Central government passing the buck by not making law on passive euthanasia: Supreme Court

The Supreme Court on Thursday said that the Central government, by not framing a law for guidelines enabling passive euthansia, was passing the buck to judicial forums on the issue [Common Cause vs Union of India]..A Constitution bench of Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar is likely to pass its order in the matter on January 24 on the issue concerning lack of regulations to govern passive euthanasia and the right to die with dignity. During the arguments on Thursday regarding the need for multiple medical boards' approval for passive euthanasia and concerns over misuse if it is allowed, Justice Joseph told Additional Solicitor General (ASG) KM Nataraj,"Realise one thing. (These are) areas which are meant for legislature to exercise power, but it is not (doing so) and [instead] going by this Court's directions, you are passing the buck. This should squarely be regulated by you. I think you have greater wisdom, we do not have anything more than you [Centre] have provided." The ASG said that the Central government had discussed and deliberated this issue and categorically decided not to pass a law. Further, the government is not aggrieved by the earlier judgment of the Supreme Court on the issue, the ASG submitted.Justice Rastogi then pointed out that the petitioners only want the existing directives and guidelines to be made workable. .In 2018, a five-judge Constitution Bench had recognised and given sanction for passive euthanasia and living will/advance directives. In that judgment, the top court had ruled that the right to life under Article 21 includes the right to live with dignity, and the same includes the smoothening of the process of dying in case of a terminally ill patient or a person in persistent vegetative state with no hope of recovery.The Court had laid down guidelines governing execution and enforcement of advance directive, as well as the procedure to be followed for passive euthanasia, after distinguishing it from active euthanasia, in case there is no living will/advance directive.A living will/advance directive is a document that persons with deteriorating health or the terminally ill can execute in advance, through which they can choose not to remain in a vegetative state with life support system if they enter into a state when it will not be possible for them to express their wishes. Such a document could then be presented to a hospital for appropriate action in the event the executant’s health worsens.With respect to an advance directive, the judgment had given specific guidelines on the following: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 .The matter was then listed again to address some legal questions surrounding the practice as well as guidelines towards enforcement..The Constitution bench at the outset said that since it is not hearing a review application, it will only consider improving existing guidelines and regulations till a law is enacted.During the hearing of the matter this week, Justice Joseph said that the regulations regarding passive euthanasia and living will of terminally ill patients are an issue affecting only a small section of Indians who choose and can afford to avail advanced treatment.However, advocate Prashant Bhushan, for the petitioners, emphasised that everyone has an indefeasible right to refuse treatment.Advocate RR Kishore, who served as Amicus Curiae for the previous Constitution bench, pointed out that there were grey areas regarding the definitions of critical illness, death and vegetative state and the same would need to be addressed. Senior Advocate Arvind Datar contended that the main safeguard that required to be institutionalised was 'advance directive'. He added that the idea was to aid people who have lost their decision-making capabilities.Justice Roy had indicated his agreement to the argument that 'advance directive' should be made effective when no further treatment is viable, saying,"Dying in peace should be as per our wish. Life with dignity."Two doctors from Safdarjung Hospital, who were also to asked make their submissions, said that the process is cumbersome..Justice Justice also flagged the possible misuse of guidelines by kin."Beware of it. Relatives might not want treatment to get to the wealth quicker." To this, Datar said that at present, the consent of the Magistrate as well as that of the Review Board is required.The ASG emphasised that checks and balances should exist. "Let us not be anxious to take someone's life."