Common Cause vs. Union of India and Another (2018)

Background

The Law Commission submitted 196th report on The Medical Treatment of Terminally-ill Patients (Protection of Patients and Medical Practitioners) Bill,
2006. Ministry of Health and Family Welfare was not in favour of the enactment. Earlier here, various aspects related to euthanasia were discussed in brief.

Aruna Ramachandra Shanbaug v. Union of India and others ,  (2011) 4 SCC 454

The writ petition was filed by the next friend of the petitioner pleading, inter alia, that the petitioner was suffering immensely because of an incident that took place thirty six years back on 27.11.1973 and was in a Persistent Vegetative State (PVS) and in no state of awareness and her brain was
virtually dead. The prayer of the next friend was that the respondent be directed to stop feeding the petitioner and to allow her to die peacefully.

The Court noticed that there was some variance in the allegation made in the writ petition and the counter affidavit filed by the Professor and Head of the
hospital where the petitioner was availing treatment. The Court appointed a team of three very distinguished doctors to examine the petitioner thoroughly and to submit a report about her physical and mental condition. The team submitted a joint report. The Court asked the team of doctors to submit
a supplementary report by which the meaning of the technical terms in the first report could be explained. The Hon’ble Court observed that euthanasia could be made lawful only by legislation.

After the judgment of Aruna Shanbaug was delivered, the Law Commission in its 241st Report in 2016 titled ―Passive Euthanasia – A Relook proposed for making a legislation on Passive Euthanasia.

Present case

Date of Decision– 9 March,2018

Contentions of the Petitioner

The instant Writ Petition has been filed under Article 32 of the Constitution of India by the petitioner, a registered society.

  •  Every individual is entitled to take his/her decision about the continuance or discontinuance of life when the process of death has already commenced and he/she has reached an irreversible permanent progressive state where death is not far away.
  • Each individual has an inherent right to die with dignity which is an inextricable facet of Article 21 of the Constitution.
  • Due to the advancement of modern medical technology pertaining to
    medical science and respiration, a situation has been created
    where the dying process of the patient is unnecessarily prolonged causing distress and agony to the patient as well as to the near and dear ones and, consequently, the patient is in a persistent vegetative state thereby allowing free intrusion.
  • The execution of a living will or issuance of advance directive has
    become a necessity in today‘s time keeping in view the
    prolongation of treatment in spite of irreversible prognosis and
    owing to penal laws in the field that creates a dilemma in the
    minds of doctors to take aid of the modern techniques in a
    case or not.

The petitioner claimed the following reliefs –

  • to declare the right to die with dignity as a fundamental right within the fold of ―right to live with dignity guaranteed under Article 21 of the Constitution;
  • to issue directions to the respondents to adopt a suitable procedure in consultation with the State Governments, where necessary;
  • to ensure that persons of deteriorated health or terminally ill patients should be able to execute a document titled ―My Living Will and Attorney Authorisation which can be presented to the hospital for appropriate action in the event of the executant being admitted to the hospital with serious illness which may threaten termination of the life of the executant;
  • to appoint a committee of experts including doctors, social scientists and lawyers to study into the aspect of issuing guidelines as to the Living Wills;
  • and to issue such further appropriate directions and guidelines as may be necessary.

Contentions of the Respondents

  • The right to life does not include the right to die and, in any case, the right to live with dignity guaranteed under Article 21 of the
    Constitution means availability of food, shelter and health and
    does not include the right to die with dignity.
  • Saving the life is the primary duty of the State and, therefore, there is necessity for health care.

Contentions of Society for the Right to Die with Dignity

Society for the Right to Die with Dignity had filed an application for intervention and prayer for intervention was allowed –

  • In the modern State, the State interest should not over-weigh the individual interest in the sphere of a desire to die a peaceful death which
    basically conveys refusal of treatment when the condition of
    the individual suffering from a disease is irreversible.
  • Emphasis has been laid on peaceful exit from life and the freedom of choice not to live and particularly so under distressing conditions
    and ill-health which lead to an irrecoverable state. The management of terminally ill patients has been put at the centre stage.

Decision of the Court (Para 195)

In view of the aforesaid analysis, we record our conclusions in seriatim:-
(i) A careful and precise perusal of the judgment in Gian Kaur 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  has not approved the decision in Airedal inasmuch as the Court has only made a brief reference to the Airedale case.
(iii) It is not the ratio of Gian Kaur that passive euthanasia can be introduced only by legislation.
(iv) The two-Judge bench in Aruna Shanbaug has erred in holding that this Court in Gian Kaur 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.
(vii) Post Aruna Shanbaug , the 241st report of the Law Commission of India on Passive  Euthanasia has also recognized passive euthanasia, but no law has been enacted.
(viii) An inquiry into common law jurisdictions reveals that all adults with capacity to consent have the right of self- determination and autonomy. The said rights pave the way for the right to refuse medical treatment which has acclaimed universal recognition. A competent person who has come of
age has the right to refuse specific treatment or all treatment or opt for an alternative treatment, even if such decision entails a risk of death. 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.
(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. (as laid down in detail in para 191)
(xiv) When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest.

Observations of the Apex Court

  • The question that emerges is whether a person should be allowed to remain in such a stage of incurable passivity suffering from pain and anguish in the name of Hippocratic oath or, for that matter, regarding the suffering as only a state of mind and a relative perception or treating the utterance of death as a ―word infinitely terrible to be a rhetoric without any meaning. In contradistinction to the same, the question that arises is should he not be allowed to cross the doors of life and enter, painlessly and with dignity, into the dark tunnel of death whereafter it is said that there is resplendence. In delineation of such an issue, there emerges the question in law – should he or she be given such treatment which has come into existence with the passage of time and progress of medical technology so that he/she exists possibly not realizing what happens around him/her or should his/her individual dignity be sustained with concern by smoothening the process of dying. (Para 3)
  • The legal question does not singularly remain in the set framework of law but also encapsulates social values and the family mindset to make a resolute decision which ultimately is a cause of concern for all. (Para 4)
  • The apprehension, the cultural stigma, the social reprehension, the allegation of conspiracy, the ethical dilemma and eventually the shadow between the individual desire and the collective expression distances the reality and it is here that the law has to have an entry to alleviate the agony of the individual and dispel the collective attributes and perceptions so that the imbroglio is clear. Therefore, the heart of the matter is whether the law permits for accelerating the process of dying sans suffering when life is on the path of inevitable decay and if so, at what stage and to what extent. The said issue warrants delineation from various perspectives. (Para 5)
  • Enquiring into common law and statutory rights of terminally ill persons in other jurisdictions would indicate that all adults with the capacity to consent have the common law right to refuse medical treatment and the right of self determination. (Para 168)
  • We may, however, add a word of caution that doctors would be bound 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. Any other consideration cannot pass off as being in the best interests of the patient. (Para 169)
  • It is to be borne in mind that passive euthanasia fundamentally connotes absence of any overt act either by the patient or by the doctors. It also does not involve any kind of overt act on the part of the family members. It is avoidance of unnecessary intrusion in the physical frame of a person, for the inaction is meant for smooth exit from life. It is paramount for an individual to protect his dignity as an inseparable part
    of the right to life which engulfs the dignified process of dying sans pain, sans suffering and, most importantly, sans in dignity. (Para 172)

Author’s Comments

A transition in the approach of the Apex Court in last couple of years on right to die is evident. The time has come when Court has finally laid down the framework for Advance Directive. The response of the judiciary to the plight of terminally ill patients and their right under Article 21 ,Constitution of India resulted in detailed guidelines in the present case.

Image from here

Bhumika Sharma

She is currently a Research Scholar, (PhD) at Himachal Pradesh University, Shimla. She finds peace in writing and researching on a variety of social issues. She believes in the power of education and awareness to deal with various problems.

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