# COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA & ANOTHER

- **Citation:** [2018] 6 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2018-03-09
- **Bench:** Dipak Misra, A. K. Sikri, Dr. D. Y. Chandrachud, Ashok Bhushan, A. M. Khanwilkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/common-cause-a-regd-society-v-union-of-india-another-33231
- **Pages:** 386

## Headnote

Constitution of India - Art.21 - Passive Euthanasia - Right
to die with dignity - Held: The right to life with dignity includes 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 comes
in - Such a right should come within the ambit of Art.21 of the
Constitution - As part of right to die with dignity in case of dying
man who is terminally ill or in a persistent vegetative state only
passive euthanasia would come within the ambit of Art.21 and not
the one which would fall within the description of active euthanasia
in which positive steps are taken either by the treating physician or
some other person. (Per Dipak Misra, CJI [for himself and
Khanwilkar, J.])
Constitution of India - Art.21 - Right to refuse treatment - 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 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 - 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 - All adults with capacity to consent have the right of
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self- determination and autonomy - 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.(Per Dipak Misra, CJI [for himself and
Khanwilkar, J.])
Constitution of India - Art.21 - Right to refuse treatment -
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 - 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. (Per Dr. D.Y. Chandrachud, J.)
Constitution of India - Art.21 - 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 Art.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.
(Per Dr. D.Y. Chandrachud, J.)
Constitution of India - Art.21 - Right to refuse 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.
(Per Ashok Bhushan, J.)
Constitution of India - Art.21 - Decision for withdrawal of
life saving treatment in case of a person who is incompetent to take
an informed decision - Held: Right of patient who is incompetent to
express his view cannot be outside of fold of Art.21 of the
Constitution - When an adult person having mental

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COMMON CAUSE (A REGD. SOCIETY) v. UNION OF INDIA
1
[2018] 6 S.C.R. 1
COMMON CAUSE (A REGD. SOCIETY)
v.
UNION OF INDIA & ANOTHER
(Writ Petition (Civil) No. 215 of 2005)
MARCH 09, 2018
[DIPAK MISRA, CJI, A. K. SIKRI,
DR. D. Y. CHANDRACHUD, ASHOK BHUSHAN AND
A. M. KHANWILKAR, JJ.]
Constitution of India - Art.21 - Passive Euthanasia - Right
to die with dignity - Held: The right to life with dignity includes 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 comes
in - Such a right should come within the ambit of Art.21 of the
Constitution - As part of right to die with dignity in case of dying
man who is terminally ill or in a persistent vegetative state only
passive euthanasia would come within the ambit of Art.21 and not
the one which would fall within the description of active euthanasia
in which positive steps are taken either by the treating physician or
some other person. (Per Dipak Misra, CJI [for himself and
Khanwilkar, J.])
Constitution of India - Art.21 - Right to refuse treatment - 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 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 - 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 - All adults with capacity to consent have the right of
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self- determination and autonomy - 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.(Per Dipak Misra, CJI [for himself and
Khanwilkar, J.])
Constitution of India - Art.21 - Right to refuse treatment -
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 - 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. (Per Dr. D.Y. Chandrachud, J.)
Constitution of India - Art.21 - 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 Art.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.
(Per Dr. D.Y. Chandrachud, J.)
Constitution of India - Art.21 - Right to refuse 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.
(Per Ashok Bhushan, J.)
Constitution of India - Art.21 - Decision for withdrawal of
life saving treatment in case of a person who is incompetent to take
an informed decision - Held: Right of patient who is incompetent to
express his view cannot be outside of fold of Art.21 of the
Constitution - 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
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person who is not able to take an informed decision due to terminal
illness or being a Persistent Vegetative State (PVS) - When the right
of an adult person who expresses his view regarding medical
treatment can be regarded as right flowing from Art.21 of the
Constitution, the right of patient who is incompetent to express his
view cannot be outside the fold of Art.21 of the Constitution - 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.
(Per Ashok Bhushan, J.)
Constitution of India - Art.21 - Right to life - 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.
(Per A.K. Sikri, J.)
Constitution of India - Art.21 - Concept of human dignity -
Ideology of different religions - Hinduism doesn't recognize human
beings as mere material beings - Its understanding of human identity
is more ethical-spiritual than material - That is why a sense of
immortality and divinity is attributed to all human beings in Hindu
classical literature - 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
- 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. (Per A.K. Sikri, J.)
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Constitution of India - Art.21 - Right to live with dignity -
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 - 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. (Per A.K. Sikri, J.)
Constitution of India - Art.21 - Right to receive or deny
medical treatment and euthanasia - 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
- Having regard to this 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 or where he is
brain dead, can be permitted. (Per A.K. Sikri, J.)
Constitution of India - Art.21 - Right to health - Held: It is a
part of Art.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, the questions that arise are can they
be denied right to die in dignity - 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 - Judicial notice. (Per A.K. Sikri, J.)
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Constitution of India - Arts.14, 21 - Human dignity - How
philosopher-jurist Dworkin perceived interpretative process adopted
by a Judge - Discussed - Interpretation of statutue.
(Per A.K. Sikri, J.)
Constitution of India - Art.21 - Gian Kaur case, analysis of -
Reference to Airedale's case - In Gian Kaur, validity of s.306 was
challenged - The Constitution Bench in Gian Kaur 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
included within the protection of the expression "right to life" under
Art.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 was also not
the ratio of the authority in Gian Kaur that euthanasia has to be
introduced only by a legislation - What was 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 was 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 was not correct - Thus, 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 - Euthanasia.(Per Dipak Misra, CJI [for himself
and Khanwilkar, J.])
Constitution of India - Art.21 - Aruna Shanbaug case, analysis
of - The two-Judge Bench in Aruna Shanbaug 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 is not correct as Gian Kaur does not lay down that
passive euthanasia could be made lawful only by legislation. (Per
Dipak Misra, CJI [for himself and Khanwilkar, J.])
Euthanasia - Passive euthanasia - Social Morality, medical
ethicality and State Interest - Withdrawal of treatment in an
irreversible situation is different from not treating or attending to a
patient - Once passive euthanasia is recognized in law regard being
had to the right to die with dignity when life is ebbing out and when
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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 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 Art.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 - Constitution of India - Art.21. (Per Dipak Misra, CJI
[for himself and Khanwilkar, J.])
Euthanasia - Intention to cause death - Distinction between
active euthanasia and passive euthanasia - A distinction arises
between active and passive euthanasia from the provisions of the
Penal Code - 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 s.300 - 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
cease at the end of its natural term - A decision not to prolong life
by artificial means does not carry an intention to cause 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 - 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 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 - 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 -
Death emanates from the pre-existing medical condition of the patient
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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 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 - Penal Code, 1860 -
ss.299, 300. (Per Dr. D.Y. Chandrachud, J.)
Euthanasia - Active and passive Euthanasia - Distinction
between - Legality of passive euthanasia - Held: 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 withholding of medical
treatment meant for artificially prolonging life - 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 - Post Aruna Shanbaug, the 241st report of the Law
Commission of India on Passive Euthanasia has also recognized
passive euthanasia, however, no law as such has been enacted.
(Per Dipak Misra, CJI [for himself and Khanwilkar, J.])
Euthanasia -Protection under s.92 IPC - 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 s.92 for the reason that there is no
intentional causing of death or attempt to cause death - 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 s.92 - Where an act is done for the benefit of
another in good faith, the law protects the individual - Penal Code,
1860 - s.92. (Per Dr. D.Y. Chandrachud, J.)
Euthanasia - Active euthanasia in India, Legality of - 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. (Per Dr. D.Y. Chandrachud,
J.)
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Euthanasia - Passive euthanasia - 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.
(Per Dr. D.Y. Chandrachud, J.)
Euthanasia - Passive euthanasia - Legal principles governing
criminal law on passive euthanasia - Report by Justice M
Jagannadha Rao as Chairperson of 196th Report of Law
Commission of India, elucidated. (Per Dr. D.Y. Chandrachud, J.)
Euthanasia - In Gian Kaur case, the Constitution Bench held,
while affirming the constitutional validity of s.306 of the Penal Code
(abetment of suicide), that the right to life does not include the right
to die - Gian Kaur case 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 actomission 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 ss.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 is 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 - Penal Code, 1860 -
ss.306,309. (Per Dr. D.Y. Chandrachud, J.)
Euthanasia - Restraints on judicial power - Active/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 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
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bring an end to life - Active euthanasia would in the light of penal
law as it stands constitute an offence - 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/withdraw
artificial life support after taking into account the best interest of
the patient would not constitute an illegal omission prohibited by
law. (Per Dr. D.Y. Chandrachud, J.)
Euthanasia - Voluntary passive euthanasia, where death
results from selective non-treatment because consent is withheld, is
legally permissible while voluntary active euthanasia is prohibited.
(Per Dr. D.Y. Chandrachud, J.)
Euthanasia - Impact of, at the institutional, governmental and
societal level - Discussed. (Per Dr. D.Y. Chandrachud, J.)
Euthanasia - Distinction between legality of active and
passive euthanasia - Discussed. (Per Dr. D.Y. Chandrachud, J.)
Euthanasia - Passive euthanasia - Direction to set up
committees to exercise a supervisory role and function - Besides
lending assurance to the decision of the treating doctors, the setting
up of committees and the processing of a proposed decision through
the committees would protect the ultimate decision that is taken from
an imputation of a lack of bona fides - Committees.
(Per Dr. D.Y. Chandrachud, J.)
Euthanasia - Law on Euthanasia in other countries -
Discussed. (Per Ashok Bhushan, J.)
Euthanasia - Passive euthanasia - Legality of - 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 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, 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
- The act of withdrawal from live-saving devices is an independent
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right which can lawfully be exercised by informed decision. (Per
Ashok Bhushan, J.)
Euthanasia - Active Euthanasia - Legality of - No one is
permitted to cause death of another person including a physician
by administering any lethal drug even if the objective is to relieve
the patient from pain and suffering. (Per Ashok Bhushan, J.)
Euthanasia - Gian Kaur case - The Constitution Bench in
Gian Kaur 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
- Gian Kaur case did not express any binding view on the subject of
euthanasia - 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 latter was held not to be covered under any right flowing
from Art.21 - Constitution of India - Art.21. (Per Ashok Bhushan,
J.)
Euthanasia - Passive euthanasia and death with dignity are
inextricably linked - 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 - Nowadays
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.(Per A.K. Sikri, J.)
Euthanasia - Morality of medical science - 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
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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 - Medical science. (Per
A.K. Sikri, J.)
Advance Directives - Safeguards to be followed as to who
can execute the advance directive and how; what should it contain;
how should it be recorded and preserved; when and by whom can it
be given effect to; what if permission is refused by the medical board;
revocation or inapplicability of advance directive - Principles
relating to the procedure for execution of Advance Directive and
the guidelines to give effect to passive euthanasia in both
circumstances, namely, where there are advance directives and where
there are none laid down in exercise of the power under Art.142 of
the Constitution and the law stated in Vishaka case - The directive
and guidelines to remain in force till the Parliament brings a
legislation in the field - Constitution of India - Art.142 - Legislation,
need for. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])
Advance Directives - Principles in vogue across the globe
governing Advance Health Directives - Various jurisdictions,
discussed. (Per Dipak Misra, CJI [for himself and Khanwilkar,
J.])
Advance Directives - 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 - 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 - 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 revival, priority shall be given to the
Advance Directive and the right of self-determination - In the
absence of Advance Directive, the procedure provided for the said
category shall be applicable. (Per Dipak Misra, CJI [for himself
and Khanwilkar, J.])
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Advance Directives - 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 Art.226 of the Constitution.(Per Dipak
Misra, CJI [for himself and Khanwilkar, J.])
Advance Directives - Meaning of - Held: Advance directives
are 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 -
Mental Healthcare Act 2017. (Per Dr. D.Y. Chandrachud, J.)
Advance Directives - 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 Art.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 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 - The directions in regard to the regime of advance directives
have been issued in exercise of the power conferred by Art.142 and
shall continue to hold the field until a suitable legislation is enacted
by Parliament to govern the area - Constitution of India - Art.142.
(Per Dr. D.Y. Chandrachud, J.)
Advance Directives - Forms of advance directive - A Living
Will which indicates a person's views and wishes regarding medical
treatment and 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
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two forms of advance directives, the focus of a durable power is on
who makes the decision while 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. (Per
Dr. D.Y. Chandrachud, J.)
Advance Directives - 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 - Conceptually, there is a second standard, which
is the caregiver standard - This is founded on the principle of
beneficence - The second standard seeks to apply an objective
notion of a line of treatment which a reasonable individual would
desire in the circumstances - 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".
(Per Dr. D.Y. Chandrachud, J.)
Advance Directives - Meaning and purpose - 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
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an individual can take an informed decision regarding his medical
treatment, there is no occasion to look into advance medical
directives. (Per Ashok Bhushan, J.)
Advance Directives - Revocation of - 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. (Per Ashok Bhushan, J.)
Advance Directives - Possibility of misuse - 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 - 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 - Mental Healthcare Act, 2017 - s.5 -
Transplantation of Human Organs and Tissues Act, 1994 - s.3. (Per
A.K. Sikri, J.)
Doctrines/Principles - Sanctity principle - "life should not
always be maintained at any and all cost" - Euthanasia.
(Per Dr. D.Y. Chandrachud, J.)
Interpretation of Statutes - Liberal construction - The
language employed in the constitutional provision should be liberally
construed, for such provision can never remain static - It is because
fixity would mar the core which is not the intent. (Per Dipak Misra,
CJI [for himself and Khanwilkar, J.])
Jurisprudence - 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
individually, she/he has the authority over the body and mind. (Per
Dipak Misra, CJI [for himself and Khanwilkar, J.])
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Jurisprudence - Dignity - 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. (Per Dipak Misra,
CJI [for himself and Khanwilkar, J.])
Living Will - Specific guidelines laid down 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 - Guidelines. (Per Dipak Misra, CJI [for himself and
Khanwilkar, J.])
Living Will - Whether a 'living will' or 'advance directive'
should be legally recognised and can be enforced - Held: It is
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 - 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 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 life-sustaining 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 Art.21.(Per
A.K. Sikri, J.)
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Mental Healthcare Act 2017 - Advance directives for persons
with mental illness - Held: The Act recognises an advance directive
- The Act provides that while making an advance directive, the maker
should be major and indicate the manner in which he or she wishes
or does not wish to be cared for and treated for a mental illness;
and the person he or she appoints as a nominated representative -
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 so. (Per Dr. D.Y. Chandrachud, J.)
Medical profession - Medical ethics - History of ethical
principles - Discussed. (Per Ashok Bhushan, J.)
Words and Phrases - Advance medical, living will, advance
medical power of attorney - Meaning of - Advance medical directive
is, "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 the person would want if he
was unable to share his wishes with the health care provider -
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.
(Per Dipak Misra, CJI [for himself and Khanwilkar, J.])
Words and Phrases - Killing and letting die - Difference
between, discussed. (Per Dipak Misra, CJI [for himself and
Khanwilkar, J.])
Words and Phrases - Involuntary euthanasia, non-voluntary
euthanasia, voluntary euthanasia, active euthanasia and passive
euthanasia - Meaning of - Discussed. (Per Dr. D.Y. Chandrachud,
J.)
Disposing of the Writ petition, the Court
HELD:
Per Dipak Misra, CJI [for himself and Khanwilkar, J.]
1.1 The Constitution Bench in Gian Kaur's case has
referred to the decision in Airedale that has been recapitulated
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in Aruna Shanbaug case which was a case relating to withdrawal
of artificial measures of continuance of life by the physician. 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 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 bench
observed that it was a case relating to withdrawal of artificial
measures for continuance of life by the physician. [Para 40][96C-F]
1.2 A careful reading of Gian Kaur shows narration,
reference and notice of the view taken in Airedale case. 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.