‘Best interest over state interest’: Excerpts from SC judgment on passive euthanasia
A five-judge constitutional bench led by Chief Justice of India Dipak Misra upheld a person’s right to choose passive euthanasia by creating an Advance Medical Directive—commonly referred to as a living will.
The Supreme Court on Friday ruled that individuals have a right to die with dignity, in a verdict that permits the removal of life-support systems for the terminally ill or those in incurable comas.
Here are the excerpts from the judgment delivered by the five-member Supreme Court bench:
Chief Justice of India Dipak Misra and Justice AM Khanwilkar
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 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.
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 a component of the right to life and liberty.
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 (permanently vegetative state) with no hope of recovery.
A failure to legally recognise 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.
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 hereinbefore shall be applicable.
When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest.
The directive and guidelines shall remain in force till the Parliament brings a legislation in the field.
Justice AK Sikri
In (the) Aruna Ramachandra Shanbaug (case), a two-judge bench of this court discussed in much greater detail various nuances of euthanasia by referring to active and passive euthanasia as well as voluntary and involuntary euthanasia; legality and permissibility thereof; relationship of euthanasia vis-a-vis offences concerned under the IPC and doctor assisted death; etc. The court also took note of legislations in some countries relating to euthanasia or physician-assisted death.
The question that arises at this juncture is as to whether right to life enshrined in Article 21 of the Constitution includes right to die. If such a right is recognised, that would provide immediate answer to the issue involved, which is pertaining to voluntary or passive euthanasia. However, the judgments of this court, as discussed hereinafter, would demonstrate that no straightforward answer is discernible and, as observed above, the position regarding euthanasia is somewhat complex in the process.
The legal position which stands as of today is that right to life does not include right to die. It is in this background we have to determine the legality of passive euthanasia.
I may add that the issue is not purely a legal one. It has moral and philosophical overtones. It has even religious overtones.
Life is mortal. It is transitory. It is as fragile as any other object. It is a harsh reality that no human being, or for that matter, no living being, can live forever. Nobody knows how long he/she will be able to live.
The gospel truth is that everybody has to die one day, notwithstanding the pious wish of a man to live forever. As Woody Allen said once: “I do not want to achieve immortality through my work. I want to achieve it through not dying.” At the same time, nobody wants to have a tragic end to life. We all want to leave the world in a peaceful manner. In this sense, the term ‘euthanasia’ which has its origin in Greek language signifies ‘an easy and gentle death’.
Euthanasia is one such critical issue where the law relating to it cannot be divorced from morality
This court acknowledges its awareness of the sensitive and emotional nature of euthanasia controversy, and the vigours of opposing views, even within the medical fraternity, and seemingly absolute convictions that the subject inspires. This is so demonstrated above while discussing philosophical, moral, ethical and religious overtones of the subject involved. These valid aspects, coupled with one’s attitude towards life and family and their values, are likely to influence and to colour one’s thinking and conclusions about euthanasia. Notwithstanding the same, these aspects make the case as ‘hard case’. However, at the end of the day, the court is to resolve the issue by constitutional measurements, free of emotion and of predilection
Having regard to the aforesaid 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 a patient is in PVS and he is terminally ill, where the condition is irreversible or where he is brain dead, can be permitted. On the aforesaid reasoning.
My last remarks are a pious hope that the legislature would step in at the earliest and enact a comprehensive law on ‘living will/advance directive’ so that there is a proper statutory regime to govern various aspects and nuances thereof which also take care of the apprehensions that are expressed against euthanasia.
Justice DY Chandrachud
The court is above all engaged in the task of expounding the Constitution. In doing so, we have been confronted with the enormous task of finding substance and balance in the relationship between life, morality and the experience of dying. The reason which has impelled the court to recognise passive euthanasia and Advance Directives is that both bear a close association to the human urge to live with dignity. Age brings isolation. Physical and mental debility bring a loss of self worth.
Pain and suffering are accompanied by a sense of being helpless. The loss of control is compounded when medical intervention takes over life. Human values are then lost to technology. More significant than the affliction of ageing and disease is the fear of our human persona being lost in the anonymity of an intensive care ward. It is hence necessary for this court to recognise that our dignity as citizens continues to be safeguarded by the Constitution even when life is seemingly lost and questions about our own mortality confront us in the twilight of existence.
The sanctity of human life is the arterial vein which animates the values, spirit and cellular structure of the Constitution. The Constitution recognises the value of life as its indestructible component. The survival of the sanctity principle is founded upon the guarantees of dignity, autonomy and liberty.
The right to a dignified existence, the liberty to make decisions and choices, and the autonomy of the individual are central to the quest to live a meaningful life.
Liberty, dignity and autonomy are essential to the pursuit of happiness and to find meaning in human existence; i) The entitlement of each individual to a dignified existence necessitates constitutional recognition of the principle that an individual possessed of a free and competent mental state is entitled to decide whether or not to accept medical treatment. The right of such an individual to refuse medical treatment is unconditional. Neither the law nor the Constitution compel an individual who is competent and able to take decisions, to disclose the reasons for refusing medical treatment nor is such a refusal subject to the supervisory control of an outside entity.
While upholding the legality of passive euthanasia (voluntary, non-voluntary) and in recognising the importance of advance directives, the present judgment draws sustenance from the constitutional values of liberty, dignity, autonomy and privacy.
Justice Ashok Bhushan
The Constitution bench in Gian Kaur’s 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 up to the point of death including a dignified procedure of death. The above right was held to be part of fundamental right enshrined under Article 21 of the Constitution, which we also reiterate.
We agree with the observation made in the reference order of the three-judge bench to the effect that the Constitution bench in Gian Kaur’s case did not express any binding view on the subject of euthanasia. We hold that no binding view was expressed by the Constitution bench 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 later was held not to be covered under any right flowing from Article 21. Thus, the law of the land as existing today is that 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.
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.
Euthanasia, as the meaning of word suggests, is an act which leads to a good death. Some positive act is necessary to characterise the action as euthanasia. Euthanasia is also commonly called “assisted suicide” due to the above reasons.
We are thus of the opinion that the right not to take a life-saving treatment by a person, who is competent to take an informed decision, is not covered by the concept of euthanasia as it is commonly understood... The right of patient who is incompetent to express his view cannot be outside of fold of Article 21 of the Constitution of India.
We also are of the opinion that in cases of incompetent patients who are unable to take an informed decision, “the best interests principle” be applied and such decisions be taken by specified competent medical experts and be implemented after providing a cooling period to enable aggrieved person to approach the court of law.
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 loses capacity to take a decision. The right to execute an advance medical directive is nothing but a step towards protection of aforesaid right by an individual.
The right to die with dignity as a fundamental right has already been declared by the Constitution bench judgment of this court in Gian Kaur case (supra) which we reiterate.
We declare that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life-saving devices. A person of competent mental faculty is entitled to execute an advance medical directive in accordance with safeguards.