“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 right to live with dignity as a component of the right to life and liberty.”
After years of debate, the India’s Apex Court set the record straight on March 9 this month when the Constitution Bench headed by the Hon’ble Chief Justice Dipak Misra and also comprising justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan in Common Cause versus Union of India and Another allowed people to make a Living Will or Advance Medical Directive regarding their medical treatment in the future as well as legalizing passive euthanasia in the case of those who are living in a permanent vegetative state.
The debate on the right to live in dignity which started long ago in the case of terminally ill rape survivor Aruna Shanbaug in 2009 ended on March 9 this year with Hon’ble Justice Dipak Misra saying, “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 right to live with dignity as a component of the right to life and liberty.”
“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 permanently vegetative state with no hope of recovery.” Justice Dipak held.
In a judgment which runs into more than 500 pages, Justice Dipak writing for himself and on behalf of justice A M Khanwilkar wrote: A careful and precise perusal of the judgment in Gian Kaur 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 period of suffering constitutes a right to live with dignity.
The bench further said that an inquiry into common law jurisdictions revealed that all adults with capacity to consent have the right of selfdetermination and autonomy and those rights paved the way for the right to refuse medical treatment which has acclaimed universal recognition.
Indian Constitution in Article 21 says that ‘no person shall be deprived of his life and personal liberty except according to the procedure established by law. The article 21 secures ‘Right to Life’ and ‘Right to Personal Liberty’ of individuals. According to legal experts, the Supreme Court has held in many landmark judgments that ‘Right to Life’ means and includes ‘Right to live’ with dignity. In the Privacy judgment last year , the Supreme Court held that life and personal liberty are inalienable rights, inseparable from a dignified human existence. The judgment also held that the dignity of the individual, equality between human beings and the quest for liberty are the foundations of the Indian Constitution.
Deliberating on what issues of ethics and moral dilemma surround euthanasia, Hon’ble Justice AK Sikri in this concurring judgment wrote: “I may add that the issue is not purely a legal one. It has moral and philosophical overtones. It has even religious overtones. 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. 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 forever…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.”
Hon’ble Justice DY Chandrachud held in his judgment: “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.”
Reflecting on the issue, he further held: “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 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 up to the point of death including a dignified procedure of death. The above right was held to be part of fundamental right enshrined under Article 21 of the Constitution which we also reiterate.
The reason which has impelled the court to recognise 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.”
Hon’ble Justice Ashok Bhushan writing his concurring judgment said: ““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 up to the point of death including a dignified procedure of death. The above right was held to be part of fundamental right enshrined under Article 21 of the Constitution which we also reiterate.”
Justice Bhushan also held: “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.”
Commenting on the judgment, Shekhar Naphade, Senior Counsel, Supreme Court of India while talking to Lex Witness said, “The court has enacted a law. The function of the Supreme Court is judicial and not legislative. This judgment is based on the proposition that right to life with dignity which falls under Article 21 includes a right to die with dignity. If a right to live with dignity is not possible can a person kill himself. Then whether every poor person deprived of elementary necessities of life gets a right to kill himself? We are still not living in a dehumanized world. Human life has sanctity and I am not basing it on any religious ground. Sanctity of human life is a hallmark of human civilization. Article 21 of the Constitution does not carry within its ambit a right to commit suicide. Those who say that it is my life and therefore I have a right to take it away are building a dehumanized world.”
He further adds, “I must hasten to add that I am not totally opposed to euthanasia. The Parliament must enact a law and define clearly the circumstances under which euthanasia can be practised. Whether such circumstances exist or not must be examined by a competent authority consisting of medical practitioners and judges. This is too serious a matter to be decided by the Supreme Court without having any concrete material before it.”
This judgment is conspicuous in settling the concept of Advance Medical Directive or Living Will in Indian medical jurisprudence. In Shanbaug case India allowed passive euthanasia and prohibited active euthanasia. In the judgment, the court defined passive euthanasia as withdrawing medical treatment with a deliberate intention of causing the patient’s death. Citing example it said, if a patient requires kidney dialysis to survive, not giving dialysis although the machine is available, is passive euthanasia. Similarly, it continues, 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 vegetative state may also amount to passive euthanasia.
The judgment on March 9 has given a sigh of relief to those who have been fighting for many years the rights of the terminally ill patients, but at the same raises question on the misuse of Living Will.
“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.” - Hon’ble Justice DY Chandrachud
The court has enacted a law. The function of the Supreme Court is judicial and not legislative. This judgment is based on the proposition that right to life with dignity which falls under Article 21 includes a right to die with dignity. If a right to live with dignity is not possible can a person kill himself?
Hailing the judgment as helping the cause of palliative care, Prashant Bhushan, who was a petitioner in this case, said: “It is a good judgment. It is a good beginning, one can say. In my view, not many safeguards are required. It is difficult to misuse this as it would first require a conspiracy to make the person unconscious. The entire act of withdrawing life support is not likely to be misused.”
Indian Government in Oct 2017 had submitted before this Court that a living will could be misused and may not be viable as a part of public policy. Arguing before the Court the Government had said: “If a person is not of sound mind, then he is a not a competent person to make a living will and in that case, it is a medical board which will have to look into the affairs and not the individual.” The Govt had also said: 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 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.
A Living Will or Advance Medical Directive is a written document allowing a person to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally-ill in a permanent vegetative state and incapable of taking a decision.
According to Dr Anupam Sibal, Group Medical Director, Apollo Hospitals, “A Living Will or Advanced Directive allows a citizen the ability to exercise a fundamental right – the right to decide in advance what should be done to his or her body when he or she is not in a position to make that decision.”
Justice Ashok in his judgment says, “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
“I may add that the issue is not purely a legal one. It has moral and philosophical overtones. It has even religious overtones… 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.”
and object of advance medical directive is to express the choice of a person regarding medical treatment in an event when he loses capacity to take a decision. The right to execute an advance medical directive is nothing but a step towards protection of aforesaid right by an individual.”
The Apex Court says that 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 during the course of treatment of the patient.
Dr Nimesh Desai, Director, IHBAS said, “Doctors are happy with this judgment. The safeguards explicitly mentioned in in the judgment by the Hon’ble Supreme Court should dispel any doubts as to its misuse. As far as doctor are concerned, the freedom to choose treatment on informed choice is a patient’s right. While treating a patient, a doctor is bound by the patient’s interest, nothing else.” The Court has enumerated safeguards which are as follows:
“The safeguards explicitly mentioned in in the judgment by the Hon'ble Supreme Court should dispel any doubts as to its misuse. As far as doctor are concerned, the freedom to choose treatment on informed choice is a patient's right. While treating a patient, a doctor is bound by the patient's interest, nothing else.”
The Court has also mentioned that the when life support is withdrawn, the same shall also be intimated by the Magistrate to the High Court. The record will 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.
According to Dr Anupam Sibal, Group Medical Director, Apollo Hospitals, “A Living Will or Advanced Directive is a step that several countries have taken in the last 10 to 15 years. Barack Obama announced publically in 2009 that he has made a Living Will. The Hon’ble Supreme Court has laid out the framework for a Living Will and also prescribed the procedure for partial euthanasia which needs to be welcomed. The safeguards that the Hon’ble Supreme Court has built in should allay fears that some people may have.”
Prashant Bhushan while saying how a Living Will help in relieving patient and their relative said, “A living will relieves people of being compelled to unnecessarily put people on life support where such treatment will no longer help them or will only prolong their suffering. In that sense, it is going to help the cause of palliative care.”
The Apex Court believes the Government will soon take up the task of making legislation in this direction. Till such time, the Supreme court has said, their directions with regard to the Advance Directives and the safeguards as mentioned in this judgment in Common Cause Versus Union of India and Another shall remain in force
“A Living Will or Advanced Directive is a step that several countries have taken in the last 10 to 15 years. Barack Obama announced publically in 2009 that he has made a Living Will”
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