In a landmark judgment, the Supreme Court has recognised and given sanction to passive Euthanasia and living will/advance directive..The Court ruled that 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 judgment was delivered by a Bench of Chief Justice Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan. Chief Justice Misra and Justice AM Khanwilkar penned the majority judgment, while Justices AK Sikri, DY Chandrachud and Ashok Bhushan wrote separate concurring judgments..The Court also laid down guidelines governing execution and enforcement of advance directive, as well as the procedure to be followed for passive Euthanasia in case there is no living will/advance directive..In the process, the Court also ruled on the correctness of the two previous judgments – Gian Kaur v. State of Punjab and Aruna Suanbaug v. Union of India..Further, the Court also distinguished between active and passive euthanasia holding,.“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.”.The Court, inter alia, arrived at the following conclusions:.(i) A careful and precise perusal of the judgment in Gian Kaur (supra) case reflects the right of a dying man to die with dignity when life is ebbing out, and in the case of a terminally ill patient or a person in PVS, where there is no hope of recovery, accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity..(ii) The Constitution Bench in Gian Kaur (supra) has not approved the decision in Airedale (supra) inasmuch as the Court has only made a brief reference to the Airedale case..(iii) It is not the ratio of Gian Kaur (supra) that passive euthanasia can be introduced only by legislation..(iv) The two-Judge bench in Aruna Shanbaug (supra) has erred in holding that this Court in Gian Kaur (supra) has approved the decision in Airedale case and that euthanasia could be made lawful only by legislation..(v) 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..(vi) 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..(ix) Right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity. With the passage of time, this Court has expanded the spectrum of Article 21 to include within it the right to live with dignity as component of right to life and liberty.. (x) It has to be stated without any trace of doubt that the right to live with dignity also includes the smoothening of the process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery..(xi) 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. Further, 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.. (xii) 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.. (xiii) In the absence of Advance Directive, the procedure provided for the said category hereinbefore shall be applicable..With respect to an advance directive, the judgment gives 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 Court also ruled that in cases where there is no advance directive, the same procedure and safeguards will apply along with an additional procedure set out by the Court..A living will/ advance directive is a document which persons with deteriorating health or the terminally ill can execute in advance, whereby such a person can choose not to remain in a vegetative state with life support system if he/she goes into a state when it will not be possible for them to express their wishes. This document could then be presented to a hospital for appropriate action in the event the executant’s health worsens..The matter came before the Constitution Bench after a three-judge Bench referred the same to it..The three-judge Bench had held that though the Constitution Bench decision in Gian Kaur v. State of Punjab had held that the ‘right to live with dignity’ under Article 21 was inclusive of ‘right to die with dignity’, the decision did not arrive at a conclusion on the validity of Euthanasia, be it active or passive..Noting that the only judgment that held the field with regard to Euthanasia in India was Aruna Ramchandra Shanbaug v. Union of India – which had upheld the validity of passive Euthanasia and laid down an elaborate procedure for executing the same – the Court proceeded to hold that Aruna Shanbaug rested on the wrong premise that the Constitution Bench in Gian Kaur had upheld passive euthanasia..The Court also held that this particular issue had produced some inconsistent opinions. It had, therefore, referred the matter to the Constitution Bench..The guidelines of the Supreme Court will remain in force till a law is enacted by Parliament. The Central government has already mooted a bill governing passive euthanasia and “living power of attorney”..Read the judgment:
In a landmark judgment, the Supreme Court has recognised and given sanction to passive Euthanasia and living will/advance directive..The Court ruled that 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 judgment was delivered by a Bench of Chief Justice Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan. Chief Justice Misra and Justice AM Khanwilkar penned the majority judgment, while Justices AK Sikri, DY Chandrachud and Ashok Bhushan wrote separate concurring judgments..The Court also laid down guidelines governing execution and enforcement of advance directive, as well as the procedure to be followed for passive Euthanasia in case there is no living will/advance directive..In the process, the Court also ruled on the correctness of the two previous judgments – Gian Kaur v. State of Punjab and Aruna Suanbaug v. Union of India..Further, the Court also distinguished between active and passive euthanasia holding,.“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.”.The Court, inter alia, arrived at the following conclusions:.(i) A careful and precise perusal of the judgment in Gian Kaur (supra) case reflects the right of a dying man to die with dignity when life is ebbing out, and in the case of a terminally ill patient or a person in PVS, where there is no hope of recovery, accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity..(ii) The Constitution Bench in Gian Kaur (supra) has not approved the decision in Airedale (supra) inasmuch as the Court has only made a brief reference to the Airedale case..(iii) It is not the ratio of Gian Kaur (supra) that passive euthanasia can be introduced only by legislation..(iv) The two-Judge bench in Aruna Shanbaug (supra) has erred in holding that this Court in Gian Kaur (supra) has approved the decision in Airedale case and that euthanasia could be made lawful only by legislation..(v) 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..(vi) 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..(ix) Right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity. With the passage of time, this Court has expanded the spectrum of Article 21 to include within it the right to live with dignity as component of right to life and liberty.. (x) It has to be stated without any trace of doubt that the right to live with dignity also includes the smoothening of the process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery..(xi) 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. Further, 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.. (xii) 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.. (xiii) In the absence of Advance Directive, the procedure provided for the said category hereinbefore shall be applicable..With respect to an advance directive, the judgment gives 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 Court also ruled that in cases where there is no advance directive, the same procedure and safeguards will apply along with an additional procedure set out by the Court..A living will/ advance directive is a document which persons with deteriorating health or the terminally ill can execute in advance, whereby such a person can choose not to remain in a vegetative state with life support system if he/she goes into a state when it will not be possible for them to express their wishes. This document could then be presented to a hospital for appropriate action in the event the executant’s health worsens..The matter came before the Constitution Bench after a three-judge Bench referred the same to it..The three-judge Bench had held that though the Constitution Bench decision in Gian Kaur v. State of Punjab had held that the ‘right to live with dignity’ under Article 21 was inclusive of ‘right to die with dignity’, the decision did not arrive at a conclusion on the validity of Euthanasia, be it active or passive..Noting that the only judgment that held the field with regard to Euthanasia in India was Aruna Ramchandra Shanbaug v. Union of India – which had upheld the validity of passive Euthanasia and laid down an elaborate procedure for executing the same – the Court proceeded to hold that Aruna Shanbaug rested on the wrong premise that the Constitution Bench in Gian Kaur had upheld passive euthanasia..The Court also held that this particular issue had produced some inconsistent opinions. It had, therefore, referred the matter to the Constitution Bench..The guidelines of the Supreme Court will remain in force till a law is enacted by Parliament. The Central government has already mooted a bill governing passive euthanasia and “living power of attorney”..Read the judgment:
