PASSIVE EUTHANASIA ACCEPTED BY THE SUPREME COURT

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A five-Judge Constitution Bench of the Supreme Court of India has recently in a Judgment Common Cause vs. Union of India and Another dated 09.03.2018 upheld that the fundamental right to life and dignity includes the right to refuse medical treatment and die with dignity under Article 21 of the Constitution of India.

Herein, a Writ Petition was filed under Article 32 of the Constitution by the Petitioner seeking declaration that right to die with dignity comes within the fold of right to live with dignity guaranteed under Article 21 of the Constitution. On the other hand, the States had argued that saving a life is the primary duty of the State and that Article 21 of the Constitution means availability of food, shelter and health and does not include the right to die with dignity.

The Supreme Court herein has analyzed the case and concluded as follows:

Euthanasia is an intentional premature termination of another person‘s life either by direct intervention (active euthanasia) or by withholding life-prolonging measures and resources (passive euthanasia) either at the express or implied request of that person (voluntary euthanasia) or in the absence of such approval/consent (non-voluntary euthanasia). Further, that euthanasia is an act which leads to a good death.

The Supreme Court in Gian Kaur vs. State of Punjab 1996 SCC (2) 648, had observed that the following constitute a right to live with dignity:

i) right of a dying man to die with dignity when the life is ebbing out, and

ii) in the case of a patient terminally ill or in a persistent vegetative state (PVS), where there is no hope for recovery, the acceleration of process of death to reduce the pain and suffering.

Further, that the Supreme Court in Gian Kaur (supra) has not held that passive euthanasia can be introduced only by way of legislation.

The advancement in medical science and technology has made it possible to prolong the death of patients. A patient, terminally ill or in a PVS, who has come of age and is of sound mind has a right to refuse a specific medical treatment, or all treatment or opt for an alternative treatment, to avoid protracted physical suffering even if entails a risk of death. This is different from an act of suicide, which is a self initiated act with an intent to cause one’s own death. Whereas, a patient refusing medical treatment would merely allow 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.

Whereas, in cases of incompetent patients who are unable to take an informed decision, the Supreme Court herein held that “the best interests principle” may be applied and such   decision   be   taken   by   specified   competent   medical experts. It may be implemented after providing a cooling period to enable the aggrieved person to approach the court of law. Also, there are advance medical directives which are used across other jurisdictions in such cases. For instance, a living will, medical power of attorney, etc which are documents which prescribe the wishes of a person regarding the medical treatment he/she would want if he/she was unable to share his/her wishes with the health care provider or appoint a trusted person to take health care decisions when the patient is not able to take such decisions.

Dignity of an individual has been internationally recognized as an important facet of human rights and the first and foremost responsibility of the State is to protect human dignity. The Supreme Court in S. Puttaswamy and another v. Union of India and others (2017) 10 SCC 1 has held that dignity has been reaffirmed to be a component under Article 21 of the Constitution.

Thus the Supreme Court herein has reiterated that right to life including right to live with human dignity is a part of Article 21 of the Constitution as held by the Supreme Court in Gian Kaur case and further held that the right to live with dignity including smoothening of the process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery/revival falls under the purview of Article 21 of the Constitution of India.

The Supreme Court, therefore, has by this Judgment dated 09.03.2018 made the choice and decision of a patient who is terminally ill or a person in PVS and undergoing a prolonged medical treatment or is surviving on life support, binding for the doctors subject to being satisfied that the illness of the patient is such that it is incurable and there is no hope of his being cured.

Harini Daliparthy

Senior Legal Associate