Right to Die
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A PIL filed by NGO Common Cause in 2005 seeking a robust system of certification for passive euthanasia and legal recognition for ‘living will’ in India.

Bench

The Constitution bench of Chief Justice Deepak Mishra and Justices AK Khanwilkar, DY Chandrachud and Ashok Bhushan.

Proceedings

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The court held that fundamental right to a “meaningful existence” includes a person’s choice to die without suffering.

Chief Justice Misra spoke about how societal pressure and fear of criminal liability by relatives and medical doctors ultimately led to the suffering and the undignified death of the patient.

The court said it was time to dispense with such shared suffering and sense of guilt and face the reality. Doctors who attended on the terminally ill were under pressure and dithered in letting the patient go, apprehending criminal liability and fear of being drawn into the “vortex” of a possible family struggle for inheritance.

Chief Justice Misra, in a common judgment with Justice A.M. Khanwilkar, said it was time to “alleviate the agony of an individual” and stand by his right to a dignified passing. A dignified death should follow a meaningful existence, the five-judge Bench agreed in a unanimous voice.

Justice A.K. Sikri, in his separate opinion, said though religion, morality, philosophy, law, and society shared equally strong and conflicting opinions about whether the right to life included right to death, they all agreed that a person should die with dignity.

Hence, the court, Justice Sikri said, was rightly in favor of the right to die with dignity.

Justice Sikri said an advance directive or living will from a patient to stop medical treatment at a particular stage — “particularly when he is brain dead or clinically dead or not revivable” — quelled apprehensions of future regret for relatives and criminal action against doctors.

The Chief Justice’s judgment includes specific guidelines to test the validity of a living will, by whom it should be certified, when and how it should come into effect, etc. The guidelines also cover a situation where there is no living will and how to approach a plea for passive euthanasia.

In a separate opinion, Justice Chandrachud observed that modern medical science should balance its quest to prolong life with the need to provide patients quality of life. One was meaningless without the other, he said.

The issue of death and when to die transcended the boundaries of law, but the court had intervened because it also concerned the liberty and autonomy of the individual, he said.

Justice Chandrachud read from his judgment that the sanctity of life included the dignity and autonomy of the individual. He said the search for a meaningful existence, the pursuit of happiness included the exercise of free will.

Free will includes the right of a person to refuse medical treatment,” he said.

A person need not give any reasons nor is he answerable to any authority on why he should write an advanced directive.

But the judge held that active euthanasia is unlawful.

For this reason, he said the reasons given by a two-judge Bench of the Supreme Court in the Aruna Shanbaug case, allowing passive euthanasia, were “flawed” as the convoluted procedure to get a go-ahead for passive euthanasia made the dignity of a dying person dependent on the whims and will of third parties.

“To deprive a person dignity at the end of life is to deprive him of a meaningful existence,” Justice Chandrachud read from his opinion he shared with Justice Ashok Bhushan

Judgment

A five-Judge Bench of Supreme Court in Gian Kaur v. the State of Punjab held both euthanasia and assisted suicide not lawful in India and overruled the two-Judge Bench decision 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. But later in Aruna Ramachandra Shanbaug v. Union of India the Supreme Court held that passive euthanasia can be allowed under exceptional circumstances under the strict monitoring of the Court. 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.

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