The Supreme Court judgment to legalise living wills and passive euthanasia is one of the most progressive ones of recent times. Whether the right to live with dignity includes the right to die with dignity had been central to the euthanasia debate in India.
The Supreme Court judgment to legalise living wills and passive euthanasia is one of the most progressive ones of recent times. Whether the right to live with dignity—integral to the fundamental right to life—includes the right to die with dignity had been central to the euthanasia debate in India. Passive euthanasia—withdrawal of life support—had been partially legalised, allowed only for patients in a persistent vegetative state, in March 2011 via the apex court’s judgment in the Aruna Shanbaug case. Now, a five-judge Constitution bench has laid down an exhaustive set of guidelines for the execution of passive euthanasia in both scenarios, where the individual has formalised a directive to end life-support, or a living will, and where the individual has not. The bench drew on Article 142 of the Constitution, that allows it to “pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it” and the law as established in Vishakha and ors. Vs the State of Rajasthan and ors, that says the SC, in the absence of enacted law to regulate a matter, may put in place a framework for the purpose, till the concerned legislative body enacts a relevant law. It concluded that “Right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity” and there can be no doubt that the right to live with dignity also includes “the smoothening of the process of dying” for terminally ill patients and persons in a persistent vegetative state with no hope of recovery.
Legalising living wills, it said “a failure to recognise” advance directives could constitute the “non-facilitation” of the right to smoothen the dying process, and consequently, the right to live with dignity. With this, India joins many countries where living wills and passive euthanasia are lawful. Though the court steered clear of active euthanasia that involves administration of lethal drugs to cause death, it lent much-needed nuance to the euthanasia debate. The Centre had opposed living wills—though it has a draft law on passive euthanasia, centred on medical opinion on the condition of a patient and informed consent of kin—saying it could make the elderly more vulnerable. However, the multiple layers of review and procedural checks the SC has encoded in its guidelines—like the provision for review of the hospital medical board’s decision on living will/passive euthanasia by a government-appointed medical board, living will to be countersigned by a Judicial Magistrate of First Class, etc—should prove effective curbs against any possible misuse. The Centre had argued that the state’s primary obligation is to sustain life and not legalise his/her wish to die.The Court, however, gave primacy to the right of self-determination and living wills, while recognising that the sanctity of life must be “kept on the high pedestal”. It said that in such situations, “an individual’s interest has to be given priority over the State interest.” For fear of social censure and in the absence of a law on passive euthanasia, relatives of the dying are often unable to take a call on easing the latter’s suffering. The judgment makes the passing of someone close easier for them too. Besides, given how pitifully small a number of hospices and palliative care institutions are there in the country, most of the burden of near-death care falls on the already strained healthcare institutions. The SC decision helps here, too.