 309 having already been declared as
58
unconstitutional, any person abetting the commission of
suicide by another is merely assisting in the
enforcement of the fundamental right under Article 21
and, therefore, Section 306 IPC penalising assisted
suicide is equally violative of Article 21. The Court
proceeded to consider the constitutional validity of
Section 306 on the above submission. In Para 17 of the
judgment, this Court had made observation that reference
to euthanasia cases tends to befog the real issue.
Following are the relevant observations made in Para
17:
“....Any further reference to the global
debate on the desirability of retaining a
penal provision to punish attempted suicide
is unnecessary for the purpose of this
decision. Undue emphasis on that aspect and
particularly the reference to euthanasia
cases tends to befog the real issue of the
constitutionality of the provision and the
crux of the matter which is determinative
of the issue.”
The Constitution Bench held that Article 21 does not
include right to die. Paragraph 22 of the judgment
contains the ratio in following words:
“....Whatever may be the philosophy of
59
permitting a person to extinguish his life
by committing suicide, we find it difficult
to construe Article 21 to include within it
the “right to die” as a part of the
fundamental right guaranteed therein.
“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”.....”
Although, right to die was held not to be a
fundamental right enshrined under Article 21 but it was
laid down that the right to life includes right to live
with human dignity, i.e., right of a dying man to also
die with dignity when his life is ebbing out. Following
pertinent observations have been made in Para 24:
“....The “right to life” including the
right to live with human dignity would mean
the existence of such a right up to the end
of natural life. This also includes the
right to a dignified life up to the point
of death including a dignified procedure of
death. In other words, this may include the
right of a dying man to also die with
dignity when his life is ebbing out. But
the “right to die” with dignity at the end
of life is not to be confused or equated
with the “right to die” an unnatural death
curtailing the natural span of life.”
63. The Constitution Bench, however, noticed the
60
distinction between a dying man, who is terminally ill
or in a persistent vegetative state, when process of
natural death has commenced, from one where life is
extinguished. The Court, however, held that permitting
termination of life to such cases to reduce the period
of suffering during the process of certain natural death
is not available to interpret Article 21 to include
therein the right to curtail the natural span of life.
Paragraph 25 of the judgment is to the following
effect:
“25. A question may arise, in the context
of a dying man who is terminally ill or in
a persistent vegetative state that he may
be permitted to terminate it by a premature
extinction of his life in those
circumstances. This category of cases may
fall within the ambit of the “right to die”
with dignity as a part of right to live
with dignity, when death due to termination
of natural life is certain and imminent and
the process of natural death has commenced.
These are not cases of extinguishing life
but only of accelerating conclusion of the
process of natural death which has already
commenced. The debate even in such cases to
permit physicianassisted termination of
life is inconclusive. It is sufficient to
reiterate that the argument to support the
view of permitting termination of life in
such cases to reduce the period of
61
suffering during the process of certain
natural death is not available to interpret
Article 21 to include therein the right to
curtail the natural span of life.”
64. The Constitution Bench in above paragraphs has
observed that termination of life in case of those who
are terminally ill or in a persistent vegetative state,
may fall within the ambit of “right to die” with dignity
as a part of right to live with dignity when death due
to termination of natural life is certain and imminent
and process of natural death has commenced. But even in
those cases, physician assisted termination of life can
not be included in right guaranteed under Article 21.
One more pertinent observation can be noticed from Para
33, where this Court held that:
“33. ....We have earlier held that
“right to die” is not included in the
“right to life” under Article 21. For the
same reason, “right to live with human
dignity” cannot be construed to include
within its ambit the right to terminate
natural life, at least before
commencement of the natural process of
certain death....”
(emphasis by us)
62
65. The distinction between cases where physician
decides not to provide or to discontinue to provide for
treatment or care, which could or might prolong his life
and those in which he decides to administer a lethal
drug, was noticed while referring to the judgment of the
House of Lords’s case in Airedale’s case (supra). In
Airedale’s case (supra), it was held that it is not
lawful for a doctor to administer a drug to his patient
to bring about his death. Euthanasia is not lawful at
common law and euthanasia can be made lawful only by
legislation. It is further relevant to notice that in
Para 40, this Court had observed that it is not
necessary to deal with physician assisted suicide or
euthanasia cases. Paragraph 40, is as follows:
“40. Airedale N.H.S. Trust v. Bland was a
case relating to withdrawal of artificial
measures for continuance of life by a
physician. Even though it is not necessary
to deal with physicianassisted suicide or
euthanasia cases, a brief reference to this
decision cited at the Bar may be made. In
the context of existence in the persistent
vegetative state of no benefit to the
patient, the principle of sanctity of life,
which is the concern of the State, was
stated to be not an absolute one. In such
63
cases also, the existing crucial
distinction between cases in which a
physician decides not to provide, or to
continue to provide, for his patient,
treatment or care which could or might
prolong his life, and those in which he
decides, for example, by administering a
lethal drug, actively to bring his
patient’s life to an end, was indicated and
it was then stated as under: (All ER p. 867
: WLR p. 368)
“… But it is not lawful for a
doctor to administer a drug to his
patient to bring about his death,
even though that course is
prompted by a humanitarian desire
to end his suffering, however
great that suffering may be [see
R. v. Cox, (1891992,
unreported)] per Ognall, J. in the
Crown Court at Winchester. So to
act is to cross the Rubicon which
runs between on the one hand the
care of the living patient and on
the other hand euthanasia —
actively causing his death to
avoid or to end his suffering.
Euthanasia is not lawful at common
law. It is of course well known
that there are many responsible
members of our society who believe
that euthanasia should be made
lawful; but that result could, I
believe, only be achieved by
legislation which expresses the
democratic will that so
fundamental a change should be
made in our law, and can, if
enacted, ensure that such
legalised killing can only be
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carried out subject to appropriate
supervision and control. …”
66. A conjoint reading of observations in Paras 25, 33
and 40 indicates that although for a person terminally
ill or in PSV state, whose process of natural death has
commenced, termination of life may fall in the ambit of
right to die with dignity but in those cases also there
is no right of actively terminating life by a physician.
The clear opinion has thus been expressed that
euthanasia is not lawful. But at the same time, the
Constitution Bench has noticed the distinction between
the cases in which a physician decides not to provide or
to continue to provide for his patient's treatment or
care which could or might prolong his life and those in
which physician decides actively to bring life to an
end. The ratio of the judgment is contained in
Paragraph 22 and 24, which is to the following effect:
(i)“....Whatever may be the philosophy of
permitting a person to extinguish his life
by committing suicide, we find it difficult
to construe Article 21 to include within it
the “right to die” as a part of the
fundamental right guaranteed therein.
65
“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”.....”
(ii)“....The “right to life” including the
right to live with human dignity would mean
the existence of such a right up to the end
of natural life. This also includes the
right to a dignified life up to the point
of death including a dignified procedure of
death. In other words, this may include the
right of a dying man to also die with
dignity when his life is ebbing out. But
the “right to die” with dignity at the end
of life is not to be confused or equated
with the “right to die” an unnatural death
curtailing the natural span of life.”
67. We have noticed above that in Para 17, this Court
had observed that reference to euthanasia cases tends to
befog the real issue and further in Para 40, it was
observed that “even though it is not necessary to deal
with physician assisted suicide or euthanasia cases”;
the Constitution Bench has neither considered the
concept of euthanasia nor has laid down any ratio
approving euthanasia.
68. At best, the Constitution Bench noted a difference
between cases in which physician decides not to provide
66
or to continue to provide for medical treatment or care
and those cases where he decides to administer a lethal
drug activity to bring his patient’s life to an end. The
judgment of House of Lords in Airedale’s case (supra)
was referred to and noted in the above context. The
Airedale’s case (supra) was cited on behalf of the
appellant in support of the contention that in said case
the withdrawal of life saving treatment was held not to
be unlawful.
69. We agree with the observation made in the reference
order of the threeJudge Bench to the effect that the
Constitution Bench 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.
I. CONCEPT OF EUTHANASIA
70. Euthanasia is derived from the Greek words
euthanatos; eu means well or good and thanatos means
death. New Webster's Dictionary (Deluxe Encyclopedic
Edition) defines Euthanasia as following:
67
"A painless putting to death of persons
having an incurable disease; an easy death.
Also mercy killing.”
71. The Oxford English Dictionary defines 'euthanasia':
“The painless killing of a patient suffering from an
incurable and painful disease or in an irreversible
coma”. The definition of the word 'euthanasia' as given
by the World Health Organisation may be noticed which
defines it as: “A deliberate act undertaken by one
person with the intention of either painlessly putting
to death or failing to prevent death from natural causes
in cases of terminal illness or irreversible coma of
another person”.
72. In ancient Greek Society, Euthanasia as 'good death'
was associated with the drinking of 'Hemlock'. Drinking
of Hemlock had become common not only in cases of
incurable diseases but also by those individuals who
faced other difficult problems or old age. In ancient
times, in Greece freedom to live was recognised
principle, which permitted the sick and desperates to
terminate their lives by themselves or by taking outside
68
help. In last few centuries, Euthanasia increasingly
came to connote specific measures taken by physicians
to hasten the death. The primary meaning, as has now
been ascribed to the word is compassionate murder. In
the last century, the thought has gained acceptance that
Euthanasia is to be distinguished from withdrawal of
life saving treatments which may also result in death.
Withdrawing medical treatment in a way hasten the death
in case of terminal illness or Persistent Vegetative
State (PVS) but is not to be treated as compassionate
murder. Advancement in the medical science on account of
which life can be prolonged by artificial devices are
the developments of only last century. Lord Browne
Wilkinson, J., in Airedale N.H.A. Trust v. Bland, 1993
(2) W.L.R. 316 (H.L.), at page 389 observed:
“....Death in the traditional sense was
beyond human control. Apart from cases of
unlawful homicide, death occurred
automatically in the course of nature when
the natural functions of the body failed to
sustain the lungs and the heart. Recent
developments in medical science have
fundamentally affected these previous
certainties. In medicine, the cessation of
breathing or of heartbeat is no longer
69
death. By the use of a ventilator, lungs
which in the unaided course of nature would
have stopped breathing can be made to
breathe, thereby sustaining the heartbeat.
Those, like Anthony Bland, who would
previously have died through inability to
swallow food can be kept alive by
artificial feeding. This has led the
medical profession to redefine death in
terms of brain stem death, i.e., the death
of that part of the brain without which the
body cannot function at all without
assistance. In some cases it is now
apparently possible, with the use of the
ventilator, to sustain a beating heart even
though the brain stem, and therefore in
medical terms the patient, is dead; “the
ventilated corpse.”
73. In recent times, three principles had gained
acceptance throughout the world they are:
1. Sanctity of life
2. Right of selfdetermination
3. Dignity of the individual human being
74. The sanctity of life is one thought which is
philosophically, religiously and mythologically accepted
by the large number of population of the world practicing
different faiths and religions. Sanctity of life entails
it's inviolability by an outsider. Sanctity of life is
the concern of State.
70
75. Right of selfdetermination also encompasses in it
bodily integrity. Without consent of an adult person, who
is in fit state of mind, even a surgeon is not authorised
to violate the body. Sanctity of the human life is the
most fundamental of the human social values. The
acceptance of human rights and development of its
meaning in recent times has fully recognised the dignity
of the individual human being. All the above three
principles enable an adult human being of conscious mind
to take decision regarding extent and manner of taking
medical treatment. 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. Euthanasia, as noted
above, as the meaning of the word 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.
J. WITHDRAWAL OF LIFE SAVING DEVICES
76. Withdrawal of medical assistance or withdrawal of
71
medical devices which artificially prolong the life
cannot be regarded as an act to achieve a good death.
Artificial devices to prolong the life are implanted,
when a person is likely to die due to different causes
in his body. Life saving treatment and devices are put
by physicians to prolong the life of a person. The Law
Commission of India in its 196th Report on “Medical
Treatment to Terminally Ill Patients (Protection of
Patients and Medical Practitioners)” on the subject had
put introductory note to the following effect:
“The title to this Report immediately
suggests to one that we are dealing with
‘Euthanasia’ or ‘Assisted Suicide’. But we
make it clear at the outset that Euthanasia
and Assisted Suicide continue to be
unlawful and we are dealing with a
different matter ‘Withholding Lifesupport
Measures’ to patients terminally ill and,
universally, in all countries, such
withdrawal is treated as ‘lawful’.”
77. The Law Commission of India was of the opinion that
withdrawing life supporting measures of patient
terminally ill is a concept, different from Euthanasia.
The opinion of Cardozo, J., rendered more than hundred
years ago that every human being of adult years and
72
sound mind has a right to determine what shall be done
with his own body, is now universally accepted
principle. The judgment of the U.S. Supreme Court and
House of Lords, as noticed above, also reiterate the
above principle.
78. Recently, in a nineJudges judgment in K.S.
Puttaswamy and Another Vs. Union of India and Others,
(2017) 10 SCC 1, Justice J. Chelameswar elaborating the
concept of right to life as enshrined in Article 21
under the Constitution of India has observed:
“An individual's right to refuse the
lifeprolonging medical treatment or
terminate life is another freedom which
falls within the zone of right of privacy.”
79. Withdrawal of lifesaving devices, leads to natural
death which is arrested for the time being due to above
device and the act of withdrawal put the life on the
natural track. Decision to withdraw lifesaving devices
is not an act to cause good death of the person rather,
decision to withdraw or not to initiate lifesupporting
measures is a decision when treatment becomes futile and
unnecessary. Practice of Euthanasia in this country is
73
prohibited and for medical practitioners it is already
ordained to be unethical conduct. The question as to
what should be the measures to be taken while taking a
decision to withdraw lifesaving measures or lifesaving
devices is another question which we shall consider a
little later.
80. TwoJudge Bench in Aruna Ramachandra Shanbaug Vs.
Union of India and Ors., (2011) 4 SCC 454 has held that
withdrawal of livesaving measures is a passive
Euthanasia which is permissible in India. 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
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
74
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 in this country and
weight of precedents of other countries as noted above,
such action of withdrawing life saving device is legal.
Thus, such acts, which are commonly expressed as passive
euthanasia is lawful and legally permissible in this
country.
81. We remind ourselves that this Court is not a
legislative body nor is entitled or competent to act as
a moral or ethical arbiter. The task of this Court is
not to weigh or evaluate or reflect different believes
and views or give effect to its own but to ascertain and
build the law of land as it is now understood by all.
Message which need to be sent to vulnerable and
disadvantaged people should not, however, obliviously to
encourage them to seek death but should assure them of
care and support in life.
82. We thus are of the considered opinion that the act
75
of withdrawal from livesaving devices is an independent
right which can lawfully be exercised by informed
decision.
K. DECISION FOR WITHDRAWAL OF LIFESAVING TREATMENT IN
CASE OF A PERSON WHO IS INCOMPETENT TO TAKE AN
INFORMED DECISION.
83. One related aspect which needs to be considered is
that is case of those patients who are incompetent to
decide due to their mental state or due to the fact that
they are in permanent persistent vegetative state or due
to some other reasons unable to communicate their
desire. When the right of an adult person who expresses
his view regarding medical treatment can be regarded as
right flowing from Article 21 of the Constitution of
India, the right of patient who is incompetent to
express his view cannot be outside the fold of Article
21 of the Constitution of India. It is another issue, as
to how, the decision in cases of mentally incompetent
patients regarding withdrawal of lifesaving measures,
is to be taken.
76
84. The rights of bodily integrity and selfdetermination
are the rights which belong to every human
being. When an adult person having mental capacity to
take a decision can exercise his right not to take
treatment or withdraw from treatment, the above right
cannot be negated for a person who is not able to take
an informed decision due to terminal illness or being a
Persistent Vegetative State (PVS). The question is who
is competent to take decision in case of terminallyill
or PVS patient, who is not able to take decision. In
case of a person who is suffering from a disease and is
taking medical treatment, there are three stake holders;
the person himself, his family members and doctor
treating the patient. The American Courts give
recognition to opinion of “surrogate” where person is
incompetent to take a decision. No person can take
decision regarding life of another unless he is entitled
to take such decision authorised under any law. The
English Courts have applied the “best interests” test in
case of a incompetent person. The best interests of the
patient have to be found out not by doctor treating the
77
patient alone but a team of doctors specifically
nominated by the State Authority. In Aruna Shanbaug
(supra), twoJudge Bench of this Court has opined that
in such cases relying on doctrine of ‘parens patriae
(father of the country)’, it is the Court alone which is
entitled to take a decision whether to withdraw
treatment for incompetent terminallyill or PVS patient.
In paragraphs 130 and 131 following has been held:
“130. In our opinion, in the case of an
incompetent person who is unable to take a
decision whether to withdraw life support
or not, it is the Court alone, as parens
patriae, which ultimately must take this
decision, though, no doubt, the views of
the near relatives, next friend and doctors
must be given due weight.
Under which provision of law can the Court
grant approval for withdrawing life support
to an incompetent person
131. In our opinion, it is the High
Court under Article 226 of the Constitution
which can grant approval for withdrawal of
life support to such an incompetent
person. Article 226(1) of the Constitution
states :
"226. Power of High Courts to
issue certain writs.
(1)Notwithstanding anything
78
in article 32, every High Court
shall have power, throughout the
territories in relation to which it
exercises jurisdiction, to issue to
any person or authority, including
in appropriate cases, any
Government, within those
territories directions, orders or
writs, including writs in the
nature of habeas corpus, mandamus,
prohibition, quo warranto and
certiorari, or any of them, for the
enforcement of any of the rights
conferred by Part III and for any
other purpose".
(emphasis supplied)
A bare perusal of the above provisions
shows that the High Court under Article 226 of
the Constitution is not only entitled to
issue writs, but is also entitled to issue
directions or orders.”
85. Various learned counsel appearing before us have
submitted that seeking declaration from the High Court
in cases where medical treatment is needed to be
withdrawn is time taking and does not advance the object
nor is in the interest of terminallyill patient. It is
submitted that to keep check on such decisions, the
State should constitute competent authorities consisting
of predominantly experienced medical practitioners
79
whose decision may be followed by all concerned with a
rider that after taking of decision by competent body a
cooling period should be provided to enable anyone
aggrieved from the decision to approach a Court of Law.
We also are of the opinion that in cases of incompetent
patients who are unable to take an informed decision, it
is in the best interests of the patient that the
decision be taken by competent medical experts and that
such decision be implemented after providing a cooling
period at least of one month to enable aggrieved person
to approach the Court of Law. The best interest of the
patient as determined by medical experts shall meet the
ends of justice. The medical team by taking decision
shall also take into consideration the opinion of the
blood relations of the patient and other relevant facts
and circumstances.
L. ADVANCE MEDICAL DIRECTIVE
86. The petitioner by the Writ Petition has also sought
a direction to the respondent to adopt suitable
procedures to ensure that persons of deteriorated health
80
or terminally ill should be able to execute a document
titled “MY LIVING WILL & ATTORNEY AUTHORISATION”. The
petitioner submits that it is an important personal
decision of the patient to use or not to use the life
sustaining treatment in case of terminal illness and
stage of persistent vegetative state. The petitioner
pleads that the petitioner’s endeavour is only to seek a
‘choice’ for the people which is not available at
present and they are left to the mercy of doctors who to
save themselves from any penal consequences half
heartedly, despite knowing that the death is inevitable
continue administering the treatment which the person
might not have wanted to continue with. A person will
be free to issue advance directives both in a positive
and negative manner, meaning thereby that a person is
not necessarily required to issue directive that the
life sustaining treatment should not be given to him in
the event of he or she going into persistent vegetative
state or in an irreversible state. The person can also
issue directives as to all the possible treatment which
should be given to him when he is not able to express
81
his/her wishes on medical treatment. The petitioner
also refers to and rely on various legislations in
different countries, which recognises the concept of
advance medical directive. Petitioner pleads that in
India also law in the nature “Patient Autonomy & Selfdetermination
Act” should be enacted. Petitioner has
also alongwith his Writ Petition has annexed a draft
titling it “Patient’s Selfdetermination Act”.
87. The concept of advance medical directive is also
called living will is of recent origin, which gained
recognition in latter part of 20th century. The advance
medical directive has been recognised first by Statute
in United States of America when in the year 1976, State
of California passed “Natural Death Act”. It is claimed
that 48 states out of 50 in the United States of America
have enacted their own laws regarding Patient’s Rights
and advance medical directives. Advance medical
directive is a mechanism through which individual
autonomy can be safeguarded in order to provide dignity
in dying. As noted above, the Constitution Bench of
this Court in the case of Gian Kaur (supra) has laid
82
down that right to die with dignity is enshrined in
Article 21 of the Constitution. It is to be noticed
that advance medical directives are not exclusively
associated with end of life decisions. However, it is
vital to ensure that form of an advance medical
directive reflects the needs of its author and is
sufficiently authoritative and practical to enable its
provisions to be upheld. In most of the western
countries advance medical directives have taken a
legalistic form incorporating a formal declaration to be
signed by competent witnesses. The laws also make
provisions for updating confirmation of its
applicability and revocation. Protecting the individual
autonomy is obviously the primary purpose of an advance
medical directive. The right to decide one’s own fate
presupposes a capacity to do so. The answer as to when
a particular advance medical directive becomes operative
usually depends upon an assent of when its author is no
longer competent to participate in medical decision
making. The Black’s Law Dictionary defines the Advance
Medical Directive as “a legal document explaining one’s
83
wishes about medical treatment if one becomes
incompetent or unable to communicate”. 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. Use and operation of
advance medical directive is to confine only to a case
when person becomes incapacitated to take an informed
decision regarding his medical treatment. So long as an
individual can take an informed decision regarding his
medical treatment, there is no occasion to look into
advance medical directives. A person has unfettered
right to change or cancel his advance medical directives
looking to the need of time and advancement in medical
science. Hence, a person cannot be tied up or bound by
his instructions given at an earlier point of time.
88. The concept of advance medical directive originated
84
largely as a response to development in medicines. Many
people living depending on machines cause great
financial distress to the family with the cost of long
term medical treatment. Advance medical directive was
developed as a means to restrict the kinds of medical
intervention in event when one become incapacitated. The
foundation for seeking direction regarding advance
medical directive is extension of the right to refuse
medical treatment and the right to die with dignity.
When a competent patient has right to take a decision
regarding medical treatment, with regard to medical
procedure entailing right to die with dignity, the said
right cannot be denied to those patients, who have
become incompetent to take an informed decision at the
relevant time. The concept of advance medical directive
has gained ground to give effect to the rights of those
patients, who at a particular time are not able to take
an informed decision. Another concept which has been
accepted in several countries is recognition of
instrument through which a person nominates a
representative to make decision regarding their medical
85
treatment at a point of time when the person executing
the instrument is unable to make an informed decision.
This is called attorney authorisation leading to medical
treatment. In this country, there is no legislation
governing such advance medical directives. It is,
however, relevant to note a recent legislation passed by
the Parliament namely “The Mental Healthcare Act, 2017”,
where as per Section 5 every person, who is not a minor
has a right to make an advance directive in writing
regarding treatment to his mental illness in the way a
person wishes to be treated or mental illness. The
person wishes not to be treated for mental illness and
nomination of individual and individual’s as his/her
representative. Section 5 is to the following effect:
“5. (1) Every person, who is not a minor,
shall have a right to make an advance
directive in writing, specifying any or all
of the following, namely:––
(a) the way the person wishes to
be cared for and treated for a
mental illness;
(b) the way the person wishes not
to be cared for and treated for a
mental illness;
86
(c) the individual or individuals,
in order of precedence, he wants
to appoint as his nominated
representative as provided under
section 14.
(2) An advance directive under subsection
(1) may be made by a person irrespective of
his past mental illness or treatment for
the same.
(3) An advance directive made under subsection
(1), shall be invoked only when
such person ceases to have capacity to make
mental healthcare or treatment decisions
and shall remain effective until such
person regains capacity to make mental
healthcare or treatment decisions.
(4) Any decision made by a person while he
has the capacity to make mental healthcare
and treatment decisions shall override any
previously written advance directive by
such person.
(5) Any advance directive made contrary to
any law for the time being in force shall
be ab initio void.”
89. Section 6 of the Act provides that an advance
directive shall be made in the manner as has been
prescribed by the regulations made by the Central
Authority. In the draft Medical Healthcare Regulation
published by Ministry of Health and Family Welfare, a
form is prescribed in which advance directive may be
87
made. Other aspects of medical directive have also been
dealt with by draft regulation. Thus, in our country,
recognition of advance directives regarding medical
treatment has started to be recognised and are in place
relating to specified field and purpose. Another
legislation which also recognise some kind of advance
directive relating to a person’s body is Section 3 of
the Transplantation of Human Organs and Tissues Act,
1994. Section 3 subsections (1) and (2) which are
relevant for the present purpose is as follows:
“3. Authority for removal of [human organs
or tissues or both].—(1) Any donor may, in
such manner and subject to such conditions
as may be prescribed, authorise the
removal, before his death, of any [human
organ or tissue or both] of his body for
therapeutic purposes.
(2) If any donor had, in writing and in the
presence of two or more witnesses (at least
one of whom is a near relative of such
person), unequivocally authorised at any
time before his death, the removal of any
[human organ or tissue or both] of his
body, after his death, for therapeutic
purposes, the person lawfully in possession
of the dead body of the donor shall, unless
he has any reason to believe that the donor
had subsequently revoked the authority
aforesaid, grant to a registered medical
practitioner all reasonable facilities for
the removal, for therapeutic purposes, of
88
that [human organ or tissue or both] from
the dead body of the donor.”
90. The rules have been framed under Section 24 of the
Transplantation of Human Organs and Tissues Act, 1994
namely Transplantation of Human Organs and Tissues
Rules, 2014 where form of authorisation for organ or
tissue pledging is Form 7, which provides that an
authorisation by donor in presence of two witnesses
which is also required to be registered by Organ Donor
Registry.
91. The statutory recognition of the above mentioned
authorisation in two statutes is clear indication of
acceptance of the concept of advance medical directive
in this country.
92. Learned counsel for the petitioner as well as for
the interveners and the Additional Solicitor General of
India has expressed concern regarding manner and
procedure of execution of advance medical directive. It
is submitted that unless proper safeguards are not laid
down, those who are vulnerable, infirm and aged may be
89
adversely affected and efforts by those related to a
person to expedite death of a person for gaining
different benefits, cannot be ruled out. We have been
referred to various legislations in different countries,
which provides a detailed procedure of execution of
advance medical directive, competence of witnesses, mode
and manner of execution, authority to register and keep
such advance medical directive.
93. Shri Arvind Datar, learned senior counsel has in its
written submissions referred to certain aspects, which
may be kept in mind while formulating guidelines for
advance medical directive, which are as follows:
a) Only adult persons, above the age of
eighteen years and of sound mind at the
time at which the advance directive is
executed should be deemed to be competent.
This should include persons suffering from
mental disabilities provided they are of
sound mind at the time of executing an
advance directive.
b) Only written advance directives that
have been executed properly with the
notarised signature of the person executing
the advance directive, in the presence of
two adult witnesses shall be valid and
enforceable in the eyes of the law. The
form should require a reaffirmation that
90
the person executing such directive has
made an informed decision. Only those
advance directives relating to the
withdrawal or withholding of lifesustaining
treatment should be granted
legal validity. The determination that the
executor of the advance directive is no
longer capable of making the decision
should be made in accordance with relevant
medical professional regulations or
standard treatment guidelines, as also the
determination that the executor's life
would terminate in the absence of lifesustaining
treatment. The constitution of a
panel of experts may also be considered to
make this determination. The use of expert
committees or ethics committees in other
jurisdictions is discussed at Para 28 of
these written submissions.
c) Primary responsibility for ensuring
compliance with the advance directive
should be on the medical institution where
the person is receiving such treatment.
d) If a hospital refuses to recognise the
validity of an advance directive, the
relatives or next friend may approach the
jurisdictional High Court seeking a writ of
mandamus against the concerned hospital to
execute the directive. The High Court may
examine whether the directive has been
properly executed, whether it is still
valid (Le, whether or not circumstances
have fundamentally changed since its
execution, making it invalid) and/or
applicable to the particular circumstances
or treatment.
e) No hospital or doctor should be made
liable in civil or criminal proceedings for
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having obeyed a validly executed advance
directive.
f) Doctors citing conscientious objection
to the enforcement of advance directives on
the grounds of religion should be permitted
not to enforce it, taking into account
their fundamental right under Article 25 of
the Constitution. However, the hospital
will still remain under this obligation.
94. The right to selfdetermination and bodily integrity
has been recognised by this Court as noted above. The
right to execute an advance medical directive is nothing
but a step towards protection of aforesaid right by an
individual, in event he becomes incompetent to take an
informed decision, in particular stage of life. It has
to be recognised by all including the States that a
person has right to execute an advance medical directive
to be utilised to know his decision regarding manner and
extent of medical treatment given to his body, in case
he is incapacitated to take an informed decision. Such
right 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
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right of bodily integrity and selfdetermination which
are duly protected under Article 21 of the Constitution.
The procedure and manner of such expression of such
right is a question which needs to be addressed to
protect the vulnerable, infirm and old from any misuse.
It is the duty of the State to protect its subjects
specially those who are infirm, old and needs medical
care. The duty of doctor to extend medical care to the
patients, who comes to them in no manner diminishes in
any manner by recognition of concept that an individual
is entitled to execute an advance medical directive. The
physicians and medical practitioners treating a person,
who is incompetent to express an informed decision has
to act in a manner so as to give effect to the express
wishes of an individual.
95. The concept of advance medical directive has gained
ground throughout the world. Different countries have
framed necessary legislation in this regard. Reference
of few of such legislations shall give idea of such
statutory scheme formulated by different countries to
achieve the object. The Republic of Singapore has passed
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an enactment namely ADVANCE MEDICAL DIRECTIVE ACT (Act
16 of 1996). Section 3 of the Act, subsection (1)
empowers a person who is not mentally disordered and
attained the age of 21 years to make an advance
directive in the prescribed form.
Other provisions of Statute deals with duty of
witness, registration of directives, objections,
revocation of directive, panel of specialists,
certification of terminal illness, duty of medical
practitioner and other related provisions. The Belgian
Act on Euthanasia, 2002 also contains provisions
regarding advance directive in Section 4. Swiss Civil
Code 1907 in Articles 362 and 365 provides for advance
care directive, its execution and termination. Mental
Capacity Act, 2005 (England) also contemplates for an
advance directive. The Statute further provides that an
advance directive is applicable in life sustaining
treatment only. When the decision taken in writing,
signed by the patient or by another person in patient's
presence on his direction. Pennsylvania Act 169 of 2006
also contains provisions with regard to execution of
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advance medical directive and other related provisions,
its revocation etc.
In our country, there is yet no legislation
pertaining to advance medical directive. It is, however,
relevant to note that Ministry of Health and Family
Welfare vide its order dated 06.05.2016 uploaded the Law
Commission's 241st report and solicited opinions,
comments on the same. An explanatory note has also been
uploaded by the Ministry of Health and Family Welfare
where in paragraph 6 following was stated:
“ Living Will has been defined as “A
document in which person states his/her
desire to have or not to have extraordinary
life prolonging measures used when recovery
is not possible from his/her terminal
condition”.
However, as per para 11 of the said Bill
the advance medical directive (living will)
or medical power of attorney executed by the
person shall be void and of no effect and
shall not be binding on any medical
practitioner.”
Although in Clause 11 of the draft bill, it was
contemplated that advance medical directives are not
binding on medical practitioner but the process of
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legislation had not reached at any final stage. The
directions and safeguards which have been enumerated by
Hon'ble Chief Justice in his judgment shall be
sufficient to safeguard the interests of patients,
doctors and society till the appropriate legislation is
framed and enforced.
We thus conclude that a person with competent
medical facility is entitled to execute an advance
medical directive subject to various safeguards as noted
above.
M. CONCLUSIONS:
From the above discussions, we arrive on following
conclusions:
(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
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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 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
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
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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 characterise 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.
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(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
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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 selfdetermination.
In view of our conclusions as noted above the writ
petition is allowed in the following manner:
(a) The right to die with dignity as fundamental right
has already been declared by the Constitution Bench
judgment of this Court in Gian Kaur case (supra) which
we reiterate.
(b) We declare that an adult human being having mental
capacity to take an informed decision has right to
refuse medical treatment including withdrawal from life
saving devices.
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(c) A person of competent mental faculty is entitled to
execute an advance medical directive in accordance with
safeguards as referred to above.
96. Before we conclude, we acknowledge our indebtness
to all the learned Advocates who have rendered valuable
assistance with great industry and ability which made it
possible for us to resolve issues of seminal public
importance. We record our fullest appreciation for the
assistance rendered by each and every counsel in this
case.
...............................J.
( ASHOK BHUSHAN )
NEW DELHI,
MARCH 09, 2018.
