Recognising right to die with dignity, the Supreme Court on Friday in a landmark judgement allowed people to draw up their “living wills” and authorise someone to withdraw his/her medical treatment including life support in case he/she went into a persistent vegetative state because of an incurable and irreversible medical condition. This means passive euthanasia can be allowed to hasten such terminally ill patient’s death after a medical board approves it and also after following strict guidelines laid down by the apex court. Passive euthanasia relates to withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life. A five-judge Constitution bench led by Chief Justice of India Dipak Misra in four but concurring judgments held that the right to die with dignity was a fundamental right and that an advance directive by a person in the form of a living will can be approved by the courts.
The bench, also including justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, said the right to die with dignity was a facet of right to life and liberty guaranteed under Article 21 of the Constitution. “It is because the sustenance of dignity and self respect 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,” the court said. Prolonging the condition of such patients “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,” the CJI and Justice said in their separate judgment. Adding a word of caution, they said that the doctors would be bound only 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. Chandrachud also said that life and death are inseparable. “Bodies involve continuous change but mind remains constant… Death represents culmination of life… Freedom, liberty are core of meaningful life,” he said.
Hailing the judgement, Vipul Mudgal, the head of NGO Common Cause, the main petitioner in the SC, said that the landmark judgement has come “at a time when medical science allows patients to be kept alive by artificial means. It will end exploitation of innocent patients and their family members by unscrupulous hospitals.” Outlining detailed guidelines for facilitating passive euthanasia, it said that the advance directive or a “living will” can set out a patients’ wishes regarding how they want to be treated if they are seriously ill. The document can be executed voluntarily in writing by an adult of sound and healthy mind without any coercion or undue influence. The advance directive 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 authorised to give consent to refuse or withdraw medical treatment. A “living will” should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by the jurisdictional judicial magistrate of first class.
Family members and relatives of terminally ill patients seeking passive euthanasia could go to court to have it sanctioned. A medical board would then be appointed by the court to decide if it is needed. The top court said that the directions and guidelines laid down by it shall remain in force till a legislation is brought on the issue. The apex court, which had in 2011 ruling in the Aruna Shanbaug case legalised passive euthanasia, said its directives will remain in force until the government brought a proper legislation on the issue. However, active euthanasia — which involves administering some lethal medicine to end life — still remains illegal. Opposing the concept of “living will” as a principle of public policy, the government had said that it was the state’s primary obligation to sustain life and not to legalise his/her wish to die. The concept of living will was prone to misuse, it had contended. The Centre had argued that it was vetting a draft law — Medical Treatment of Terminally Ill Patient (Protection of Patients and Medical Practitioners) Bill, 2006 — allowing passive euthanasia.